# FILED

August 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9705-CR-00166 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. J. RAND

ALL WYA

TT, JR., CHARLES B. TREADWELL, ) JUDGE ) Appellant. ) (Aggravated Assault, Simple ) Assault and Sta lking)

FOR THE APPELLANT : F. THOMAS GIAMBA

TTISTA (At Trial) 1008 17th Avenue, S. Nashville, TN 37212 JOHN T. CONNERS, III (On Appeal) P.O. Box 1451 Franklin, TN 37065-1451 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter DARYL J. BRAND Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General STEVE R. DOZIER Assistant

District Attorney

General Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201-1649

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE1 It is the policy of this Court not to re

veal the names of

minor victims. 2 OPINION

The defendant, Charles B. Treadwel l, was convicted by a Davidson County juryof one (1) count of aggrav ated assault, one (1)count of simple assault and one (1) c ount of misdemeanor stalking. H e was sentenced to five ( 5) years for aggravatedassault and eleven (11) months and twenty-nine ( 29) days each for simple assault and st alking. On appeal, he brings the following issues for this Court’s re view: (1) whether

t he evidence is sufficient to support his convictions; (2) whether

he was d enied his right to a unanimous jury verdict on the stalki ng offense; and (3) whether

he was denied effective assistance of tri a l counsel. After a thorough review

of the rec ord before this Court, we find no error. Accordingly, the j udgment of the trial court is affirmed.

FACTS

In la te 1994, S.L., 1 who was thirteen ( 13) years of age, met the defendant, who was thirty

-one (3 1) years of age, and the tw o became friends. According t o S.L., t heir relationship start ed out as friendship, but eventua lly turned into “something more.” They wrote letters t o each other, talkedon the telephone, and S.L. reported that they ki ssed and “held hands.” In early Febr ua ry 1995, Linda Lawson, S .L.’s mother, learned of her daughter’s relationship with th e defendant. Lawson confronted defendant and to ld him to stay away from her daughter. However, defendant and S.L. continued the relationship. In March 1995, while S.L. was sp ea king with defendant on the tel ephone, she told defend ant that she ha d an argument with her mother tha t evening.2 As an occupation, Lawson provided care for y oung children. Maloney wasone of the children unde

r Lawson’s c

are and was twe

lve (12) ye

ars old at the time o

f trial. 3 Defendant became incensed and told S.L. that he would kill he r mother. Defendant’s anger frightened S.L., and she told defendant that she wanted t o end their relationship. On April 4, Lawson w

as driving Mary

Maloney

2 to school when she notice d defendant following her ver y closely in his

car. Lawso n pulled into a gas statio n parking lot, and defendant pulled in behind her

. When Lawson exited her car and walked to th e pay phone, defendant followed her. Defen dant then raised up his shirt, revealing the butt of a g un and said, “bitch, when I s ee you out

by yourself, I’ll shoot you.” Lawson testified at trial that she was “very scared” and t h ought that defendant might sh oot her “r ight then and there.” Defendant then returned to his car and dr ove away. On April 12, Lawson’s sister, Barbara Smith, took S.L. and some friends to

a local Taco Bell. Smith and S.L.’s sister, Amanda Tenpenny, were waiting outside in the car while the other girls were order ing their food. Defendant and a frien d drove into th e p arking lot, and Tenpenny poi nted him out to Smith. S.L. and the other girls testified

that defendant walkedinto the restau rant and began s creaming, cursing and wildl y waving his arms. Because Smith knew about defendant’s relationship with her niece, she walked inside the res taurant and asked defendant to leave S.L. alone. Defendant retort ed, “I want [S.L.] . If you don’t get out of my way, I’ll blow your f ing brains out.” Smith testified that

she was terribly

frightened because she was aware of defendant’s previous threats to ki ll her sister. Smith an d the young girls left the restaurant soon thereafter. On May 5, S.L. was o n the playground at her s chool when she noticed defendant’s car par ked on t he street beside her school. Defendant lowered his window and stared at S.L. When defendant began talking to her, she jumped onto

