IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 4, 2015

MAURICE JOHNSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 1002315 Chris Craft, Judge

No. W2014-01982-CCA-R3-PC - Filed August 21, 2015

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Petitioner, Maurice Johnson, was convicted by a jury of three counts of rape. The trial 

court merged Counts 2 and 3 into Count 1 and sentenced petitioner to serve twenty years 

at 100% release eligibility. Petitioner timely filed a petition for post-conviction relief, 

which was denied by the post-conviction court after an evidentiary hearing. He now 

appeals the denial of relief, alleging that the trial court erred in instructing the jury as to 

the culpable mental state for rape and that trial counsel rendered ineffective assistance by 

failing to object to the same. Following our review, we affirm the judgment of the postconviction court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the Court, in which ALAN E. GLENN and 

ROBERT H. MONTGOMERY, JR., JJ., joined.

Jason Matthews, Memphis, Tennessee, for the Appellant, Maurice Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Lora Fowler, 

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Facts

A. Trial
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On direct appeal from his conviction and sentence, this court summarized the facts 

developed at petitioner‟s trial as follows:

The charges against [petitioner], who was in his fifties, arose from 

his acts against the ninety-nine year old victim. [Petitioner] considered the 

victim to be like a grandmother to him, having known her since he was a 

child when his mother married one of the victim‟s sons.

[J.B.],

1

the victim‟s son, testified that at the time of the crime in 

October, 2009, his mother was supposed to be living alone in Memphis; 

however, for several years [petitioner] had stayed with her occasionally, 

despite being told by the family that they did not want him there. According 

to [J.B.], his mother was unable to cook and clean because of her age and 

health, so he brought the victim all her meals and had the house cleaned. 

[J.B.] was appointed as power of attorney, handled all the victim‟s 

business, and checked on her two to three times daily. He indicated that the 

victim was frail and used a walker to get around.

On October 4, 2009, [J.B.] went to the victim‟s home around 10 a.m. 

to give her medication before going to church. After church, he returned to 

the victim‟s home and was let in by [petitioner] because the victim was still 

in bed. However, the victim told [J.B.] that she wanted to talk to both him 

and [petitioner]. The victim then stated that [petitioner] had been forcing 

her to have sex and had told her that he would kill her if she told anyone. 

Based upon her disclosure, [J.B.] immediately called the police. Prior to

leaving the home, [petitioner] told [J.B.] that the victim had gotten hurt 

when he was “wrestling” with her. The victim was subsequently taken to 

the Rape Crisis Center where an examination was conducted.

A forensic nurse performed a physical examination of the victim and 

collected a rape kit. During the pelvic examination, the nurse was unable to 

use the speculum to collect the evidence from the victim because she 

suffered from introitus stenosis, which is a narrowing of the vaginal 

opening which occurs with age. The nurse did not observe any bruising,

tearing, or lacerations in the genital area, which, in her opinion, made it 

impossible to confirm or negate the possibility of sexual assault. However, 

as the nurse began to spread open the vaginal lips in order to collect the 

samples, the victim complained that she was uncomfortable and that the 

nurse was “poking around” in her vagina “like [petitioner] with his peter.” 

 

1

 Consistent with this court‟s policy of protecting the privacy of victims of sexual abuse, 

we will refer to the victim‟s immediate family members by their initials, also. 
-3-

Based on her experience, the presence of sperm inside the vaginal vault and

the victim‟s complaint of vaginal pain indicated penile penetration had 

occurred.

Officer Charles Lowrie of the Memphis Police Department was 

dispatched to the home in response to [J.B.]‟s call. When he arrived, he 

noted that the victim appeared to be coherent and communicated well with 

him. The victim told him that [petitioner] had touched her underneath her 

clothes and had “wrestled” with her. When asked if [petitioner] had had sex 

with her, the victim responded that “he had been going up inside of her.” 

Lieutenant Wilton Cleveland and Sergeant Stephen Cody Wilkerson also 

spoke with the victim about the incident. An investigation was conducted at 

the victim‟s home, and an alternate light source device revealed the 

presence of semen on the victim‟s bed sheets and a pair of her underwear.

