# FILED
April 20, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION
DAVID A

. SCOTT, III, * C.C.A. NO. 01C01-9709-CR -00400 APPELLANT, * DAVIDSON COUNTY VS. * Hon. Thomas H. Shriver, Judge STATE OF TENN ESSEE, * (Post-Conviction) APPELLEE. *

For Appellant : For Appellee : Robert J. Mendes John Knox Walkup Stanton & Mendes, PLLC Attorney General and Repor ter Cummins Station, Suite 507 425 Fifth Avenue North 209 Tenth Avenue South Nashville, TN 37243-0493 Nashville, TN 37203 Timothy Behan Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 Mary Hausman Assistant District A

ttorney General Washington Square, Suite 500 222 2 nd Avenue North Nashville, TN 37201-1649 OPINION FILED: ____________________
AFFIRMED NORMA MCGEE OGLE, JUDGE1 The petiti oner simultaneousl y fil ed in the Cri minal Court for Davidson County

a Petit ion for t he Writ of Error Coram Nobis pursuant to Tenn. Code Ann. § 40-26-105 (1997). However, thi s petit ion was not addressed by either the petiti oner or the cour t at the post-convi ction heari ng on September 3, 1997, nor d oes the p etition er ad dres s this petitio n in this appe al.
2 OPINION The petitioner in this case, David A. Scott, III, appeal s the dismissal of his Petition for Post-Conv iction Relief by the Cr

iminal Court for Davids on County. On July 19, 1991, the petiti oner was convicted i n the Davidson County Criminal Court of aggravated r

ape and sentenced to sixteen y ears incarceration in the Tennessee Department of Correction.On February 11, 1993, thi s court affirmed the petitioner’s conviction. State v. Scott , No. 01C01-9202-CR-00053, 1993 WL 31990 (Tenn. Crim. App. at Nashv ille), perm. to appeal denied , (Tenn. 1993). On February 12, 1996,the petitioner filed th e instant Petiti on for Pos t-Conv iction Relief. 1 Amended petitions were filed on August 5, 1996, and March 24, 1997. The trial court conducted a hearing on September 3, 1997, and, following the presentation of the petitioner’s proof, dismi ssed the petition.

The petitioner appeals the trial court’s dismissal of hi s petition and raises the following issues for our considerati on: 1. Whether or not the indictment in his case w as fatally defective due to the omission of the requisit e mental state for aggrav ated rape, thereby violating the petiti oner’s rights pursuant to the Sixth and Fourteenth Amendments to the United States Cons titution and Article 1, Sec tion 9 of the Tennessee Constitution. 2. Whether or not the jury instruction in his case was unconstitutional due to the omission of the requisite mental state, violating the petitioner’s rights pursuant to the Si xth and Fourteenth Amendments to the United States Constitution and Arti cle 1, Sections 6 and 8 of the Tennessee2 Tenn . Code A nn. § 40- 30-211 (1997) p rovides th at, upon th e final dispo sition of eve ry postcon viction petitio n, the cour t sha ll set fo rth in its orde r or a w ritten m em oran dum of the cas e all grounds presented a nd shall st ate the fi ndings of fact and conclusio ns of law wi th regard t o each such ground . W e note tha t the trial court in th is case f ailed to fully com ply with this statu tory provision

. Nevertheless, we conclude that the record, includi ng the rul ings of th e court at the conclusion of the post-co nviction he aring, is su fficient to effe ctuate m eaningf ul appellate review. Rickm an v. State , 972 S.W .2d 687, 6 92 (Te nn. Crim . App.), perm. to appeal de nied , (Tenn . 1997); Polk v. S tate , No. 01C01- 9709-CC-00 391, 1998 W L 321930, at *1 (Tenn. Crim . App. at Nashville, June 19, 1998).
3 Constitution. 3. Whether or not the jury instruction concerning reasonable doubt violated the petitioner’ s rights pursuant to the Sixth and Fourteenth Amendments to the United States Cons titution and Article 1, Sec tions 6 and 8 of the Tennessee Constitution. 4. Whether or not the petitioner received i neffective assistance of counsel both at trial and on appe al in violation of his r

ights under the Sixth and Fourteenth Amendments to the United States Constituti on and Article 1, Section 9 of the Tennes see Constitution.
Following a thorough review of th e record a nd the pa rties’ bri efs, we affirm the judgment of the trial cour t. 2

