MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Oct 26 2015, 8:57 am
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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Victoria Christ George P. Sherman
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terry Moore, October 26, 2015
Appellant-Petitioner, Court of Appeals Case No.
49A05-1504-PC-159
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Stanley E. Kroh,
Appellee-Respondent. Judge Pro Tempore
Trial Court Cause No.
49G03-0309-PC-152666
Najam, Judge.
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Statement of the Case
[1] Terry Moore appeals the post-conviction court’s denial of his amended petition
for post-conviction relief. Moore presents a single issue for our review, namely,
whether he was denied the effective assistance of appellate counsel. We affirm.
Facts and Procedural History
[2] We summarized the facts and procedural history of this case in Moore’s direct
appeal, Moore v. State, 839 N.E.2d 178, 180-82 (Ind. Ct. App. 2005), trans.
denied, as follows:
The facts most favorable to the jury’s verdict indicate that on
October 21 and 23, 2002, Indianapolis Police Department
(“IPD”) officers used John McGavock as a confidential
informant to purchase cocaine from Moore. Moore was arrested
and charged with two counts of class A felony dealing in cocaine.
Moore was subsequently released pending trial, which was set for
September 22, 2003.
On the evening of September 7, 2003, McGavock attended a
birthday party in an apartment building near the intersection of
East Washington Street and Highland Avenue. When
McGavock went to another apartment to retrieve some food, two
men burst in. McGavock was hit on the head with a gun and
knocked to the floor. The men bound, gagged, and blindfolded
McGavock and put him in the trunk of a car. The men drove to
a gas station, opened the trunk, and saw that McGavock had
untied his hands. They punched McGavock, retied his hands,
and drove to a garage. McGavock, who had again untied his
hands, was punched and “hog-tied” and left in the garage with
Moore. Tr. at 182. By this time, McGavock had positioned the
blindfold so that he could see. Moore eventually dragged
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McGavock out of the garage and into an upstairs bedroom closet
in Moore’s apartment.
McGavock untied his hands several times. Each time, Moore
kicked and punched him and retied his hands. McGavock saw
Moore watch TV, talk on the telephone, and fall asleep on the
bed. McGavock untied his hands and feet, ran to the telephone,
and attempted to dial 9-1-1. Moore awoke, ripped the telephone
off the wall, and grabbed McGavock. McGavock yelled for help,
and the two fought their way down the stairs. At the bottom of
the stairs, Moore grabbed a knife and stabbed McGavock in the
shoulder. Moore stabbed McGavock again, and the knife blade
broke. Moore grabbed another knife and said, “I asked you if
you was the police. You tell me you’re not the police. You a
C.I.” Id. at 190. Moore stabbed McGavock in the neck and
slashed his throat. McGavock fell to the floor and made a
gurgling sound. Moore said, “Oh, you’re not dead yet? You had
better be dead by the time I get through cleaning this stuff up.
Because if you’re not dead, I am going to come over and cut your
head off.” Id. at 191. Moore then said, “I still hear you. I still
hear you. You ain’t dead yet. Just wait.” Id. McGavock lost
consciousness.
During the struggle, Moore’s roommate, Edward Harper, awoke
to hear an unfamiliar voice yelling, “Don’t kill me. Don’t kill
me.” Id. at 245. Harper hid in his closet. Fifteen minutes later,
Moore entered Harper’s room and said that he was getting ready
to turn himself in. Moore told Harper not to come downstairs
and left the room. Harper started to walk downstairs and saw
blood on the couch. Harper went back upstairs, lowered himself
from his bedroom window with an electrical cord, and asked a
passerby to call the police.
At approximately 6:30 a.m. on September 8, 2003, IPD Officers
Tracy Ryan and Ronald Rehmel responded to a 9-1-1 call
regarding a possible disturbance at a residence on North Central
Avenue. No one answered the door, and the officers departed.
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At approximately 7:30 a.m., the officers responded to a second 9-
1-1 call at the residence and returned to find a “shaking,
screaming” Harper standing on a balcony “saying that there was
something going on” inside. Id. at 53. The officers entered the
building and reached Moore and Harper’s apartment. The
officers detected a strong odor of a cleaning solution.