Based upon the comments made by the victim, [petitioner] was 

developed as a suspect. After conducting a search for him, [petitioner] was 

eventually found in a barber shop. When approached by the officer, 

[petitioner] replied, “I was wondering when y‟all were going to come 

looking for me.” After being advised of his rights, [petitioner] agreed to 

talk to Sergeant Wilkerson. He acknowledged that he had been living with 

the victim for over a year and that they slept in separate bedrooms. With 

regard to the victim‟s memory problems, [petitioner] indicated that the 

victim had forgotten who he was, but had never mistaken him for someone 

else. He adamantly denied having any sexual contact whatsoever with the 

victim. He did acknowledge that he had “wrestled” with her on one 

occasion when she was trying to wrap a coat hanger around a door. When 

asked about the rape allegations, [petitioner] simply stared at the floor and 

eventually stopped responding to the questions asked. DNA samples were 

collected from [petitioner].

Later testing by the Tennessee Bureau of Investigation revealed the 

presence of spermatozoa on the vaginal swabs, and, because of the large 

number of sperm found, it was estimated that the sperm was probably 

deposited twenty-four to forty-eight hours prior to collection. The DNA 

profile found on the vaginal swabs matched [petitioner]‟s DNA profile.

Based upon these acts, [petitioner] was indicted for three counts of 

rape. At the subsequent jury trial, [petitioner] testified and again denied that 

he had raped the victim. He acknowledged that he had resided with the 

victim, indicating that it was he, not the victim‟s son, who cooked, cleaned, 

ran errands, and served as security for the victim. However, he testified 
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that, on the night of the alleged rape, he was not in the home. He indicated 

that the victim had given him money to stay at a boarding house that 

evening because of problems with her son. He continued, however, to state 

that on the evening prior, he had been asleep in his bed and woke up to find 

that the victim, who was naked, had gotten into bed with him. According to 

[petitioner], the victim asked him “can you give me a little bit?” He said 

that he initially refused her request, but he changed his mind because she

had let him move in with her and he felt obligated to her. However, he 

denied that he had penetrated the victim, claiming instead that the victim 

had masturbated him. He stated that the victim had tried to insert his penis, 

but was unable to do so. He maintained that he had ejaculated on the 

outside of her vagina.

Because of her advanced Alzheimer‟s disease, the victim was unable 

to testify at the trial. The court declared her unavailable, and evidence was 

introduced through other witnesses accordingly. 

After hearing the evidence presented[,] the jury convicted 

[petitioner] as charged in all counts. The trial court subsequently merged 

counts two and three into count one and sentenced [petitioner], as a 

multiple offender, to twenty years at 100%. 

State v. Maurice Johnson, No. W2011-01079-CCA-R3-CD, slip. op. at 1-4 (Tenn. Crim. 

App. May 29, 2012). Petitioner did not seek discretionary review by the Tennessee 

Supreme Court. 

B. Post-Conviction

Petitioner filed a timely petition for post-conviction relief and, through counsel, 

filed two additional amended petitions. The trial court heard testimony over the course of 

three evidentiary hearings. 

At the May 6, 2014 evidentiary hearing, petitioner called trial counsel as his first 

witness. Trial counsel testified that his representation of petitioner began in November 

2009. He recalled that he waived petitioner‟s preliminary hearing and that he met with 

petitioner to prepare for the deposition of the victim, which took place at the nursing 

home where she resided. He said the victim did not remember petitioner but stated that 

she would not have had sexual intercourse with him because “she wasn‟t raised that 

way.” He testified that petitioner‟s defense was that the victim wanted to have 

intercourse with him and that he felt obligated to do so because she had helped him 

financially. However, petitioner decided he could not have intercourse with the victim, 

so he masturbated on her instead. 
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Trial counsel testified that he was aware that the mens rea requirement for rape as 

codified in the Tennessee Code Annotated was intentionally or knowingly and that he did 

not recall whether recklessly was included in the definition. He acknowledged that at the 

time of trial, he was not aware of the State v. Weltha Womack case to which postconviction counsel referred and that he did not know at the time to object to the trial 

court‟s jury instruction that included recklessly in the mens rea definition.2 Upon further 

questioning, trial counsel stated that he did not think the jury believed petitioner‟s version 

of the events, i.e., that the rape was “reckless.” 

Petitioner then testified on his own behalf and said that he did not think that trial 

counsel‟s representation of him was “effective enough.” Specifically, petitioner said that 

trial counsel failed to subpoena petitioner‟s brother as a witness, failed to verify DNA 

testing, and failed to hire an investigator. Petitioner claimed that trial counsel “tricked” 

him into waiving his preliminary hearing. He said that trial counsel advised against his 

testifying but that he wanted “to tell the truth” about what had happened. 