I. Factual Backgroun

d The petitioner was convicted of aggravated rape, and, on direct appeal, this court summarized the evidence as follows:

The victim at the time of the rape was a sixteen-year-old female. Both the victim and the appellant testif ied at trial. ... The victim testified that she had known the appellant before she came to his hou se in April 1990. Sh e says that she was not romantical ly interested in the appel lant. Appellant and the victim were drinking alcohol while sitting on the appellant’s couch. When the victim turned her back, the ap pellant grabbed her and began rem oving her clothes. She testified that the appellant push ed her to the fl oor and p enetrat ed her vagin ally. At the time the rape was occ urring, the telephone rang3 The p etitioner raise d this argu men t for the first tim e in his petition f or post-c onviction re lief. Howe ver, the failure of an indictm ent to state a crim inal offens e can b e raised a t any time. Ruff v. State , 978 S.W .2d 95, 96 (Tenn . 1998); State v. W alls , No. 01C01-9708-CC-00381, 1998 WL 644943, at *2 (Tenn. Crim. App. At Na shville, September 22, 1998). 4 The original

indict ment in thi s case charged the pet iti oner in Counts 1 and 3 with aggr avated rape and in Co unts 2 and 4 with rape . On J une 3, 19 91, p rior to the p etition er’s tr ial and upon the S tate’s motion, the t rial co urt dismissed Count s 2 and 4, leaving two count s of aggravatedrape, which the tri al court ren umb ered as Coun ts 1 and 2 . Both cou nts of ag gravate d rape c ontained identical lang uage. However, as the cour t explai ned to the j ury, Count 1 referred t

o the State’s allegat ion of vagi nal rape and Count 2 referr

ed to the al legati on of anal ra pe. At the conclusion of

the tri al, t he jury deadlocked on Count 1 and convi cted the appel lant of Count 2.
4 and the appellant answered. The victim took the telephone away from the appellant to obt ain help from whoever w as on the line. The caller was William Peck, and the victim told Peck that she was being raped. The appellant took the phone away from her at that time. After the telephone call from Peck, the appellant raped the victim anally. After the second rape, as testifie d by the victim , the app ellant al lowed her t o dress an d leave his home. The appellant testified in his own behalf. He basically stated that the [vaginal] sex was consensual.[He denied engaging in anal intercourse with the victim]. He also testified that [he and the vic tim] had engaged in sexual contact before the incident in q uestion. Scott , No. 01C01-9202-CR-00053, 1993 WL 31990, at *1.
II. Analy

sis A. The Indictment

Initially, the petiti oner’s argument concerning the adequacy of the indictment

in his case is without merit. The petitioner ar gues that the indictment w as defective due to the omission from the indictment of the requisite mental state. 3 The indictment underlying the petitioner’s conviction reads as follows:

David A. Scott, III on the 10 th day of April, 1990, in Davidson County, Tenness ee and before the finding of this indictment, did engage in unlawful sexual penet ration of [the victim,] and David A. Scott, III caused bodily injury to [the victim] in v

iolation of Tennessee Code Ann § 39- 13-502, and against the peace and d ignity of the State of Tennessee. 45 The statute setting forth the offense of agg ravated rape does not expressly requi re a culpable mental state, nor does the statute plainly dispense with that element. Tenn. Code Ann. § 39-13- 502 (1989). Thus, pursuant to Tenn. C ode Ann. § 39-11-301(c) (1989), proof of intent, knowledge or recklessness will sustain a conviction for aggr

avated rape. See State v. Jones , 889 S.W.2d 225, 229 (Tenn. Crim. App. 1994). For offenses such as aggravated rape which neither expressly require nor plainly

dispense with a culpabl e mental state, our supreme court has articulated a three part tes t by which to eval uate the sufficiency of an indictment which fails to alleg e a mental state:

(1) the language of the indi ctment must provide constitutionally adeq uate notice to the accused of the charge against which the accused must defend and must provide an adequate basis for entry of a proper judgment and prot ection f rom doub le jeopar dy; (2) the form of the indictment must meet the requirements of Tenn. Code Ann. § 40- 13-202; and (3) the mental state must be inferable from the conduct alleged in the indictment.
State v. Hill , 954 S.W.2d 725, 726-727 (Tenn. 1997). In Hill , 954 S.W.2d at 729, the court held that an indictment for aggravated rape, similar to the indictmen t in this case, sufficiently charg ed the offense of aggravated rape des pite the omission of the requisite menta l state of inte nt, knowledge, or re cklessness. Appl ying Hill , we conclude that the indictment in the petitioner’s case ade quately charged the offense of aggravated rape.
B. Jury Instruction on Aggravated Rape

