Brian Ellis v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any May 07 2020, 8:15 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy E. Karozos Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Jonathan O. Chenoweth J.T. Whitehead
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Ellis, May 7, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-PC-1953
v. Appeal from the DeKalb Superior
Court
State of Indiana, The Honorable G. David Laur,
Appellee-Plaintiff, Senior Judge
Trial Court Cause No.
17D01-1705-PC-3
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Brian Ellis was convicted of dealing in
methamphetamine, a Class A felony, and possession of methamphetamine, a
Class B felony. The trial court sentenced Ellis to serve twenty years for the
dealing conviction and six years for the possession conviction, to be served
concurrently in the Indiana Department of Correction (“DOC”). On direct
appeal, Ellis challenged his dealing in methamphetamine conviction, and this
court affirmed. Ellis v. State, No. 17A05-1512-CR-2179 (Ind. Ct. App. Sept. 22,
2016). In 2017, Ellis filed a petition for post-conviction relief and in 2018, he
filed an amended petition claiming ineffective assistance of trial and appellate
counsel. Following an evidentiary hearing, the post-conviction court denied
Ellis’ amended petition. Ellis now appeals, raising two issues for our review
which we consolidate and restate as: whether the post-conviction court erred in
determining Ellis’ trial and appellate counsel were not ineffective. Concluding
Ellis did not receive ineffective assistance of trial or appellate counsel and
therefore, the post-conviction court did not err in denying his petition, we
affirm.
Facts and Procedural History
[2] We summarized the facts and procedural history of this case in Ellis’ direct
appeal:
On May 25, 2014, Mary Thacker and Mike Avery were working
in their backyard in DeKalb County when they heard a loud
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noise similar to an explosion and saw smoke coming from their
neighbor’s shed. Thacker saw Ellis and another person near the
shed. Thacker and Avery smelled an odor like ammonia, and
they alerted the police.
DeKalb County Sheriff’s Department Deputies Larry Kees,
Jarrid Treesh, and Courtney Fuller responded to Thacker and
Avery’s report. When they arrived, they spoke with Mable Ellis
(“Mable”), Ellis’s eighty-two-year-old mother and the property
owner, who gave her consent to search. The officers saw a light
on inside the shed in the backyard, heard voices, and smelled a
chemical odor similar to ammonia. Deputy Treesh knocked on
the door to the shed and opened the door. He saw two men
seated in chairs, open beer bottles, and a reaction vessel – a
plastic bottle containing a white granular substance, black flakes,
and a bluish liquid, which the officers recognized as an active
meth lab – between the two chairs. The men were later identified
as Ellis and Tyler Cole. Cole told the deputies he was “just there
to clean out a garage,” and was released. He was later charged
with and convicted of possessing methamphetamine. Ellis told
Deputy Treesh that Cole was showing him how to manufacture
methamphetamine.
From the shed and a garbage can outside the shed, law
enforcement officers collected cold packs, Zippo lighter fluid,
Coleman camp fuel, Liquid Lightening, coffee filters, battery
casings, Kleen Out, blister packs of pseudoephedrine, and a
“spent one-pot.” They also searched the bedroom in which Ellis
and his wife were staying and found drug paraphernalia,
including a pipe, a measuring device, and needle nose pliers. On
a dresser in the bedroom, officers discovered a credit card bearing
Ellis’s name amid several “tin foilies,” which “are used a lot of
times in the smoking of methamphetamine. . . .” In the sleeping
compartment of Ellis’s semi, which was parked at Mable’s house,
officers found a bag of methamphetamine between the wall of the
cab and the mattress.
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Id. at *1 (record citations omitted).
[3] On May 27, 2014, the State charged Ellis with the following: dealing in
methamphetamine, a Class A felony1; possession of methamphetamine, a Class
B felony; possession of precursors, a Class C felony; and possession of
paraphernalia, a Class D felony. A jury trial was held on August 12-13, 2015.
Cole initially told officers he was not involved in the methamphetamine that
was located on the premises; however, at trial, Cole admitted that he possessed
the methamphetamine in the bottle and that Ellis was not making
methamphetamine with him that particular night. He stated, “It was me.”