At the June 25, 2014 hearing, petitioner presented his brother, James Culp, as a 

witness, who testified that he was the victim‟s grandson. He stated that he attempted to 

discuss petitioner‟s case with trial counsel and that trial counsel would not provide him 

with any information. He said that at trial, counsel became “sarcastic” with him because 

he could not understand the results of the DNA test and that they “began to exchange 

words” outside the courtroom. Because of this, Mr. Culp did not believe that trial 

counsel provided petitioner adequate representation. 

On July 9, 2014, petitioner was recalled and testified that he was unaware that the 

victim had given a statement to a detective prior to trial. The State recalled trial counsel 

who testified that he provided petitioner with a full copy of the discovery he received. 

Trial counsel also listed the factors he considered when waiving the preliminary hearing. 

First, the victim‟s home had been burglarized, and she had been severely injured and 

hospitalized for some time, thus necessitating a delay in the hearing. Second, the State 

agreed to provide him with discovery prior to presenting the case to the grand jury. Third, 

trial counsel said that as a matter of strategy, he preferred not to have the victim‟s sworn 

testimony recorded so that it could be played back at a later time if necessary. Trial 

counsel said that petitioner understood the reasons why he waived the preliminary 

hearing. 

 

2

 At this juncture, a colloquy between post-conviction counsel and the court occurred 

during which the court clarified that “recklessly” was included in the statute and the pattern jury 

instructions and that the Weltha Womack decision was an unpublished opinion from this court. 
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The post-conviction court denied relief by written order dated September 2, 2014. 

This appeal follows. 

II. Analysis

In this appeal, petitioner raises two issues: (1) whether the trial court erred in 

including “recklessly” in the mens rea requirement for rape and (2) whether trial counsel 

provided ineffective assistance by failing to object to the trial court‟s jury instructions in 

this regard. Specifically, he argues that State v. Weltha Womack, No. E2003-02332-

CCA-R3-CD, 2005 WL 17428 (Tenn. Crim. App. Jan. 4, 2005), overruled by State v. 

Clark, 452 S.W.3d 268, 296 (Tenn. 2014), which stands for the proposition that 

“reckless” should not generally be charged to the jury in aggravated rape cases, operates 

to his advantage. 

A. Standard of Review

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that 

his or her “conviction or sentence is void or voidable because of the abridgement of any 

right guaranteed by the Constitution of Tennessee or the Constitution of the United 

States.” Tenn. Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of 

proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann. 

§ 40-30-110(f). “„Evidence is clear and convincing when there is no serious or 

substantial doubt about the correctness of the conclusions drawn from the evidence.‟” 

Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297 

S.W.3d 208, 216 (Tenn. 2009)). 

Appellate courts do not reassess the post-conviction court‟s determination of the 

credibility of witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing 

R.D.S. v. State, 245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of 

witnesses is a matter entrusted to the post-conviction judge as the trier of fact. R.D.S., 

245 S.W.3d at 362 (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The postconviction court‟s findings of fact are conclusive on appeal unless the preponderance of 

the evidence is otherwise. Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim. App. 2011) 

(citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 

615, 631 (Tenn. Crim. App. 1997)). However, conclusions of law receive no 

presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d 450, 453 

(Tenn. 2001)). As a mixed question of law and fact, this court‟s review of petitioner‟s 

ineffective assistance of counsel claims is de novo with no presumption of correctness. 

Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted). 

The Sixth Amendment to the United States Constitution, made applicable to the 

states through the Fourteenth Amendment, and article I, section 9 of the Tennessee 
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Constitution require that a criminal defendant receive effective assistance of counsel. 

Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 

523 S.W.2d 930 (Tenn. 1975)). When a petitioner claims that he received ineffective 

assistance of counsel, he must demonstrate both that his lawyer‟s performance was 

deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 

U.S. 668, 687 (1984); Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007) (citation 

omitted). It follows that if this court holds that either prong is not met, we are not 

compelled to consider the other prong. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 

2004).

To prove that counsel‟s performance was deficient, petitioner must establish that 

his attorney‟s conduct fell below an objective standard of “„reasonableness under 

prevailing professional norms.‟” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 

S.W.3d 106, 116 (Tenn. 2006)). As our supreme court held: 

“[T]he assistance of counsel required under the Sixth Amendment is 

counsel reasonably likely to render and rendering reasonably effective 

assistance. It is a violation of this standard for defense counsel to deprive a 

criminal defendant of a substantial defense by his own ineffectiveness or 

incompetence. . . . Defense counsel must perform at least as well as a 

lawyer with ordinary training and skill in the criminal law and must 

conscientiously protect his client‟s interest, undeflected by conflicting 

considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial 

counsel‟s performance, this court “must make every effort to eliminate the distorting 

effects of hindsight, to reconstruct the circumstances of counsel‟s conduct, and to 

evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185 

S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). 

