MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before FILED any court except for the purpose of Jun 25 2019, 9:27 am
establishing the defense of res judicata, CLERK Indiana Supreme Court collateral estoppel, or the law of the Court of Appeals and Tax Court case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Terry L. Lynem Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Terry L. Lynem, June 25, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-1028 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc Rothenberg, Appellee-Respondent. Judge The Honorable Amy J. Barbar, Magistrate Trial Court Cause No. 49G02-0812-PC-288157
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 1 of 21 [1] Terry L. Lynem appeals the denial of his petition for post-conviction relief. We
affirm.
Facts and Procedural History
[2] The relevant facts and procedural history as discussed in Lynem’s direct appeal
follow:
The evidence most favorable to the convictions reveals that Gregory Arnold, Jr., owns Big Engine Entertainment, a recording studio in Indianapolis. On December 18, 2008, a number of people were at the studio, including some of Arnold’s relatives, friends, employees, and children. Arnold had known Lynem for about ten years.
During the evening, Arnold’s sister Shontez Simmons was outside smoking a cigarette when she was approached and greeted by her cousins Antwane Walker and Antonio Walker. Antwane and Antonio went into the studio but came right back out. Soon thereafter, Antwane and Antonio returned, accompanied by Lynem, Curtis Stokes, Johnnie Stokes, and a man named Marcus whose last name is unknown. Johnnie was carrying a black trash bag.
Once inside the studio, Antwane and Antonio went into Arnold’s office, where he was with Andrew Steele. Antwane and Antonio greeted Arnold, then asked to speak to Steele in the hallway. Once all three were in the hallway, Antonio pulled out a handgun, put it in Steele’s face, and said “Get down, you know what this is.” Tr. p. 479. Meanwhile, at the same time Johnnie, who was also in the hallway, pulled an assault rifle out of the trash bag he was carrying and began firing it, also saying “Get down, you know what this is.” Id. at 480. Arnold managed to close the door to his office, after Antwane initially had prevented him from doing so. He then retrieved a handgun, opened his office door, and fired at Antonio.
While this was occurring, Lynem and Marcus approached Big Engine employee Edriese Phillips. Lynem had been friends with
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 2 of 21 Phillips for several years. Lynem pointed a revolver at Phillips’s stomach, and he and Marcus demanded that Phillips “[c]ome on with that s--- out of your pockets.” Tr. p. 402. When Phillips said he had nothing in his pockets, Lynem struck him in the face with the revolver, breaking Phillips’s glasses. Lynem or Marcus then reached into Phillips’s pockets and removed $200. 1
Lynem, Antwane, Antonio, Curtis, Johnnie, and Marcus left the building, with Antwane firing towards it as he left. After the shooting stopped and people began calling 911, it was discovered that Big Engine employee Collin Moore had been shot, leaving him paralyzed. Police officers dispatched after the incident soon located Lynem, Antwane, and Curtis walking together down a street near the studio. Eight days after the incident, Johnnie called Arnold and offered him $5000 in exchange for Arnold agreeing not to “press charges.” Id. at 524.
On December 22, 2008, the State charged Lynem with one count of Class A felony attempted robbery, one count of Class B felony robbery, eight counts of Class B felony attempted robbery, one count of Class C felony battery, one count of Class C felony criminal recklessness, and one count of Class A misdemeanor carrying a handgun without a license. The State later filed an allegation that Lynem is an habitual offender.
A jury trial was held on March 9 through 13, 2009, for Lynem and four co-defendants. The trial court granted Lynem’s motion for a directed verdict on three of the Class B felony attempted robbery counts, and the jury found him guilty of the remaining counts. Lynem waived a jury trial on the habitual offender allegation, and the trial court found that he is an habitual offender. The trial court sentenced Lynem as follows: thirty years for Count I, the Class A felony attempted robbery conviction, enhanced by thirty years for the habitual offender finding; twenty years for Count II, the Class B felony robbery conviction, consecutive to Count I; ten years for
1 It is unclear from Phillips’s testimony whether Lynem or Marcus reached into his pockets and removed the money.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 3 of 21 each of the five Class B felony attempted robbery convictions, concurrent with Count I; eight years for the Class C felony battery and criminal recklessness convictions, concurrent with each other but consecutive to Count II; and one year for the Class A misdemeanor carrying a handgun conviction, to be served consecutively. Thus, the aggregate sentence was eighty-nine years.
