# FILED
July 29, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON JULY 1997 SESS ION

LARRY J. CAWTHON, ) C.C.A . No. 02C01- 9702-CR-00064 ) Appellant, ) SHELBY COUNTY ) VS. ) HON. JOSEPH B. BROWN, JR., ) JUDGE STA TE OF TENN ESSEE, ) ) (Post-Conv iction) Appellee. )
FOR TH E APPEL LANT: FOR THE APPELLEE: WILLIAM C. GOSNELL JOHN KNOX WALKUP 217 Exchang e Avenue Attorney Gen eral and Repor ter Memphis, TN 38105 DEBORA H A . TULLIS Assistant Attorney General 450 James Roberts on Parkway Nashvil le, TN 37243-0493 WILLIAM L. GIBBONS Distric t Attorney General JOHN CAMPBELL Assistant D istrict A

ttorney Gener

al 201 Poplar Av enue, Suite 301 Memphis, TN 38103

OPINI ON FI LED:

AF FIRMED -

RULE 20 OR DER

JOE G. RI LEY, JUDGE2 O R D E R
This is an appeal from t he denial of post-c onviction relief. Conv icted of crimi nal attempt to commit rape and s ente nced to twe lve (12) year s as a Range III, Persis tent Offende r, peti tion er all eges he was depr ived o f ef fec tive assistance of counsel at his trial. He further con tends the i ndictment is void. We AFFIRM pursuant to R ule 20 of the Tennessee Court of Criminal Appea ls. First ly, we note that petitioner does not make appropri at e ref erences to the record in support of his argument as required by Tenn . R. App. P. 27(a)(7). The issues are, therefore, w aived. Ru le 10(b), Tenness ee Court of Cri minal Appeal s . W e will, nevertheless, address the issues. As to petitioner’s allegations of ineff ective assistance of counsel, the trial court found that trial counsel conducte d adequate disc overy, condu cted an appropriate inves tigation, properly discussed the case with petitioner and adequat ely cro ss examined the victim regarding her identification of the defendant. T he trial court concluded that petitioner indeed receiv

ed effective assi stance of counsel at his trial. The rec ord supp orts this findin g. Petitioner

also attacks counsel’s failure to request a special jur y instr uction on eyewitness ide ntification. State v. Dyle , 899 S.W .2d 607, 613-14 (Te nn.1995), promulgated a new jur

y instr uction on ey ewitness identification; however, petitioner’s
case was tri ed and affirmed on appeal pr ior to the filing of the Dyle opinion. Couns el
was not i neffectiv e for failing to request a special jury instruction on eyewitness identification. As to the sufficiency

of the indictment, p etitioner contends his trial couns el was inef fec tive for failing to

attack the indi ctment by pr e-trial moti on. This issue was w aived bythe failure t o prese nt it to the post-conviction court. Tenn . R. App. P. 36(a). Furthermore, petitioner’s allegation that the indictm ent is fatally deficie nt due to the failure to allege t he requisi te mens rea is wit hout merit. See State v. Phi llip Ray Griffis , C.C.A. No. 01C01-9506-CC -00201 (Tenn. Cr im. App. filed April 30, 1997, at Nashville); State v. David L. McClure , C.C.A. No . 01C01-9505-C R-00145 (Tenn. Crim

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App. filed April 30, 1997, at Nashv ille); Turn er v. Harrison , C.C.A. No. 02C01-9701-CC00025 (Tenn. Crim. App . filed April 17, 1997, at Jackso n). After a thorough r eview of the records, br iefs, and the law governi ng the issues presented for review , it is the opinion of this court that the judgment of the trial court should be affirmed purs uant to Rule 20, Tennessee Court of C riminal Appeal s.

JOE G. RILEY , JUDGE

CONCUR:

JOE B. JONES, PRESIDING JUDGE

DAVID H. WELLES, JUDGE