The petitioner additionally challenges the trial c

ourt’s instruction to th e jury on aggrav

ated rape, arguing that th e trial court erroneousl y omitted the requisit

e mental state of intent, knowledge, or recklessness from it s instruction. The State6 responds that the petitioner has waived this issue by failing to raise it on direct appeal and cannot raise this i ssue in the guise of an allegation of ineffective assistance of counsel. Moreover, in addressing the merits of the petition er’s argument, the State simply relies upon State v. Hill , 954 S.W.2d at 725.

i. Waiver Post-conviction rel ief is generally not av ailable to litigate i ssues that have been waived. Tenn. Code Ann. § 40-30-206(f) (1997). A ground fo r relief is waived if the petitioner

personally or throug h an attorney failed to present it for determination in any procee ding before a court of competent jur isdiction in which the ground could have been pres ented. Id . at (g). There is a r ebuttable presumption that a ground for relief not raised in any such proceeding is waived. This presumption is not overcome by an allegation that the petitioner did not pe rsonally (i.e., knowingly

and understandingly) waive a ground for r elief. House v. State , 911 S.W. 2d 705, 714 (Te nn. 1995). Waiver is determined by an objective standa rd under which a petitioner is bound by the action or inaction of his attorney. Id

.
Initially, the petiti oner failed t o object to the jury in structions at the time of trial. It is well

established in Tennessee that, generally, a failure to obj ect to the omission of a jury instr uction waives that i ssue for appellate review

. State v. Reece , 637 S.W.2d 858, 861 (Tenn. 1982). See also State v. Haynes , 720 S.W.2d 76, 85 (Tenn. Crim. App. 1986); State v. Stigall , N o. 02 C0 1- 96 10 -C R- 00 37 1, 19 98 WL 3340, at *1 (Tenn. Crim. App. at Jackson, January 7, 1998). Moreover, Ten n. R. App. P. 36(a) provides: “Nothing in this rul e shall be construed as req uiring relief to be granted to a party r

esponsible for an error or who failed to take whatev er action was reasonably av

ailable to prevent or nul lify the harmful effect of an error.” The jury i nstruction iss ue is w aived a s an inde pendent g round for relief.5 In ac cord anc e with this c ourt’s orde r of M ay 8, 1 998 , we h ave ta ken judic ial not ice of the re cord in the d irect a ppe al as d eem ed ne ces sary, in clud ing th e tran scrip t of the hear ing on the p etition er’s mo tion fo r new trial. 6 Our co nclusion applies to a ny and all fac tual allegation s of ineffe ctive ass istance o f couns el. Ineffec tive assista nce of c ounse l is a single gro und for re lief. Thom pson v. S tate , 958 S.W.2d 156, 161 (T enn. Cr im. Ap p. 1997) ; Cone v. State , 927 S.W .2d 579, 582 (Tenn. Crim . App. 1995).
7 ii. Ineffective A

ssistance of Counsel However, the petiti oner also contends that his tr ial and appellate counsel were ineffective in failing to challenge the jury instruction on aggravated rape. The petitioner cannot raise the ineff ective assistance of his trial counsel in these post-conviction pr oceedings. Just as post-conviction relief is not available to litigate issues that hav

e been waived, it is

similarly unavai lable to litigate iss ues that have been previously determined. Tenn. Code Ann. § 40-30-206(f ). Following his trial, the petitioner r

etained new counsel to arg ue his motion for new trial . At the hearing o n the mot ion for n ew trial, th e petitio ner raise d the clai m of inef fective assistance of counsel and presented evidence in suppo rt thereof. The trial court denied the petitioner’s motion. 5 The petitioner did not rais e this issue again until

the filing of the instant petition.