Through a window in the apartment door, Officer Rehmel saw
McGavock lying in a pool of blood. Moore walked toward the
door. The officers drew their firearms and ordered him to unlock
the door. Moore did so, and the officers entered and handcuffed
him. Moore was uninjured, and his clothing and shoes were
soaked with blood. Officer Tracy saw a mop and a bucket of
soapy water in the room. Officer Tracy read Moore
his Miranda rights, and he stated that he understood them. The
officers requested medical assistance for McGavock.
After McGavock was taken to the hospital, Moore asked to speak
with Officer Tracy. He told her that if she wrote anything down,
“he would deny it all.” Id. at 71. He told her that he had first
intended to shoot McGavock, but then decided to “saw his head
off.” Id. at 72. When asked why he had harmed McGavock,
Moore stated that McGavock had come over to sell him a gun
and that they had gotten into an argument over a previous drug
case. Moore said that McGavock became upset when he refused
to buy the gun and struck him with the weapon. Moore stated
that he wrested the gun from McGavock and hid it in an upstairs
bedroom. He decided that he did not want to shoot McGavock
and instead stabbed him with a knife and “was just going to cut
him until his head came off.” Id. at 75.
Police found a knife handle and knife blades in the apartment, as
well as blood spatters on the living room and stairway walls.
Bloody footprints were found upstairs and in the kitchen. Police
also found a handgun under the bed in an upstairs bedroom and
red smears on a telephone next to the bed. On the bed was a pile
of clothing that appeared to have been removed from the closet.
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McGavock received treatment for multiple knife wounds, the
most significant of which “spanned the entire front of the neck”
and “went deep into the throat[,]” damaging part of the
airway. Id. at 91, 92. McGavock was in danger of suffocating
and of drowning from blood seeping into the airway. The
trauma physician gave McGavock a fifty percent chance of
survival. McGavock was unable to talk for several days and
identified Moore as his assailant from a photo array. On
September 16, McGavock told police for the first time about the
ropes involved in his abduction. Police found a rope and a rag
under Harper’s bed and a rope and a cloth in the garage, all of
which appeared to be covered with blood. Police also found
McGavock’s car near the intersection of East Washington Street
and Highland Avenue.
The State charged Moore with attempted murder, a class A
felony; aggravated battery, a class B felony; criminal confinement
as a class B felony; battery as a class C felony; and carrying a
handgun without a license as a class A misdemeanor. The State
also alleged Moore to be a habitual offender. Moore filed a
subpoena duces tecum ordering IPD to produce McGavock’s
complete confidential informant file, including any agreements
between him and IPD, his payment ledger, a list of the cases he
had worked on, and records regarding whether the information
he provided “resulted in an arrest, a charge, a conviction or an
acquittal.” Appellant’s App. at 231. IPD filed a motion to quash
the subpoena. The trial court conducted an in camera review of
McGavock’s file and ordered IPD to produce the documents and
records relating to this case and McGavock’s alleged purchases of
cocaine from Moore in 2002.
At trial, Moore renewed his request for production of
McGavock’s complete file and moved to exclude McGavock’s
testimony because he had been unable to review it. The trial
court denied both motions. Moore testified that McGavock
came to his house and attempted to sell him a gun; when he
refused to purchase it, McGavock punched him, grabbed a knife,
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and chased him around a table. Moore stated that he grabbed a
knife and fought back, and when he “came to[,]” he was sitting
on McGavock’s back and “had the knife . . . in a sawing motion”
under his neck. Tr. at 472. On January 20, 2005, the jury found
Moore guilty of attempted murder, aggravated battery, and
criminal confinement, and not guilty of the remaining charges.
The jury then found Moore to be a habitual offender. At the
sentencing hearing, the trial court vacated the aggravated battery
conviction on double jeopardy grounds and imposed a total
executed sentence of eighty-five years.