a fence to get away from defendant, and d efendant drove away. S.L. immediately reported this to school author ities, and the police w

ere summoned. On May 23, S.L. went to Shelby Parkafter school with her c

ousin and some3 At the hearing on the motion for new trial, it was established that defendant’s father w as actually mistaken as to defendant’s whereabouts on these day s. In fact, defenda

n t worked eight (8

) hours on both day

s. 4 friends. Once again, she noticed defendant’s c ar nearby. When defendant realized that the children had spotted him, he sped away in his car. On the night of May 25, defendant repeatedly drove up and down thestreet “all night” in front of S.L.’s home. Although S.L. was in he r room mos t of the evening, she reco gnized the car from her window and identified it as being th e defendant’s. As a result of the M ay inci dents, S .L. testified th at she suff ered fro m nightmares, fearing that defendant was in he r house. S.L. had dreams that defendant was trying

to “get us.” S.L. was afraid that defendant might kill her or her mother. The defendant’s father (Treadwell) testified for the defense. He stated that

on April 4, defenda nt was at his home all day assisting him paint his house. Treadwell testified that defendant’s car was not working on that day, so he could not have been following Lawson in his car. Treadwell fur ther te stified that on May 5, he saw the defendant at the post office with a friend around th e same time defendant was allege d to have been watching S.L. at her school. Treadwel l also stated that defendant was at home all day on both May 23 and 25. 3 Jim Liner, a friend of the defend ant, testi fied for the defense as well. He stated that he waxed defendant’s car on May 23, and defendant was w ith him from approximat

ely 5:00 p. m. to 8:30 p.m. The jury returned guil

ty verdicts for the agg ravated assault of Lawson on April 4, the simple assault of Smith on Apr il 12, and stalking S.L. as a result of the incidents on May 5, May 23 and May 25. Defendant now brings this appe al as of right pursuant to Tenn. R. A pp. P. 3.

SUFFICIENCY OF THE EVIDENCE5 In his first issue defendant contends t hat the ev idence is insufficient to sustain the jury’s finding of guilt on all three offenses. The crux of his ar gumentis that the predicate acts for the offenses, w hile arguably offensive , do not constitute criminal conduc t. Therefore, he asserts that ev en taking the state’s ev idence as true, he is not guilty

of a criminal offense.

A. When an appellant challenges the sufficiency of the evidence, the standard of review is w

hether, after viewing

the evidence in the

light m ost favorable to the state, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Evans , 838 S. W.2 d 185, 190-91 (Tenn. 1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the stronge s t legitimateview of the evidence and all reasonable or leg itimate i nfer ences which maybe drawn therefrom. Stat e v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). This Court will not rewei gh the evidence, reev aluate the evidence, nor substitute its evidentiaryinferences for those re ached by the jury. State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, great weight is given to the result reached by the jury. State v. Johnson , 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995). B. In Count One, def end ant was charged wi th the aggravated assau lt upon Lawson by the use or

display of a deadly w

eapon. Aggravated assault is defined

as intentionally or kno

win gly causing “another to reasonably fear imminent bodily injury” while using or displaying a deadly weapon. Te nn. Code Ann. §§ 39-13- 101(a)(2) (1991), 39-13-102(a)(1)(B) (Supp. 1994). On April 4, Lawson n oticed the defendant “tailgatin g” her car. When she pulled her car into a park ing lot, defendant followed her

. Defendant got out of his car, walked to the pay phone w here Law so n was standing and began “yelling” at Lawson. He then raised his shirt, exposing the butt of a gun, and threatened to kill Lawson.6 Defendant argues that his wor ds, “when I see you out by yoursel f, I’ll shoot you” was a threat “to take ac tion in the future.” Therefore, it would have been unreasonable for Lawson to have feared imminentbodilyinjury. However, Lawso n tes tifie d that she was “very scared” by defendant’s acti ons and thought that defendant might shoot her “rig ht then and there.” There was sufficient evidence for

a rational trier of fact to

conclude that defendant caused Laws on to “reasonably fear imminent bodily injury