Lynem v. State, No. 49A04-0905-CR-274, slip op. at 1-2 (Ind. Ct. App.
December 17, 2009).
[3] On direct appeal, Lynem raised several arguments including that the trial court
acted improperly after being advised the jury had been exposed to potentially
prejudicial extraneous information during trial, the court erred in denying his
motion for mistrial on the basis it failed to admonish the jurors after questioning
them, the evidence was insufficient to support his convictions, the court abused
its discretion in failing to find a mitigating circumstance, and his aggregate
sentence is inappropriate. See id. at 2-7. With respect to his sufficiency of the
evidence claim, Lynem argued that Edriese Phillips’s testimony was incredibly
dubious, inconsistent in some respects with statements he made to police, and
varied from the testimony of some of the other witnesses in various particulars
of precisely what occurred on the night of the incident. Id. at 5. We observed
“it was not necessary for all of the State’s witnesses to agree on every detail of
what occurred during what was unquestionably a chaotic incident involving
many people” and “[w]hat is important is that Phillips’s trial testimony was
internally consistent, and he adhered to his testimony directly implicating
Lynem in the mass robbery, despite vigorous cross-examination.” Id. We also
observed that Phillips’s testimony was not entirely uncorroborated; that
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 4 of 21 Shontez Simmons testified “that she saw Lynem walk into the building with
Antonio, Antwane, Curtis, Johnnie, and Marcus”; that, shortly thereafter,
Simmons heard gunfire erupting and ran away from the studio; and, soon after
the incident, police apprehended Lynem as he was walking in a group with
Antwane and Curtis near the studio. Id. at 6. We noted that any
inconsistencies in the evidence, or the weight to be given Phillips’s testimony,
were for the jury to consider, held that there was sufficient evidence to support
Lynem’s convictions, and affirmed. Id. at 6, 8.
[4] Lynem filed a petition for post-conviction relief as amended in October 2015
alleging that his trial counsel allowed the State to admit part of a key witness’s
affidavit by stipulation of the parties; that the witness’s statement to police,
however, provided additional exculpatory evidence for him; that his counsel
was deficient in failing to introduce this additional evidence; and that his
counsel entering into the stipulation without his consent amounts to her failure
to call an important witness which may constitute deficiency. Lynem also
argued that he received ineffective assistance of appellate counsel and that his
counsel “should have made a wider sufficiency argument like those raised” by
his co-defendants which resulted in the reversal of certain attempted robbery
convictions. 2 Appellant’s Appendix Volume 2 at 51.
2 Curtis Stokes, Antonio Walker, and Johnnie Stokes, on direct appeal, challenged the sufficiency of the evidence as to their intent to rob certain victims. With respect to Curtis Stokes and Antonio Walker, on direct appeal different panels of this Court affirmed the attempted robbery conviction related to victim Collin Moore and reversed the attempted robbery convictions related to victims Gregory Arnold Jr. (“Arnold Jr.”), Fred Winfield, Shantell Williams, and Earnest Phillips. See Antonio Walker v. State, 49A02-0905-CR-432, slip
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 5 of 21 [5] The post-conviction court, at a hearing, mentioned that Lynem’s trial counsel
had been ill and was not present. Lynem presented Collin Moore’s statement
to police. 3 Lynem also presented the testimony of his appellate counsel on
direct appeal, Attorney Matthew Anglemeyer. When asked why he limited his
sufficiency of the evidence argument “to only one witness, Edriese Phillips,”
Attorney Anglemeyer testified “that, at that time, was what I perceived to be
your best chance of success.” Supplemental Transcript Volume II at 23-24. He
