      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                             Mar 20 2018, 10:06 am

      court except for the purpose of establishing                               CLERK
                                                                             Indiana Supreme Court
      the defense of res judicata, collateral                                   Court of Appeals
                                                                                  and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                         Curtis T. Hill, Jr.
      Public Defender of Indiana                               Attorney General of Indiana
      Liisi Brien                                              Monika Prekopa Talbot
      Deputy Public Defender                                   Supervising Deputy Attorney
      Indianapolis, Indiana                                    General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Duane R. Tackett,                                        March 20, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A05-1707-PC-1593
              v.                                               Appeal from the Delaware Circuit
                                                               Court 1
      State of Indiana,                                        The Honorable Marianne L.
      Appellee-Plaintiff.                                      Vorhees, Judge
                                                               Trial Court Cause No.
                                                               18C01-1404-PC-002



      Mathias, Judge.


[1]   Duane R. Tackett (“Tackett”) appeals the order of the Delaware Circuit Court

      denying his petition for post-conviction relief. On appeal, Tackett presents one

      Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018          Page 1 of 10
      issue, which we restate as whether the post-conviction court clearly erred in

      determining that Tackett’s trial counsel was not constitutionally ineffective for

      failing to impeach a witness for the State.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In our memorandum decision in Tackett’s direct appeal, we set forth the facts

      underlying Tackett’s convictions as follows:


              A.J. was born on July 24, 1980, and suffers from mental
              retardation, seizure disorder, cerebral palsy, and autism. During
              the investigation and trial, when A.J. was in her late twenties, her
              IQ was 57 and she had the mental capacity of a seven- to nine-
              year-old. Tackett married A.J.’s mother, Patricia, in 1983. As
              A.J.’s step-father, Tackett began touching A.J. in a sexual
              manner while A.J. was in elementary school, and continued
              while A.J. was in middle school and, after the three-person
              family moved to Kentucky, while A.J. was in high school.

              Specifically, Tackett touched A.J.’s breasts and vagina with his
              mouth, and placed his penis inside A.J.’s vagina. He touched
              A.J.’s rear-end as well, and had her touch his penis with her
              hands and mouth. On at least one occasion, Tackett attempted to
              place his penis inside A.J.’s anus, but Patricia stopped him
              because A.J. was in “too much” pain. Transcript at 327. Tackett
              and Patricia told A.J. that “what goes on in the bedroom stays in
              the bedroom.” Id. at 74 (in question by prosecutor with
              agreement by A.J.); see id. at 315 (in question by prosecutor with
              agreement by Patricia). Tackett’s regular sexual relations with
              A.J. continued until his arrest in mid-2008.

              Tackett, Patricia, and A.J. moved back to Indiana from
              Kentucky in March 2008, when A.J. was twenty-seven years old.

      Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018   Page 2 of 10
              Soon after their return, Sylvia Norris, A.J.’s aunt who lived in
              Indiana, noticed A.J. wore a ring and asked A.J. why she wore it
              on her left ring finger. A.J. did not respond. Norris then noticed
              A.J. also wore a birth control patch. In early May 2008, A.J. told
              Norris and another aunt that Tackett forced her to pull her pants
              down, and hit her when she did not do so.
              Norris contacted the police and on May 13, 2008, the State
              charged Tackett with rape, sexual misconduct with a minor, and
              criminal deviate conduct, all Class B felonies, and child
              solicitation, a Class D felony. A jury found Tackett guilty as
              charged, and the trial court entered a judgment of conviction as
              to all four offenses. Following a hearing, the trial court sentenced
              Tackett to consecutive twenty-year sentences for each Class B
              felony, to be served concurrent with a three-year sentence for
              child solicitation, for an aggregate sentence of sixty years. . . .


      Tackett v. State, 18A05-1101-CR-0007, 2012 WL 252422, slip op. at 3–4 (Ind.

      Ct. App. Jan. 26, 2012) (footnote omitted), trans. denied.


[4]   On direct appeal, Tackett claimed that: (1) the evidence was insufficient to

      show that his offenses were committed within the statute of limitations; (2) the

      trial court erred in determining that A.J. need not testify in Tackett’s physical

      presence; (3) the trial court erred in permitting three witnesses to repeat prior

      consistent statements by A.J., (4) the trial court erred in denying Tackett’s

      request to re-cross examine A.J., (5) his convictions constituted impermissible

      double jeopardy; and (6) his sixty-year sentence was inappropriate. Rejecting all




      Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018   Page 3 of 10
      of these claims, we affirmed.1 Our supreme court denied Tackett’s petition to

      transfer. Tackett v. State, 969 N.E.2d 604 (Ind. 2012) (table).


