Esther Jane Stephen, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2026)

MEMORANDUM DECISION

[1] Esther Jane Stephen appeals the denial of her petition for post-conviction relief. We affirm.

Facts and Procedural History

[2] The relevant facts as discussed in Stephen's direct appeal follow:

Stephen and Shea Michael Briar were in a romantic relationship that resulted in the birth of a daughter, A., in January 2019. After their relationship ended in October 2019, Stephen denied Briar access to A., and Briar filed petitions to establish paternity, child support, name change, and parenting time. Stephen, “upset” by Briar's efforts, “didn't want to share her child with [Briar].” Stephen plotted with her friends, including her best friend and coworker, Shelby Hiestand, regarding ways to eliminate Briar from her life.

The following events occurred in 2020. Around the week of January 5, Stephen and Hiestand scouted potential sites for killing Briar, including a remote bridge. On January 8, Stephen enlisted Kristi Sibray to babysit A. during the coming weekend. On Saturday, January 11, Hiestand left her vehicle in Stephen's possession. Stephen drove the vehicle to Hiestand's home and retrieved Hiestand's .22 caliber rifle.

At around 10:30 p.m., Stephen and Hiestand drove A. to the babysitter, Sibray. Stephen and Hiestand then met Hannah Knapke at Stephen's daycare business location. Hiestand shot her rifle in the daycare's parking lot to gauge how loud a gunshot would be. At approximately 11:30 p.m., Stephen telephoned Sibray to say that she was delayed in returning for A.

Stephen telephoned Briar and invited him to spend time with the three women; Briar agreed. The women discussed the possibility of killing Briar and rode together in Knapke's van to Briar's home. En route to Briar's home, Hiestand took over driving from Knapke, and Stephen moved from the front passenger seat to the back seat. When they reached Briar's home, he joined Stephen in the back seat of the vehicle. The foursome drove to a remote area, where Hiestand parked on the pre-scouted bridge on County Road 125 West. As Stephen and Briar exited the vehicle and walked away together toward the opposite end of the bridge, Hiestand shot Briar in the back with the rifle.

Although Briar survived the shooting, none of the women rendered aid or called the police. Instead, the women drove away, returning briefly so Stephen could retrieve and dispose of Briar's cell phone, which she threw over the bridge. The three women left Briar bleeding on the bridge.

Stephen stopped to lock the daycare facility and collected A. from Sibray around 1:00 a.m. When Sibray asked where Stephen was earlier, Stephen replied that Sibray “might hear about it in a couple days.”

At approximately 1:58 a.m. on January 12, 2020, a law enforcement dispatch was issued regarding a nonresponsive subject, later identified as Briar, on a remote bridge. Officer Aaron Stronczeck of the Geneva Police Department responded to the scene; his dashboard camera captured Briar's condition at the scene. Briar died en route to the hospital. An autopsy later revealed that a .22 caliber bullet entered Briar's back and pierced Briar's heart, which killed him.

Detective Mitch Sutton of the Jay County Sheriff's Department notified Briar's family and close acquaintances, including Stephen, of his death. Stephen reported her last contact with Briar was on January 6, 2020, which was A.’s birthday. Stephen denied knowing of anyone who wished Briar harm. Investigators recovered Briar's cell phone from the scene. The phone records contradicted Stephen's statements to the police by revealing Briar and Stephen spoke on the phone at 12:02 a.m. on January 12th.

Detectives Sutton and Ben Schwartz formally interviewed Stephen on January 14, 2020. Stephen initially denied having contact with the decedent on January 11th or 12th. As the videotaped interview progressed, however, Stephen admitted that she had often thought her life would be better without Briar; she often joked and vented with friends about killing Briar; and she was present when Hiestand shot Briar on January 12th.

Stephen v. State, No. 21A-CR-873, 2021 WL 5267844 at *1-2 (Ind. Ct. App. Nov. 12, 2021) (citations and footnote omitted).

[3] During the January 14, 2020 police interview, detectives read Stephen her Miranda rights, she indicated she understood her rights, and she signed a waiver of her rights.¹ Stephen gave inconsistent accounts of the night in question, and at some point officers told Stephen they had a search warrant for her home and that they were conducting an interview with Hiestand. Stephen asked, “Do I need my lawyer?” State's Exhibit 19 at 52:01. One of the detectives responded, “That is - - your call, not ours. We want to get to the bottom of this.” Id. at 52:09. When one of the detectives subsequently told her to “do what [she] want[s] to do” but that she should “think about what would look better on [her] part,” Stephen responded, “I mean, I don't want to call an attorney ․” Id. at 52:30.² Stephen ultimately admitted to planning the murder with Hiestand and being present when Briar was shot.