To prove that petitioner suffered prejudice as a result of counsel‟s deficient 

performance, he “must establish a reasonable probability that but for counsel‟s errors the 

result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing 

Strickland, 466 U.S. at 694). “A „reasonable probability is a probability sufficient to 

undermine confidence in the outcome.‟” Id. (quoting Strickland, 466 U.S. at 694). As 

such, petitioner must establish that his attorney‟s deficient performance was of such 

magnitude that he was deprived of a fair trial and that the reliability of the outcome was 

called into question. Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 

(Tenn. 1999)).

B. Whether the Trial Court Erred in Including “Recklessly” in the Mens Rea
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Requirement for Rape in the Jury Instructions

The Post-Conviction Procedure Act states, “Relief under this part shall be granted 

when the conviction or sentence is void or voidable because of the abridgment of any 

right guaranteed by the Constitution of Tennessee or the Constitution of the United 

States.” Tenn. Code Ann. § 40-30-103. However, a ground for relief may be waived if:

(g) the petitioner personally or through an attorney failed to present it 

for determination in any proceeding before a court of competent 

jurisdiction in which the ground could have been presented unless:

(1) The claim for relief is based upon a constitutional right 

not recognized as existing at the time of trial if either 

the federal or state constitution requires retroactive 

application of that right; or

(2) The failure to present the ground was the result of state 

action in violation of the federal or state constitution.

Id. § 40-30-106. Our supreme court has recognized waiver in the context of failure to 

give particular jury instructions. See Wiley v. State, 183 S.W.3d 317, 327 (Tenn. 2006) 

(recognizing that appellant was entitled to a jury instruction on second degree murder and 

the trial court was obligated to give it regardless of whether it was requested but that the 

trial court‟s error could have been raised on direct appeal but was not; thus, the issue was 

waived for post-conviction consideration). Likewise, because petitioner‟s issue could 

have been raised at trial, at a motion for new trial, or on direct appeal, we conclude that it 

is waived for post-conviction review. 

C. Whether Trial Counsel Provided Ineffective Assistance by Failing to Object

to the Trial Court‟s Jury Instructions in this Regard

However, this issue may still be considered in the context of whether trial counsel 

rendered ineffective assistance by failing to object to the trial court‟s jury instruction. 

Both the United States and the Tennessee Constitutions guarantee a right to trial by jury. 

U.S. Const. amend. VI; Tenn. Const. art. I, 6; Bryant v. State, --- S.W.3d---, 2015 WL 

1137755, at *6 (Tenn. Mar. 13, 2015). This includes the “right to a complete and correct 

charge of the law, so that each issue of fact raised by the evidence will be submitted to 

the jury on proper instructions.” Bryant, 2015 WL 1137755, at *6 (quoting State v. 

Dorantes, 331 S.W.3d 370, 390 (Tenn. 2011)); see Tenn. R. Crim. P. 30. “As part of 

their instructions in criminal cases, trial courts must describe and define each element of 

the offense or offenses charged.” Clark, 452 S.W.3d at 295 (citing State v. Faulkner, 154 

S.W.3d 48, 58 (Tenn. 2005); State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989)). 
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Although the jury instruction was not included in the record, the post-conviction 

court cited it in the order denying relief. According to the order, the trial court instructed 

the jury as follows:

Count 1: For you to find the defendant guilty of this offense, the State 

must have proven beyond a reasonable doubt the existence of 

the following essential elements:

(1) that the defendant had unlawful sexual penetration of the 

alleged victim;

and

(2) that force or coercion was used to accomplish the act;

and

(3) that the defendant acted either intentionally, knowingly, or 

recklessly. 

Count 2: For you to find the defendant guilty of this offense, the State 

must have proven beyond a reasonable doubt the existence of 

the following essential elements:

(1) that the defendant had unlawful sexual penetration of the 

alleged victim;

and

(2) that the sexual penetration was accomplished without the 

consent of the alleged victim and the defendant knew, or had 

reason to know, at the time of the penetration that the alleged 

victim did not consent;

and

(3) that the defendant acted either intentionally, knowingly, or 

recklessly. 
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Count 3: For you to find the defendant guilty of this offense, the State 

must have proven beyond a reasonable doubt the existence of 

the following essential elements:

(1) that the defendant had unlawful sexual penetration of the 

alleged victim;

and

(2) that the defendant knew, or had reason to know, that the 

alleged victim was mentally defective, mentally incapacitated 

or physically helpless;

and

(3) that the defendant acted either intentionally, knowingly, or 

recklessly. 