op. at 7-10 (Ind. Ct. App. April 13, 2010) (holding “[t]he commands by Walker and Johnnie Stokes to ‘Get down. You know what this is,’ are without more too ambiguous to support a reasonable inference that Walker and his co-defendants intended to rob each of the alleged victims” but finding the fact that Moore “was directly ordered to ‘get down’ supports a reasonable inference that Walker and his co-defendants intended to rob him”), trans. denied; Curtis Stokes v. State, 919 N.E.2d 1240, 1246-1248 (Ind. Ct. App. 2010) (holding Antonio Walker’s and Johnnie Stokes’s “commands, ‘Get down. You know what this is,’ are, without more, too ambiguous to support a reasonable inference that Stokes and his codefendants intended to rob each of the alleged attempted robbery victims” but holding the fact that Moore “was singled out and directly ordered to ‘get down’ supports a reasonable inference that the perpetrators intended to rob him, but were interrupted when gunfire erupted” and affirming the conviction for the attempted robbery of Moore), trans. denied. With respect to Johnnie Stokes, another panel of this Court reversed the attempted robbery convictions related to Arnold Jr., Winfield, Shantell Williams, and Earnest Phillips and, in a split decision, also reversed the conviction related to victim Moore. See Johnnie Stokes v. State, 922 N.E.2d 758, 764-766 (Ind. Ct. App. 2010) (agreeing with Curtis Stokes that the evidence was insufficient to support four of the five class B felony attempted robbery convictions, concluding that the perpetrators lacked the requisite intent to rob those four alleged victims, and also vacating Johnnie’s conviction for the attempted robbery of Moore, finding the evidence did not support a reasonable inference that the perpetrators intended to specifically rob him), trans. denied; see also Johnnie Stokes, 922 N.E.2d at 766-767 (Vaidik, J., dissenting in part and writing that she believed the evidence was sufficient to affirm the conviction for the attempted robbery of Moore). We note that Antwane Walker did not challenge the sufficiency of the evidence on direct appeal, and this Court affirmed all of his attempted robbery convictions. Antwane Walker v. State, No. 49A02-0904-CR-344 (Ind. Ct. App. December 8, 2009). As we discuss later in this decision, we subsequently affirmed the denial of Antwane Walker’s petition for post-conviction relief. Antwane Walker v. State, No. 49A02-1112-PC-1173 (Ind. Ct. App. July 19, 2012), trans. denied. 3 Petitioner’s Exhibit 2 contains the transcript of an interview of Moore by a detective. Moore indicated that he did not know how many men in total were involved, he did not recognize any of them, and they had guns and he was trying not to look at them. The interview transcript also reveals that Moore was shown a photo array and asked if he recognized anyone, stated “I recognize a lot of people . . . but I’m saying I don’t . . . remember seeing them there,” stated that he knew “number six” and “[w]e pretty good friends,” and when asked “[b]ut you don’t recall if he was there or not,” answered “[n]o I don’t remember seeing him at all.” Petitioner’s Exhibit 2 at 6-7. The name “Terry” is written on the interview transcript and appears to indicate that Moore was referencing Lynem. Id. at 6.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 6 of 21 testified: “I spoke with your trial counsel, . . . and in that conversation she and I
agreed that Mr. Phillips’ testimony, since it vacillated quite a bit and had some
internal inconsistencies, that Incredible Dubiosity would be appropriate and
proper for him. As to any other insufficient claims, I didn’t believe that those
would have been as meritorious nor did they have the chance for success on
appeal as did . . . attacking Mr. Phillips’ testimony.” Id. at 24-25. When asked
“[s]o you’re saying his was more stronger than . . . the other . . . arguments on
anything,” he replied “[c]orrect.” Id. at 24. Attorney Anglemeyer further
testified that “the testimony of one witness . . . is sufficient to convict you,”
“that person was Edriese Phillips and that’s why I chose to attack that person’s
testimony,” “[s]imply because other witnesses did not testify that you were
there doesn’t mean that you were not there,” “[o]ne witness placed you there,”
“[t]hat witness was Edriese Phillips,” “[t]hat’s why I chose to attack his
testimony as incredibly dubious because if his testimony was incredibly
dubious, then the only witness who placed you at that scene was incorrect and
your convictions would be overturned,” and “[t]hat’s why I chose that specific
issue.” Id. at 26. Lynem asked Attorney Anglemeyer if he was familiar with
the direct appeal opinions of his co-defendants, and Attorney Anglemeyer
replied affirmatively. Lynem then asked why he did not raise the issues that
were successful for his co-defendants in their appeals, and Attorney
Anglemeyer answered “I don’t recall that. I’m sorry.” Id. at 29.