” while display

ing a deadly weapon. This issue is without merit. C. De fendant was charged in Count Tw o with the s imple assaul t of Smi th

. Assault is defined as intentionally or knowingly causi ng another “to reasonably fear imminent bodily injury.” Tenn. Code Ann. § 39-13-101(a)(2) (1991). There was testimony at tr ial that on April 12defendant walked into the Taco Bell restaurant screaming, cursing and wildlywavinghis arms. Smith testified that when she attempted to ask the defendant to leav e her niece alone, he responded, “[i]f you don’t get out of my way, I’ll blow your f ing brains out.” Defendant claims that while this re sp onse was impolite, this does not constitute an assault. However, defendant was screaming and cursing loudly in the restaurant, and Smith was aware of defendant’s previous threats to kill her sister. Smith testified that she was “just scared he would do so mething to some of us. I mean, you know, he’s acti ng plum craz y.” S mith also stated that defendant was acting like “a wild man.” Th e eviden ce was sufficient for the jury to find that defendant caused Smith to “reasonably fear imminent bodily injur y.” This issue has no merit. D. Count Three of the indictment charged the defe ndant wit h s talking. Tenn. Code Ann. § 39-17-315(a) (Supp. 1994) provides as follows: (1) [a] person co mmits the of fense of sta lking: (A) [w]ho repeate dly follows or haras ses another person with the intent to place that person in reasonable fear of a sexual offense, bodily inj ury or death;7 (B) [w]hose actio ns would cause a reasonabl e person to suffer substantial emotional dis tress; and (C) [w]hose acts induce emotional dist ress to that person. (2) As used in this subsection: (A) “Follows” means maint aining a visual or physical proximity over a period of time to a s pecific person in such a manner as would cause a reasonable personto have a fear of a sexual offense, bodily injury or death; (B) “Harasses” means a course of conduct directed at a specific p erson which would cause a reasonable person to fear a sexual offense, bodily injury, or death, including, but not limited to, verbal t hreats, written threats, vandalism, or

unconsented-tophysical contact; and (C) “Repeatedly” means on tw o (2) or more s e parate occasions. S.L. testified that on three (3) s eparate occasions, defendant was watching her at school, at Shelby Par k and at her home. S.L. was thirteen (13) years old, and d efend ant was thirty-one ( 31) years of age. S.L. bel ieved that defendant was capable of violence in light of his prior threats to ki ll her mother and his assaul t upon her aunt. S.L. began having nightmares that defendant was in her house and feared for her own sa fety as well as that of her mother. As a result of these incidences, S.L. was forced to undergo counseling, and her school work suffered. We find that there is sufficient evidence that the de fendant “followed” S.L

. repeatedly with the intent to place her in “reasonable fear of a sexual off ense, bodily injuryor death.” Furthermore, we also fin d that defendant’s actions woul d cause a reasonable person to suffer emotional distres s, and S.L. did suffer emotional distress as a result of defendant’s actions. Th e evidence is sufficient to support defendant ’s conviction for stalking. This issue is without merit.

UNANIMOUS JURY VERDICT

In his next issue, defendant contends that he was depriv ed of his right to a unanimous jury verdict on the offense of stalking. He argu es that because the4 This Court has prev iously ruled

that raising the

issue of in

effectiveassistance of counsel on direct appealis a “practice fraught with peril.” Thompson v. State, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997). 8 stalking charge involved three alleged instances of co nduct, there was a possib ility that the jury was

