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.




Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 1 of 15
                                       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


      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 2 of 15
        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.
Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 3 of 15
        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.
Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 4 of 15
        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,
Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 5 of 15
              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

      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 6 of 15
              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).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 7 of 15
[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)


      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 8 of 15
      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

      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 9 of 15
        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).

Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 10 of 15
[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;
       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 11 of 15
                 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.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 12 of 15
               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
       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 13 of 15
               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,

       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 14 of 15
       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.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-PC-159 | October 26, 2015   Page 15 of 15