[6] The post-conviction court denied Lynem’s petition. It noted that Lynem was
unable to procure the testimony of trial counsel because of her ongoing health
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 7 of 21 issues. (70) It found that Moore was unable to testify at trial; “[i]n lieu of his
live testimony, the trial counsels and the State entered into a joint stipulation
regarding his testimony” admitted at trial as State’s Exhibit 75; the stipulation
indicated Moore would have testified that he was present at the incident at the
studio, during which he was ordered to the ground, heard multiple gunshots,
and suffered a gunshot wound; and the stipulation also provided that no
property was taken from Moore and he was unable to identify any of the people
who perpetrated the crime. Appellant’s Appendix Volume 2 at 71. The court
found “it is apparent that entering into this stipulation was trial strategy that
was pursued by all five attorneys who represented the defendants in the case.”
Id. It found the stipulation was “a reasonable trial strategy which mitigated as
much risk as was possible in the circumstances,” the record indicates Moore
was unavailable “primarily due to health issues directly stemming from the
crimes,” and “[f]rom a defense standpoint, . . . the stipulation as entered,
presented his probable testimony by which he averred to the obvious fact that
he was injured in the incident, but while also acknowledging that he was unable
to identify any of the [sic] also while removing the specter of possibly emotional
impact of video testimony from a paralyzed crime victim.” Id. at 72. It also
found the only direct evidence the stipulation provided could likely have been
obtained through other witnesses such as medical service providers.
[7] With respect to Lynem’s claim of ineffective assistance of appellate counsel, the
post-conviction court noted that the background involves appellate decisions in
the cases of four of Lynem’s co-defendants, that this Court had found
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 8 of 21 insufficient evidence on four counts in two of his co-defendants’ cases, 4 that this
Court had found there was insufficient evidence on five counts in one of the co-
defendant’s cases, 5 and that, in one of the co-defendant’s cases, this Court, on
appeal from the denial of a petition for post-conviction relief, found no
ineffective assistance of appellate counsel for failure to raise an insufficiency of
the evidence claim. 6 The court found that Lynem’s appellate counsel testified
“that his decision on the issue he raised was a considered, strategic decision
made after reviewing the record, consulting with trial counsel, and reviewing
the applicable law” and he “considered the argument regarding all of the
robbery victims . . . to be not as meritorious.” Id. at 74-75. It found: “Given
that 3 of 4 panels of the Court of Appeals have differed in their analyses of the
ineffective issue, 7 it is a strong indicator that the unraised issue is not so strong
or obvious as to require a reversal or new trial. And of those panels, only one
found insufficiency on the count that would make any difference in [Lynem’s]
sentence.” Id. at 75. The court concluded, “[b]ased on the record available at
the time of the appeal, appellate counsel’s choice of issues to present on appeal
4 See Antonio Walker, 49A02-0905-CR-432; Curtis Stokes, 919 N.E.2d 1240. The post-conviction court found that, because the sentences for the vacated counts had been ordered to be served concurrent with other counts, there was no impact on the sentences in these cases. 5 See Johnnie Stokes, 922 N.E.2d 758. The post-conviction court noted that Johnnie Stokes’s sentence was reduced from seventy-four years to forty-four years. 6 See Antwane Walker, No. 49A02-1112-PC-1173. 7 It appears the post-conviction court intended to reference the sufficiency of the evidence issue.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 9 of 21 was a reasonable exercise of judgment which did not fall below the professional
norm.” Id.
Discussion
[8] Before addressing Lynem’s allegations of error, we observe that Lynem is
proceeding pro se. Such litigants are held to the same standard as trained
counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
We also note the general standard under which we review a post-conviction
court’s denial of a petition for post-conviction relief. The petitioner in a post-
conviction proceeding bears the burden of establishing grounds for relief by a
preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);
Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse
the judgment unless the evidence as a whole unerringly and unmistakably leads
to a conclusion opposite that reached by the post-conviction court. Id. “A post-
conviction court’s findings and judgment will be reversed only upon a showing
of clear error – that which leaves us with a definite and firm conviction that a
mistake has been made.” Id. In this review, we accept findings of fact unless
clearly erroneous, but we accord no deference to conclusions of law. Id. The
post-conviction court is the sole judge of the weight of the evidence and the
credibility of witnesses. Id.
