### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Ma y

21, 200 8
STEV EN C R

A IG FU LTS V 

### . STA TE OF TEN NES SEE

Direc t Appeal from the Circ uit Court for Rutherford Coun ty

No. F -60087 Don R. Ash, Judge

No. M2007- 02570-CCA -R3-P C - F iled Janu ary 9, 2009

The pe titioner was found guilty of five c ounts of rape , all Class B fe lonies; twelve counts of sexual batte ry by an a uth or ity fi g ur e , a ll Cl a ss C felon ies ; and se ve n c ounts of

statut or y ra pe , a ll Cl a ss E fe lon ie s. He wa s se nte nc e d to nin e y e ars fo r e a c h Cl a ss B fe lony , th ree y ears for e a c h Cl a ss C felony , and one y ear for eac h Class E felony

. His sentence s for the Class B felonies we re or dere d to be serve d consec utively . His sentence s for the Class C felonies w ere order ed to be se rved
consec utively but c oncurr ently to the Class B fe lonies. His sentence s for the E f elonies we re or dere d to be serve d consec utively but c oncurr ently to the B f elonies, for

an ef fec tive sentenc e of f

orty -five y ear s. I n this post-conviction appea l, the petit ioner arg ues t hat t rial counsel was ineffec tive and that the po st- c on vic tio n c ourt

e rr e d in re je c tin g the c ha lle ng e to h is s e nte nc e be c a us e it wa s p re vio us ly de te rm ine d o n a

pp e a l. A ft e r c are fu l r e vie w, we a ff ir m th e jud g me nt f

ro m th e po st- c on vic tio n c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J O HN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the cour t, in which J ER R Y L. S MI TH and T H O M A S T. W O O D A LL , J J ., joined.

Do ug la s A . T ra

nt, Kn oxvil le , T e nn e sse e , f or the a pp e lla nt, Ste ve n Cr a ig F ult s.
Robert E. Coo p er , J r. , At torney Gene ral a

nd Reporter ; Eliz abeth B . Marne y , Senior Counsel; and Wil liam C. W hitesell, J r., District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Th e p e t i t ion e r, a

se ve nth g ra de te a c he r, wa s f

ound g uil ty of c omm itt ingnume ro us se xua l a c ts with the victim over an eig hteen- month period. The facts of the case were set forth in the opinion
on dir e c t a pp e a l a s f oll ow s: The victim in this case, a minor, will be ref

err ed to by

his init ials. M.D. te sti fi e d th a t he wa s b or

n in 19 86 and wa s se ve nte e n y e ars old a t the tim e of the tr ia l.-2-

He atte n d e d

B ar f ie ld E le me n ta

r y Sc h o o l i nRuth e r f

o r d Co u n ty , w h e r e D e f

e n d ant taug ht seventh g rade social studies. M.D. said his home room was a cross fr om De fe nd ant’ s c la ssr oo m, a nd he sawDe fe nd ant e ve ry da y aro un d th e sc ho ol. Def endant let the stude nts, including M.D ., play with his collection of bea nie babies
and us e the c omp ute r i n h is c la ssr oo m. M.D. said that he g raduated from Bar field Elementa ry School in May

2000, and ente red River dale Hig h School in Rut herf ord County

that fall. M.D. said that afte r he star

ted hig h school, Def

endant c ontacted him “out of the blue.” D efe ndant asked M.D. if he wanted to wor k for him as a

n assistant for the B arf

ield Elementar

y Sc ho ol’ s so c c e r t e a m, w hic h D e fe nd ant c oa c he d, and to h e lp D e fe nd ant i n h is classroom. De fenda

nt asked M.D.’ s mother, L inda Devine , if her son c ould work for him, a nd Ms. D evine ag ree d. M.D. beg an working for De fenda nt two or three times
a we ek, in cl u d i n g Saturday when the soc cer

g ames we re pla

y ed. De fenda

nt often picked M.D. up at his house when M.D. was schedule d to work for Def endant at the school or at a

socce r g ame. M.D. sa id Defe ndant p ai d him “a lot,” sometimes as much as $50.00 to $70.00 for an af ternoon of w ork. M.D. said that he a nd Def endant spent part of h i s wo rk i n g time talking a bout what was g oing on in M.D.’ s life, i n cl u d i n g M

