IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 17, 2013

OMAR THERON DAVIS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Montgomery County

No. 40500164 John H. Gasaway, Judge

No. M2012-01061-CCA-R3-PC - Filed May 22, 2013

The petitioner, Omar Theron Davis, appeals the denial of his petition for post-conviction

relief from his 2006 Montgomery County Circuit Court convictions of aggravated rape,

aggravated burglary, aggravated robbery, especially aggravated kidnapping, and theft of

property valued over $500, claiming that he was denied the effective assistance of counsel

at trial. Discerning no error, we affirm the order of the Circuit Court.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which THOMAS T.

WOODALL and ROBERT W. WEDEMEYER, JJ., joined.

B. Nathan Hunt, Clarksville, Tennessee, for the appellant, Omar Theron Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

A Montgomery County Circuit Court jury convicted the petitioner of three

counts of aggravated rape, one count each of especially aggravated kidnapping, aggravated

robbery, aggravated burglary, and theft of property valued over $500 but less than $1000.

The trial court imposed an effective sentence of 60 years’ incarceration. This court affirmed

the judgments on direct appeal. See State v. Omar Theron Davis, No. M2007-02206-CCAR3-CD, slip op. at 1 (Tenn. Crim. App., Nashville, Dec. 16, 2008), perm. app. denied (Tenn.

June 1, 2009).

In Omar Theron Davis, this court summarized the facts of the case as follows:
The [petitioner] was originally charged as a juvenile but was

transferred to circuit court to be tried as an adult. At trial, [the

victim] testified that she was home alone at approximately 7:00

a.m. on November 8, 2004, when her doorbell rang. When she

opened the door, a man wearing a ski mask, a dark jacket with

a hood, and black gloves barged into the house. He was

carrying a handgun. She tried to leave, but the man slammed

her into a wall, knocking her down. He then tied her hands

behind her back. She said that she cried and pleaded with him

to stop and that he held the gun to her head and told her to shut

up. He removed her pants, pantyhose, and underpants and

grabbed her arms, forcing her to the bedroom with the gun

against her back. Once in the bedroom, he tied a sweater around

her head so that she could not see anything. She said that she

heard him getting undressed and that he raped her vaginally in

several different positions. Afterward, he forced her into the

kitchen where he used one of her kitchen knives to cut off her

blouse and bra. He then took her into the bathroom where he

fondled her and replaced the sweater that was covering her face

with a bandana and something else over her eyes.

[The victim] testified that the [petitioner] forced her into the

shower with him and washed her. She said that he dried her off

and forced her back into the bedroom where he lifted her onto

the bed and performed cunnilingus. He then held the gun to her

head and forced her to perform fellatio. He raped her again

vaginally. During the attack, he mentioned [the victim’s]

daughter and told [the victim] that she “had better cooperate.”

[The victim] said that the bandana loosened so that she was able

to see the [petitioner’s] face clearly. The attack ended when [the

victim] told the [petitioner] that she could not keep up anymore

and pretended to pass out.

[The victim] said that she heard the [petitioner] ransacking her

bedroom after the attack and that the [petitioner] found a loaded

gun that she kept in the drawer of her night stand. She said the

[petitioner] put the gun to her head and asked if she had any

more guns in the house. She told him about a broken rifle that

was in the closet. He then asked her whether she had more

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bullets. She denied having more bullets, although there were

some in one of her drawers. The [petitioner] continued to rifle

through the house until he found her purse. He lifted the

bandana from her eyes to ask her about her two credit cards and

her car key. She gave him the “PIN number” for one of the

credit cards and confirmed that the key he found belonged to her

car. He placed the bandana back over her eyes, and she heard

the sound of zippers as though he were placing items in a

backpack. Before the [petitioner] left the house, he forced the

victim onto her stomach and tied her wrists and ankles together

behind her.

[The victim] freed herself and called 9-1-1 a little after 8:00 a.m.

When police arrived, she told them what had happened and that

her car was missing. She was afraid that her daughter was in

danger and insisted that the police send someone to Kenwood

High School to get her daughter. Later that day, police showed

[the victim] a Kenwood High School yearbook, and she

identified the [petitioner] as her attacker.

