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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Dec 22 2009, 10:33 am
of the supreme court, court of appeals and tax court

CLERK

APPELLANT PRO SE: ANTHONY BARNETT Michigan City, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANTHONY BARNETT, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 22A01-0810-PC-505

APPEAL FROM THE FLOYD SUPERIOR COURT The Honorable J. Terrence Cody, Special Judge Cause No. 22D01-0509-PC-2

December 22, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Anthony Barnett appeals the denial of his petition for post-conviction relief. Barnett alleges he received ineffective assistance from both trial and appellate counsel. We affirm. FACTS AND PROCEDURAL HISTORY Cynthia Bogard quit working in 1996 to take care of David Carter, the father of one of her children. After David died, Bogard lived by herself and developed

agoraphobia. Although she rarely left her home, in 2002 she met Jeanette Lewis on her way home from church. Lewis started bringing people to Bogard's house to smoke crack. Barnett and his brother, Herschel, were among the people who would use drugs at Bogard's house. On several occasions, Barnett brought along women who would have sex with him in exchange for drugs. Bogard sometimes smoked crack as well, but primarily, she wanted company and "just went along with what they did." (Tr. at 50.) After a while, Bogard began to feel uncomfortable because she was no longer in control of her home. Several times, Bogard asked Barnett to stop coming over, but he laughed at her requests. At the time, Barnett was divorced from his wife, Tonya, but they had begun living together again. On December 10, 2002, Bogard decided to call Tonya and tell her what Barnett was doing at her house in the hope that Tonya would stop it. That day, Herschel and someone named David came over to Bogard's house. While Herschel and David were there, someone began banging on the door so hard "it sounded like the door was gonna come open." (Id. at 74.) Bogard "went to the door and I opened it up about this much, which is what I always do. I always look out the door 2

before I open the door. And when I did that I saw that it was [Barnett] and he took and he pushed the door open." (Id. at 75.) Bogard did not invite him in. Barnett pushed Bogard down and started screaming that she had "ruined his life with his wife." (Id. at 78.) He said he had brought Rodney McNeary and "some girl from California" to help beat her up, and he also said he had a gun in the car that he always carried with him. (Id. at 78.) He stomped on Bogard with his heel and threatened to kill her if she did not call Tonya and recant. Herschel intervened, saying "she's an old lady, you're going to hurt her." (Id.) Barnett got the phone, dialed Tonya's number, and had Bogard talk to her. Bogard took the phone onto the back porch. Bogard told Tonya that Barnett was there and that he wanted her to say she had lied. After speaking to Tonya, Bogard fled to her neighbor's house. Erin Rissler let her in, and Rissler's mother called the police. Bogard had a knot on her head that was bleeding, and her shoulder hurt. She had bruises on her shoulder, chest, and head. Dr. William Smock testified that one of the bruises on her chest near her shoulder was a pattern injury caused by the heel of a shoe. According to Dr. Smock, it takes "a hell of a lot of force" to cause a pattern injury, and falling against the edge of a table would not involve sufficient force to create a pattern injury. (Id. at 386.) Dr. Smock testified the injury was consistent with Bogard's account of the attack.

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Barnett was initially charged with Class C felony battery.1 An amendment to the information added an habitual offender charge,2 and a second amendment added charges of Class A felony burglary3 and Class D felony intimidation.4 At trial, Tonya confirmed that Bogard had called her and told her Barnett was having sex with another woman. Barnett told Tonya that Bogard was lying, and he said he would "get it straightened out." (Id. at 271.) Tonya then received a second call from Bogard. Bogard said she was "sorry for getting in the middle of this," but she denied having lied about what Barnett was doing at her house. (Id. at 274.) Bogard also said she thought her shoulder was broken and she needed to go to the hospital. Tonya could hear Barnett "hollering" in the background. (Id. at 275.) On cross examination, defense counsel asked Tonya whether she knew Barnett to carry a gun, and she said he did not. On redirect examination, the prosecutor attempted to impeach Tonya with a police report of a domestic dispute between Tonya and Barnett to establish that Barnett had access to a gun. Barnett called Gary Brown, who testified he was one of the people who had used drugs at Bogard's house. On December 10, 2002, Brown happened to be passing

Bogard's house when he saw Barnett knocking on her door. He approached Barnett to see what was happening. Brown testified Bogard opened the door and motioned for them to come inside. Barnett "said something to [Bogard] about why was she calling his wife," (id. at 434), and told her "she needed to call his wife and get that straightened out."
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Ind. Code

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