[9] Lynem claims his trial counsel and appellate counsel rendered ineffective
assistance. Generally, to prevail on a claim of ineffective assistance of counsel Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 10 of 21 a petitioner must demonstrate both that his counsel’s performance was deficient
and that the petitioner was prejudiced by the deficient performance. French v.
State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient
if it falls below an objective standard of reasonableness based on prevailing
professional norms. Id. To meet the appropriate test for prejudice, the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).
Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at
824. Most ineffective assistance of counsel claims can be resolved by a
prejudice inquiry alone. Id.
[10] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). Counsel’s performance is
presumed effective, and a defendant must offer strong and convincing evidence
to overcome this presumption. Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002).
Evidence of isolated poor strategy, inexperience, or bad tactics will not support
a claim of ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206,
1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S. Ct. 1438 (1997).
“Reasonable strategy is not subject to judicial second guesses.” Burr v. State,
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 11 of 21 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly speculate as to what may
or may not have been an advantageous trial strategy as counsel should be given
deference in choosing a trial strategy which, at the time and under the
circumstances, seems best.” Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998). In
order to prevail on a claim of ineffective assistance due to the failure to object,
the defendant must show a reasonable probability that the objection would have
been sustained if made. Passwater v. State, 989 N.E.2d 766, 772 (Ind. 2013).
[11] We apply the same standard of review to claims of ineffective assistance of
appellate counsel as we apply to claims of ineffective assistance of trial counsel.
Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied,
531 U.S. 1128, 121 S. Ct. 886 (2001). Ineffective assistance of appellate counsel
claims fall into three categories: (1) denial of access to an appeal; (2) waiver of
issues; and (3) failure to present issues well. Garrett v. State, 992 N.E.2d 710,
724 (Ind. 2013). To show that counsel was ineffective for failing to raise an
issue on appeal thus resulting in waiver for collateral review, the defendant
must overcome the strongest presumption of adequate assistance, and judicial
scrutiny is highly deferential. Id. To evaluate the performance prong when
counsel waived issues upon appeal, we apply the following test: (1) whether the
unraised issues are significant and obvious from the face of the record and (2)
whether the unraised issues are clearly stronger than the raised issues. Id. If the
analysis under this test demonstrates deficient performance, then we evaluate
the prejudice prong which requires an examination of whether the issues which
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 12 of 21 appellate counsel failed to raise would have been clearly more likely to result in
reversal or an order for a new trial. Id.
A. Trial Counsel
[12] Lynem asserts that his trial counsel was ineffective for entering into the
stipulation admitted as State’s Exhibit 75 and that the stipulation withheld
additional exculpatory evidence, including the fact that Moore picked Lynem
out of a photo array as not being present at the studio. The State maintains that
Moore’s live testimony would have exposed the jury to the harsh reality of his
paralysis and that, under these circumstances, stipulating to his testimony was a
reasonable trial strategy. It also maintains Lynem did not show that he
disapproved of or was prejudiced by the stipulation and that, as Moore did not
identify him as a perpetrator, the only incriminatory evidence was that Moore
suffered very serious injuries, which could have been presented without the
stipulation through other witnesses. The State further argues there is no
indication that it would have agreed to include any additional statements from
Moore’s police statement in the stipulation and that, even if admitted, the
additional statements would have carried little exculpatory value in part
because Moore did not know how many people were involved and had
minimal opportunity to view the perpetrators.
