# FILED July 1, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON MAY 1999 SESSION

JOHNNY L. SMITH, ) ) C.C.A. NO. 02C 01-9806-CR-00193 Appellant, ) ) SHELBY COUNTY VS. ) ) HON. L. T. LAFFERTY, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE: ALICIA A

. HOWARD PAUL G. SUMMERS 4299 Elvis Presley

Blvd. Attorney General & Repor ter Memphis, TN 38116 CLI NTO N J. MOR GAN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General RHEA CLIFT Asst. District Attor

ney General 201 Poplar Ave., Suite 301 Memphis, TN 38103-1947

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N Followinga jury trial, the petitioner was co nvic ted of aggravated sexual battery, aggravated burgl ary, two counts of espec ially aggrava ted kidna pping, an d two counts of aggravated robbery and given an effective sentence of thirty -eight years in the Departmentof Correction. On direct appeal, a panel of this Court affirmed th e petitioner’s convictions. See State v. Johnny L. Smith , No. 02C01-9602-CR-00061, Shelby County (Tenn. Crim. App. filed May 15, 1997, at Jackson). In January 1998, the petitioner filed a post-conviction rel ief petition and subsequently amendments, alleging that he w as denied effect ive assistance of counsel. After an evidentiary hearing, the post-conv iction cou rt de nied the petitioner relief. The petitioner now appeals, arguing that the postconviction court erred by failing to conclude his trial c ounsel was ineffective and that newly discovere d evidenc e entitle d him to p ost-convi ction rel ief. Find ing no erro r, we affirm th e post-c

onviction cour

t’s ord er denying rel ief.

The petitioner claims that hi s trial cou ns el, Lilah Kathleen Mitchel l, was ineffe ctive for failing to impeach the victim’s trial tes timony with a prior

inconsistent statement. According to the petiti oner’s testi mony at the post-conviction he aring, the victim’s testimony at the prelimi nary hearingwas different from her testimony at trial . The record fails to contai n an account of the proceedings at the preliminary hearing or at trial. We recognize tha

t the post-conviction cour t judge, who relied h eavily on the trial transcript

in evaluating the petitioner’ s fact ual allegations, specifically found that Ms. Mitchell reviewed the preliminaryhearing testimony, but at trial, did not cross- examine the victim about her prior testimony . Bec au se the record fails to contai n an account of the victim’s t estimon y a t the preliminary heari ng and at trial, howev er, we are unable to evaluate whether the victim’s hearing testimony w as in fact inconsist ent with her trial testimony

in a material manne r and if so , whether Ms. Mitch ell’s failure to impeach the3

victim with these inconsistencies pr ejudiced the petitioner. Where, as here, the appellant fails to furnish a complete record for review, this Court is precluded from consideri ng the issues presented an d must presume that the trial court’s ruling is correct
. See, e.g. , State
v. Ballard , 855 S.W.2d 557, 56 0-61 (Tenn. 1993); State v. Locust , 914 S.W.2d 554, 557 (Tenn. Crim. App. 1995).

The petitioner also claims that Ms. Mitchell failed to thoroughly investigate the case and intervie w all po ssible witnesses. A t the post-conviction hea ring, the petitioner

testified that prior to tr ial, he was aware o

f potenti al def ense witnesses other tha n those who testified at tri al. He admitted not knowi ng these potential witnesses ’ addresses(and for some, even their l ast names), but he maint ained he could have learned that information had Ms. Mitchell asked. Ms. Mitchell testified that the petitioner never told her about these other potential witnesses. She testified that the only w itnesses of whom she wa s awa re were those who testified at trial. Even assuming that Ms. Mitchell somehow performed deficiently , the petitioner has failed to pr ov e prejudi ce becau se he has not shown how any benefit would have come from int erviewing thes

e su pposed witnesses. Without showing pr ejudice, the petitioner is not entitled t o post conviction relief. See Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694 (1984); Best v. State , 708 S.W.2d 421, 42 2 (Tenn. Crim. App. 1985).

Finally, we note that

th e petitioner has listed as an issue for review the following: “Whether the trial court erred by not finding that appellant had new evidence which was not available to him at the time of his trial.” Because the petitioner has failed to provide any argument or citations to

authority on this point,this issue is wai ved. Rules of the Court of Criminal Appeals of Tennessee 10(b); State v. Killebrew , 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988).4 In sum, the petitioner

has not carried his burden of showing entitlement to post-convictionrelief. Accordingly, the post-convictio n court’s order denying relief is affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOE G. RILEY, Judge

______________________________ THOMAS T. W OODALL, Judge