. D. ’s fe el i n gs ab o u th i s fa t h er an d h i s co n ce rn s ab o u tf

i t t i n g i n t o h i gh school. These conver sations took place in Def endant’ s classroom a fter sc hool was dis mis se d for the da

y

. M. D. wo rk e d f

or De fe nd ant

a bo ut o ne y e ar d

ur ingwh ic h ti me no inappropriate conduc t occur red.

One afte rnoon afte r they had attended a socce r g ame during M

. D.’s
so ph omo re y e ar in the fa ll o f 2 00 1, De fe nd ant t old M. D. tha t he ne e de d to dr op so me e qu ipm e nt o ff

in t he c la ssr oo m. M .D . carr ie d a bla c k ba g int o the sc ho ol, and so me ite ms i n th e ba g c la tte re d w he n h e se t th e bag onthe fl oo r. M. D. te sti fi e d th a t it
so un de d li ke vid e o ta

pe s. De fe nd ant a sk ed M. D. to s tr a ig hte n u p th e c la ssr oo m. Whil e M.D.’s ba ck wa s turned, De fend an t p u t a “dirty movie” in the VCR which depicted a man and woma

n eng ag ing in se x ual acts. De fenda nt asked M.D. what he thought about the m ovie, and M.D. said that he “started getting rea lly fre aked out.” De fe nd ant s tart e d r

ub bin g M. D. ' s b a c k. De fe nd ant t ou c he d M .D .’ s p e nis ov e r h is clothes and the n unzipped his pants and perfor med fe llatio on M.D. M.D. said that he did no t d o anyth in g to sto p D e fe nd ant, statin g “ Idid n' t kn owwh a t to do . I

jus t stood there be cause Ididn’t kn o w wh at to think and Iwas sca red.” M.D. said that Def endant star

ted moaning “like he r eally liked it and started c alling me , like, g oing oh baby , and thing s like that.”

M. D. te sti fi e d: [Defenda nt] just told me not to say any thing a nd what it would do to me and pe op le wo uld

thi nk a bo ut me if the y fo un d ou t that Iwa s d oin g the se kin d o f t hin g s. And how they ’d ca ll me ga y and [Defe ndant told] me all the people that he knew a nd would alway s tell me like stori es ab o u t h o w he could ge t people in trouble. . . .-3-

[Defenda nt] took me home, I didn’t talk to my mom, I went in the bathr oom, and I threw up and my mom a sked me what wa s wrong , and I just said it [ was] something Ia te . A nd

Ijus t st oo d in the sh ow e r be c a us e I fe lt dir

ty

. B e c a us e that w a s th e fi rs t time any thing e ver ha

ppened like that at all. I just stood i n the shower and that wa s it. And Ijust went to bed bec ause I just felt ashamed a

nd embar rasse d.

M. D. sa id t

hat he tr us te d D e fe nd ant a

nd loo ke d u p to him . D e fe nd ant t old him “ a ll the tim e ” that he wo uld take c are of M. D. and that M. D. sh ou ld l oo k to him as his fathe r bec ause D efe ndant had ne ver ha d a son.

On a se cond occ asion i n De fenda nt's c lassroom, Def

endant play ed a vide o ta pe of tw o me n e ng a g ingin s e xua l ac tiv iti e s. M. D. tur ne d th e re c or de r o ff

be c a us e it “ g ro sse d h im o ut. ” De fe nd ant tol d M. D. , “ y ou kn ow , it ' s n ot g ay , . . . y ou ne e d it just when y ou need it.” M. D. did not remembe r any sexual contact on this occa sion.