[13] State’s Exhibit 75 consists of an Agreed Stipulation as to Fact and Admissibility
and provides that the State’s witness Collin Moore was unavailable to testify
but that his testimony would have been as follows: he was present “during an
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 13 of 21 incident where individuals he was unable to identify entered the building and
engaged in gunfire”; during the incident “he was ordered to get on the ground
by individuals whom he was unable to identify”; he heard multiple gunshots; he
suffered a gunshot wound to his lower left abdomen, resulting in paralysis of
both of his legs; and no property was taken from his person. State’s Trial
Exhibit 75. To the extent Lynem points to statements Moore made during an
interview with a detective, he does not establish that the State would have
agreed to include any particular statements from the interview in the stipulation
or assert another basis for the admission of the statements into evidence. To the
extent he asserts his counsel should not have agreed to the stipulation, he does
not argue that Moore’s statement in the stipulation that he was unable to
identify the perpetrators was incorrect, and he does not show how he was
prejudiced by the admission of the stipulation. He has not established that he
received ineffective assistance of trial counsel.
B. Appellate Counsel
[14] Lynem contends his appellate counsel was ineffective in his decision not to
broaden the insufficiency of the evidence argument as to all of his attempted
robbery charges and that, as in his co-defendants’ cases, the State failed to show
he had intent to rob each individual present in the building. The State
maintains he is not entitled to relief and that Attorney Anglemeyer presented a
plausible argument in support of the claim that Edriese Phillips provided
inconsistent and uncorroborated testimony. It states that three of his co-
defendants successfully challenged the sufficiency of the evidence for the
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 14 of 21 attempted robbery convictions involving victims who were not directly
threatened but that “none of the co-defendants received a sentencing reduction
with regard to those counts because all defendants received sentences ordered
concurrent with the convictions related to Moore” and that “[o]nly co-
defendant Johnnie Stokes received a sentence reduction because one panel also
found insufficient evidence of intent to rob Moore even though Moore was
ordered to the ground and shot during the attempted robbery.” Appellee’s Brief
at 19. The State maintains that “the only other panel which considered whether
competent representation required raising these issues” found that Lynem’s co-
defendant Antwane Walker was not entitled to relief. Id. (citing Antwane
Walker, No. 49A02-1112-PC-1173). It argues “[t]he same result should be
reached here as Attorney Anglemeyer also reasonably believed such a claim
would have failed.” Id. at 20. It also argues, “[m]oreover, a review of the trial
transcript does support an argument that the co-defendants intended to rob
everyone at the recording studio, but abandoned that plan when one of the
victims produced a gun and started shooting,” “[s]uch an inference is supported
by the evidence that the co-defendant[s] were working together and were
robbing different people in the building,” and “[t]he jury could reasonably find
that [Lynem] and his co-defendants would have robbed the other persons as
well, had they not been thwarted.” Id. at 20-21.
[15] Antwane Walker was one of Lynem’s co-defendants and was convicted, like
Lynem, of multiple counts of attempted robbery. In Antwane Walker, No.
49A02-1112-PC-1173, Antwane appealed from the denial of his petition for
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 15 of 21 post-conviction relief and argued that, since this Court found insufficient
evidence for three of his co-defendants, his counsel was necessarily ineffective
because she did not raise the issue on direct appeal. We observed that only one
of the co-defendants, Johnnie Stokes, had a positive outcome on appeal in
terms of obtaining reversal of a count which resulted in a reduction of his
sentence. We found that the negative outcomes of the other co-defendants as to
that count are an indication that a sufficiency of evidence claim was not a
strong or obvious claim to present on direct appeal. Further, we observed that
Antwane’s appellate counsel testified that she did not raise the sufficiency claim
because she believed Antwane and his co-defendants were working as two
groups operating together and believed the perpetrators were accomplices and
thus were jointly and severally liable. His appellate counsel testified that she
was under the impression that all of the alleged victims were being robbed
during the incident as opposed to just one victim being robbed and the other
victims just being present.