[Prior Case] Transcript, Volume I at 212. Ellis also testified at trial and denied
having previously told the officers that he was there to be trained to make
methamphetamine. See id., Vol. II at 75.2 Ultimately, the jury found Ellis
guilty of dealing in methamphetamine and possession of methamphetamine,
and not guilty of possession of paraphernalia. The jury was unable to reach a
verdict on the possession of precursors charge. The trial court ordered Ellis to
serve an aggregate sentence of twenty years in the DOC.
[4] On direct appeal, Ellis’ appellate counsel raised one claim, namely that the
evidence was insufficient to support Ellis’ dealing in methamphetamine
1
The information specifically alleges that Ellis “knowingly or intentionally manufactured, financed the
manufacture of, delivered, or financed the delivery of . . . Methamphetamine, pure or adulterated, and [he]
manufactured, delivered or financed the delivery of the drug. . . in, on or within one thousand (1,000) feet of
. . . a public park [and] a family housing complex[.]” [Prior Case] Appellant’s Amended Appendix, Volume
I at 17 (citation based on the .pdf pagination).
2
Citation to Volume II of the prior case transcript is based on the .pdf pagination.
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conviction. Ellis claimed the evidence was insufficient because there was no
direct evidence that he was involved in the manufacturing of the
methamphetamine. Ellis, No. 17A05-1512-CR-2179 at *2. A panel of this
court disagreed, id. at *3, and held that the following evidence was sufficient to
prove Ellis had constructive possession of the reaction vessel and other items
frequently used to manufacture methamphetamine:
• Ellis told police he believed the bottle was a methamphetamine lab and
Cole was showing him how to manufacture the drug and therefore, he
clearly knew of the presence of the vessel.
• Ellis and Cole were found sitting in chairs with the reaction vessel
located in between them and in plain view.
• Police located other items commonly used to manufacture
methamphetamine in plain view inside the shed, including a grinder with
white residue, camping fuel, Liquid Fire, salt, tape, tubes,
pseudoephedrine, and battery casings.
• Police discovered a bag of methamphetamine in Ellis’ truck, which he
lives in for weeks at a time.
Id.
[5] Given Ellis’ close proximity to the vessel and items and his statement to police
that Cole was showing him how to manufacture methamphetamine, this court
concluded Ellis was capable of and had the intent to maintain dominion and
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control over the items. Id. Ellis had also pointed to his and Cole’s testimony at
trial that Cole was solely responsible as evidence he was not involved in
manufacturing methamphetamine. However, this court held that it may not
reweigh the evidence; the jury is the trier of fact and the sole judge of witness
credibility. Id. And as such, the jury was entitled to afford whatever weight
and credibility to this testimony it believed was warranted. Id. Thus, because
constructive possession of items used to manufacture methamphetamine is
sufficient to prove that an appellant knowingly or intentionally manufactured
the drug and Ellis constructively possessed the items, the court affirmed Ellis’
dealing in methamphetamine conviction. Id. at *2-3.
[6] On May 3, 2017, Ellis filed his pro se petition for post-conviction relief alleging
ineffective assistance of trial and appellate counsel and requested the
appointment of counsel. The post-conviction court subsequently appointed
Ellis a public defender. On November 29, 2018, Ellis, by counsel, filed an
Amendment to Petition for Post Conviction Relief alleging that his trial counsel
was ineffective for failing to tender a jury instruction on accomplice liability and
that his appellate counsel was ineffective for failing to claim that the absence of
an accomplice liability instruction constituted fundamental error. See Appendix
to Brief of Appellant, Volume Two at 24-27.
[7] An evidentiary hearing was held on May 29, 2019, during which Ellis’ trial
counsel, Kevin Likes, and appellate counsel, Adam Squiller, both testified.
When asked about trial strategy, Likes agreed that his strategy was to convince
the jury that Cole, rather than Ellis, actually made the methamphetamine and
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that Ellis’ mere presence at the scene was not a crime. See [Post-Conviction]
Transcript of Hearing (“PCR Tr.”) at 5, 8. Likes further testified that he did not
consider tendering a jury instruction on accomplice liability because the State
charged Ellis as a direct participant in the crime, not an accomplice. He
testified, “I’m not sure why I would tender an instruction about something that
. . . wasn’t one of the charges. [I]t seems kind of odd that . . . [I] would be
arguing don’t convict him on something he’s not charged with.” Id. at 7.