M.D. said one sexual encounte r occ urre d near Hallowee n. M.D. said that he was dating a

g irl from Riverda le Hig h School, and he wa nted t o buy her a g ift for he r birthday on November 4, 2001. Def endant told M.D. that he c ould ear n some money by clea ning D efe ndant’s cla ssroom. Defe ndant stopped M.D. while he was wor king and per formed f

ellatio on him. Defe nd an t aga in told M.D. not t o tell any one. De fe nd ant w arn e d M .D . th a t th e y “ ha d a lr e a dy

do ne it s o w ho c ou ld [M .D .] te ll wi tho ut p e op le thi nk ingthat [he ] wa s g ay .” M. D. sa id t hat he wa s sc are d “ and

jus t whene ver [Def

endant] pretty

much wante d to do it [M.D.] let him.” M.D. testified that hi s r e pu ta tio n w a s v e ry imp or tant t o h im.

M.D. descr ibed three separ ate oc casions which involved Def endant p e r f o r m i n g f e l l a t i o o nh i m i n t h e c l a s s r o o m ar o u n d t h e h o l i d ays o f

V a l e n t i n e ’ s D ay, Easter , and Christmas; in the elementar y school’s l ocker room; and in Def endant’ s car in Ba rfield Par k afte r M.D. g ot his learner ’s permit to dr ive. M.D. said Def endant beg an coming t o h i s house in the morning afte r his mother left f or work. M.D

. descr ibed three separ ate se x ual enc ounters which occu rr ed in his bedroom, in the kit c he n, and

in the liv ing ro om. M. D. sa id that De fe nd ant a lw ay s tou c he d o the r p art s of his body , such as his leg s, buttocks, and che st, while he eng ag ed in ora l sex . M.D. said that Def

endant pe rfor

med fe llatio on him over one hundr ed times in Defe ndant’s
c la s s r o o m, an d

tw enty -five t o th ir

ty ti me s in M

. D

. ’ s h o u s e

. M

. D

. s a id th a t “ [i ]t beca me so often, it was like a

routine.” M.D. te stified that Def endant pe rfor

med ora l
se x o n him a

bo ut thr e e tim e s a we e k fr om so me tim e in the fa ll of 20 01 un til sometime in early

2003.

M.D. said that he wa s too emb ar ra ssed to tell his mot her a bout the encounte rs. He acknow ledg ed that Def endant g ave him money , clothes, and a phone
car d. Def endant started doi ng M.D.’s hom ewor k for him. M.D. saved $ 2,000, a nd Def endant f ound him a car

to purcha se.-4- M.D. said that he f

inally “for g ed up enoug h coura g e” a nd told De fenda

nt he “didn’t wa

nt to do any

thing” any

more, a nd Def endant ref raine d from sexual contact for f our or f ive m onths. At some point, Defe ndant told M.D. that he wa nted to marry him and take c are of hi m. Def endant said that M.D. “wouldn’t have t o worry about any thing.” M.D. told Def

endant that he “couldn’t see him that way ,” and Defe ndant crie d.

Sta te v . S te v e n Craig

Fu lts , No. M2004-CCA-R3-CD, 2006 Tenn. Crim. App. L EXI S 520, at *49 (Tenn. Crim. App. July

7, 2006).

Duri ngthe po st- c on vic tio n h e ari ng , th e pe tit ion e r te sti fi e d tha t tria l cou ns e l re pr e se nte d h im at trial. He said that the trial transcr ipts we re incomplete beca use they wer e missing c onversation reg arding some phone records. The petiti oner said that trial counsel subpoe naed the phone re cords from the victim’s m o t h er but she did not bring them to trial on advic e of the District Attorney ’s office