not unanimous as to the occurrence

of each instan ce. He clai ms that the trial court should hav e instructed the jury to “spec ificall y identify each [stal king] occasion as to which the jury was unanimous as to its occurr ence an d then used by the jury to support its conclusion of the Defendant’s guilt of this offense.” The Tennessee Supreme Court recently d ecided this issue in the c ase of State v. Hoxie , 963 S.W.2d 737 (Tenn. 1998). In that case, the defendant claimed that he was denied his right to a unanimous jury verdict because the statewas not required to elect among incidences of stal king at the close of its pr oof. Th e SupremeCourt disagreed, finding that in crimes such as st alking and harassment, there is no requirement that the state elect which incident of stalk ing it was rely

ing upon for a conviction. Id. at 743. Although defendant frames h is argument in terms of an improper jury instruction, we are not

persuaded that

defendant’s argument is disti nguishable from that in Hoxie . Therefore, in accordance with Hoxie , we find no error.

INEFFECTIVE A

SSISTANCE OF C

OUNSEL

In his fina l issue, d efenda nt conte nds that he receive d ineff ective assistance of trial counsel. 4 In making this argument,defendant alleges several i nstances of ineffective assistance. Wh ile arguing that each error prejudiced his case, he also

claims that the cum ulative ef fect of these err ors depri ved him of the eff ective assistance of counsel. A. Allegations At the hearing on the motion for new trial, def endant, represen ted by newlyappointed counsel, alleged many errors committedby trial counsel, including failure9

to fullydevelop the defense theory, fail ure to properly question defendant’s father

on direct examinati on, deny ing defendant his right to testify, failure to secure a photographic line-up of defendant for identification purposes, failur e to call alibi witnesses, and failure to inspect the crime scene. In its written order denying the motion for new trial, the

trial court found that defe ndant r eceived effective assistan ce of counsel. Further, the tr ial court found that defendant had not shown that he w as prejudiced by any of the alleged instancesof inef fective assistance. Therefore, the tri al court denied the motionfor new trial on the basis of ineffective assistance of trial counsel. B. Standard of Rev

iew The findings of fact m ade by t he tria l court relative to an

ineff ectiv e assistance of counsel claim are binding upon this Court unless the evidence in th e record preponderates against these findings. See State v. Anderson , 835 S.W.2d 600, 607 (Tenn. Crim. A pp. 1992). Questions concern ing the credibility of witnesses, weight and value to be given their tes

timony, and factual issues raised bythe evidence are resolv ed by the trial court. Id. at 607 . This Court must not reweigh or

reevaluate the evidenc e or substitute its inferenc es for those drawn by the trial court. Id. The defendant bears the burden of esta blishing that the evidence contained in the record prepond erates against these findings. Id. This Court reviews a claim of ineffective assistance of co un sel under the standards of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner has the burde n to prove that (1) the attorney’s per formance was deficient, and (2) the de ficient p erforma nce resul ted in pre judice to the def endant s o as to dep rive him of a fair trial. Strickland v. Washington , 466 U.S. at 687, 1 04 S.Ct . at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State , 789 S.W.2d 898, 89 9 (Tenn. 1990). T h e test in Te nnessee in determ ining wheth er counse l provided effect ive assistance is whether his performanc e was within the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d at 936. The10

petitioner

must overcome the presumption that counsel’s conduct f alls wit hin the wide range of acceptable professional assistance. Strickland v. Washington , 466 U.S. at 689, 104 S.Ct. at 2065; Alley v. State , 958 S .W.2d 138, 149 (Tenn. Cr im. App. 1997); State v. Willia ms , 929 S.W.2d 385, 38 9 (Tenn. Crim. App. 1996). C. Defense Strategy In his first claim of ineffective assistance of counsel, defendant arguesthat trial counsel did not fully dev elop the defense strategy to the jury. Defendant agrees with trial c ounsel’s overall defense s trategy that (1) the alleged conduct did not constitute a criminal defense, and (2) defendant had an alibi for many of the dates in question. However, defendant argues that the state’s witnesses