In his direct appeal, Moore raised a single issue, namely, whether the trial court
abused its discretion when it modified Moore’s subpoena duces tecum ordering
the production of his victim’s complete confidential informant file. Id. at 179-
80. We affirmed Moore’s convictions. Id. at 185.
[3] In October 2011, Moore filed a pro se petition for post-conviction relief, and in
July 2013, Moore filed an amended petition alleging that his appellate counsel
was ineffective when she did not raise on appeal the issue of whether Moore’s
Class B felony criminal confinement conviction violated the prohibition against
double jeopardy. Following a hearing, the post-conviction court denied
Moore’s petition. This appeal ensued.
Discussion and Decision
[4] Moore appeals the post-conviction court’s denial of his amended petition for
post-conviction relief. Our standard of review is clear:
[The petitioner] bore the burden of establishing the grounds for
post-conviction relief by a preponderance of the evidence. See
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Ind. Post-Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d
591, 597 (Ind. 2001). Post-conviction procedures do not afford a
petitioner with a super-appeal, and not all issues are available.
Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral
challenges to convictions must be based on grounds enumerated
in the post-conviction rules. Id. If an issue was known and
available, but not raised on direct appeal, it is waived. Id. If it
was raised on appeal, but decided adversely, it is res judicata. Id.
In reviewing the judgment of a post-conviction court, appellate
courts consider only the evidence and reasonable inferences
supporting the post-conviction court’s judgment. Hall v. State,
849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is
the sole judge of the evidence and the credibility of the witnesses.
Id. at 468-69. Because he is now appealing from a negative
judgment, to the extent his appeal turns on factual issues [the
petitioner] must convince this court that the evidence as a whole
leads unerringly and unmistakably to a decision opposite that
reached by the post-conviction court. See Timberlake, 753 N.E.2d
at 597. We will disturb the decision only if the evidence is
without conflict and leads only to a conclusion contrary to the
result of the post-conviction court. Id.
Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.
[5] Further, the post-conviction court in this case made findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6).
“Although we do not defer to the post-conviction court’s legal conclusions, ‘[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.’” Overstreet v. State, 877 N.E.2d 144, 151 (Ind.
2007) (citation omitted).
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[6] Moore contends that he was denied the effective assistance of appellate counsel
in violation of the Sixth Amendment to the United States Constitution. A
claim of ineffective assistance of counsel must satisfy two components.
Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show
deficient performance: representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have
the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88. Second, the
defendant must show prejudice: a reasonable probability (i.e., a probability
sufficient to undermine confidence in the outcome) that, but for counsel’s
errors, the result of the proceeding would have been different. Id. at 694.
[7] Moore asserts that his appellate counsel’s performance was deficient because
she did not raise as an issue on direct appeal that Moore’s Class B felony
criminal confinement conviction violated the prohibition against double
jeopardy. Our supreme court has stated that the decision regarding what issues
to raise and what arguments to make is one of the most important strategic
decisions to be made by appellate counsel, and, thus, ineffectiveness is “very
rarely found” on that basis. See Conner v. State, 711 N.E.2d 1238, 1252 (Ind.
1999) (citations omitted). “‘Accordingly, when assessing these types of
ineffectiveness claims, 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. (quoting Bieghler v.
State, 690 N.E.2d 188, 194 (Ind. 1997)). To evaluate the performance prong
when counsel waived issues upon appeal, we apply the following test: (1)
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whether the unraised issues are significant and obvious from the face of the
record and (2) whether the unraised issues are “clearly stronger” than the raised
issues. Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013) (citing Timberlake, 753
N.E.2d at 605-06). If the analysis under this test demonstrates deficient
performance, then we evaluate the prejudice prong which requires an
examination of whether the issues appellate counsel failed to raise would have
been clearly more likely to result in reversal or an order for a new trial. Id.
[8] Here, at trial, Moore’s trial counsel argued to the court that there was a
reasonable possibility that the jury relied on the same evidence, namely, the
serious bodily injuries sustained by McGavock, both to enhance Moore’s
criminal confinement conviction to a Class B felony and to convict Moore of
attempted murder. Thus, Moore’s trial counsel argued that, under the actual
evidence test set out in Richardson v. State, 717 N.E.2d 32 (Ind. 1999), double
jeopardy principles required that his Class B felony criminal confinement
conviction be reduced to a Class D felony. See, e.g., Ramon v. State, 888 N.E.2d
244, 253 (Ind. Ct. App. 2008) (noting that, where one conviction is elevated to a
Class A felony based on the same bodily injury that forms the basis of another
conviction, the two cannot stand).
