Lane v. State

953 N.E.2d 625

Jeremy A. LANE, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 48A02–1010–CR–1156.

Court of Appeals of Indiana.

Aug. 26, 2011.

Christopher A. Cage, Anderson, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Following a jury trial, Jeremy Lane was convicted of Attempted Theft, ¹ a class D felony, and subsequently sentenced to the maximum term of three years. Lane presents three issues for our review:

1. Did Lane's trial counsel render ineffective assistance?

2. Does the rule of lenity require reversal of Lane's conviction for attempted theft or reduction of his sentence in accordance with the proportionality clause?

3. Is Lane's sentence inappropriate?

We affirm.

During the evening hours of January 26, 2009, Lane entered the K–Mart in Elwood, Indiana, and bought several small items and a Mountain Dew. While checking out, Lane started a conversation with the cashier, Erika Bragg, talking to her in a “flirty way”. Transcript at 59. Lane was wearing a big jacket with three pockets. Lane then left the store. A few minutes later, Lane came back into the store and approached the customer service desk where he complained that there was a foreign substance in the drink he had just purchased. The substance appeared to be tobacco chew. Lane was given a Dr. Pepper in exchange, and he again left the store.

Lane apparently reentered the store because a short time later, another K–Mart employee, Samantha Cross, encountered Lane in the fitting room trying on pants. As Cross worked her way through the store straightening and putting items away, she encountered Lane again in the sporting goods section of the store, standing at the end of an aisle where knives were displayed. Cross could see that Lane was holding something in his left hand and making a motion with his right hand. Cross also heard the crackling of plastic packaging leading her to believe that a package was being tampered with. Cross finished what she was doing and then headed toward the front of the store. As Cross started walking up the main aisle, Lane “came out of nowhere” and approached her from the side. Id. at 40. Lane showed Cross a knife and then made an unsolicited statement that he had previously purchased it at K–Mart. Lane then walked away. In the area of the sporting goods section where Lane had been standing, Cross found a torn-open, empty knife package lying on the floor. The package was consistent with the packaging for a knife like that which Lane had shown Cross. Cross had not seen the package earlier in the evening as she was working her way through the sporting goods department straightening up. Cross reported her observations to an attendant at the service desk and a manager was called.

Andrea Burt, the night manager for K–Mart, observed Lane walking from aisle to aisle through the store. Burt followed Lane and monitored his actions. At one point, while she was an aisle away from Lane, Burt heard a crackling noise in the gaming aisle. As Burt approached Lane, he turned around and handed her an open package for a cell phone case and explained that he had found the package on the shelf. The package had been cut and ripped, but the cell phone case was still inside. Burt put the package on the counter in the electronics department. Lane then told Burt that he had lost his cell phone and asked her to call his number. As she did so, Lane headed back to the sporting goods section of the store. Eventually Burt moved away from the electronics department counter.

By that time, Bragg's shift had ended and she had heard about suspicious activity in the store. Bragg headed to sporting goods where she observed Lane hunched over in an aisle with his back to her. Bragg could hear the crackling of plastic packaging. Bragg confronted Lane in a loud voice and accused him of stealing. Lane was startled and turned around. Lane was holding a half-open, damaged binocular package in one hand and a knife in the other. Lane told Bragg that he was not stealing anything, but that he just wanted to inspect the item. Bragg followed Lane to the front of the store and yelled at him that she was going to call the police. Lane walked quickly and with his head down. Employees who observed Lane could not see any merchandise in Lane's hands or in his coat. Bragg followed Lane outside and took down the license plate number from the car in which he drove away. Lane went home and was home for approximately five minutes when his girlfriend arrived. She informed Lane that the police were looking for him. Lane then got back in his vehicle and headed to the police station.

A short time after Lane left the K–Mart, Officer Phillip Caldwell of the Elwood Police Department observed Lane driving at a high rate of speed through town, so he initiated a traffic stop. Officer Caldwell was familiar with Lane's vehicle and was aware that he was a suspect in a possible theft given the report from the employees at the K–Mart store. Officer Caldwell thus advised Lane of his Miranda rights. Thereafter, Lane agreed to talk to Officer Kara Barton, who was investigating the reported theft from K–Mart. Lane admitted that he had been at K–Mart that night and that he possessed a knife. He, however, denied stealing anything and that he had pointed a knife at anyone. At trial, Lane testified that he used a knife to open a package of binoculars, but claimed that he did not steal them, he only wanted to inspect them.

A survey of the K–Mart store after Lane left revealed six cut-open, empty merchandise packages. The packages were for small items such as a pocket knife, an MP3 player, a digital timer, a digital camera, batting gloves, and a flashlight. The package for the cell phone case was also gathered from the counter in the electronics department where Burt had placed it, but the case was no longer in the packaging. None of the items were ever recovered—there were no items found in the store, there were no missing items found during a search of Lane's vehicle or of his person which were conducted as part of the traffic stop, and no search was ever conducted at Lane's home.

On January 27, 2009, the State charged Lane with intimidation as a class C felony. On March 6, 2009, the State added a second charge of theft, a class D felony. A jury trial commenced on August 3, 2010. The jury acquitted Lane of the intimidation charge, but found him guilty of attempted theft, a class D felony. A sentencing hearing was held on September 13, 2010. At that hearing, the court was informed that Lane had failed a drug screen by testing positive for methamphetamine. Lane explained to the court that his girlfriend had a prescription for methamphetamine and he had taken it out of her purse. ² The court noted that Lane had just completed a drug court program stemming, in part, from other burglary and theft charges and that his criminal history was an aggravating circumstance that supported a three-year sentence. Lane now appeals.

1.

Lane argues that his trial counsel was ineffective for failing to tender an instruction on the lesser included offense of conversion, a class A misdemeanor that carried a sentence of one year or less.³ In order to prevail on a claim of ineffective assistance of counsel, Lane must demonstrate both that his counsel's performance was deficient and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); French v. State, 778 N.E.2d 816 (Ind.2002); see also Taylor v. State, 840 N.E.2d 324 (Ind.2006) (the failure to satisfy either component will cause an ineffective assistance claim to fail). Counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816. To establish the requisite prejudice, Lane must show 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.” Smith v. State, 765 N.E.2d 578, 585 (Ind.2002). Further, we note:

Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.Id.

Lane's sole attack on his trial counsel's performance is that his trial counsel did not tender an instruction on conversion as a lesser included offense of theft.⁴ During closing argument, Lane's trial counsel attempted to discount the testimony of each of the State's witnesses by offering reasonable explanations for what he argued was only their perception of events, not reality. Lane's counsel acknowledged that Lane was seen opening a package of binoculars and that Lane did not deny such fact. Lane's counsel argued that Lane did not intend to deprive K–Mart of any value of the binoculars, citing his testimony that he only wanted to inspect them. Lane's counsel also focused on the fact that no one saw Lane carry any of the items out of the store as establishing his lack of intent to commit theft.

It is clear from the record that Lane's counsel employed an “all or nothing” strategy, asking the jury to find that the evidence did not support a finding beyond a reasonable doubt that Lane intended to deprive K–Mart of the value or use of any part of its property. Without the instruction on...