# FILED
March 24, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JANUARY 1999 SESSION
MICKEY CRESONG, SR . ) ) Appellant, ) C.C.A. No. 03C01-9801-CR- 0 000 3 ) vs. ) Sullivan County ) STATE OF TENN ESSEE, ) Hon. Arden L. Hill, Judge ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE: RAYMOND C. CONKIN, JR. JOHN KNOX WAL KUP Attorney at Law Attorney General & Repor ter 320 Cherokee Street, Suite B Kingsport, TN 37660 ELIZABETH B . MARNEY Assistant Attorney Gener al 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 H. GREELEY WELLS, JR. District Attorney General BARRY STAUBU S and TERESA MURRAY SMITH Assistan t District Attorneys Second Judicial District P.O. Box 526 Blountville, TN 37617

OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE

OPINION2 The petition er, Mickey Cresong, Sr., appeals from the Sulliv an County Criminal Court’s order dismissing his petitio n for pos t-conviction relief. A jury convicted the petitioner of a ggravat ed rape, a Class A felony, and the trial court imp ose d a $30,000 fine and a sentence of confinement for 25 y ears in the Department of Correction. He appealed his conviction, and this court affirmed on April 25, 1995. State v. Mickey Cre song, Sr. , No. 03C01-9406-CR-00230 ( Tenn. Crim. App., Knoxville, Apr. 25, 1995). On April 15, 1996, he filed a pro se petition forpost-conviction rel ief. The trial court held a hea ring on the petition on December

18, 1997. The petitioner alleges ine ffective assistance of counsel i n the: (1) failure to subpoena material w itnesses for the defense, (2) failure to question the DNAexpert witness regarding the possi bility that the perpetrator was a per son of Hispanic descent, (3) failure to challenge the

conviction on the ground that the jury instruction on reasonable doubt was defective, and (4) failure to object to a defect ive indictment. Followi ng a review of the record and the briefs of the parties, we affirm the trial court’ s dismissal of the petition.

The standard f o r determining effective assistance of counsel is “whether the advice given, or the services rendered by the attorney , are within the range of compet ence demanded of attorneys in criminal cases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975 ). The complaining party must show that counsel’s performance was deficient and that the deficiency prejudiced the defe nse. Strickland v. Washington , 466 U.S. 668, 686 (1984). There must be a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 693. The reasonableness of the attorney’s actions or inactions must be assessed as of the time of the conduct. Id. at 690.

First, the petitioner contends that c ounsel was ineffective because he3

did not subpoena cer

tain wi tnesses to testi fy for the defense at trial. Trial counsel orallymoved for a continuance onthe first day of the trial in order to investigate the possibility

of witnesses. The trial

court denied the continuance bas ed on the finding that the defendant had not been diligent i n notifying his attorney about material witnesses

and based on the finding that the purported witnesses could not establish when or how the defendant received injuries to his face. On direct appeal, this court held that the trial court did not abuse its dis cretion i n denying the continuance. State v. Mickey L. Cresong, Sr. , No. 03C01-9406-CR-00230, slip op. at 6-7 (Tenn. Crim. App., Knoxvil le, Apr. 25, 1995).

The state contends t hat this issue, “including the role of petitioner’s trial counsel” was raised on direct appeal. The post-conv iction court held that, although the issue of thecontin uance was previousl y determined, the issue of ineffe ctive assistance of counsel was not determined. On the issue of assistance of counsel, the post-conviction court held that “[counsel] acted within the guidelines, and wasef

fe ct iv e. ” We have reviewed our

opinion in State v. Mickey L. Cres ong, Sr. , No. 03C01-9406-CR-00230 ( Tenn. Crim. App., Knoxville, Apr. 25, 1995), and find that the issue of ineffec tive assistance of counsel was neither raised nor determined on dire ct appeal. This court eval uated counsel’s actions only in the context of reviewi ng the denial of the continuance.

On appeal, we are bound by the trial court’s findings in the postconvi ction hearing, unless we c onclude that the evidence pre ponderates against tho se findings. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). The post conviction court held that counselwas effective. The petitioner did not present

any witnesses

to testify at his post-c

onviction hearing. Therefore, excep t for petitioner’s testimo ny, we do not know what the purported witnesses would have said. “It is elementary that neither a t rial judge nor an appellate court can speculate or guess4

on the question of . . . what a w itness’s testimony mig ht have been if introduced by defense counsel.” Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). By failing to

present these witnesses at the post-conviction hearing, the petitioner failed to prove that he suffered prejudi ce from trial counsel ’s failu re to subpoena certain witnesses. Thi s issue lacks merit.

Second, the petitioner contends that counsel was ineffective because he failed t o q uestion the DNA expert w itness regarding the possibility that the perpetrator

was a person of Hispanic descent. The defense at trial was consens ual
sex. The def endant a dmitted having sex wit h the vi ctim on the n ight in question. Declining to question the DNA expert witness regarding the race of the perpetrator
was reasonable under these circ umstances. We deferto counsel’s trial strategy or tactical choices if counsel made informed deci sions ba sed u pon adequate preparation. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Accordingl y, we agree with the post-conviction cour t that defense counsel was not ineffective in this regard.