. He also say s that there was at least thirty minutes of testimony that was not in the transcr ipt from the se ntencinghear ing. The pe titioner also testified that the victim t ri ed t o m ak e contact with him i n spite of a no contac t order be tween the m. He said that he rec eived a cellular phone ca ll from the victim late one night while he was on his way home from work in Cookeville. The petitioner testified that he had hired a private inve stigator bec ause the case was not g oing w ell and that the victim had thre atene d both hi s li f

e an d th e li f e o f th e p r iv a te inv e s ti g a to r

. H e c a ll e d 9

- 1

- 1 to r e p o rt t

h a t t h e v ic ti m h ad contac ted him and had also notified his pa rents. He phoned trial counsel at home in the middle of the nig ht to inform him that he had bee n contac ted by t h e victim, and counse l instructed the petitioner to meet him at his office the following morning and they would g o to the Sheriff’ s Depa rtment tog ether . The pe titioner said he we nt to counsel’s off i ce t h e following morning but counsel told him to g o to the S heriff ’s Department alone . He testified that the Sheriff’ s Depa rtment
wo uld no t he lp h im. The pe titioner testified that his primary defe nse to the ra

pe cha rg es wa s consent. He sa id that he knew that the victim ha d been in disc iplinary trouble at school reg ardinghomosex ual behavior. He s ai d t h i s i n fo rmation came up as a result of a

civil suit filed by

the victim ag ainst Rutherford County Sc ho ols and him se lf . H e sa id t

hat he tol d c ouns e l a

bo ut t he vic tim ’s dis c ipl ina

ry pr ob le ms prior to trial. The pe titioner said he had c hara cter witnesses t hat he wanted to c all on his behalf including two former students: a Tenne ssee Hig hway Patrolman and a person servingin I raq. H e testified that he had no pr ior rec ord bef ore this incident.
Next, trial counsel testified that he r epre sented the pe titioner at trial. He re ca l l ed the petitioner cla iming that the victim ha d threatened him. He also rec alled that he told the petitioner who to contac t and discussed ve nue with him reg ardingthe threats. Counsel said that he would not have use d the threats at trial if it ha d been deter mined that the victim thre atene d the petitioner. He-5-

believed that it would have hurt their case because it was the vi ctim’s ang ry rea ction to the situation becomingpublic knowledg e. He thought that would hur t their ca se. C o u nsel said that he did not
re c a ll the pe tit ion e r te lli ng him that the vic tim ha d be e n d isc ipl ine d at sc ho ol f or ho mos e xua l a c ts. He did r eca ll that the petitioner told him the victim ha d disciplinary problems at s ch o o l an d that tho se pr ob le ms l e d h im t o a llo w the vic timto d o e xtra stu die s in

his c la ss. Counsel said that the petitioner hire d a private investig ator a n d th a t the investigator discussed his f indings with him. He said the investigator did not provide him with any helpful i nformation beca use it seemed a s though the investigator was wor king on a differ ent case. Counsel testified that he did no t th ink tha t w ou ld b e he lpf

ul at tr ia l be c a

us e the inv e sti g a tor

pr ima rily talk e d to pe op le
a bo ut a c tio ns a ft e r t

he a lle g e d in c ide nts . H e sa id t hat hi s d e fe ns e str a te g y

a t tr ia l w a s th a t th e vic tim enter ed into a conse nsual relationship wit h the petitioner. Counsel said that their strateg y did not play

out at trial like he ha d anticipated a nd that they lost the case. H e said that their w i t n es s es were not as strongas the State’s w itnesses and that
ever y thing wa s cente red a

round the testimony of the petitioner. The pe titioner decide d not to testify afte r he watche d the cr oss-examination of their two witnesses. I t was the pe titioner’s dec ision not to te stify and in doing so, he did not have the opportunity to disc uss some of the issues that he ra ised in his petiti on for post-c onviction relief. When asked, counsel t estified that he arg ued and litig ated to the best of his ability

on the conse nt issue. During cross-e x amination, counsel said that he would n o t p r esent e vidence that the petitioner knew about the vi ctim’s tendenc y toward homosexual behavior beca use he be lieved it would make the petitioner look like he ta rg eted the victim beca

use of that behavior

. He did not believe that the
e vid e nc e wo uld

se rv e to s up po rt that the vic tim wa s not fo rc e d into havin g a ho mos e xua l a c t w ith the petitioner.

