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

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

Victoria Christ

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

George P. Sherman

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Terry Moore,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

October 26, 2015

Court of Appeals Case No.

49A05-1504-PC-159

Appeal from the Marion Superior 

Court

The Honorable Stanley E. Kroh, 

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 2 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 
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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 factfinder 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 gunrelated 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.