were fabricating theirtestimony and trial counsel should have provided the jury with their motivation to lie. Tri al counsel t estifie d that he believed t hat the wit nesses’ m otiva tion t o fabricate their testimony was “evident to any reas

onable human be ing, tha t the motive was that this woman and her family did not like the idea that a 33-year old

man was either

dating or having a romantic relationship w ith a 13-year old. I mean that goes without sayi ng.” He stated that the id ea of the state’s witnesses lying was implicit in the defense, and he alluded to that fact in hi s opening an d closing remarks. The trial court found that trial counsel “dili gently prepared for tri al” and performed “more than adequately” in h is presen tation o f a defe nse to th e jury. Moreover, trial counsel’s decis ion as to how the defense theory is presented to the jurywas a tactical decis ion and is entitled to gr eat deference. See Goad v. State , 938 S.W.2d at 369. Defendant has not proven that t he e vidence preponderates agai nst the trial court’s finding of effective representation. Nor has de fendan t established that he was prejudiced by this alleged error. This issue is without merit. D. Key Witness Defendant also complains that trial couns el erroneously treated

his father as the “key witness” for the defense. He claims that he himself should have been the11

“key witness” as to his alibis on t he questio ned date s, and his father s hould ha ve testifi ed to corr oborate his story. However, as the state correctly points out , Treadwell’s testimony was crucial in that defendant merely testifying that he was not present on the dates in question would have carried little weight with the jury. Furthermore, this was a stra tegi cal decision made by trial counsel. This Court is not at liberty to measure trial counsel’s decisions by “20-20 hindsight.” Hellard v. State , 629 S.W.2d at 9. This issue has no merit.

E. Father’s Testimony Defendant further argues that trial counsel provi ded ineffective assistance in his direct examination of Treadw ell. Treadwell testified on dir ect examination that defendant was at home all day on both May 23 and May 25, when in fact d efendant worked on both days. This testimony was co ntrary to Treadwell ’s testimony at the pre liminaryhearing an d Treadwe ll’s state ments to counsel p rior to the trial wh er e Treadwell stated that defendant was working on May 23 and May 25. Defendant claims that trial counsel should hav e attempted to refresh Treadwell ’s memory as to his prior testimony when h e began giving er roneous testimony. Defendant contends that, as a result, defendant di d not testify for fear of contradicting his father’ s testimo ny. At the hearing on the motionfor new trial, trial counsel testified that he fully prepared Treadwel l for his t estimon y. He reviewed Treadwell’s preliminary hearing testi monywi th him, including the dates of the offenses and the facts and circumstances

of defendant’s alibi. Although Treadw ell erroneously testi

fied as to defendant’s whereabouts on May 23 and May 25, trial counsel felt that because the jurywas not aware of defendant’s a ctual whereabouts, there w as no reason to attempt to correct Treadwell’s mistake by refreshing his memory. Trial counsel felt that ref reshing T readwell’ s memory wo uld, in ef fect, im peach hi s testimo ny. The tri al court found no ineffective assistance in trial counsel’s dire c t examination of defendant’s father. Thetrial court stated that trial counsel “acted in the manner he deemed appropriate and in th e petitioner’s best inter est under the12

circum stances presented to him at the time.” This Court will not second guess a strategic decision made by trial counsel to be in the best interest of his client at the time. Defendant has not shown that the evidence preponde rates against the trial court’s finding of effectiveness on this issue, nor has he demons trated prejudice. This issue has no merit.