The Clark opinion made clear that “[n]ot every statutory crime contains a specific 

required mental state.” 452 S.W.3d at 295; see State v. Page, 81 S.W.3d 781, 786 (Tenn.

Crim. App. 2002) (noting that culpable mental states are generally defined by criminal 

statutes). To that end, the Tennessee Code contains a generic mens rea statute: generally, 

whenever a statutory offense does not specify a culpable mental state, then “intent, 

knowledge, or recklessness suffices to establish the culpable mental state.” Id. (quoting 

Tenn. Code Ann. § 39-11-301(c)).

The Clark opinion also noted a split among panels of this court regarding whether 

“reckless” should be charged to the jury in cases involving rape of a child, see, e.g., State 

v. Johnny Lynn, No. M2008-00532-CCA-R3-CD, 2009 WL 1812419, at *5 (Tenn. Crim.

App. June 25, 2009) (acknowledging a split of authority regarding the mens rea for rape 

of a child), perm. app. denied (Tenn. June 19, 2012); State v. Charles L. Williams, No. 

M2005-00836-CCA-R3-CD, 2006 WL 3431920 (Tenn. Crim. App. Nov. 29, 2006) (split 

opinion concerning rape of a child). Clark, 452 S.W.3d at 295. However, opinions of 

this court seem to be in unison on instructing the jury on intentional, knowing, and 

reckless for rape. See State v. Albert C. Scott, No. M2012-01137-CCA-R3-CD, 2013 WL 

3329093, at *8 (Tenn. Crim. App. June 28, 2013) (citing with approval Tennessee Code 

Annotated section 39-13-503‟s definition of rape as “the unlawful sexual penetration of 

the victim, committed intentionally, knowingly, or recklessly, and accompanied by: (1) 

force or coercion; or (2) without the consent of the victim; or (3) the defendant‟s 

knowledge or reason to know that the victim is mentally defective, mentally incapacitated 

or physically helpless”); see also State v. Jones, 889 S.W.2d 225, 230 (Tenn. 1994) 

(holding that the statutory language requires that in rape cases, “intentional,” “knowing,” 
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and “reckless” all should have been charged to the jury). Thus, because the trial court 

gave an instruction that was consistent with the law, trial counsel did not error by failing 

to object to it. 

We further note that the trial court instructed the jury in accordance with the 

Tennessee Pattern Jury Instructions. See T.P.I. 10.02 (pattern jury instruction for rape).

“While the pattern jury instructions are frequently used as a source for jury instructions in 

criminal cases, State v. Davis, 266 S.W.3d 896, 901 n.2 (Tenn. 2008), they are not 

entitled to greater deference than the other instructions given by the trial court, see State 

v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (quoting State v. Rimmer, 250 S.W.3d 12, 

30 (Tenn. 2008)).” Clark, 452 S.W.3d at 295. Nonetheless, case law consistently grants 

deference to trial counsel when the failure to object to a jury instruction is grounded upon 

the trial court‟s instructing the jury in accordance with the pattern jury instructions. See 

Torrey L. Frazier v. State, No. E2012-01751-CCA-R3-PC, 2013 WL 5964011, at *11 

(Tenn. Crim. App. Nov. 6, 2013), perm. app. denied (Tenn. May 14, 2014) (concluding 

that because the trial court gave the second degree murder instruction reflected in the 

Pattern Jury Instructions, trial counsel were not deficient for failing to object);

Christopher A. Davis v. State, No. M2010-01045-CCA-R3-PD, 2012 WL 3679571, at 

*40 (Tenn. Crim. App. Aug. 24, 2012) (concluding that trial counsel was not ineffective 

for failing to object to jury instructions on felony murder and criminal responsibility that 

“mirrored the Tennessee Pattern Jury Instructions”). We cannot conclude that trial 

counsel performed ineffectively in failing to object to the trial court‟s instruction. 

Petitioner is not entitled to relief.

CONCLUSION

Based on our review of the record, the briefs of the parties, and the applicable 

legal authorities, we affirm the judgment of the post-conviction court. 

_________________________________

ROGER A. PAGE, JUDGE