[4] On January 15, 2020, the State charged Stephen with murder. A jury trial was held on March 18, 2021. Stephen's trial attorney, Jill Gonzales, did not move to suppress or object to the admission of the videotaped police interview prior to or during trial when the interview was offered and admitted into evidence. The jury found Stephen guilty as charged. The court imposed a fifty-five year sentence.³

[5] Stephen appealed and raised three issues regarding the sufficiency of the evidence, jury instructions, and the appropriateness of her sentence. This Court affirmed her conviction and sentence in a memorandum decision. Stephen, No. 21A-CR-873, 2021 WL 5267844 at *7.

[6] On February 22, 2022, Stephen filed a pro se petition for post-conviction relief. On February 18, 2025, Stephen, by counsel, filed an amended petition. In the amended petition, Stephen alleged that she received ineffective assistance of trial counsel because counsel failed to move to suppress her statements to police and also failed to adequately impeach witness Sibray during cross-examination. The court held an evidentiary hearing on May 9, 2025. During the hearing, Stephen testified that, during her police interview, she attempted to tell detectives that she had an attorney and was asking if she should call her attorney. Stephen admitted that the detective responded, “[T]hat's up to you.” Transcript Volume II at 18. Noting that a portion of her next statement was “inaudible” according to the written transcript of her interview, Stephen testified that, “to the best of her recollection,” she then asked, “[C]an I at least call my attorney?” Id.⁴ On May 29, 2025, the post-conviction court entered its findings of fact, conclusions of law, and order denying Stephen's petition.

Discussion

[7] The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. “A post-conviction court's 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.” Id. In this review, we accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.

[8] Stephen seeks post-conviction relief arguing that her trial counsel was ineffective for failing to file a motion to suppress or object to the admission of her incriminating statements made during her police interview and in failing to adequately impeach trial witness, Sibray, with alleged prior inconsistent statements. Specifically, Stephen argues that she “repeatedly invoked her right to counsel” during her police interview and therefore, her statements were made in violation of her constitutional rights. Appellant's Brief at 9. She asserts that trial counsel's failure to “move to suppress” her statements “either prior to or during trial ․ resulted in the admission of suppressible evidence” and that “[t]his evidence, along with the unimpeached testimony of a witness who provided inconsistent accounts of circumstantial evidence, resulted in [her] conviction for Murder.” Id.

[9] 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 v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), reh'g denied). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. Id. To meet the appropriate 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. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

[10] When considering a claim of ineffective assistance of counsel, a “strong presumption arises 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). Evidence of isolated poor strategy, inexperience, or bad tactics will not support a claim of ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206, 1211 (Ind. 1996), reh'g denied, cert. denied, 520 U.S. 1171, 117 S. Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly speculate as to what may or may not have been an advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998).

[11] Regarding trial counsel's failure to file a motion to suppress and/or object to the admission of Stephen's statements made during her police interview, we observe:

The decision of whether to file a particular motion is a matter of trial strategy, and, absent an express showing to the contrary, the failure to file a motion does not indicate ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim based upon counsel's failure to file motions on a defendant's behalf, the defendant must demonstrate that such motions would have been successful.

Moore v. State, 872 N.E.2d 617, 620-621 (Ind. Ct. App. 2007) (citation modified), trans. denied.

[12] Stephen has not met her burden to show that such motion to suppress or objection would have been successful. It is well established that “[i]nvocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994) (internal quotation marks and citation omitted). In Carr v. State, 934 N.E.2d 1096, 1107 (Ind. 2010), the Indiana Supreme Court explained:

An accused's request for counsel ․ must be unambiguous and unequivocal. Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S. Ct. 2250, 2259 (2010). The cessation of police questioning is not required “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.” [Davis, 512 U.S. at 459, 114 S. Ct. at 2355].

Id. at 1102.