We conclude that the issue of ineffective assistan ce of counsel at trial was previously

determined by the trial court. 6 Additionally, the petitioner waived his right to appeal the trial court’s determination by failing to raise this issue on direct appeal. We acknowledge that this court has frequently remarked that the practice of raising ineffective assistance of counsel claims on direct appea l is a practice “fraught with peril.” See, e.g., State v. Frantz , N o. 03 C0 1- 95 09 -C C- 00 26 9, 19 98 WL 46432, at *9 (Tenn. Crim. App. at K noxville, Februar

y 6, 1998), perm. to appeal denied , (Tenn. 1998); State v. Brewer , N o. 02 C0 1- 97 01 -C C- 00 40 0, 19 98 WL 749417, at *2 (Tenn. Crim. App. at J ackson, October 28, 1998); State v. Beard , No. 03C01-9502-CR-00044, 1996 WL 563893, at *2 (Tenn. Cr im. App. at Knoxville ,7 The petiti oner also chal lenges the ef fectiven ess of his appel late counsel in fai ling t

o challenge the petitio ner’s indict me nt; in fa iling to c hallen ge th e trial c ourt’s reas ona ble do ubt in struc tion; a nd in faili ng to chall enge the effect iveness of t rial co unsel in neg lecti ng to request a jury i nstructi on on con sen t. W e hav e alre ady co nclu ded that th e indic tme nt wa s su fficie nt in th is cas e. La ter in th is opinion, we address the additional grounds for relief alleged by the petitioner.
8 September 26, 1996); State v. Sluder , No. 1236, 1990 WL 26552, at *7 (Te nn. Crim. App. at Knoxville, M arch 14, 1990). Howev er, in contrast to the cases cited above, the petitioner in this case raised the issue of ineffe ctive assistance of counsel in his motion for new trial, and the trial court conducted an ev identiary hearing i n order to address the merits of the issue. See, e.g. , State v. Tolbert , No. 03C01-9707-CR00325, 1998 WL 69 4931 (Tenn. Crim. App. at Knoxville, October 7, 1998). Thus, the issue was ripe for determination on direct appeal.

The petitioner also challenges the effectiveness of his appellat e counsel, who represented him both at the motion fo r new trial hearing and on direct appeal, for failing to challenge the trial court’s instruction on aggravated rape. His challenge concerning his appellate counsel remains v iable. 7 In this con text, we must determine whether appell ate counsel’s failure to rai se this issue was bel ow the range of competence demanded of attorneys in criminal cases, Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975), and whether this fail ure was prejudicial

. Strickland v. Washington , 466 U.S. 668, 687-697, 104 S.Ct. 2052, 2064-2069 (1984). See also Powers v. State , 942 S.W.2d 551, 557 (Tenn. Crim. App. 1996). Becaus e the petitioner must establish both ineffective performance and prejudi ce in order to prevail on a claim of ineffectiv e assistance of counsel, a cour t need not evaluate counsel’s performance if the petiti oner does not establish prej udice. Henly v. State , 960 S.W.2d 572, 580 (Tenn. 1997), cert. denied , __ U.S. __, 119 S.Ct. 82 (1998)

. In order to ascertain if appellate counsel’s performan ce was prejudicial, we must address the merits of the issues neglected by appellate c ounsel on appeal, including8 The State cit es Overto n v. State , 874 S.W.2d 6, 12 (Tenn. 1994), for the proposit ion that “to allow every error comm itted by the tri al court to be recast in a post-conviction petition as an ineffective assistance of counsel all egation woul d be to subvert the li mited purposes of t he post-convi ction procedure.” However, we read t his observat ion as merely a reminder that

every pre

judici al error com mitte d by a tr ial cou rt is no t attrib utab le to th e inef fectiv e ass istan ce of coun sel. 9 The trial

court further charged the j ury that “[s]exual

penetrati on means sexual inter course, cun nilingu s, fella tio, an al inte rcou rse, o r any o ther in trusio n, ho weve r, sligh t, of an y part o f a pe rson ’s body or of any

object i nto the genital or an al openings of the al leged vi ctim’s, t he defendant’ s, or any other pe rson’s b ody, but em ission of s eme n is not req uired.”
9 whether or not the aggravated rape jury instruction was erroneous. 8

iii. The Merits

The trial court’s instruction to the jury on aggravated rape in fact omitted the requisite mens r ea or mental element of intent, know ledge, or recklessness. Instead, the trial court instructed the jury as follows: I shall now explain to you what in law it takes to constitute the offense of agg ravated rape as charged in Counts One and Two of the indictment in this case. Section 39-13-502 of the Tennessee Code Annotated provides as follows:

“(a) Aggravated rape is unlawful sexual penetration of a victim by the defendant or the defendant by a victim accompanied by ... the following circumstances

(2)The defendant causes bodily i njury to the victim.” Any person who commits the offense of aggravated rape is gui lty of a fe lony.