The parties stipulated that the [petitioner] arrived at Kenwood

High School at 8:47 a.m. on November 8, 2004. Hal Bedell, the

school principal, testified that the [petitioner] signed in late that

day. Based on a telephone call he received from the Clarksville

Police Department that morning, Bedell instructed the school

security officer to search the school parking lot for the victim’s

car. The car was discovered in the student parking lot. At

approximately 9:00 a.m., Bedell advised Detective Parrish of the

Clarksville Police Department that the car had been found.

Detective Ronald T. Parrish testified that he went to the

[petitioner’s] home around 6:00 p.m. on November 8, 2004, and

searched the [petitioner’s] bedroom. He found a wet bandana

and a backpack underneath the [petitioner’s] bed. Inside the

backpack, he found items the victim had reported missing,

including the gun from her night stand, one of her credit cards,

her bra, her cellular telephone, two microcassette recorders,

photographs, pens, and pencils. Detective Parrish also testified

that the [petitioner] was excluded as a contributor of DNA that

was obtained from the victim’s rape kit. The victim testified

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that she had intercourse with her fiancé during the weekend

preceding the attack.

State v. Omar Theron Davis, slip op. at 2-3.

On May 11, 2010, the petitioner filed a timely petition for post-conviction

relief, alleging multiple instances of ineffective assistance of counsel. Following the

appointment of counsel and the amendment of the petition, the post-conviction court held an

evidentiary hearing.

The petitioner testified that trial counsel failed to properly emphasize to the

jury the fact that the deoxyribonucleic acid (“DNA”) evidence recovered from the victim

excluded him as a contributor. The petitioner believed that trial counsel should have hired

an expert to determine the true identity of the DNA contributor and that if counsel had done

so, the petitioner “wouldn’t have got convicted of the charges [he] did.” The petitioner

alleged that trial counsel only met with him on one or two occasions prior to trial and that

during one of those meetings, counsel told the petitioner that he was not prepared and that

he did not have any defense for him. The petitioner also complained that trial counsel should

have requested that the trial court merge his charges because they were all part of a

continuing crime.

The petitioner claimed that trial counsel should have moved for a change of

venue on the basis that, in the weeks leading up to his trial, publicity about the crime “was

all in the newspaper, on the news, . . . it was everywhere. . . . I was lost from the beginning

because it was no way nobody from Clarksville didn’t know about my case and I believe it

was too . . . hot at that time.” He asserted that if trial counsel had moved for a change of

venue, he would “have had a better chance.” In his petition for post-conviction relief, the

petitioner also alleged that, during voir dire, trial counsel failed to adequately question

potential jurors about their knowledge of the case.

With respect to sentencing, the petitioner testified that he believed his sentence

to be excessive. In his first amended petition for post-conviction relief, the petitioner argued

that trial counsel failed to advise the petitioner of his right to be sentenced under the 2005

revised Sentencing Act. At his hearing, the petitioner further claimed that trial counsel failed

to properly inform him regarding his right to testify. The petitioner conceded that the trial

court informed him of this right and that he was 17 years old at the time of trial. He

contended, however, that, when he informed counsel that he wished to testify, counsel

responded that “the Judge was mad and that it would further make him mad if [the petitioner]

was to get up on the stand and testify,” and on that basis, the petitioner made the decision not

to testify, which he believed impacted the verdict to his detriment.

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Trial counsel testified that he had been employed by the Public Defender’s

office for nearly 20 years. He stated that he spoke with the petitioner “several times” prior

to trial and that he underwent his typical trial preparation in the petitioner’s case. He could

not recall specifically how many times he met with the petitioner, but he testified that he was

“confident” that he spoke with him on more than one or two occasions. When asked if

anything unusual occurred in preparing for the petitioner’s trial, trial counsel responded that

he had the most difficulty with the following:

[W]ithin an hour to two hours of this event occurring and the

police being called, items that came from the victim’s home

were found in the home of the [petitioner], under his bed, . . .

and it was one of those things where I am not quite sure what I

could have done or who I could have called to explain how they

managed to make their way from the victim’s house to his

house[.]