[9] Our supreme court has explained the actual evidence test as follows:
[T]he Double Jeopardy Clause of the Indiana Constitution . . .
provides “[n]o person shall be put in jeopardy twice for the same
offense.” Ind. Const. art. 1, § 14. In Richardson[, 717 N.E.2d at
49], this Court concluded that two or more offenses are the same
offense in violation of article 1, section 14 if, with respect to
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either the statutory elements of the challenged crimes or the
actual evidence used to obtain convictions, the essential elements
of one challenged offense also establish the essential elements of
another challenged offense. Under the actual evidence test, we
examine the actual evidence presented at trial in order to
determine whether each challenged offense was established by
separate and distinct facts. Id. at 53. To find a double jeopardy
violation under this test, we must conclude that there is “a
reasonable possibility that the evidentiary facts used by the fact-
finder to establish the essential elements of one offense may also
have been used to establish the essential elements of a second
challenged offense.” Id. The actual evidence test is applied to all
the elements of both offenses. “In other words . . . the Indiana
Double Jeopardy Clause is not violated when the evidentiary
facts establishing the essential elements of one offense also
establish only one or even several, but not all, of the essential
elements of a second offense.” Spivey v. State, 761 N.E.2d 831,
833 (Ind. 2002).
Our precedents “instruct that a ‘reasonable possibility’ that the
jury used the same facts to reach two convictions requires
substantially more than a logical possibility.” Lee v. State, 892
N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable
possibility standard “fairly implements the protections of the
Indiana Double Jeopardy Clause and also permits convictions for
multiple offenses committed in a protracted criminal episode
when the case is prosecuted in a manner that insures that
multiple guilty verdicts are not based on the same evidentiary
facts.” Richardson, 717 N.E.2d at 53 n.46. The existence of a
“‘reasonable possibility’ turns on a practical assessment of
whether the [fact finder] may have latched on to exactly the same
facts for both convictions.” Lee, 892 N.E.2d at 1236. We evaluate
the evidence from the jury’s perspective and may consider the charging
information, jury instructions, and arguments of counsel. Id. at 1234.
Garrett, 992 N.E.2d at 719-20 (emphasis added).
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[10] At trial, the jury was instructed that Moore was alleged to have committed
attempted murder when he stabbed
at and against the person of John McGavock with a deadly
weapon, that is: a knife, with the intent to kill John McGavock,
resulting in serious bodily injury, that is: stab wounds of the
chest, abdomen, shoulders, and back; and lacerations of the
neck[;] . . . which was conduct constituting a substantial step
toward the commission of the intended crime of killing John
McGavock.
Appellant’s App. at 172. And the jury was instructed on the criminal
confinement charge as follows:
A person who knowingly removes another person by fraud,
enticement, force or threat of force, from one place to another
commits criminal confinement, a Class D felony.
The offense is a Class B felony if it is committed while armed with a
deadly weapon or if it results in serious bodily injury to another person.
Before you may convict the defendant, the State must have
proved each of the following beyond a reasonable doubt:
1. The defendant, Terry A. Moore
2. Knowingly or intentionally
3. Removed John McGavock by fraud, enticement, force or threat
of force from one place to another, that is: from a residence located
near the intersection of Washington Street and Highland Avenue, to a
residence located at 2060 North Central Avenue
4. And the defendant committed the removal while armed with a deadly
weapon, that is a handgun;
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or
the removal resulted in serious bodily injury to John McGavock, that is:
stab wounds of the chest, abdomen, shoulders and back and lacerations of
the neck[.]
Id. at 174 (emphases added). Thus, Moore’s criminal confinement charge was
based solely on his conduct in removing McGavock from one residence to
another and not on his subsequent conduct. See Ind. Code § 35-42-3-3(a)(2)
(2002).1 And the jury was instructed that it could convict Moore of Class B
felony criminal confinement either if he used a handgun in the course of the
removal or if the removal resulted in serious bodily injury, namely, stab wounds
and lacerations.