Counsel te stified that it would have been important to pr esent evidenc e that the victim and his family wer e planninga cr iminal injuries c ompensation act claim ag ainst the petitioner. Counsel
a lso sa id t

hat he wa s n ot a

wa re of any fe ma le te a c he rs fo un d guil ty of se xua l a c ts w ithstu de nts
rec eiving a sente nce similar to the p et i t i o n er’s sentence . During redire ct examination, counsel
a c kn ow le dg e d th a t he did no t kn owthe fa c ts o f the c a se s wh e re fe ma le te a c he rs we re inv olv e d w ith students other than what he had se en or he ard in t h e m ed i a. He c ould not say if they wer e as eg reg ious as the under ly ing c ase or whether they involved homosex ual re lationships.

At the conc lusion of the hear ing, the post-conviction cour t took the matter under

advisement and later issued an orde r deny

ing a nd dismiss ing the petition.

An a ly sis The pe titioner argues that he w as senten ce d i m p ro perly when the tr ial court imposed
consec utive sentenc es for his Class B felony convictions. The State contends that the issues wer e-6-

either pr eviously

deci d ed on direc t appea l or wer e wa ived by the petitioner’s f

ailure to ra ise the issues on appea l. We ag ree

.
I n h is f ir st i ssu e , th e pe tit ion e r a rgue s th a t be c aus e hi s case wa s in the “ pip e lin e ” pr ior

to Blakely v. W ashington , 524 U.S. 296, 124 S. C t. 1493 (2004), he is a utomati cally

entitled to a
rema nd for r e-se ntencing . This court’s de cis i o n on direc t appea l addre ssed the propr iety of
consec utive sentenc ing a

nd conclude d that th e im

p o s it io n o f c o n s e c uti v e s e nte n c in g

u n d er Te nnessee Code Annotated section 40-35-115( b)(5) was a ppropriate

. Sta te v . S

te v e n Craig

Fu lts , No. M2004- CCA-R3-CD, 2006 Tenn. Crim. App. L EXI S 520, at *49 (Tenn. Crim. App. Jul y 7, 2006).

A re cent de cision of our c ourt containe d this note:

We n o te th a t o u r s u

p r e me c o u rt’ s r e c e n t d e c ision in State v. Gome z , 239 S.W .3d 733, 740 (Tenn. 2007) , in which the su pr e me c ourt

de te rm ine d th a t th e us e of enha nceme nt fac tors not found by a jury or admitted by

a def endant violated the Sixth A me ndme nt , d oe s n ot a ff e c t ou r r e vie w of c on se c uti ve se nte nc ingiss ue s. Be fore our supreme court’ s decision in Gomez , it ha d s pe c if

ic a lly no te d th a t Blakely v. W ashington , 542 U.S. 296, 124 S. C t

. 2531, 159 L . Ed. 2d 403 (2004) , did not imp a c t Te nn e sse e ’s c on se c uti ve se nte nc ingsc he me

. State v. Robinson , 146 S.W .3d 469, 499 n.14 (Tenn. 2004)

. I n addition, this court h as co n s i stently found that Blak e ly does not aff

ect c onsecutive se ntencingdeter minations. See State v. Earice Ro be rts , No. W2003-02668-C C A-R3-CD, 2004 Te nn. Crim. App. L EXI S 1049, 2004 WL 2715316, at *15 (Tenn. Crim. App., at J ackson, N ov. 23, 2004) , perm. app. denied (T e nn

. Mar. 21 , 2 00 5) ; State v. L awrence W arren Pierce , No. M2003-01924- CCA-R3-CD, 2004 Tenn. Crim. App. L EXI S 994, 2004 WL 2533794, at *16 (Te nn. Crim. App., at Nashville, Nov. 9, 2004) , perm. app. de nied (Tenn. F eb. 28, 2005).