For you to find the defendant guilty of this offense, the state must prove beyond a reasonable doubt the existence of the following essential elements:

(1) that the defendant had unlawful s exual penetration of the allege d victim. 9 (2) that: (a) the defendant caused bodily injury to the alleg ed victim ... . (Footnote added).

Our supreme court requires a review of the jury charge in its entirety in10 order to determine if instruc tions are erroneous. State v. Hodges , 944 S.W.2d 346, 352 (Tenn.), cert. denied , __ U.S. __, 118 S.Ct. 567 (1997) . A charge is prejudi cial error if “it fails to fair

ly submit the legal i ssues or if it misleads the jury as to the applicable law.” Id . A defendant has a constitutional r ight to a correct and compl ete charge of the law. State v. Forbes , 793 S.W.2d 236, 249 (Tenn. 1990). In other words, a defendant has a right to have every issue of fact raised by the evidence and material to his or her d efense submitted to the jury on pr oper instructions. State v. Robinette , No. 03C01-9611-CR-00 430, 1997 WL 671889, at * 3 (Tenn. Cr

im. App. at Knoxville, Oc

tober 29, 1997). According ly, our law req uires that all of the elements of each offense be described and defined i n connection with that offense. State v. Cravens , 764 S.W.2d 754, 756 (Tenn. 1989). See also State v. Garrison , No. 03C01-9702-CC-00047, 1998 WL 103318, at *19 (Tenn. Crim. App. at Knoxville, Februar

y 27, 1998), perm. to appeal granted , (Tenn. 1998). Thus, in 1992, the drafters of the Tennessee Pattern J ury Instructions noted that, for the charge of aggravated rape, the definitions of intent, knowledge, and recklessness should all be charged to the jury. T.P.I. Crim. No. 10.01, Comments (3 rd Ed. 1992). Moreover, in State v. Jones , 889 S.W.2d at 229, th is court held that the statutory language in Tenn. Code Ann. § 39- 11-301 requires that the mental elements of intent, knowledge, and r ecklessness should be charged to the jury in an agg ravated rape case.

The State cites State v. Hill , 954 S.W.2d at 725, for the proposition that the jury instruction on aggravated rape in this case was cor

rect. However, the supreme court in Hill addressed only the lang uage necessary in an i ndictment to inform the accused of the charge and specifically disting uished the requirements for an indictment from the requirement s for conviction. Id. at 728. Ac cordingly, although the supreme court conc luded that the required mental state for aggravated10 The trial court’s i nstructi on on the lesser included of

fense of rape di d require the use of force or coercion. 11 Of course, wit h respect to the count of anal rape, of whi ch the petitioner was con victed, the petitioner did not

rely on the defense of consent, but rather deni ed that he engagedin anal i ntercourse with th e victim

. 11 rape was not an “essenti al element” for purposes of an indic tment, it took pains to clarify that the essential elements of an indictment might not be identical to the essential elements requis ite in jury instru ctions. Thus, the supreme court noted, “Any confusion may be due, at least in part, to the loose usage of th e phrase ‘essential elements’, w hich can mean the elements necessar y for conviction or the elements necessary to inform the accused of the charge.” Id. at 728 n. 4.

The trial court noted at the post-conviction hearing that the pattern jury instructions availabl e at the time of trial did not set forth the requisite mens re a for the offense of aggravated rape. T.P.I. Crim. No. 25.0 1 (2 nd Edition 1988). However, the pattern instruction rel ied upon by the trial cour t was modeled upon a statute no longer in effect at the time of the comm ission of the petitioner’s offense. Moreover, the pattern instruction used by the trial court did require the use of force or c oercion to accomplish the act. Id. At least one court has noted that “ a finding by a jury based upon the behavior of the defendant and the victim in a rape case that the sexual encounter was against the will, or without the consent of, the victim of necessity implies a findi ng of general intent wi thout a separate instruction on that issue.” Commonwealth v. Lefkowitz , 481 N.E.2d 227, 231 n.12 (Mass.Ct. App. 1985). Yet, the trial c

ourt in this case omitted the language concerning forc e or coercion from its instructions on aggravated r ape. 10 Moreover, as pointed out by the petition er, no ins truction on the de fense o f consen t was given to the jury. 11