Trial counsel denied telling the petitioner that he was not ready for trial.

Regarding the DNA evidence, trial counsel explained that the DNA evidence

from the victim’s rape kit was not that of the petitioner and that there “was no physical

evidence found in the house, either fingerprints or DNA . . . nothing that was found in the

house connect[ing the petitioner] to this event.” Trial counsel testified that he emphasized

this point during cross-examination. When asked if he thought it important to determine who

the DNA belonged to, he responded that he did not because the victim’s car was located in

the high school parking lot following the crime and her belongings were found in the

petitioner’s room mere hours after the crime occurred. Because of the overwhelming

evidence against the petitioner, trial counsel expressed his concerns about the petitioner’s

testifying on his own behalf, but he did discuss with the petitioner his option to testify. Trial

counsel recalled that the trial court conducted a relatively lengthy Momon hearing, explaining

at length the petitioner’s right to testify. See Momon v. State, 18 S.W.3d 152, 161-62 (Tenn.

1999).

When asked about his decision not to request a change of venue, trial counsel

explained that the petitioner’s case “did not rise to [the] level” of necessitating a venue

change. Counsel did not recall much pretrial publicity on the case, particularly on the

television or on the radio. He stated that the trial court generally questioned potential jurors

about their independent knowledge of the case. Trial counsel testified that he did not believe

that the failure to obtain a change of venue had any detrimental impact on the outcome of the

trial. Trial counsel also stated that he did not believe any of the petitioner’s charges

warranted a motion to merge the convictions.

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With this evidence, the post-conviction court denied relief. The court

specifically found “that the petitioner has failed to establish that he received ineffective

representation at trial.”

On appeal, the petitioner reiterates his claim of ineffective assistance of

counsel, claiming that trial counsel failed to properly address the DNA evidence; failed to

adequately investigate and prepare for trial; failed to challenge the multiplicity of the rape,

burglary, robbery, and theft counts; failed to move for a change of venue and failed to

properly voir dire jurors about their knowledge of the case; failed to advise the petitioner

regarding sentencing; and failed to advise the petitioner of his right to testify.

We view the petitioner’s claim with a few well-settled principles in mind.

Post-conviction relief is available only “when the 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.” T.C.A. § 40-30-103 (2006). A post-conviction petitioner

bears the burden of proving his or her factual allegations by clear and convincing evidence.

Id. § 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s

findings of fact the weight of a jury verdict, and these findings are conclusive on appeal

unless the evidence preponderates against them. 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). By contrast,

the post-conviction court’s conclusions of law receive no deference or presumption of

correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

To establish entitlement to relief via a claim of ineffective assistance of

counsel, the defendant must affirmatively establish first that “the advice given, or the services

rendered by the attorney, are [not] within the range of competence demanded of attorneys in

criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and second that his

counsel’s deficient performance “actually had an adverse effect on the defense,” Strickland

v. Washington, 466 U.S. 668, 693 (1984). In other words, the defendant “must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. Should the defendant fail to establish

either deficient performance or prejudice, he is not entitled to relief. Id. at 697; Goud v.

State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be

followed.” Strickland, 466 U.S. at 697.

When reviewing a claim of ineffective assistance of counsel, we will not grant

the defendant the benefit of hindsight, second-guess a reasonably based trial strategy, or

provide relief on the basis of a sound, but unsuccessful, tactical decision made during the

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).

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Such deference to the tactical decisions of counsel, however, applies only if the choices are

made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.

Crim. App. 1992).

Claims of ineffective assistance of counsel are mixed questions of law and fact.

Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d 762, 766-67

(Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). When reviewing the

application of law to the trial court’s factual findings, our review is de novo, and the trial

court’s conclusions of law are given no presumption of correctness. Fields, 40 S.W.3d at

457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

In our view, the record supports the post-conviction court’s denial of relief.