State v. Dav id Harold Hammond , N o

. W 2 0 0 7

- 0 0 2 1 9

- C C A

- R 3

- C D , 2 0 0 8 T e n n

. C r i m

. A p p

. LE X IS 100, *9-10, (Tenn. Crim. App. Feb 21, 2008), perm. app. de nied (Tenn. Aug . 25, 2008). Ther efor e, beca use Blak e ly and its prog eny

do not aff ect consecutive sentencing , we conclude that the petitioner is not entitl ed to any

relief on this iss ue. See State v . Allen , 259 S.W .3d 671 (Tenn. 2008)

. The petitioner also argues that his se ntence was “ g rossly disproportionate” to the point that it constitut es cr

uel an d unusual punishment. The petitioner’ s entire a rg ument consists of one para g raph:

There is no question from the Gove rn o r’ s Task Report F orce Report introdu c e d

b y th e Pe ti ti o n e r

a s p art o f

th is p e ti ti o nth a t t

h e av e r a g e in c ar c e r a tion lengt h fo r [ Class B] felony standard of

fende rs was 108.5 months and f or ra pe of a child, a more serious off ense in the insta n t o ff

en s es wa s 230.4 months. The Petitioner rec eived a g rossly disproportionate sentence of 45 y ear s. That sentenc e, the re fo re , c on sti tut e s c ru e l and unus ua l pu

nis hme nt u

nd e r t he Ei g hth Am e ndme nt t o-7-

the U n it e d

St a te s Co n s ti tuti o nan d

A rti c le O n e , Se c ti o nSi xte e no f th e T e n nessee Constit ution. So le m v . H e lm , 463 U.S. 277, 103 S. C t. 3001, 77 L . Ed.2d 637.
First, we note that the petitioner’ s citation to Sole m v . H e lm is not pertinent to the case at hand. In Solem , the def

endant wa s g iven a life sentenc e without the possibilit y of parole for a bad chec k felony

conviction. The c onviction was his seventh fe lony ; however , his prior c o nv ic ti ons were for “ nonviolent, minor crimes” a nd the life sente nce w as found to be dis p ro p o rtionate to the conviction

. He re , the def endant’ s sentence of for

ty -five y ear s was for

repe ated se x ual offe nses c omm itt e d a g a ins t th e vic timov e r a pe ri od of e ig hte e n mo nth s, wh ic h c ann ot be c on tr ast ed w ith passing a bad c heck f

or $100. The pe titioner’s argument is merely a conc lusion and does not satisfy his burden of pr oof. Ther efor e, he is not entitled to relief on this iss ue.

I n his nex t is s u e, t h e p et itioner argues that he w as denie d equal pr otection bec ause he
re c e ive d a

muc h g re a te r s e nte nc e tha n femal e tea chers h a ve re c e ive d f or havin g se x with

the ir students. His arg ument to this i ssue entirely consists of the following : “Trial c ounsel admitted on
cros s e xa mi n a ti o n th a t f e ma le te a c h e r s h a v e r e c e iv e d f ar le s s s e n te n c e s th an th e s e n te n c e the Petitioner rec eived ther eby denying his right to equa l protection.” H is arg ument contains no citation to a uth or ity and no su pp or t f or his argume nt. Th is i ssu e is wa ive d as t he pe tit ion e r h a s f

a ile d to c ite
a uth or ity to s up po rt

his argume nt. Te nn . Ct . Cr im. Ap p. R. 1 0( b) ; State v. Schaller , 975 S.W .2d 313, 318 (Tenn. Crim. App. 1997)