Accordingly, w

e conclude that the trial cou rt’s omission constitute d error. We must next address the applic ation of harmless error analy sis in the12 context of a trial court’ s omission from the jury i nstructions of an essential el ement of the charged offense. In State v. Teel, 793 S.W. 2d 236, 249 (Tenn.), cert. denied , 498 U.S. 1007, 111 S. Ct. 571 ( 1990), our supreme court noted that the law is unsettled as to whether harmless error analy

sis is available i n this context. In that case, the trial court in structed the jury on fir st degree premeditated murder and on felony murder. Id. at 249-250. The jury retur ned a general verdict of “murder in the first degree” and sentenced the defendant to death. Id. On appeal, the defendant challenged the trial cour t’s instruction on first

degree murder “because it included a partial defin ition of felo ny murder, i.e., t he instruction t racked the stat utory language ... , but did not define for the jury the felony upon which the fir st degree murder conviction could be based, here rape.” Id. at 249. The court concluded that i t was erroneous for the trial cour t to omit a definition of the felony al leged to support the first degree murder. Id. Nevertheless, the cour t concluded: In the present case the jury returned a verdict that the Defendant was “guilty

of murder in the first degree. ” The jury was completel

y and correctly i nstructed as to the elements of first degree, common-l aw, premeditated murder, and the evidence is clearly sufficient to supp ort a conviction of this char ge. Also, at the sentencing phase, without the presentation of any evidence additional t

o that presented at the gu ilt phase, the same jury was fully instructed on the elements of rape in connection with aggravating circumstance (I) (7) and in its sentencing decisio n, only a short time after i ts decision as to guilt, expressly found beyond a reasonable doubt that the murder had been committed i n the perpetration of rape. For thes e reasons, we are of the opinion that the omission of the definition of rape in the first degree murder charge, in the unique circumstances and total context of this case , is harmless error bey ond a reasonable doubt. Id. at 250. The court determined, in e ffect, that the jury’s ver dicts at both the guilt and sentencing phases of the defendant’s tr ial encompassed the omitted element s o that the defend ant was no t deprived of his righ t to a tria l by jury.13 More recently, in State v. James , No. 03C01-9408-CV-00276, 1995 WL 548788, at *3 (Te nn. Crim. App. At Knoxville, September 18, 1995), this court also qu eried w

hether o r not har

mless er ror anal ysis i s approp riate i n the context of a complete failure to instruct the jury on an aspect of an ess ential element of the charged offense. In that case, the j udge failed to instruct the j ury that the essential elements of robbery include the need for the property to be tak en “from the person of another.” Id. This court reversed the defenda nt’s conviction, c iting Sullivan v. Louisiana , 508 U.S. 275, 113 S.Ct. 2078 (1993).

In Sullivan , the United States Supreme Court acknowledged that most constitutional errors a re amenable to harmless error analysis but also rei

terated that there exists a class of “structural” errors which render a trial fundamentally unfair and require automatic rev ersal of a conviction. Id . at 280, 2082 -2083 (citing Arizona v. Fulminante , 499 U.S. 279, 306-309, 111 S.Ct. 1246, 1263-1265 (1991)). See also Rose v. Clark , 478 U.S. 570, 577-578, 106 S.Ct. 3101, 3105-3106 (1986). Thus, the Court held that a consti tutionally deficient reas onable doubt instruction cannot be harmless. Id . at 279, 2081-2082. Justice Scalia, writing for the Court in Sullivan , explained, “[T]o hypothe size a guilty v

erdict that was never

in fact rendered – no matter how inescapable the findings to support that verdict might be – would violate the appellant’s Sixth Amendment right to a jury trial.” Id. In other words, when the jury has not been permitted to find an essential eleme nt of an offense beyond a reasonable doubt, that error cannot be cured by an app ellate court’s determination that the record ev idence unmistakably establ ished guilt. Carella v. California , 491 U.S. 263, 269, 109 S.Ct. 2419, 2422-242 3 (1989).

