Counsel’s ‘risky’ trial strategy is not considered ineffective

A trial attorney who decided to pursue a trial strategy in a theft case that did not request a jury instruction on the lesser-include offense of criminal conversion did not provide ineffective assistance of counsel, the Court of Appeals ruled.

David Paul Brown appealed his Class D felony theft conviction for his removal of a slot machine from the locked barn of Chad Miller. Brown and his family rented the Millers’ property, which included an old bar and a new pole barn to which the Brown family did not have permission to access. When Miller came back into town to mow the lawn, he believed Brown may have gone into the pole barn and began photographing items in the barn. Later, he discovered an antique slot machine of his wife’s missing.

Miller went to Brown’s wife’s antique store and found the slot machine there. He called the sheriff’s department, which led to Brown’s arrest and conviction.

In David Paul Brown v. State of Indiana, 32A01-1405-CR-194, Brown argued his trial attorney was ineffective for failing to object to a portion of his videotaped interview with a detective as hearsay and for not tendering a jury instruction on criminal conversion as a lesser-included offense of theft.

In the portion of the video Brown contests, the detective kept saying that Brown could not take an old rusty tractor sitting out back. Brown claimed that his attorney should have requested a limiting instruction because the detective’s statements are inadmissible hearsay. The COA agreed but found that even without the admonishment given to the jury, the admission of the detective’s statements can be harmless in light of other evidence. Miller testified that he did not give Brown permission to enter the pole bar and that he found the slot machine at Miller’s wife’s store.

Regarding the decision to not tender a jury instruction on Class A misdemeanor criminal conversion, the COA noted that Brown’s attorney employed an all-or-nothing strategy, asking the jury to find the evidence didn’t support finding that Brown intended to deprive Miller of the value or use of the slot machine because he intended to return it.

“If defense counsel had requested an instruction on criminal conversion, Brown would have been entitled to the instruction. This would have all but guaranteed a conviction. But defense counsel chose a strategy that, if it had been successful, would have left Brown with no criminal conviction. Given the facts of this case, the strategy, although risky, was not unreasonable,” Chief Judge Nancy Vaidik wrote.