Although Likes was unable to recall exactly what the prosecutor had argued
during closing argument and was “not sure he was really arguing accomplice
liability[,]” Likes believed the State was “straying into what [he] thought was
getting into [the] area” of accomplice liability. Id. at 6. Therefore, Likes
objected because Ellis had been charged as a direct participant, not an
accomplice. Squiller did not recall the issues on appeal or whether he had
considered raising the claim of fundamental error based on the trial court’s
failure to instruct the jury on accomplice liability.
[8] Following the hearing, the post-conviction court issued written findings of fact
and conclusions of law denying Ellis’ petition, and concluded, in pertinent part:
4. While both counsel have argued accomplice liability or
lack thereof, the failure of [trial] counsel for [Ellis] to request
such instruction or [Ellis’] appellate counsel to raise that issue on
appeal does not rise to the standard of ineffective counsel and the
evidence of [Ellis’] guilt was overwhelming.
5. The trial strategy of defense counsel not to request an
instruction on accomplice liability and to highlight that issue was
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not so deficient or unreasonable as to fall outside the objective
standard of reasonableness.
6. The failure of appellant [sic] counsel to raise the issue of
ineffective trial counsel was not so deficient or unreasonable as to
fall outside the objective standard of reasonableness.
7. The Court does not conclude that the outcome would have
been different had the instruction been given or the issue raised
on appeal.
Appealed Order 5-6. Ellis now appeals. Additional facts will be supplied as
necessary.
Discussion and Decision
I. Post-Conviction Standard of Review
[9] Post-conviction proceedings are civil in nature and the petitioner must therefore
establish his claims by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). “Post-conviction proceedings do not afford the petitioner an
opportunity for a super appeal, but rather, provide the opportunity to raise
issues that were unknown or unavailable at the time of the original trial or the
direct appeal.” Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans.
denied. On appeal, a petitioner who has been denied post-conviction relief faces
a “rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind.
2001). To prevail, the petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that reached by the post-
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conviction court. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006). When
reviewing the post-conviction court’s order denying relief, we will “not defer to
the post-conviction court’s legal conclusions,” and the “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.” Humphrey v. State,
73 N.E.3d 677, 682 (Ind. 2017) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102,
106 (Ind. 2000), cert. denied, 534 U.S. 830 (2001)). The post-conviction court is
the sole judge of the weight of the evidence and the credibility of witnesses.
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
II. Ineffective Assistance of Trial and Appellate Counsel
A. Standard of Review
[10] The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to counsel and mandates “that the right to counsel is the
right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S.
668, 686 (1984) (quotation omitted). The standard for ineffective assistance of
counsel is the same standard for both trial and appellate counsel. Garrett v.
State, 992 N.E.2d 710, 719 (Ind. 2013).
[11] Generally, to prevail on a claim of ineffective assistance of counsel 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, 466 U.S. at 687, 694). A
counsel’s performance is deficient if it falls below an objective standard of
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reasonableness based on prevailing professional norms. Id. To meet the 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.
[12] When we consider a claim of ineffective assistance of counsel, we apply a
“strong presumption . . . 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, 1073 (Ind. 2001). “[C]ounsel’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). Counsel has wide latitude in selecting trial strategy and tactics,
which we afford great deference. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012).
And isolated poor strategy or bad tactics do not necessarily amount to
ineffective assistance of counsel. Whitener v. State, 696 N.E.2d 40, 42 (Ind.
1998).
B. Trial Counsel
[13] Ellis alleges that he was denied effective assistance of trial counsel because
counsel failed to tender a jury instruction on accomplice liability.