With respect to the DNA evidence, the court, in a very thorough and well-reasoned opinion,

pointed out that the DNA results were “perhaps the strongest evidence in this case favoring

the petitioner.” If, as advanced in the original petition, counsel had moved to exclude the

DNA evidence on the basis that the testifying detective was not an expert in the field of DNA

testing, the jury would have never heard this potentially exonerating evidence. The postconviction court found no deficiency in trial counsel’s failure to identify the actual DNA

contributor, noting that the petitioner had not provided the court with any authority in support

of his argument that such a failure constituted ineffective assistance. Morever, the court

pointed out the victim had testified that she had engaged in sexual intercourse with her fiancé

two days prior to the rape and that evidence “conclusively identifying the actual source of

the DNA (be it the fiancé or some other man)” would have contributed “little (if anything)”

to the petitioner’s defense. Furthermore, the court found that trial counsel, in both crossexamining Detective Parrish and in delivering his closing argument, sufficiently addressed

the DNA evidence, emphasizing that no DNA evidence “whatsoever” connected the

petitioner to the crime.

The post-conviction court accredited trial counsel’s testimony that he met with

the petitioner “several times” before trial and determined that the petitioner’s statements to

the contrary “lack[ed] credibility.” The court specifically found that trial counsel’s “pretrial

preparation, investigation, and client interaction . . . did not constitute deficient

performance.” Regarding the petitioner’s claim of multiplicity, the post-conviction court

found, first, that evidence adduced at trial established three distinct forms of penetration:

vaginal rape, forced cunnilingus, and forced fellatio. Citing State v. Phillips, the court

pointed out that rape involving separate acts of penetration can lead to multiple convictions,

even when the separate acts occur during one continuing episode. See State v. Phillips, 924

S.W.2d 662, 665 (Tenn. 1996) (citing State v. Burgin, 668 S.W.2d 668, 670 (Tenn. Crim.

App. 1984). Second, the court held that the burglary, robbery, and theft convictions were not

multiplicitous because each emanated from different facts. The aggravated burglary charge

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alleged an intent to commit rape when the petitioner entered the victim’s home. The charge

of aggravated robbery alleged use of a deadly weapon to take items from the victim’s home,

and the theft charge related to the petitioner’s theft of the victim’s car. Because these crimes

comprised separate factual elements, the trial court concluded that no basis existed for trial

counsel to raise an issue of multiplicity.

With respect to the petitioner’s argument regarding change of venue, the postconviction court noted that the petitioner failed to present any evidence in support of his

claim of excessive publicity. In the absence of such evidence, the court accredited trial

counsel’s testimony that pre-trial publicity was minimal. Regarding the petitioner’s claim

that trial counsel failed to properly voir dire potential jurors, the court again pointed out that

the petitioner failed to provide a transcript of the voir dire proceedings in support of his

assertion and held that the petitioner “has not established this factual allegation by clear and

convincing evidence.”

The post-conviction court was not persuaded by the petitioner’s argument that

trial counsel failed to advise him of his right to be sentenced under the 2005 revised

Sentencing Act and that counsel’s alleged failure resulted in an excessive sentence. Because

the crimes at issue were committed on November 8, 2004, the court agreed that the petitioner

could have elected to be sentenced under the revised Act, but the court found the petitioner

was not prejudiced by being sentenced under the pre-2005 Sentencing Act. Although the

petitioner believed he would have received a sentence of less than 20 years on each of the

aggravated rape convictions under the revised Act, the trial court correctly held this belief

to be erroneous. Under the revised Act, the petitioner could have potentially received a

sentence of greater than 20 years for each count of aggravated rape, given the increased

amount of discretion afforded to trial courts when making sentencing determinations.

Finally, the post-conviction court found no merit to the petitioner’s claim that

trial counsel failed to advise him of his right to testify or that the petitioner’s failure to testify

resulted in any prejudice.

We find no error in the findings of the trial court, and we hold the petitioner

has failed to prove by clear and convincing evidence that trial counsel’s representation was

deficient or prejudicial.

Accordingly, the judgment of the post-conviction court is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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