[13] Here, the record reveals that Stephen initially merely asked detectives if she needed her lawyer. After detectives explained that they could not make that decision for her but that she should consider how her decision in this regard may make her look, the evidence indicates that she declared that she did not want to call an attorney, or at a minimum that she was still questioning whether she wanted to do so. Stephen's self-serving testimony before the post-conviction court claiming that she unambiguously and affirmatively requested, “Can I at least call my attorney” is not supported by the written transcript of the interview and is contradicted by our independent review of the audio recording of the interview.⁵ Moreover, as observed by the post-conviction court, “at no time during the interview did [Stephen] make any comment that she desired to stop answering questions or remain silent.” Appellant's Appendix Volume II at 54. Under the circumstances, we cannot say that Stephen has demonstrated that she unequivocally or unambiguously invoked her right to counsel. See Schuler v. State, 112 N.E.3d 180, 187 (Ind. 2018) (holding that defendant's statement, “I want my attorney, but I'll answer, you can ask me questions however” was not an unambiguous request for counsel); Taylor v. State, 689 N.E.2d 699, 703 (Ind. 1997) (holding that defendant's statement “I guess I really want a lawyer, but, I mean, I've never done this before so I don't know” was an ambiguous request); King v. State, 991 N.E.2d 612, 617 (Ind. Ct. App. 2013) (holding that defendant's question, “Am I going to need an attorney?” was not an unambiguous and unequivocal request for an attorney); Bean v. State, 913 N.E.2d 243, 251 (Ind. Ct. App. 2009) (concluding that regardless of whether defendant asked “What about an attorney?” “Do I need an attorney?” or “Shouldn't I have an attorney?” during custodial interrogation, none of those statements rose to the level of clarity that a reasonable officer would understand as a request for an attorney), trans. denied; Collins v. State, 873 N.E.2d 149, 156 (Ind. Ct. App. 2007) (holding that defendant did not unequivocally invoke his right to an attorney when he stated that he “probably” needed an attorney during interview with detective), trans. denied. Stephen has not met her burden to show that a motion to suppress or objection to her statements would have been successful. Accordingly, she has not established that her counsel rendered ineffective assistance.

[14] As for counsel's alleged failure to adequately cross-examine Sibray by putting “her prior inconsistent statements before the jury,” Appellant's Brief at 17, we agree with the State that Stephen has waived this claim on appeal for lack of cogent argument.⁶ Ind. Appellate Rule 46(A)(8)(a) requires the appellant to support her argument with “cogent reasoning” and “citations to the authorities.” “Failure to present a cogent argument results in waiver of the issue on appeal.” Martin v. Brown, 129 N.E.3d 283, 285 (Ind. Ct. App. 2019). As observed by the State, Stephen “provides only one conclusory sentence claiming counsel inadequately cross-examined Sibray, ․ provides no developed argument as to how counsel failed to impeach Sibray, what inconsistent statements counsel allegedly failed to use, nor does she provide any citations to the record or case law to support her argument.” Appellee's Brief at 25. Stephen has waived our review of this issue.

[15] For the foregoing reasons, we affirm the post-conviction court's order.

[16] Affirmed.

FOOTNOTES

1.   During the post-conviction hearing, Stephen indicated that she “had a Bachelor's Degree” and had no “trouble understanding” her rights as they were read to her by detectives. Transcript Volume II at 21.

2.   The written transcript of the interview, State's Exhibit 20, indicates that Stephen's words preceding “call an attorney” were inaudible. From our review of the audio recording, we agree with the State that it appears that Stephen says, “I mean, I don't want to” just prior to “call an attorney.” Appellee's Brief at 11 n.1; State's Exhibit 19 at 52:30.

3.   The record reveals that Gonzales passed away shortly after the jury trial concluded. Accordingly, a different attorney was appointed to represent Stephen during sentencing and also on direct appeal.

4.   Stephen qualified her recollection of this statement by saying her statement was “something along those lines.” Transcript Volume II at 18.

5.   We observe that State's Exhibit 20 consists of the written transcript of Stephen's police interview. As already touched upon, we note that in such transcript, several words or phrases, primarily those spoken by Stephen, are labeled as “(Inaudible).” This includes the statement, on page 45, line 25, that reads, “(Inaudible) call an attorney (inaudible).” State's Exhibit 20 at 69. Although it is extremely difficult to make out certain words, our independent review of the audio recording of her interview confirms that, in a very soft-spoken voice, Stephen states, “I mean, I don't want to” or “I mean, I don't know if I may want to” prior to the audible portion of the statement which the parties agree is “call an attorney.” State's Exhibit 19 at 52:30.

6.   While Stephen did submit a Reply Brief, she did not address her initial brief's lack of cogency on this issue or attempt to further explain or supplement her argument in response to the State's waiver assertion.

Brown, Judge.

Altice, J., and DeBoer, J., concur.