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[14] Indiana’s accomplice liability statute provides that 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 accomplice liability
statute does not set forth a separate crime, but merely provides a separate basis
of liability for the crime that is charged. Brooks v. State, 895 N.E.2d 130, 133
(Ind. Ct. App. 2008). As a general rule, mere presence at the scene of the crime
is not itself sufficient to allow an inference of participation in the crime. Griffin
v. State, 413 N.E.2d 293, 295 (Ind. Ct. App. 1980). Such presence may,
however, be considered with other evidence as a factor in determining a
defendant’s guilt. Id.
[15] Ellis alleges his trial counsel’s performance was deficient. Specifically, he
contends that although he was not charged as an accomplice, he could be
convicted as such; there was evidence that Cole was the principal; and in
closing arguments at trial, the State suggested Ellis could be liable even if he did
not make the drugs and Cole did.3 Therefore, Ellis argues that the jury needed
3
Ellis points to the following portion of the State’s closing argument:
[W]e’ve got one guy, trying to point a crooked finger at the other guy. Say, well, I was
there, he was just showing, he was showing me how to do it. I wasn’t actually doing it.
And the argument being well, presumably the argument is hey, it’s not illegal for me to be
present, you know, if somebody’s making meth. Well, I’m going to argue that this is
something different, if those are the facts in the case. If those are the facts in the case,
Brian Ellis being there is constructive. It’s constructive engagement, okay. He’s involved because
he’s there and somebody’s showing him how to do it. He’s not calling the police. He’s not calling
the fire department. He’s not taking steps to get this person out of there. He’s fully involved and
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to be instructed on the elements of accomplice liability. “[W]here the
circumstances of the case raise a reasonable inference that the defendant acted
as an accomplice, it is appropriate to instruct the jury on accomplice liability
even where the defendant was charged as a principal.” Brooks, 895 N.E.2d at
133.
[16] In closing arguments, Ellis’ trial counsel argued that Ellis was merely present at
the scene of the crime, which is not illegal; all of the items in the shed were
legally obtained; and there was no direct evidence that Ellis committed a crime,
only circumstantial evidence. See [Prior Case] Tr., Vol. II at 135-37, 142-43. At
the PCR hearing, Likes testified that he did not consider tendering a jury
instruction on accomplice liability because the State charged Ellis as a direct
participant in the crime, not an accomplice. See PCR Tr. at 7. Ellis concedes
he was charged as a principal but argues there was evidence that Cole was the
principal and he was aiding Cole.4 Cole initially pointed the finger at Ellis
when talking to police but changed his story at trial and testified that he was the
one making methamphetamine, not Ellis. However, the jury was not obligated
to believe Cole’s or Ellis’ testimony and there was ample circumstantial
engaged in what’s happening, constructively, if not, you could argue he’s actively
involved as the teacher, or as the student.
[Prior Case] Tr., Vol. II at 125-26 (emphasis added).
4
In his brief, Ellis stated that he was charged only as the principal “[b]ut there was ample evidence that Cole
was the principal, not least Cole’s testimony that he and he alone had made the meth. And there was
evidence, albeit tenuous, that [Ellis] had aided Cole.” Brief of Appellant at 17 (record citation omitted).
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evidence that Ellis acted as a principal rather than an accomplice. And the trial
court properly instructed the jury on the elements of dealing in
methamphetamine and the jury found Ellis guilty. See [Prior Case] Tr., Vol. II
at 159.5 Therefore, given the evidence in the record, we cannot conclude that
Ellis’ trial counsel was ineffective for failing to provide an alternate basis of
liability for the jury to convict him. We will not second guess counsel’s
reasonable trial strategy in this regard.
[17] Even assuming for purposes of this appeal that trial counsel’s performance was
deficient, Ellis cannot show this failure would have resulted in a different
outcome at trial. Here, the jury was instructed on the elements of dealing in
methamphetamine and was convinced beyond a reasonable doubt that Ellis
acted as a principal in the crime – that he knowingly or intentionally
manufactured methamphetamine. The jury, as the sole judge of witness
credibility, was not obligated to believe Cole’s or Ellis’ testimony regarding the
nature of his participation. Given the overwhelming evidence of Ellis’ guilt, we
5
The trial court provided the following instruction:
Before you may convict the Defendant, the State must have proved each of the following
elements beyond a reasonable doubt. (1), the Defendant, Brian W. Ellis, (2), knowingly
or intentionally manufactured, (3), methamphetamine, pure of adulterated and (4), the
Defendant manufactured the methamphetamine in, on or within one thousand feet of a
public park or a family housing complex. If the State failed to prove each of these
elements beyond a reasonable doubt, you should find the Defendant not guilty of the
crime of Dealing in Methamphetamine, a Class A Felony, as charged in Count I.