[5]   On April 2, 2014, Tackett filed a pro se petition for post-conviction relief. On

      April 4, 2016, Tackett, now represented by counsel from the Indiana Public

      Defender’s office, filed an amended petition for post-conviction relief. On

      January 13, 2017, the post-conviction court held an evidentiary hearing on

      Tackett’s petition.2 On June 28, 2017, the post-conviction court entered findings

      of fact and conclusions of law denying Tackett’s petition. Tackett now appeals.


                             Post-Conviction Standard of Review
[6]   Post-conviction proceedings are not “super appeals” through which convicted

      persons can raise issues they failed to raise at trial or on direct appeal. McCary v.

      State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead

      afford petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

      (Ind. 2002). The post-conviction petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Henley v. State, 881

      N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of a petition for




      1
       The State also charged A.J.’s mother, Patricia, with Class B felony rape, Class B felony sexual misconduct
      with a minor, and Class D felony child solicitation. On direct appeal, a panel of this court reversed all of
      Patricia’s convictions, concluding that the State failed to prove territorial jurisdiction beyond a reasonable
      doubt, i.e. that the crimes Patricia was charged with were committed in Indiana. See Tackett v. State, 18A02-
      1008-CR-1053, 2011 WL 1878116 (Ind. Ct. App. May 16, 2011), trans. denied.
      2
        Prior to the start of the hearing, Tackett filed a second amended petition that deleted his first two grounds
      for relief.

      Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018               Page 4 of 10
      post-conviction relief, the petitioner appeals from a negative judgment. Id. To

      prevail on appeal from the denial of post-conviction relief, the petitioner must

      show that the evidence as a whole leads unerringly and unmistakably to a

      conclusion opposite that reached by the post-conviction court. Id. at 643–44.


[7]   Here, the post-conviction court made specific findings of fact and conclusions

      of law in accordance with Indiana Post-Conviction Rule 1(6). On review, we

      must determine if the court’s findings are sufficient to support its judgment.

      Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

      N.E.2d 962. Although we do not defer to the post-conviction court’s legal

      conclusions, we review the post-conviction court’s factual findings for clear

      error. Id. Accordingly, we will not reweigh the evidence or judge the credibility

      of witnesses, and we will consider only the probative evidence and reasonable

      inferences flowing therefrom that support the post-conviction court’s decision.

      Id.


                         Ineffective Assistance of Trial Counsel
[8]   Our supreme court has summarized the law regarding claims of ineffective

      assistance of trial counsel as follows:


              A defendant claiming a violation of the right to effective
              assistance of counsel must establish the two components set forth
              in Strickland v. Washington, 466 U.S. 668 (1984). First, the
              defendant must show that counsel’s performance was deficient.
              This requires a showing that counsel’s representation fell below
              an objective standard of reasonableness, and that the errors were
              so serious that they resulted in a denial of the right to counsel
              guaranteed the defendant by the Sixth Amendment. Second, the
      Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018   Page 5 of 10
              defendant must show that the deficient performance prejudiced
              the defense. To establish prejudice, a defendant must show that
              there is a reasonable probability that, but for counsel’s
              unprofessional errors, the result of the proceeding would have
              been different. A reasonable probability is a probability sufficient
              to undermine confidence in the outcome.

              Counsel is afforded considerable discretion in choosing strategy
              and tactics, and we will accord those decisions deference. A
              strong presumption arises that counsel rendered adequate
              assistance and made all significant decisions in the exercise of
              reasonable professional judgment. The Strickland Court
              recognized that even the finest, most experienced criminal
              defense attorneys may not agree on the ideal strategy or the most
              effective way to represent a client. Isolated mistakes, poor
              strategy, inexperience, and instances of bad judgment do not
              necessarily render representation ineffective. The two prongs of
              the Strickland test are separate and independent inquiries. Thus, if
              it is easier to dispose of an ineffectiveness claim on the ground of
              lack of sufficient prejudice . . . that course should be followed.


      Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations

      omitted).


                                     Discussion and Decision
[9]   Tackett argues that his trial counsel was ineffective for failing to impeach the

      victim, A.J., with her prior testimony from her mother Patricia’s trial that the

      molestation began when she was attending high school in Kentucky. Tackett

      claims that had his counsel impeached A.J. on this issue, the State would not

      have been able to prove territorial jurisdiction.




      Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018   Page 6 of 10
       A. Territorial jurisdiction

[10]   Indiana Code section 35-41-1-1(b) provides that “[a] person may be convicted

       under Indiana law of an offense if: (1) either the conduct that is an element of

       the offense, the result that is an element, or both, occur in Indiana.” The

       Indiana Criminal Code does not list jurisdiction as an element of most offenses.

       See An-Hung Yao v. State, 975 N.E.2d 1273, 1276 (Ind. 2012). Nonetheless our

       supreme court held in An-Hung Yao that “[t]he plain, ordinary, and usual

       meaning of [Indiana Code section 35-41-1-1] clearly establishes ‘in Indiana’ as a

       prerequisite for Indiana criminal prosecutions and thus restricts the power to

       exercise criminal jurisdiction to Indiana’s actual territorial boundaries.” 975

       N.E.2d at 1276 (citing Benham v. State, 637 N.E.2d 133, 137 (Ind. 1994)). Thus,

       our courts treat territorial jurisdiction as though it were an element of an offense

       which the State must prove beyond a reasonable doubt. Id. at 1276–77 (citing

       Ortiz v. State, 766 N.E.2d 370, 375 (Ind. 2002)). Accordingly, the issue of

       territorial jurisdiction must be submitted to the jury unless the court determines

       no reasonable jury could fail to find territorial jurisdiction beyond a reasonable

       doubt.” Id.


       B. A.J.’s Testimony

[11]   Tackett claims that his trial counsel should have impeached A.J.’s testimony at

       his trial with her testimony in her mother’s trial. Tackett specifically refers to

       the following portions of A.J.’s testimony on direct examination at her mother’s

       trial:



       Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018   Page 7 of 10
               Q.      Okay. [A.J.], do you remember how old you were the first
                       time this happened, the first time that [Tackett] touched
                       you in a way that you didn’t like?
               A.      (Inaudible).
               Q.      Okay. Were you in high school?
               A.      Magoffin County High School [in Kentucky].


       Post-Conviction Ex. Vol., Petitioner’s Ex. C., p. 424. A.J. also testified on

       cross-examination as follows:


               Q.      . . . [T]he touches you didn’t like, and you talked about
                       [Tackett]. I need to know, did those touches happen in
                       Indiana or Kentucky:
               A.      Kentucky.
               Q.      Kentucky?
               A.      Yeah.


       Id. at 464.


[12]   In contrast, at Tackett’s trial, A.J. testified on direct examination as follows:


               Q.      Alright, [A.J.], when [Tackett] started touching you, the
                       first time when he started touching you, do you remember
                       what school you were going to?
               A.      Grissom [Elementary School in Muncie, Indiana].
               Q.      You were going to Grissom?
               A.      Uh-huh.


       Trial Tr. p. 247.




       Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018   Page 8 of 10
[13]   At the post-conviction hearing, Tackett’s trial counsel testified that he

       strategically chose not to cross-examine A.J. regarding her prior testimony. He

       testified that he did not desire to bring up anything that happened in Kentucky

       out of concern that referencing her prior testimony would have only exposed

       the jury to more “graphic details” and even more acts of molestation that might

       have occurred. See P-C.R. Transcript at 17–18. Indeed, trial counsel testified

       that he was well aware of the territorial jurisdiction issues that plagued

       Patricia’s trial, but believed that these issues were not a problem in Tackett’s

       trial because of A.J.’s testimony that clearly stated that the crimes took place in

       Indiana.


[14]   Given the considerable discretion afforded to counsel in choosing strategy, we

       cannot say that Tackett’s trial counsel’s strategy fell below an objective standard

       of reasonableness. Indeed, it seems entirely reasonable for Tackett’s trial

       counsel to desire not to expose the jury to evidence of further misconduct on

       Tackett’s part. In fact, counsel’s strategy appears to have been to argue to the

       jury that A.J.’s testimony was suspect due to the influence of her aunt, who had

       given her gifts and promised her more gifts in return for testifying. We cannot

       say that this strategy was clearly inferior to attacking A.J.’s credibility regarding

       territorial jurisdiction.


[15]   Accordingly, we conclude that the post-conviction court did not clearly err in

       determining that the performance of Tackett’s trial counsel did not fall below an

       objective standard of reasonableness and that Tackett’s trial counsel was

       therefore not constitutionally ineffective.

       Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018   Page 9 of 10
                                                 Conclusion
[16]   It was Tackett’s burden as a post-conviction petitioner to establish his claim for

       relief. Thus, on appeal he must show that the evidence as a whole led

       unerringly and unmistakably to a conclusion that his trial counsel was

       ineffective. He has not done so. We therefore affirm the judgment of the post-

       conviction court.


[17]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018   Page 10 of 10