F. Defendant’s Failure to Testify In a related issue, defendant asserts that he was effectively denied his right to testify due to

the foregoing error. A

s defend ant was de ciding whet her to tes tify, trial counsel warned him not to alter his testimony to “match” his father’s testimony as to the erroneous facts. Trial counsel explained to him that, as an officer of the court, he could not allow defendant to offer per jured testimony. Defendant argues that trial counsel’s warn ing that he would notify the court of defendant’s perjury “destroyed the attorney-client tr ust or bond . . . and effectively denied th e Defendant his right to testify. ” Trial counsel testified that he did not believe that it was in defendant’s best interest to testify. Counsel felt tha t the major points

of the defense theory had been broughtbefore t he jury through the state’s witnesses and defendant’s father. He felt that defendant’s case would be harmed if defendant w ere to contradict his father

on the witness stand. Fur thermore, trial cou nsel w as concerned that defendant would simply attempt t o align his testimony with that of hi s father. Counsel testified that he was not accusatory in his warning, but merely informed defendant“[j]ust so he knew that if he was thi nking about doing that, that there are repercussions. ” The trial court found th at trial counsel made an “informed and reasonab le recommendation”to the defendant not to testify. Further, because defendant placed the decision of whether he would t estify in his attorney’s hands, the trial court found t hat def endant wa s not den ied his righ t to testi fy. Defendant has not shown that the evidence preponderates against the trial court’s finding that trial counsel ’s recommendation to defendant not to testi fy was informed and reasonable. Once again, this was a strategic decision which this Court may not second guess.13 Moreover, we note that trial counsel w as under an ethical duty to dissuade his clie nt from offering perjured testimony. “In the representation of a cl ient , a lawyer shall not . . [k]nowi ngly use perjured tes timony or false evidence. ” Sup. Ct. Rule 8, DR 7-102(A)(4). “A lawyer who receives informati on clearly establishi ng that

. . . [t]he client has, in the c ourse of the representation, perpe trated a fraud upon a person or tribunal, shall promptly call upon the cl ient to rectify the same, and if the clientrefuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or t r ibunal, except when the information is protected as a pr ivileged communication.” Sup. Ct. Rule 8, DR 7-102(B)(1). We conclude that the defendant chose not to testify after deferr ing to trial counsel’s judgment. Moreover, this choice was not tainted by tr ial counsel’s caveat of the co nsequen ces of of fering pe rjured te stimony. This issue has no merit.

G. Photographic Line-up Defendant further a lleges t hat trial counsel was ineffective for failing to request that Mary Maloney be required to view a photographic line-up to determine whether she could identify defendant as the ma n who assaulted Lawson on April 4. Defendant contendsthat Maloney’s testimony might have excluded

defendant

as the man whoassaulted Lawson, thus bolstering defendant’s theory that Lawson was fabri cating he r testimo ny. There is no evidence in the r ecord as to wh ether Mal oney would have identified defendant. Therefore, defendant cannot demonstrate th at he was prejudiced by this alleged err or. Se e Blac k v. State , 794 S.W.2d 752, 757-58 (Tenn. Crim. App. 1990). This issue has no merit.

H. Failure to Cross- Examine Mary Malo ney Similarly, defendant argues that trial counsel provided ineffective assistance forf ailing t o cross-examine Mary Maloney at trial. H e claims that “[t]he potential benefit [of cross-examination] cou ld ha ve b een significant if the witness had identified someone else or was not able to identify the Defendant.”5 Alth ough Bloo dworth testified at the hearing on the motion for new trial that

defendant was with him during the afternoon of May 5, it is noteworthy that he a nd defendant were co-defe

ndants in a pending

criminal prosecu

tion at the time of tr

ial. 14 Maloney was not cal led to testify at the hearing on the motion for new trial, and there is noevidence in the record as to what “beneficial” testi mony trial counsel could have elicited on cross-examination. Thi s Court cannot speculate as t o what the witness’ testimony would have been on cross-ex amination. See Blackv. State , 794 S.W.2d at 757-58. This issue is without merit.