Third, t he petit ioner contends that trial c ounsel was ineffective for failing to challenge the jury instruction on reasonable doubt at trial. The petitioner contends that the jury held the state to a lower standard of proof than bey ond a reasonable doubt by finding him gui lty via “moral c ertainty, not beyond

a reasonable doubt.” The post-conviction court upheld the jury instruction. The tria l court instructed the jury as follows:

Reas ona ble doubt is that doubt engendered by an investigationof all the proof in the case and an inabil ity, after such investigati on, to let the mind rest easy as to the certainty of guilt. Reasonable doubt does not mean a captious, p oss ible or imaginary d oubt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge,but proof beyond a reasonable doubt is requiredas to every evidentiary fact necessary to constitute the offense.1 The pattern jury instruction reads: Reasonable doubt is that doubt eng endered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily as to the certai nty of guilt. Reasonable doubt does not mean a ca ptious, possible or imagina ry doubt. Absolute certainty of guilt is not demanded by the law to convict o

f any criminal charge, but moral certainty is required, and this

certainty is req uired as to every propositi on of proof requisite to constitute the offense. T.P.I.-Crim. 2.03 (4th ed. 1995) (emphasis added). 5 Most challenges to jury instructions on reasonabl e dou bt attack the
use of the phrase “moral certainty.” The juryinstruction in this case did not contain the phrase “moral certainty.” The Tennessee Supreme Court and this court have consistently upheld the c onstitutionality

of similar jury inst ructions, even when the jury instruct ions contained the phrase “moral certainty.” See, e.g. , State v. Bush , 942 S.W.2d 489, 520-521 (Tenn. 1997) (appendix), cert. denied , --- U.S. - --, 118 S.Ct. 376 (1997); State v. Nichols , 877 S.W.2d 722, 734 (Tenn. 1994), cert. denied , 513 U.S. 1114 (1995); Jerome Williams v. State , No. 01C01-9 709-CR- 00441 (Tenn. Crim. App., Nashville, Oct. 23, 1998); State v. Sexton , 917 S.W.2d 263, 266 (Tenn. Crim. App. 1995). Additionally, the United States Court of App eals for the Sixth Circuit uph eld the constitutionality of a s imilar reasonable doubt jur y instruction which included the phrase “moral certainty.” See Austin v. Bell , 126 F.3d 843, 846- 47 (6th Cir. 1997), cert. denied , --- U.S. ---, 118 S.Ct. 1526, 1547 (1998).

To determin e whether a jur y instruction is deficient, the reviewing court must examine the c harge as a whole and consider how reasonable jurors could have understood the cha rge as c orrectly conveying the concept of reasonable doubt. Victor v. Nebraska , 511 U.S. 1, 6 (1 994). This particular jury charge is similar to Tennessee Pattern Jury Inst ruction 2.03. 1 See T.P.I.-Cri m. 2.03 (4th ed. 1995). In fact, the main difference between thecharge in this case and the pattern6

charge is that the pattern charg e contains thephrase “moral certainty.” View ing the charge as a whole, we concl ude that the jury instru ction on reasonable doubt was constitutional. Counsel was not ineffectiv e because he did not obj ect to a constitutionally approp riate definition of reasonable doubt.

Finall y, the petitioner contends that tr ial counsel was ineffectiv e for failing to object to a defective indi ctment. Specifically, the petitioner contends that the indictment failed to allege “that the Appellant acted intenti onally, knowingl y or recklessly.”

The state contends that the indic tment sufficiently alleged a mental state according to State v. Hill , 954 S.W.2d 725 (Tenn. 1997). Likewise, the postconviction court stated that Hill resolved this issue in favor of the state. On appeal, the petitioner has waiv

ed this issue by failing

to place a copy of the

indictment in the record. Tenn. R. App. P. 24.

However, even if this issue w er e p roperly preserved for review, it is without merit. Acco rding to the petitioner’ s brief, the indictment alleg ed that the petitioner

“did unlawfully, feloniously and by force sexually penetrate Shirley Jones. ” The jury convict ed the pe titioner of aggrava ted ra pe. In State v. Hill , 954 S.W.2d 725 (Tenn. 1997), the Tennessee Supreme Cour t decided the issue

of whether

an indictment charg ing aggravated rape was sufficient without alleging a culpable
me ntal state. The indictment in Hill stated that the defendant “did unlawfull y sexually penetrate” the victim. State v. Hill , 954 S.W.2 d 725, 727 (Tenn. 1997). The court stated:

This statute does not s peci fy a mental state. Thus, pursuantto Tenn.Code Ann. § 39-11-301(c), the mental element is sati sfied if the indictment alleges that the defendant committed the proscribed act with intent, knowledge, or recklessness. Obv iously the act for which the defendant is indicted, “unlaw f ully sexual penetrat[ing]”. . . is committable on ly i f the principal actor’s mens rea

is intentional, knowing, or reckless. Thus, th e req uired mental state may be inferr ed from7 the nature of the criminal conduct alleged. Clear ly, the language of the indictment provides adequate notic e to bo th the defendant and the trial court of the of fense alleged . . . . Id. at 729 (footnote omitted) (emphasis in original). The Tennessee Supreme Court followed Hill in Ruff v. State , 978 S.W.2d 95 (Tenn. 1998). In Ruff , the indictment alleged that Billy Joe Smith “did unlawfully sexual ly penetrate [the vic tim], by forc[e].” Id . at 99. The court upheld the indictments and stated that “the culpable mental state is even more easily inferable from the pr esent indictments because of the references to force and use of a dea dly weapon.” Id. at 100.

Clearly, Hill and Ruff

resolve this is sue ag ainst the petitioner. The indict ment against t he petit ioner was su fficie nt. Couns el was not in effect ive because he did not object to a constitutionally sufficient indictmentagainst the petitioner.

In consideration of the foregoing and the record as a whole , the judgment of the trial court i s affirmed.

________________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_______________________________ GARY R. WADE, PRESIDING JUDGE

_______________________________ JOHN K. BYERS, SPECIAL JUDGE