[11] The evidence presented at trial left no room for confusion on this issue. Again,
Moore was charged with confining McGavock by moving him from one place
to another. McGavock testified in relevant part as follows:
When I got to the back room, two guys busted through the back
door. I was hit on the head with a gun, knocked on the floor.
One guy ran around and grabbed me by the throat, put a gun in
my mouth. The other guy was kicking me.
At that time, they turned me over and tied my hands up.
They . . . tied my hands behind my back, tied my feet up, put a
rag in my mouth, tied something around the back of my mouth
1
Indiana Code Section 35-42-3-3 was substantively amended in 2014.
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and around my eyes and told me to shut up, don’t move, don’t
scream, don’t yell.
Trial Tr. at 179 (emphasis added). The men then put McGavock into the trunk
of a car and drove him to Moore’s apartment. At no time during that
confinement was McGavock stabbed or cut with a knife. Rather, McGavock’s
testimony shows that Moore and the other man used a gun in the course of the
confinement. Moore stabbed and cut McGavock, causing serious bodily
injuries, long after that initial confinement and only after McGavock had tried
to escape. Accordingly, the jury instructions and the actual evidence
demonstrate that there is no reasonable possibility that the jury enhanced
Moore’s criminal confinement conviction based on McGavock’s serious bodily
injuries. As such, there was no double-jeopardy issue for his appellate counsel
to have raised.
[12] But Moore insists that the jury acquitted him of battery, as a Class C felony,
which was based on his alleged use of a handgun to hit McGavock, and the jury
also acquitted Moore of carrying a handgun without a license. Moore asserts
that
[t]he jury spoke by its verdict that the State failed to prove Moore
hit McGavock with the gun. The jury spoke by finding the State
never proved Moore possessed a gun on the date of the crime.
The jury’s finding can only be explained by the victim’s inability
to identify Moore as the person who hit [McGavock] with the
gun at the first location. McGavock described being hit in the
head with the gun one time but he was unable to identify the
person who hit him. When he got to the garage on Central
Avenue, the blindfold was removed but he was unable to see
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Moore because he had blood in his eyes, and this incident did not
involve a gun. Since the jury consistently acquitted Moore of the gun-
related charges, it would be unreasonable to assume the jury relied on the
deadly weapon alternative of the confinement count to reach the Class B
felony conviction instead of the serious bodily injury alternative.
Appellant’s Br. at 20-21 (emphasis added).
[13] But, as the State contends, any inconsistencies in the verdict have no bearing on
the issue before us. Indeed, our supreme court has stated that,
[w]hen a jury returns logically inconsistent verdicts, such a result
could mean that it misunderstood its instructions. But it is more
likely that the jury chose to exercise lenity, refusing to find the
defendant guilty of one or more additionally charged offenses,
even if such charges were adequately proven by the evidence.
Such right of a criminal jury to decline to convict is well
recognized.
Beattie v. State, 924 N.E.2d 643, 648 (Ind. 2010). Thus, just because the jury
acquitted Moore of the gun-related charges, that does not necessarily mean that
they also concluded that the criminal confinement was not accomplished with
the use of a firearm.
[14] Given the jury instructions and the evidence presented at trial, which left no
doubt that McGavock did not sustain any stab wounds or cuts during the
criminal confinement, we cannot say that there is “substantially more than a
logical possibility” that the jury relied on the stab and knife cut wounds to
McGavock to elevate the criminal confinement conviction to a Class B felony.
Garrett, 992 N.E.2d at 719. Because there was no double jeopardy violation,
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Moore has not demonstrated either that his double jeopardy claim was
“significant and obvious from the face of the record” or “clearly stronger” than
the issue counsel raised on direct appeal. Id. at 724. Thus, Moore has not
shown that his appellate counsel’s performance was deficient. Id. Again, we
are “‘particularly deferential to counsel’s strategic decision to exclude certain
issues in favor of others, unless such a decision was unquestionably
unreasonable.’” Conner, 711 N.E.2d at 1252 (quoting Bieghler, 690 N.E.2d at
194). The post-conviction court did not err when it denied Moore’s petition for
post-conviction relief alleging ineffective assistance of appellate counsel.
[15] Affirmed.
Kirsch, J., and Barnes, J., concur.
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