[16] We held that, based on the record available at the time of appeal, appellate
counsel’s choice of issues to present on direct appeal was a reasonable exercise
of judgment which did not fall below the professional norm, and we noted that
this Court may not look back in hindsight and speculate as to whether raising
the sufficiency of evidence claim would have presented a more favorable
outcome. We concluded that Antwane’s appellate counsel’s decisions did not
fall below any objective standard of reasonableness and that he was not denied
effective assistance of counsel.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 16 of 21 [17] Like in Antwane Walker, No. 49A02-1112-PC-1173, we do not find Lynem’s
argument that he received ineffective assistance from his appellate counsel to be
persuasive. Attorney Anglemeyer testified that he believed that focusing the
sufficiency argument on Edriese Phillips’s testimony was Lynem’s best chance
of success because he was the witness who identified him as one of the
perpetrators. Attorney Anglemeyer also testified: “As to any other insufficient
claims, I didn’t believe that those would have been as meritorious nor did they
have the chance for success on appeal as did . . . attacking Mr. Phillips’
testimony.” Supplemental Transcript Volume II at 24-25. Further, we note
that, at the time Attorney Anglemeyer filed an appellant’s brief, this Court had
not yet issued its decisions in the direct appeals of Lynem’s co-defendants.
[18] In addition, we observe that, even if Lynem’s convictions for the attempted
robbery of Arnold Jr., Winfield, Williams, and Earnest Phillips had been
vacated, his aggregate sentence would not have been impacted. As mentioned
above, see supra at 5 n.2, while a reversal of his conviction for the attempted
robbery of victim Collin Moore would impact his aggregate sentence, we
observe that two panels of this Court on direct appeal, in Curtis Stokes and
Antonio Walker, affirmed the attempted robbery convictions related to Moore,
see Antonio Walker, 49A02-0905-CR-432, slip op. at 7-10; Curtis Stokes, 919
N.E.2d at 1246-1248, that only one panel of this Court, in Johnnie Stokes,
reversed the conviction related to Moore, see Johnnie Stokes, 922 N.E.2d at 764-
766, and that Chief Judge Vaidik dissented in Johnnie Stokes, believing the
evidence was sufficient to affirm the conviction related to Moore. See Johnnie
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 17 of 21 Stokes, 922 N.E.2d at 766-767 (Vaidik, C.J., dissenting). Thus, only two of the
nine judges on the three panels of this Court which addressed the issue voted to
reverse the attempted robbery conviction related to victim Moore.
[19] There is no distinction between the responsibility of a principal and an
accomplice. Wise v. State, 719 N.E.2d 1192, 1198 (Ind. 1999). A person who
knowingly or intentionally aids, induces, or causes another person to commit
an offense commits that offense. Ind. Code § 35-41-2-4. The factors generally
considered to determine whether a person has aided another in the commission
of a crime include: presence at the scene of the crime, companionship with
another engaged in a crime, failure to oppose the commission of the crime, and
the course of conduct before, during, and after the occurrence of the crime.
Wieland v. State, 736 N.E.2d 1198, 1202 (Ind. 2000). When evidence is
challenged as insufficient, we look to the evidence and the reasonable inferences
therefrom that support the verdict and do not reweigh the evidence. Jordan v.
State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Because intent is a mental
function and usually must be determined from a person’s conduct and resulting
reasonable inferences, the element of intent may properly be inferred from
circumstantial evidence. Beatty v. State, 567 N.E.2d 1134, 1139 (Ind. 1991).
[20] The evidence at trial established that Lynem and his co-defendants entered the
studio building. Arnold Jr., Fred Winfield, Shantell Williams, and Andrew
Steele were located in an office in the studio building when Antonio and
Antwane Walker entered the office, and Earnest Phillips was located in a
recording booth connected to the office. Antonio asked to talk to Steele in the
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 18 of 21 hallway. Once Steele was in the hallway, Antonio pulled out a semi-automatic
handgun, placed it forcefully in Steele’s face and said: “Get down, you know
what this is.” Trial Transcript at 479. Johnnie Stokes, located in the hallway or
main office area outside the office, repeated Antonio’s command by saying
“Get down, you know what this is,” and pulled an assault rifle out of the black
trash bag he was carrying. Id. at 480. Arnold Jr. interpreted Johnnie Stokes’s
command to be directed toward him. When asked if the threat was made to
him, Arnold Jr. answered “[i]t had to be,” and when asked if he knew that for
sure, he replied “yes, it was.” Id. at 510. When asked if the commands “could
have been directed to anybody” in his office, Arnold Jr. replied “I’m
accountable for them,” and when asked if he knew for sure if Johnnie Stokes
made the statement to him, he replied “I took it towards me, yes.” Id. at 511.