Yet, more recently, i n California v. Roy , 519 U.S. 2, __, 117 S.Ct. 337, 339 (1996)(per curiam), the United States Supreme Court suggested tha t jury14 instruct ions that incomple tely set f orth an el ement of an offe nse might not always constitute structural er

rors that defy analysi s by harmless error standards. In that case, a California court c onvicted the defendant of robbery and first degree murder on the theory that the defendant came to the aid of a confederate, who robbed and killed the victim. Id. at __, 337. The trial court fail ed to instruct the jury that the defendant must have had the “’ intent or purposeof committing, encouraging , or facilitating’ the confederate’s crime.” Id . at __, 338. Significantly, the majority declined to join in Justi ce Scalia’s concurrin g opinion in which he opined that the absence of a formal verdict on an essential elemen t of a crime “can be harmless only if the jury verdict on other points effectively embraces [the omitted element ] or if it is impossible, upon the ev idence, to have found what the v erdict did find without finding [the omitted element] as well.” Id. at __, 339-340.

In Johnson v. United States , 520 U.S.461, __, 117 S.Ct. 1544, 154 8- 1550 ( 1997), a perjury case, the trial court fail ed to submit “materiality,” an essential element of perjury, to the jur y. Id. at __, 1547. The Court acknowledged that the omission was error, but declined to review the error pursuant to the doctrine of plain
error. Id. at ___, 1549- 1550. Cruci al to the iss ue before our c ourt was the Supreme Court’s observation that it was “by no means clear” that the error fit within the limited class of cases which defy harmless error analy

sis. Id.
At least one state supreme court, in interpreting these Supreme Court cases, has concluded that inst ructional errors remov ing an element of the charged offense from the jury’s consider ation are not, as a general matter, structural defects in the trial mechanism that aut omatically requir

e reversal under the federal constitution. People v. Flood , 957 P.2d 869, 887 (Cal. 1998). See also Beets v. Iowa Department of Correcti ons Services , 164 F.3d 1131, 1136 (8 th Cir. 1999)(the15 omission from jury instr uctions of an intent element essenti al under state law may present a “trial error

” to which harmless er

ror analysis may be

applied); United States v. Perez , 116 F.3d 840, 847 (9 th Cir. 1997)(the omissi on of an essential element of the charged offense from jury instructions is not presumptively prejudicial; even if the essential element is not specifically mentione d in the jury instructions it remains possible that a jury made the necessary findings).

We conclude that, even app lying the standard set forth by Justice Scalia in California v. Roy , 519 U.S. at __, 117 S.Ct. at 339- 340, it was impossible, upon the evidence in this c ase, for the jury to hav

e returned a verdict of g uilt without also finding that the petitioner intended to comm it aggravated rape. At trial, the jury was presented with t

wo scenarios from whi ch to choose. The petitioner cl aimed that the victim consented to vaginal intercourse and denied that he and the victim engaged in anal intercour se. The victim claimed, i nstead, that she was not interested in the petitioner romantically, and that s he visited the petitioner ’s home on the day of the offense only in order to ask that he stop calling her. She admitted that both she and the petitioner dr ank alcohol during their encounter. However, she further testified:

[H]e cam e from beh ind me an d grabbed me and t ook off my clothes. So I grabbed a pillow and tried to cover myself up. He grabbed me and thr ew me on the floor and got on top of me and he penetrated me v aginally. And I was screaming and I was yelling and I was telling him to stop ... . So then, the phone rang and he got up to answer it. ... And I grabbed the phone and ran int o the bathroom ... . And [the petitioner] pushed in the door ... . I ran into the living room and put on my shorts and he ran back in after me and tore my shorts off and threw me back down on the carpet. And he penetrated me anal ly ... . I tried to get away

and I couldn’t. I bit him on the neck as hard as I could and it didn’t do anything.12 The p etitioner also raises this issue se parately from the issue of ineffec tive assista nce of c ounse l. Yet, as poi nted out by the peti tioner, he fail ed to rai se this i ssue in his Mot ion for New Tri al or on di rect appeal. Moreover, the pet iti oner fai led to object to the instructio n at trial.In any event, as we subse quently con clude, the instruction did not co nstitute erro r, plain or othe rwise.
16 The jury, in returning

a guilty verdi ct, at least partially accredited the testimony of the victim. In accrediting the victim’s testimony, the jury necessarily found that the petitioner acted with the requisite mental stat e. Accordingly, this is not a case in which a jur

y verdict on the petitioner’s mental state wa s never rendered. We conclude that any error i n the jury instructi on was harmless beyond a reasonable doubt. Moreover, we conclude in this context that appellate counsel’s failure to raise this issue on appeal did not affect the result of the proceedings in this
case.