I. Witness Bloodworth Defendant also argues that trial counsel rendered ineffe ctive assistance by failing to call Robert Bloodw orth as a witne ss at trial. Defendant claims that Bloodworth could s upport h is alib i fo r Ma y 5 and could additionally support the defense theory on Lawson and her family’s motivation to fabri cate the ir testim ony. T rial counsel testified that he attempted t o locate Bloodworth on many occasions. Defendant did not provide him with Bloodworth’s phone number or exact address, but mere ly the s treet na me. Tria l counse l instr ucted de fe nda nt to do whatever

he could to locate Bloodworth and have Bloodworth call trial counsel. However, Bloodworth never cont acted him. Furthermore, Bloodwor th had a capias out on him during the time of trial which was not

served until after the conc lusion of trial. The trial court found that trial counsel made a

dilig ent effort to locate Bloodworth, but to no

avail . Therefo re, trial counsel was no t ineffective for failing to call this witness at trial. 5 Defendant has not shown that the evidence preponderates otherwise. This issue has no merit.

J. Employment Records Defendant further complains of trial coun sel’s failure to o btain defendant’s employment

recordsforMay 23 and May 25, w hich establish that defendant w orked

on both days. He claims that these records would cor roborate his alibithat he was not near S.L. on those dates.15 Trial counsel stated that he attempted to contact the defenda nt’s supervisor, but was not able to

g et in touch with her. H e also testified that defendant never informed him that he was employed through a temporary serv ice, which is where the records were obtained. Regardless, defendant cannot show that he was prejudiced by his attorney’s failure to secure his employment r ecords. The records indicate that defe ndant le

ft work at 3:30 p.m. on both May 23 and M ay 25. The May 25th inci dent was alleged to have taken place at night. Theref ore, the employme nt record s would not serve as alibi evidence on May 25. Furthermore, although there was testimony th at the May 23 incident occurred around 3:00 p.m., S.L. testified that it was dusk when s he

saw the defendant lurking nearby. Bec ause defendant’s employment records do not affirmatively establis h an alibi for either date, defendant cannotprove prejudice. This issue has no merit. K. Witness Duke Defendant also maintai ns that tr ial couns el was inef fective for failing to call his auto mechanic, Russell Duke, to testify at trial. Defendant contends that Duke’s testimony

would show th a t defendant’s car was inoper able on April 4, thus supporting defendant’s alibi defense. Attached to the motion for new trial was an affidavit signed by Duke which stated that defendant’s automobile was in extremely poor condition on April 3, 1995. Duke further attested that he changed the transmission fluid in defendant’s car on that day and, by changing the fluid, there was a “concern th at the transmission would shut down completel y.” However, there is nothing in Duke’s affidavit to support the ass ertion tha t defendant’s automobile was completely inoperable on April 4. There fore, def endant is not able to demonstrate prej udice. This issue has no merit. L. Crime Scenes In his next al legation of inef fective assistance of counsel, defendant claims that trial counsel erroneously faile d to i nspect the crime scenes. He argues16

generallythat inspection of the cr ime scen es would have assisted trial counsel in his cross-examination of the state’s witnesses. However, defend ant does not indic ate what f avorable testimo ny could ha ve been elicited had trial couns el inspected the crime scenes . As such, h e cannot show that he was prej udiced by this alleg ed failure. This issue is without merit. M. Cumulative Err

ors Finally, defendant argues that the cumulative eff ect of the foregoing errors effectively deprived defendant of his rig ht to ineffective assistance of counsel. However, because we find no error, we must respectfully disagree. The trial court found that trial counsel’s representation was well within the competence mandated by B axter

and Strickland . This Court sees no reason to disturb the trial court ’ s ruling. This issue has no merit.

CONCLUSION

The evidence is sufficient to sustain the jury’s findings of guilt for defen dant’s convictions for aggravated assault, simple assault and stalking. Furthermore, the defendant was not denied his rig ht t o a una nimous jury verdic t for the stalking conviction. Moreover, defendant has notproven that the evidence preponderates against th e t rial court’s finding that he received effective ass istance of counsel at trial. Accordingly, the judgment of the trial cour t is affirmed.

JOE G. RILEY, JUDGE

CONCUR:17

CURWOOD WITT, JUDGE

LEE MOORE, SPECIAL JUDGE