Id.
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are unpersuaded that if the jury had been instructed on accomplice liability
there is a reasonable probability that the outcome of Ellis’ trial would have been
different. An accomplice liability instruction would have simply provided the
jury with an additional basis for liability and if convicted under that theory,
Ellis would still have been convicted of dealing in methamphetamine. See Suggs
v. State, 883 N.E.2d 1188, 1192 (Ind. Ct. App. 2008) (concluding that the
defendant “cannot establish substantial harm or substantial potential for harm
due to the lack of accomplice liability instructions because the evidence was
sufficient to convict him as a principal.”). As such, Ellis was not prejudiced by
his trial counsel’s alleged ineffective performance.
C. Appellate Counsel
[18] Ellis also contends that he was denied effective assistance of appellate counsel
on direct appeal because his counsel failed to claim that the absence of an
accomplice liability instruction constituted fundamental error.6
[19] As with trial counsel, to establish that appellate counsel rendered ineffective
assistance, a petitioner must show appellate counsel was deficient in
performance and that the deficiency resulted in prejudice. Benefield v. State, 945
N.E.2d 791, 802 (Ind. Ct. App. 2011). Ineffective assistance claims of appellate
6
We note that the post-conviction court appears not to have addressed this claim head on as it concluded
that “[t]he failure of appellant [sic] counsel to raise the issue of ineffective trial counsel was not so deficient or
unreasonable as to fall outside the objective standard of reasonableness.” Appealed Order at 6. Instead, the
post-conviction court framed it as appellate counsel’s alleged failure to raise an ineffective assistance of trial
counsel claim rather than acknowledging that Ellis’ actual claim was that appellate counsel was ineffective
for failing to claim that the absence of the instruction constituted fundamental error.
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counsel generally fall into three categories: (1) denial of access to an appeal; (2)
waiver of issues; and (3) failure to present issues well. Fisher, 810 N.E.2d at
677. Ellis’ claim fits into the second category.
[20] A finding of ineffective assistance of appellate counsel is very rare because “the
decision of what issues to raise is one of the most important strategic decisions
to be made by appellate counsel.” Bieghler v. State, 690 N.E.2d 188, 193 (Ind.
1997), cert. denied, 525 U.S. 1021 (1998) (internal quotation omitted). Our
supreme court has explained that “reviewing courts should be particularly
deferential to counsel’s strategic decision to exclude certain issues in favor of
others, unless such a decision was unquestionably unreasonable.” Id. at 194.
To prevail on a claim of ineffective assistance of appellate counsel for waiver of
issues, a petitioner must show (1) that the unraised issues are significant and
obvious from the face of the record and (2) that the unraised issues are clearly
stronger than the raised issues. Timberlake v. State, 753 N.E.2d 591, 606 (Ind.
2001), cert. denied, 537 U.S. 839 (2002).
[21] Ellis contends that the claim that the absence of an accomplice liability
instruction constituted fundamental error was significant and obvious from the
face of the record and clearly stronger than the sufficiency claim raised by
appellate counsel on direct appeal. We disagree.
[22] “To preserve a claim of error in giving a jury instruction, trial counsel must
timely object and clearly identify that claimed objectionable matter and the
grounds for the objection.” Ferree v. State, 124 N.E.3d 109, 115 (Ind. Ct. App.
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2019), trans. denied (internal quotation omitted). And failure to timely object
waives this issue for review. Id. An error may be fundamental and thus not
subject to waiver, if it is a “substantial blatant violation of basic principles.”
Moreland v. State, 701 N.E.2d 288, 294 (Ind. Ct. App. 1998) (internal quotation
omitted). The error must be so prejudicial to the defendant’s rights as to make a
fair trial impossible. Id. “This exception to the general rule requiring a
contemporaneous objection is narrow, providing relief only in ‘egregious
circumstances’ that made a fair trial impossible.” Pattison v. State, 54 N.E.3d
361, 365 (Ind. 2016) (citation omitted).
[23] Just as we concluded Ellis’ trial counsel was not deficient for failing to tender
another basis for liability – in the form of an accomplice liability instruction –
and Ellis was not prejudiced by this alleged failure, we are unpersuaded that the
trial court’s failure to give such an instruction sua sponte constituted
fundamental error.
[24] In Suggs, the defendant was charged with attempted theft after he went to a
grocery store with two women and attempted to purchase merchandise with a
stolen credit card. 883 N.E.2d at 1190. During opening statements of his trial,
the State argued the defendant was part of a “common scheme” and during
closing arguments, the State argued the three individuals were “all working
together” and the defendant worked “in concert” with the other two. Id. The
defendant was convicted of attempted theft and on appeal, he argued that the
trial court’s failure to provide the jury with an accomplice liability instruction
constituted fundamental error. Id. at 1191.
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[25] A panel of this court disagreed for several reasons. First, it was not clear that
the State was arguing that the defendant was an accomplice rather than a
principal because he was charged with attempted theft – that he knowingly and
intentionally entered the grocery store and selected items knowing they were
going to be paid for with a stolen credit. Id. Based on the language of the
accomplice liability statute, this court concluded that the State appeared not to
have argued that the defendant aided, induced, or caused the two women to
commit attempted theft; instead, the State argued he was a principal. Id. at
1192. Second, accomplice liability is not a separate crime but a separate basis
of liability for the charged offense; a defendant can be convicted as an
accomplice even if charged as a principal; and the State is permitted to change
its theory of the case during trial. Id. And finally, “a defendant is equally guilty
whether he acted as the principal or merely an accomplice, and while jury
unanimity is required as to the defendant’s guilt, it is not required as to the
theory of culpability.” Id. (internal citation omitted). As such, this court
concluded that the defendant was not denied fundamental due process “even
assuming that the State argued accomplice liability to the jury but no instruction
was given.” Id. Such is the case here.
[26] As noted above, Ellis was charged and convicted as the principal. Ellis points
to the following assertion in the State’s closing argument as evidence that the
State argued he was liable as an accomplice: “Ellis being there is constructive.
It’s constructive engagement, okay. He’s involved because he’s there and
somebody’s showing him how to [make methamphetamine].” [Prior Case] Tr.,
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Vol. II at 126. However, we are not persuaded that the State was arguing Ellis
aided, induced, or caused Cole to commit dealing in methamphetamine and
there was sufficient evidence to support Ellis’ role as a principal since he was
actively participating.
[27] Even assuming Ellis’ assertion was correct, he still cannot demonstrate
fundamental error. The State is entitled to change its theory during trial and
Ellis would have been equally guilty regardless of whether he acted as the
principal or accomplice. Suggs, 883 N.E.2d at 1192. As the State phrases it,
“An accomplice liability instruction is simply another avenue for reaching the
same result.” Brief of Appellee at 17. Moreover, in Ellis’ direct appeal, a panel
of this court held that the evidence established that Ellis constructively
possessed the reactive vessel and other items used to manufacture
methamphetamine and therefore affirmed his dealing in methamphetamine
conviction as a principal. Ellis, No. 17A05-1512-CR-2179 at *3.
[28] Because Ellis has failed to prove fundamental error with respect to the lack of a
jury instruction on accomplice liability, he has failed to demonstrate any
prejudice resulting from appellate counsel’s alleged deficient performance in
failing to raise this issue. See Benefield, 945 N.E.2d at 803 (“[I]f an unpreserved
error is found not to be fundamental, then appellate counsel cannot be
ineffective for failing to raise it.”).
Conclusion
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[29] Ellis has failed to demonstrate both ineffective assistance of trial and appellate
counsel. Therefore, we conclude that the post-conviction court did not err in
denying Ellis’ petition for post-conviction relief.
[30] Affirmed.
Bradford, C.J., and Altice, J., concur.
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