C. Additio nal Allegations of Ineffective Assistance of A ppellate Counsel The petitioner also challenges the effectiveness of appellate counsel in neglecting to raise trial counsel’s failure to request a jur y instruction on consent. However, as

noted earlier, with r

espect to the count of anal rape underlying the petiti oner’s conviction, the petitioner did not rely upon the defense of consent. Rather, he denied engaging in anal interco urse with the vic tim. Accordin gly, we must c onclude that an in structio n on cons ent would not have affected the outcome of these proceedings, and the petitioner’s argument is without merit.

Moreover, we decl ine to find ineffective assistanc e of appellate counsel in his failure to challenge the trial court’s jury instruction on reasonable doubt either in the petitioner’s Motion for New Trial or on direct appeal. 12 The reasonable doubt instruction in this case was cor rect. The petitioner argu es that,17 because the jurors were instructed that “moral certainty is required as to every element of the offense,” the State’s burden of proof was diminished. The trial court stated t he follo wing instru ction on r easonab le doubt to the jur y:

Reasonable doubt is doubt based upon r eason and common sense. It is a doubt w hich would cause a reasonable person to hesitate t o act in a matter of importance in his or her per sonal life. Proof beyond a reasonable doubt must, therefore, be pr oof of such a convincing character

that a reasonable person w ould not hesitate to rely and act upon it in the most important of his own affairs. A reasonable doubt is not a caprice or a whim; it is not a speculation or suspicion. It is not an excuse to avoid the per formance of an unpleasant duty. And it is not sympa thy. Reasonable doubt is a high burden, but it does not mean proof to an ab solute certainty. While absolute certainty of guilt is not demanded by the law to conv ict of any criminal char

ge, moral certainty is r

equired as to every

element of the offense. Your mind must rest easil y as to the certainty

of guilt. The petitioner cites Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328 (1990), and Victor v. Nebraska , 511 U.S. 1, 114 S.Ct. 1239 (1994), in support of his argument. However,the Court in Cage v. Louisiana , 498 U.S. at 41, 111 S.Ct. at 329, was primarily

concerned with the phras es “grave uncertain

ty” and “actual substantial doubt,” neither of which was used in this case. Moreover, i n Victor v. Nebraska , 511 U.S. at 5-6, 114 S.Ct. at 1243, the Court confirmed that use o f the phrase “moral certainty ” does not per se viti ate a reasonable doubt instruction.

Moreover,as both the St ate and the tr

ial court r

emarked, our

supreme court in State v. Nichols , 877 S.W.2d 722, 734 (Tenn. 1994), held that use of the phrase “moral certainty ” by itself is insufficie nt to invalidate an instr uction on the meaning of reasonable doubt. See also State v. Pettyjohn , 885 S.W.2d 364, 365- 366 (Tenn. Crim. App. 1994)(instruction including the “moral certainty” phrase sufficiently described the degree of doubt necessary for ac quittal and the degree of18 proof necessary for conviction). We are bou nd to follow the precedent of our state’s supreme court, and not the federal di strict court rulings cited by the petitioner

. King v. State , No. 01C01-9710-CR-00487, 1998 WL 712345, at *4 n.7 (Tenn. Crim. App. at Nashville, October

13, 1998). Moreover, the United States Sixth C ircuit Court of Appeals recently held that an instruction similar to the instruction at issue in this case was constitutional

. Austin v. Bell , 126 F.3d 843, 846-847 (6 th Cir. 1997), cert. denied , __ U.S. __, 118 S.Ct. 1526 (1998) , and cert. denied , __ U.S. __, 118 S.Ct. 1547 (1998). The court observ ed that the language of an “inabi lity to let the mind rest easily,” also

used in the instant case, lent content to the phrase “moral certainty,” increas ing, if anything, the S tate’s burden of proof. Id. at 847. This issue is without merit. III. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court dismissing the petition for post-conviction rel ief.

________________________ Norma McGee Ogle, Judge CONCUR:

__________________________ John H. Peay, Jud ge

__________________________ Joseph M. Tipto n, Judge