. Next, the pet i t i o n er al l eg es four specific instances of

ineffe ctive assistanc e of c ounsel: 1) Counsel was ineff

ective f or fa iling to prese nt evidenc e that the vi ctim contac ted hi m by telephone
a ft e r a “ No Con ta c t” or de r w a s is su e d; 2 ) C ouns e l wa s ine ff e c tiv e fo r fa ili ngto i mpe a c h th e vic tim with evidence that he planne d to file a civil lawsuit ag ainst the petit ioner; 3) Counsel was ineff ective for not produc i n g enoug h char acte r witnesses on his beha lf; and 4) Counsel wa s ineffe ctive for failing to introduce the pe titioner’s school di sciplinary rec ords, which de alt with his reprimands for homosex ual beha

vior.

Both the Six th Amendment to the United S tates C onstitut ion and article I , section 9 of the Te nn e s s e e C o n s t i tu t i o ng u ar an t e e a c r i m i n a l l y

a c c u s e d t h e r i g h tt o r e p r e s e n t a t i o nb y c o u n s e l. Additi o n a ll y , b o th th e U n it e d St a te s Su p r e me Co u rt an d th e T e n n e s s e e Su p r e me Co u rt have
rec og nized that the rig ht to such repr esentation encompasses the rig ht to “rea s o n ab l y eff ective” assis t ance , that is assistance “ within the rang e of c ompetence demande d of attorne y s in criminal
case s.” Strickland v. W

ashington, 46 6 U .S. 66 8, 68 7, 10 4 S. Ct. 20 52 (1 98 4) ; see Baxter v . Rose, 523 S.W .2d 930, 936 (Tenn. 1975)

. A c la im o f i ne ff

e c tiv e a ssi sta

nc e of c ouns e l is a

c la im c og niza

ble un de r T e nn e sse e ’s Pos tConviction Act. See Tenn. Code Ann. §§ 40- 30 -1 0 1 t o -3 1 3. The pe titioner has the burde n in a petition for post-conviction relief to pr ove the alleg ations of fac t by clea r and c onvincing evidenc e. Tenn. Code Ann. § 40- 30-110(f ). In order

to be succ essful on a c laim of ineff ective a ssistance of counsel, the pe titioner must establish that counsel’s perf ormanc e wa s deficie nt and that the def icient perf ormanc e re sulted in prejudice to the pe titioner. Strickland , 466 U. S. at 68 7; Baxter , 523 S.W .2d-8-

a t 93 6. To pr ov e de fi c ie nt p e rf or manc e , the pe tit ion e r mus t de mon str a te that c ouns e l’ s c on du c t f e ll below an obje ctive standa rd of “re asonable ness under preva iling profe ssional nor ms.” Strickland , 466 U.S. at 688.

To pr ov e that c ouns e l’ s def ic ie nt pe rf

or manc e pr e

jud ic e d th e de fe ns e , th e pe tit ion e r “ mus t
e sta bli sha re a so na ble pr ob a bil ity tha t but fo r c ouns e l’ s e rr or s th e re su lts of the pr oc e e din g wo uld have been differe nt.” Id. at 694. “A r easona ble proba bility is a probability

sufficie nt to undermine confide nce in the outc ome.” Id.

Her e, the petitioner contends that counsel wa s ineffe ctive in four a rea s. He ra ises two issues
concern i n g counsel not introducingspecific evidenc e. He first contends that tria l counsel wa s ineffe ctive for not bring ing a t hreat by the vi ctim to the attention of the trial court, and se cond, he
c on te nd s c ouns e l sh ou ld h a ve imp e a c he d th e vic tim wi th ev ide nc e that he p lann e d to ini tiate a c ivi l lawsuit. He a lso arg ues that counse l was ineff ective f or not investiga

ting the thr eat m ad e by

the victim. However , he does not provide any evidenc e of howhe wa s prejudice d by trial counsel’ s str a te g y

