FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

DONALD C. SWANSON, JR.            STEVE CARTER    
Fort Wayne, Indiana     Attorney General of Indiana

THOMAS D. PERKINS
Deputy Attorney General
Indianapolis, Indiana

DONALD J. CONRAD,       )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 57A03-0009-CR-331
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

II.    whether the statute criminalizing unlawful possession of a firearm by a serious violent felon violates various provisions of the United States and Indiana Constitutions;

III.    whether the trial court improperly denied his pro se motion for a continuance sought for the purpose of replacing his public defender with privately retained counsel;

IV.    whether his trial counsel rendered effective assistance;

V.    whether the trial court should have declared a mistrial when a juror revealed after deliberations had begun that he knew the victim of a 1978 rape of which Conrad had been convicted; and

VI.    whether the habitual offender sentence enhancement was improper.

Record p. 222. Conrad attacks this instruction on the basis that it does not say the State must prove its case beyond a reasonable doubt. However, the purpose of this particular instruction was to note the bifurcated nature of the proceedings and to dissuade the jury from speculating as to what evidence might be presented at the next stage of the trial. Additionally, other instructions properly noted the State was required to prove its case beyond a reasonable doubt; in fact the reasonable doubt requirement was reiterated to the jury at least six times. Taking the instructions as a whole, we cannot say the jury was misled as to the appropriate standard of proof and any objection to instruction number three would have been properly overruled.
Conrad claims trial counsel should have objected to comments made by the trial judge after the jury found Conrad had knowingly or intentionally possessed a firearm at stage one of the proceedings and before it began deliberations on stage two: whether Conrad was a serious violent felon. Those comments included, in reference to trial counsel’s stipulation to the introduction of the record of Conrad’s 1978 conviction, “the next portion of the trial will not, uh, should not take very long. . . . you really won’t have to make a whole lot of difficult decisions from here on out. . . . it’s my understanding there’s really not any, um, contention, there’s no disagreement among the parties.” Record pp. 229-30. However, to succeed on a claim of judicial partiality, a defendant must demonstrate (1) the trial judge’s action and demeanor crossed the barrier of impartiality and (2) such conduct prejudiced the defendant’s case. Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997), cert. denied 525 U.S. 1073, 119 S. Ct. 808 (1999). Conrad makes no claim that the records of his 1978 conviction were insufficient in any way to prove that he was a serious violent felon. Therefore, without addressing the propriety of the trial judge’s comments, there is no indication that they prejudiced Conrad and any objection to the comments would have been without effect.
Conrad claims trial counsel should have objected to the State’s filing of supplemental discovery disclosures near the time of trial. We see no indication of ineffective assistance on this point, given that Conrad has failed to adequately argue precisely how he was prejudiced by the allegedly belated discovery disclosures; we will address each of these disclosures in turn. On April 18, eight days before trial, the State indicated it might call a certain attorney as a witness, and it provided photographs of the crime scene. The attorney was not in fact called, and Conrad fails to explain how eight days was not an adequate period of time for trial counsel to examine the photographs prior to trial. We fail to discern any prejudice from this disclosure.
On April 20, six days before trial, the State filed two supplemental discovery responses. The first concerned plea agreements offered to two state witnesses. One of the witnesses was not called at trial, and the second, Gwen Jacobs, was questioned in detail by the prosecutor about the agreement. Again, we do not believe six days was an inadequate period of time for trial counsel to examine the plea agreements, and the use of Gwen Jacobs’ agreement as impeachment material was preempted by the prosecutor’s direct examination of her. The second item filed on April 20 was the State’s witness list, which consisted of thirteen individuals and which was filed before the trial court’s deadline for filing witness lists. Only four of these witnesses were called by the State. See footnote Conrad fails to specify that any of these four were “surprise” witnesses that trial counsel was not aware of based on police reports and other discovery provided in October 1999, or that if trial counsel was not previously aware of these witnesses, that he was unable to interview them in the six days before trial. Furthermore, the record reflects trial counsel was able to conduct intelligent cross-examination of the witnesses.
Finally, the State filed a supplemental discovery response on April 25, the day before trial. The response listed an additional witness, a photograph of Conrad, and records from the National Tracing Center as to the ownership of firearms. Once again, this witness was not called and the documentary items were not introduced. Plainly, Conrad could not have been prejudiced by belated discovery when the evidence contained therein was not introduced at trial, and he makes no allegation that the belated items were exculpatory in any way. Additionally, the witness in this discovery disclosure was apparently a witness with which trial counsel had a conflict of interest; trial counsel effectively did object to the naming of this witness by insisting that the State say on the record that it would not call this witness. Trial counsel also effectively objected to the documentary evidence by saying he had “further objections” to those items, but would not make them as long as the State indicated on the record they would not use those items. Record p. 89.
Conrad asserts trial counsel’s performance at his sentencing hearing was deficient. He faults trial counsel for not providing any testimonial evidence or exhibits at sentencing, but he fails to indicate to us, and the record does not reflect, what such evidence or exhibits might have been. We will not speculate that there may have been evidence that could have served to reduce Conrad’s sentence. Additionally, trial counsel did proffer Conrad’s age as a mitigating circumstance, noting he was fifty-three years old and that “at some point, he doesn’t present himself as much as a threat to society.” Record p. 293. The trial court agreed that this mitigator existed, but found it was outweighed by aggravators that included a lengthy criminal history aside from his 1966 and 1978 convictions and the fact that Conrad was found to have possessed eighteen firearms. Conrad’s claim that trial counsel should have argued other mitigators is an invitation to second-guess strategic decisions, which we cannot do. Additionally, this case is clearly distinguishable from Kellett v. State, 716 N.E.2d 975 (Ind. Ct. App. 1999), cited by Conrad. There, we held trial counsel was ineffective at sentencing primarily for not examining or objecting to an exhibit that erroneously calculated the amount of restitution due to a victim. Id. at 982-83. There is no indication here that trial counsel committed a similarly egregious oversight.
Finally, Conrad claims he was denied effective assistance of counsel due to trial counsel’s failure to challenge, in any fashion, the State’s evidence that he was a serious violent felon because of the 1978 conviction in phase two of the trial. This claim forms the crux of Conrad’s argument that his trial counsel’s performance was sufficiently deficient to create a presumption of ineffectiveness, without inquiry into counsel’s actual trial performance, under United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984). There are three circumstances under which a Cronic claim may be made: (1) there is a complete denial of counsel; (2) counsel entirely fails to subject the State’s case to meaningful adversarial testing; and (3) situations where surrounding circumstances are such that, “although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Minnick v. State, 698 N.E.2d 745, 752 (Ind. 1998) (quoting Cronic, 466 U.S. at 659-60, 104 S. Ct. at 2047), cert. denied, 528 U.S. 1006, 120 S. Ct. 501 (1999).
Conrad apparently claims trial counsel entirely failed to subject the State’s case to meaningful adversarial testing because of his effective stipulation to Conrad’s serious violent felon status. We do not agree. Simply because defense counsel concedes one element of an offense does not necessarily mean there is a presumption that counsel was ineffective. In fact, “unrealistic defenses need not be pursued by trial counsel.” Schick v. State, 570 N.E.2d 918, 927 (Ind. Ct. App. 1991), trans. denied. Conrad fails to inform us of any way a reasonable person could have found he was not a serious violent felon based on the documents the State presented relating to the 1978 conviction, and he does not claim those particular documents were in any way defective. Perhaps recognizing this dilemma, trial counsel focused his efforts on the possession element of the charge. He did subject this element, and thus the State’s case as a whole, to significant adversarial testing: he successfully moved to keep prejudicial information regarding Conrad’s criminal history away from the jury when it considered this element, he conducted meaningful cross-examination of the State’s witnesses, and he presented the testimony of Erica Jacobs, who claimed the firearms were hers. See footnote This case is distinguishable from Christian v. State, 712 N.E.2d 4, 7 (Ind. Ct. App. 1999), where this court held trial counsel failed to subject the State’s rape case to meaningful adversarial testing when he conceded in closing argument that there was penetration, in direct contradiction to his client’s testimony that there was no penetration and where the other evidence of penetration was “not overwhelming.” Here, the evidence that Conrad was a serious violent felon was overwhelming and he presents no argument to the contrary. In sum, this, and the other claims of ineffective assistance, must fail.

Id.
    A review of federal case law regarding career offender sentence enhancements in the context of the federal statute prohibiting felons from possessing firearms has provided little guidance as to how the federal courts approach this dilemma, especially given the complex sentencing guidelines and procedures that differ greatly from Indiana sentencing procedures. Additionally, the State has not provided us with any argument as to how Ross can be fairly distinguished from the present case.
     Admittedly, some technical distinctions can be made between Ross and the case at bar. First and foremost, Ross interprets a different statute than the one before us. In order to be convicted of carrying a handgun without a license, the State need not prove that the perpetrator was felon; a defendant’s felon status only serves to enhance the sentence imposed after a conviction has been obtained. By contrast, one obviously can be convicted of the crime of unlawful possession of a firearm by a serious violent felon only if it is proven the defendant has previously been convicted of a serious violent felony; otherwise, there is no crime. Therefore, the defendant’s serious violent felon status does not serve to “enhance” a sentence in the traditional sense of the word. As a practical matter, though, the defendant’s serious violent status does realistically serve as an “enhancement” in that it increases the potential punishment for “possession of a firearm” from nothing at all to six to twenty years imprisonment and a fine of up to $10,000, the sentencing range for a class B felony. Ind.Code § 35-50-2-5. Nor can the serious violent felon statute be considered a “specific” habitual offender or anti-recidivist statute because it does not provide for progressively more severe penalties for repeated infractions of that or other related statutes. However, after Ross it would appear this is no longer by itself an adequate basis for holding that a defendant’s sentence may be enhanced under the general habitual offender statute.
We believe, in light of Ross, that we are faced with an ambiguity in potential punishments as between the specific serious violent felon statute and the general habitual offender statute that must be resolved against the penalty. Thus, absent express clarification from our legislature or our supreme court, we believe it would contradict the Rule of Lenity as applied in Ross, and place form over substance, to hold the State may enhance a defendant’s sentence for being a serious violent felon in possession of a firearm under the general habitual offender statute by using a conviction that was also used to prove the defendant was a serious violent felon, but that the State may not enhance the sentence of one convicted of carrying a handgun without a license by proof of his or her felony status. We decline to so hold.
    Our decision on this issue is also informed by another familiar principle of Indiana jurisprudence when it comes to sentencing. It is well-settled that a material element of a crime may not also constitute an aggravating circumstance to support an enhanced sentence. See footnote See, e.g., Smith v. State, 675 N.E.2d 693, 698 (Ind. 1996). Here, of course, we are not concerned with the use of an “aggravating circumstance” as that phrase is used in Indiana Code Section 35-38-1-7.1. Nevertheless, we cannot ignore the fact that Conrad’s 1978 conviction was used both to prove a material element of the crime of unlawful possession of a firearm by a serious violent felon and to support an enhancement of thirty years to Conrad’s sentence. Thus, the double use of the 1978 conviction not only conflicts with the Rule of Lenity and Ross, but also with established general principles regarding the enhancement of sentences in Indiana. We, therefore, hold that a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a “serious violent felon.”

Baker, Judge, dissent
    I respectfully dissent with the views espoused by the majority and would find that there is insufficient evidence to support Conrad’s conviction for possession of a firearm by a serious violent felon and that trial counsel rendered ineffective assistance.
    In my view, the majority improperly predetermines that the firearms at issue here are contraband and proceeds to apply the constructive possession analysis applicable to contraband in upholding Conrad’s conviction. Specifically, the majority begins its analysis of whether there is sufficient evidence to support Conrad’s conviction by stating that, “[a] conviction for possession of contraband may rest upon proof of either actual or constructive possession.” Slip op., at 4 (emphasis added). The majority then analyzes the evidence in accordance with the law applicable to the possession of contraband, such as drugs and firearms that are found in motor vehicles. See footnote
To me, however, the law regarding the possession of contraband is inapplicable to the case at bar because firearms in the home are not, in and of themselves, contraband. Contraband is defined as “any goods which it is unlawful to import, export, or possess.” Black’s Law Dictionary 317 (7th ed. 1999). Here, firearms in the home are not contraband with respect to Erica because she has a constitutional right to keep arms, See footnote and the firearms are only contraband with respect to Conrad if it is established that he possessed them. By defining the firearms as contraband and then engaging in a constructive possession analysis, the majority “puts the cart before the horse” and engages in improper application of the law. Rather than relying upon the elements of constructive possession applicable to contraband to support Conrad’s conviction, I believe that the majority should have examined the sufficiency of the evidence with respect to whether Conrad actually possessed the firearms. From the record, it is apparent to me that there was no actual possession by Conrad.
    I would also note that Conrad’s trial counsel rendered ineffective assistance in not tendering evidence regarding Erica’s ownership of the guns, not objecting to the jury instruction regarding constructive possession, and not objecting to the trial court’s reference to the second part of the trifurcated proceedings. Specifically, given the defense’s primary argument that Conrad was merely present in the basement where the guns were kept, it was incompetent for Conrad’s trial counsel not to have offered into evidence receipts showing that Erica purchased the guns. Such evidence would have bolstered the defense’s argument that, while Conrad was found in the room containing the weapons, they were actually purchased and owned by Erica, who was a co-habitant of that room and who testified to being the sole possessor of the firearms.
    As previously noted, I believe that the jury instruction regarding constructive possession was inappropriate in this instance as the firearms were not contraband. Moreover, trial counsel was ineffective for failing to object to three elements of that instruction, which were clearly irrelevant to the facts and circumstances of this case and highly prejudicial to his client. In determining whether Conrad was in constructive possession of the firearms, the trial court instructed the jury that it could take into account, among other things, attempted flight or furtive gestures, the location of substances like drugs in settings that suggest manufacturing, and the mingling of the firearms with other items owned by the defendant. First, there is no evidence in the record of any attempt to flee or furtive gestures by Conrad. Thus, this element of the instruction was completely irrelevant and highly prejudicial as it raises an inference of bad acts not committed by the defendant. Moreover, our supreme court has repeatedly condemned instructing the jury on the issue of flight. See, e.g., Dill v. State, 741 N.E.2d 1230, 1231-33 (Ind. 2001). Second, the element of the instruction referencing drugs is highly inappropriate as the manufacture of drugs is not at issue in this case and was likely to invoke anti-drug sentiment in the jury, cause confusion in the minds of the jurors, and result in prejudice towards Conrad. Third, bearing in mind that firearms in the home are not contraband, the trial court’s instruction to the jury that it could consider whether Conrad’s possessions were mingled with the firearms was improper because the law does not provide that the mingling of personal effects with non-contraband items is evidence of possession of those items.
    Finally, I believe that trial counsel was ineffective for failing to object to the trial court’s reference in its final instruction number three to the fact that Conrad’s trial before the jury would take place in two parts. See footnote Specifically, the trial court instructed the jury that the trial of this case would be in two stages, and that in the first stage the jury must determine whether Conrad possessed the firearm, while in the second stage it would be called upon to decide “additional issues that would be presented and explained at that time.” R. at 222. The trial court then informed the jury that it “will not be finding the defendant guilty or not guilty of any crime” during the first stage. R. at 222. The purpose of bifurcating parts one and two was presumably to insure that consideration of Conrad’s prior felony convictions did not enter into the jury’s determination on the predicate issue of possession. However, the trial court’s instruction seems to imply that the second stage will inevitably take place, thereby assuming that the jury will find possession. The instruction also suggests that the second stage, unlike the first, will involve a determination of whether the defendant is guilty of a crime. I believe that the trial court’s reference to the second part of the trial improperly injected an aspect of prejudice into the proceedings that the bifurcation was designed to avoid and that trial counsel was ineffective for failing to object to this prejudicial instruction.
In sum, I believe that there is insufficient evidence to support Conrad’s conviction for possession of a firearm by a serious violent felon and that trial counsel’s performance was objectively unreasonable and resulted in prejudice to his client. Therefore, I vote to reverse the conviction.