[21] Once he heard the commands, Arnold Jr. “jumped out of the chair trying to
slam . . . close the door,” “Antwane Walker was wedged into between the door,
from this side to that side,” and Arnold Jr. heard a gunshot coming from the
main office area, “forcefully closed the door,” and “wedged [him]self on the
door.” Id. at 481-482. Arnold Jr. then heard additional gunshots. Meanwhile,
Edriese Phillips saw Johnnie Stokes with a “long rifle with a banana clip” and
testified that, “by the time I saw that, Terry and Marcus had snatched me to the
side against this wall,” Lynem pointed a revolver at his stomach, the men
demanded his money, and Lynem struck him with the gun. Id. at 401. As the
men were taking money from him, Edriese heard gunfire which “was in the
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 19 of 21 hallway” and “was real close, like . . . it was fired on the side of [his] head.” Id.
at 432.
[22] In addition, one of Arnold Jr.’s children testified “they said ‘Everybody get
down, I ain’t playing.’” Id. at 327 (emphasis added). Further, Shantell
Williams testified that she heard the command: “Ya’ll know what this is.
Everybody get down.” Id. at 372 (emphases added). The evidence also shows
that Moore was directly ordered to the ground and suffered a gunshot wound to
his lower left leg. At some point, Arnold Jr. opened the office door and, using
his own handgun, shot at Antonio, and the perpetrators left the building.
Edriese testified that he heard more than five gunshots, that he saw Antwane
running backwards out of the building and firing as he was running, and that
the hallway after the gunfire stopped was “real smoky, real cloudy.” Id. at 406.
[23] Based upon the record, we cannot find that Lynem has offered convincing
evidence to overcome the strongest presumption of adequate assistance or has
shown that it was unreasonable for his appellate counsel to conclude that the
evidence supports at least a reasonable inference that the co-defendants had
intent to rob Arnold Jr., Winfield, Williams, Earnest Phillips, and Moore, and
accordingly we conclude that Lynem’s appellate counsel’s decisions did not fall
below an objective standard of reasonableness. 8 See Washington v. State, 517
8 We acknowledge as discussed above that different panels of this Court reversed certain attempted robbery convictions of Curtis Stokes, Antonio Walker, and Johnnie Stokes. However, we note that each of those decisions focused primarily on the command “Get down, you know what this is” and the fact that that command was, without more, too ambiguous to support the inference that the co-defendants intended to rob
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 20 of 21 N.E.2d 77, 79 (Ind. 1987) (holding the evidence was sufficient to show the
defendant performed a substantial step toward commission of a robbery where
the defendant reached for a gun hidden in his jacket and it could be inferred the
defendant would have robbed the victims had he not been unexpectedly
stopped when the victims fought back by grabbing him and striking him on the
head with a cane). Lynem has not established that his appellate counsel
rendered ineffective assistance.
Conclusion
[24] For the foregoing reasons, we affirm the denial of Lynem’s petition for post-
conviction relief.
[25] Affirmed.
May, J., and Mathias, J., concur.
certain victims. See Antonio Walker, 49A02-0905-CR-432, slip op. at 7-10; Curtis Stokes, 919 N.E.2d at 1246- 1248; Johnnie Stokes, 922 N.E.2d at 764-766. Moreover, as discussed above, our review of the trial testimony supporting the verdicts reveals evidence in addition to the arguably ambiguous command. In particular, testimony was before the jury that the co-defendants commanded “Everybody get down” and “Ya’ll know what this is. Everybody get down.” Trial Transcript at 327, 372 (emphases added). Further, there was evidence that Arnold Jr. interpreted Johnnie Stokes’s command to be directed toward him and that Moore was commanded to get down as noted in Curtis Stokes and Antonio Walker. Lynem’s appellate counsel on direct appeal, in reviewing this evidence in light of the record as a whole, could have reasonably concluded that this Court would find that the jury could reasonably infer that the co-defendants, and Lynem as a principal or accomplice, had the intent to work together to commit the various attempted robberies as alleged and that the evidence supported the challenged convictions.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1028 | June 25, 2019 Page 21 of 21