Court of Appeals of Indiana | Memorandum Decision 18A05-1707-PC-1593 | March 20, 2018 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Liisi Brien

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika Prekopa Talbot

Supervising Deputy Attorney 

General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Duane R. Tackett,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 20, 2018

Court of Appeals Case No.

18A05-1707-PC-1593

Appeal from the Delaware Circuit 

Court 1

The Honorable Marianne L. 

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 2 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 nineyear-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 3 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 postconviction court. 

[17] Affirmed. 

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