. As pr e vio us ly state d, in o rd e r t o s uc c e e d in a po st- c on vic tio n p e tit ion , th e pe tit ion e r m us t pr ov e bo th t

hat c ouns e l’ s p e rf

or manc e wa s d e fi c ie nt a

nd that th e de fi c ie nt p e rf

or manc e re su lte d in prejudice to the petitioner. The pe titioner is essentially arguing that counsel’s strateg y was ineffe ctive. Howe ver, the petitioner i s not entitled to the benefit of hindsight a nd maynot secondg uess a r easona

bly based tria l strateg y

by counsel. Se e Ad

k ins v . S tat e , 911 S.W .2d 334, 347 (Tenn. C ri m

. Ap p

. 1 9 9 4 ) ( ci t i n g Sta te v . M ar tin , 627 S.W .2d 139, 142 (Tenn. Crim. App. 1981) . Fur ther, the petitioner ha s not established any resultant prejudice from trial c ounsel’s strate g y and, ther efor e, is not entitl ed to re lief on this issue. Next, the petitioner argues that c o u n s el was inef fec tive for f

ailing to pr oduce c hara cter wi t n es s es o nh i s b eh al f. Hi s en t i re ar gu m en tco n s i s t s o f t h e f o l l o wi n g:
Th e Pe tit ion e r h a s n o c ri min a l r e c or d p ri or to th ese e ve nts and c e rt a inl y enjoy ed re putation of g ood char acte r in the commu n i t y . His trial counsel wa s ineffe ctive for

not producing said witnesses to testify about his g ood char acte r. He
was c erta inly

prejudice d by

the fa ilure to ca ll those witnesses beca use g ood char acte r in i tse lf c an c re a te re a so na

ble do ub t. Ag a in, the pe tit ion e r’ s argume nt c on ta ins no c itatio n to a uth or ity and no su

pp or t fo r h is a rgume nt. Th is i ssu e is w a ive d. Te nn . Ct . Cr im. Ap p. R. 1 0( b) ; State v. Schaller , 975 S.W .2d 313, 318 (Tenn. Crim. App. 1997).

I n his final issue, the petitioner a rg ues that counse l was ineff ective f or fa iling to introduce t h e v i c t i m ’ s s c h o o l d i s c i p l i n ar y r e c o r d s d e a l i n g w i t h s e x u a l m i s c o n d u c tr e l a t i n g t o h o m o s e x u a l i t y. The pe titioner argues that bec ause the d ef ense w as conse nt to the sex ual conduc t that rec ords pe rt a ini ngto t

he vic tim ’s ow n h omo se xua lity , o c c ur ri ngtw o y e ars pr ior to the pe tit ion e r’ s c on du c t, should have be en pre sented. Tr ial counsel testified that he was not a war e that the victim had been in trouble at school for

homosex ual behavior. He a lso said tha t h e wo u l d n o t have use d the-9-

inf or ma tio n at tr ia l be c a

us e it c ou ld h a ve de pic te d the pe tit ion e r as a pr e dator wh o pic ke d th e vic tim as his targ et bec au s e o f the petitioner’s know ledg e that the victim had e ng ag ed in homosexual
a c tiv ity . A g a in, thi s is an issu e of tr ia l stra te g y that a pp e ars re a so na

bly ba se d. Th e fa c t th a t a particula r strate g y or tac tic hurt the def

ense doe s not, alone, support a claim of ineff ective a ssistance. Se e Go ad v . S tat e , 938 S.W .2d 363, 369 (Tenn. 1996)

. Her e, the petitioner has not demonstrated that the fa ilure to introduce this evide nce r esulted in prejudice

. There fore , we a ffirm the judg ment from the po st- c on vic tio n c ourt

. Conclusion

Ba sed on th e fo re go i n g and the r ecor d as a w hole, we c onclude that the pe titioner is not
e nti tle d to re lie f a

nd , a c c or din g ly , a ff

ir m th e jud g me nt f

ro m th e po st- c on vic tio n c ourt

.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE