684 N.E.2d 1127 (Ind. 1997), 57S04-9608-CR-548, Potter v. State

Docket Nº:57S04-9608-CR-548.
Citation:684 N.E.2d 1127
Party Name:Daniel R. POTTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Case Date:August 25, 1997
Court:Supreme Court of Indiana

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684 N.E.2d 1127 (Ind. 1997)

Daniel R. POTTER, Appellant (Defendant Below),


STATE of Indiana, Appellee (Plaintiff Below).

No. 57S04-9608-CR-548.

Supreme Court of Indiana.

August 25, 1997

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[Copyrighted Material Omitted]

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Susan K. Carpenter, Public Defender, and Gregory L. Lewis, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Attorney General, and Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for appellee.


SELBY, Justice.

Daniel R. Potter ("Potter") was convicted of Rape, a Class A felony; Criminal Confinement, a Class B felony; Intimidation, a Class C felony; and Battery, a Class A misdemeanor. On appeal, the Court of Appeals affirmed in part, but reversed and remanded the Class A felony Rape conviction on the grounds of ineffective assistance of counsel. Potter v. State, 666 N.E.2d 93 (Ind.Ct.App.1996). Both the State and Potter petitioned this Court for transfer. In sum, the parties' transfer claims ask that we address the three original claims raised by Potter in the Court of Appeals. We granted transfer and now consider Potter's three claims: (1) whether Potter received ineffective assistance of counsel; (2) whether Potter was subjected to double jeopardy; and (3) whether there was insufficient evidence to convict Potter of rape. Because we answer each claim in the negative, we affirm the trial court's ruling.


On April 2, 1994, Wendy Potter was with her two daughters, Morgan and Katie, in their small, two bedroom mobile home. Wendy and Morgan were both sick with the flu. Throughout the day, Potter continuously called Wendy (to whom he had been married and divorced three times). During the calls he would beg to be allowed back into Wendy and his daughters' lives, and then he would stay on the phone line even after Wendy hung up. In the past when Potter had begged for a reconciliation, Wendy had given in because she felt it was easier than fighting.

Toward the evening, Potter arrived at Wendy's home and was let in by Morgan. Wendy repeatedly asked Potter to leave, but he refused. Wendy tried to call the police, but, as Potter admitted to Wendy, the phone line was dead. All this time Potter was abnormally calm. Wendy then attempted to get out of her home, but Potter stopped her, and jumped on her, and beat her face, neck, and hands with his fists. Both girls yelled and begged Potter to stop beating their mother.

Eventually Potter stopped hitting Wendy and again became abnormally calm. However, he then pulled out a knife and sat in a chair in front of the door. Potter told Wendy that he was going to kill her, the children, and himself. In response to these threats, Wendy told Potter that she would take him back. After a while, Potter took the knife into the kitchen area, and then returned to the chair blocking the front door. Wendy felt that she could not safely exit her home.

Potter demanded that Wendy have sex with him. Wendy refused several times, telling him that she did not want to and that she was sick with the flu; Potter, however, persisted in his demands. Wendy finally acquiesced because she felt that, for her and her children's safety, she had no choice but to allow Potter to have sexual intercourse with her. Afterwards, Wendy fell asleep on

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the love seat while Potter fell asleep on the floor near the front door. The next morning, Wendy convinced Potter to reconnect the phone. Potter then took Morgan with him to go and get his car. While they were gone, Wendy called the police.

Potter was charged with rape, a Class A felony; criminal confinement, a Class B felony; intimidation, a Class C felony; and battery, a Class A misdemeanor. He was also charged as a habitual offender. The jury found him guilty of all four crimes, and he was found to be a habitual offender.


  1. Ineffective Assistance of Counsel

    Potter first claims that he received ineffective assistance of counsel during his trial, and therefore the results of the trial should be reversed. Potter raises eight alleged separate instances of ineffective representation. Potter alleges that his attorney was ineffective for: (a) failing to object to a rape jury instruction; (b) stating in front of the jury that, against the attorney's advice, Potter would not testify; (c) failing to object to prior misconduct evidence; (d) failing to object to portions of the State's final argument; (e) failing to object to hearsay evidence; (f) failing to tender an instruction defining "knowingly" and "intentionally"; (g) failing to tender a "mistake of fact" instruction; and (h) the cumulative effect of all attorney errors.

    In order to prove a claim of ineffective assistance of trial counsel, a defendant must prove both parts of the two part test as set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must show that his counsel's actions fell below an objective standard of reasonableness under prevailing professional norms. Next, a defendant must show that the substandard performance was so prejudicial as to deny the defendant a fair trial. Steele v. State, 536 N.E.2d 292 (Ind.1989). A defendant is denied a fair trial only when a conviction occurs as the result of a breakdown in the adversarial process rendering the trial result unreliable. Marshall v. State, 621 N.E.2d 308 (Ind.1993). To demonstrate that a trial result is unreliable, a defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Spranger v. State, 650 N.E.2d 1117, 1121 (Ind.1995). Counsel is presumed to be competent, and in order to rebut the presumption, a defendant must present strong and convincing evidence otherwise. Clark v. State, 561 N.E.2d 759, 763 (Ind.1990).


    Potter argues that several discrete aspects of his trial representation rendered such representation ineffective. We first address that aspect of Potter's ineffective assistance claim upon which the Court of Appeals reversed and remanded. Potter argues that his counsel was ineffective for failing to object to a jury instruction defining the crime of rape. Specifically, Potter alleges that the jury instruction defined rape broader than did the charge contained in the information, thus allowing the jury to convict him of a type of rape not charged against him. Final Instruction # 8 reads in pertinent part:

    Count I--The crime of Rape, Class "A" Felony, as charged by the Information, is defined by statute as follows: A person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when: (1) The other person is compelled by force or imminent threat of force; commits Rape, a Class "B" Felony. However, the offense is a Class "A" Felony if it is committed by using or threatening the use of deadly force, if it is committed while armed with a deadly weapon, or if it results in serious bodily injury to a person other than a defendant.

    (R. at 251.) (emphasis added.) The charging information reads in pertinent part:

    Count I: RAPE, Class A Felony: Richard L. Anderson, being duly sworn upon his oath, says that: On or about the 2nd day of April, 1994, in Noble County, State of Indiana, DANIEL R. POTTER, while armed with a deadly weapon, to-wit: a knife, did knowingly or intentionally have sexual intercourse with Wendy Potter, a member of the opposite sex, the said Wendy Potter being compelled by the imminent

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    threat of force to have sexual intercourse with Daniel R. Potter.

    (R. at 10.) (emphasis added.) Thus, Final Instruction # 8 informed the jury of the three possible means of elevating rape to a class A felony, while the charging information was limited to just one, armed with a deadly weapon.

    In order to establish that counsel's failure to object to a jury instruction was ineffective...

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