# FILED
September 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JUNE 1999 SESSION

DONALD WAYNE HO LT, ) ) No. 01C01-9805-CC-00201 Appellant, ) ) Rutherford County v. ) ) Hon. James K. Cla yton, Jr., Judge STATE OF TENNESSEE, ) ) Appellee. ) (Post-Conviction)
For the Appellant : W.H. Stephenson II 311 White Bridge Road Nashville, TN 37209 For the Appellee : Paul G. Summers Attorney General and Repor ter and Marvin E. Clements, Jr. Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 William C. W hitesell, Jr. District Attorney General 303 Rutherfo rd Co. Judicial Bld g. Murfreesboro, TN 37130

OPINION FILED:

AFFIRMED
Joseph M. Tipton, Judge2 OPINION
The petitioner appeals as of right from the order of the Rutherford County Circuit Court denying him post- conviction relief from his 1991 conviction for agg ravated rape and his resulting twenty-two year sentence. This court affirmed the conviction on direct appeal. See State v. Donald Wayne Holt , No. 01C01-9503-CC-00053, Rutherford County (Tenn. Crim. App. Sept. 27, 1995). The petitione r contends that the trial court erred in determining that he received the effective ass istance of counsel at his tri al. Upon a complete review of the record, we affirm the judg ment of the trial court.

PROCEDURAL HISTORY A Rutherford County jury convicted the petitioner of aggravated rape. This court set forth the following st atement of the facts on direct appeal: On July11, 1990, the victim became 21 y ears of age. After

her date for the evening did not show up, she left home and consumed a considerable amount of liquor. Around midnight, the victim stoppe d at the Kroger parking lot in Smyrna, Tennessee to us e the t elephone. She planned to call her brother because she wa s too intoxicated to driv e. The appellantand two of his acquaintance s were at theparking lot. The appellant walked over and introduc

ed himself to the victim. After conversing for about tw en ty mi nutes, the appellant persuaded the victim to al low him to drive her home. After leaving the parking

lot, the victim passed

out and awoke when the appellant was stopped by the police for

speeding. At that point, they were in LaVergne, Tennessee. The appellant and the victim followed th e police tothe police station. When the appellant went i n to the station, the victi m attempted to drive her vehic le aw ay, but one of the [policemen] prev ented her from doing so because of h er intoxication. The victim passed out again and woke upwhen the appellant came back t o the car. The victim agai n asked the appellant to car ry he r home, but, instead, the appellant drov e to a sec l uded area. After stopping , the app ellant re moved the vi ctim 's pants, and forced her to have oral sex, vaginal sex, anal sex, and or

al sex again. During this time, thevictim screamed and attempted to push the appellant away, but she could not get up. After the appellantmade the victim engage in oral sex the second time, she pretended she was vomiting and then acted as if she could not breathe . This ala rmed the appellan t, and, co nsequen tly, they left to seek medical tr eatment.1 A reading of t he origi nal tri al transcript shows t hat peti tioner, not the vi ctim, requested that t he clerk call

for help. 3 The appellant and the victim s topped at a convenience store, and the victim requested the attendant call an ambulance

. 1 The appellant

then came

into the store, and the victi m began kicking her feet and throwing her hands at him. He was told to leave by the attendant. The victim told the attendant that she had been raped. The attendant called 911 which call ed the police and an ambulance. Dr. Sha ron P iper, a medical doctor specializing in obstetrics and gynecology, testified as an expert witness. Dr. Pipe r treated the victim at the Vanderbi lt hospita l and assisted in surgery. The victim sustained painful inj uries to her vagina, rectum, and perineum. Over theobjection of the appellant, Dr. Piper gave the foll owing testi mony: "Q. Doctor, again, do you have a medical opinion as to what caused this type of injury ? A. Well, he r external exam had re vealed the possibility

of forced intercourse. We weren't quite sure about the internal injury. The thought did cross my mind, was a blunt instru ment used. Q. Could the injury that you observed, the lacer ation inside the vagina based upon a reasonable degree of medical certaint y, could that have been caused by the fact that the vagi na did not expand and did not lubricate? A. Yes, sir. . . Q. Now, back to the

question I started to ask, do you have an opinion ba sed u pon a reasonable medical certai nty, based upon the injuries that you observed as to whether this intercourse was forced or not forced intercourse? A. Due to the extent of her injur ies, I do not feel that this can be voluntary." The appellan t’s defe nse was tha t the victi m consen ted to se x. The appellant

test ified that he saw the vi ctim at the Kroger parking lot at approximately midnight. He found her attra ctive and engaged her in conversa t ion. After talking for about twenty minutes, the victim gav e the appellant the keys to he r car. The victim told him it w as her birthday, and she w anted to party. They went to LaVergne bec ause a convenience s

tor e there sold beer until 3:00 a.m. He wa s stopped by police for speeding but gave the officers his brother's name because he did not have a license. After l eaving the police stat ion, the victim said she wanted to go home, but then said she did not because she would get into tr ouble. While driving down the road, the victim grabbed the appellant by the neck, kissed him, and t old h im he was cute. Th e appellant su ggested they go4 parking and have sex to whi ch the victim agreed. According to [petitioner], the victim willingly engaged in the sexual activities which she ha d earlier described, and s he enjoyed the sexual acts. After the victim became il l, they left to seek medical treatment. The appellant attempted to corroborate his clai m of consent by testimony

that he was struck by

lightning a few

days before the incident, and this injury incapacitated him to a degree that he could not physically

force the victim to hav e sex. Donald Wayne Holt , slip. op. at 2-5. Additi onal information was inclu ded in footnotes one and two of the opinion:

1. The victim is five foot two inches tall and weighs 88 pounds. She testified that shehad not previously engag ed in sex, and her testimony was corr

ob orat ed by Dr. Sharon Piper.The victim had a number of medical conditions including a common variable hypogammaglobulinenia , a blood disorder, severe bronchiectasis , a co ndition of the lungs, and a nutri tional condition which req uired a porta-cath (a permanent IV) in her chest. 2. Dr. Piper testified to these specific injuries. There was a one centimeter tear on the rig ht lat eral aspect of the urinary opening. There were multiple ab rasi ons on the labia. There was a one centimeter perennial tear. The entire perennial area was undergoing the

initial stages of severe bruising. The victim had partial rectal prolaps e. Her rectum was ac

tually coming outside of her bo dy. The anal area was very swollen

and the muscle ton e w as gone. The victim had a fiv e centimeter laceration in her

vagina. These injurie

s necessitated extensive surgery and the victim was hospit alized at Vanderbilt from July 12, 1990 to July 21, 1990. The to tal medical bills were in excess of $ 19,000.00. Id. at 3.
In his direct appeal, the peti tioner challenged the sufficien cy of the evidence, the admission of Dr. Sharon Piper’ s testimony that the vi ctim’s injuries w ere caused by force, the exclusion of Dav id Meador’s testimony r egarding the victi m’s prior inconsistent statement, and the s entence. This court affirmed the judg ment of the trial court.2 W e have consolidated duplicate claims set out by the petitioner. 5 CONTENTION S OF THE PETITIONER The petition for post-convic tion relief alleges ineffectiv e assistance of counsel and cites the following errors by trial counsel: 2

1. failure to investigate the case sufficiently; 2. failure to present a defense within the r equired range of competence; 3. failure to cross-examine the state’s w itnesses properly; 4. failure to prepare adequately for trial; 5. failure to review the petitioner’s p r eliminary hearing before trial; 6. failure t o advise and prepare the petitioner sufficiently regarding

his testimony; 7. f ailure to advise t he petit ioner pro perly of th e evidence against him; 8. failure to contest a fatally defective indictment; 9. failure to advise the petition e r of medical evidence to b e p resented by the state until immediately before trial, denying hi m the opportunity to prepare for this testimony; 10. failure to c ross- examine the victim properly in o rder to present testimony by David Meador o f the victim’s prior inconsistent statement; 11. failure to make a n offer of p r oof to p reserve David Mea dor ’s testimony for the appella te process; 12. failure to object to damaging testimony by state’s witness Dr. Eliz

abeth LaRoche; and 13. failure to present evidence concerning scientific laboratory results.

POST-CONVICTION HEARING The post-conviction court heard testimony from the petiti oner, the petitioner’s trial att

orney, and David Meado r, an ambulance attendant.6 A. Testimony

of Petitioner The petitioner testified at the post -conviction evidentiary hearing that w hen he first met his trial attor

ney, who was an ass istant public defender, in earl y August 1990, he suffered from a disability to hi s right arm, the result of a lightning strik e he received in July just before the al leged rape. The medication that the petitioner took for the disability affected his rea ction time and his strength, but he was unsure wh ether counsel was aware of thi s fact.
The petitioner testified that his attorney neither show

ed him the indictment nor apprised him of the elements and culpable m ental state for aggravated rape. He also said that she never reviewed the preliminary hearing transcript or any discovery materials with him. The petitioner said he was unaw are of the victim’s rape k it results and the extent of her injuries until trial. He said his attorney never reviewed the victim’s medical records with him. He said she did inter view three witnesses named by the petitioner, as well a

s Officer Ruch and the petitioner ’s physician. How

ever, the petitioner stated she di d not share t he substance of those conv ersations w

ith him.
The petition er did not recall b eing told of any p lea offer f rom the state, although he acknowledged that becaus e he maintained his innocence, no r eal discussion about a plea occurred. He also acknowledged a desire to tell the jury “[his] side of the story.” The initial decision for the petitioner to testify at trial was made about o ne week before the trial. The attorney c onducted a practice session i n which she briefly q uestioned the petitioner. Nevertheless, petitioner stated that he was not prepared fo r the district attorney’s cross-ex

amination which resulted in damaging testimony.
In spite of the above, the petiti oner said he was not sur prised by the evidenc

e at trial and expected a not g uilty verdict. He said his attorney to ld him they had a “pretty good case,” and he said he thoug ht he would be acquitted. The petitioner claimed that7

when the victim said “don’t stop,” he took that to mean she did not want him to sto p, and so he continued. He maintained his innocence an d claimed that the intercourse began consensually, that he did not mean to hurt the vic tim, and that he just made a mistake.
B. Testimony of David Meador David Meador testified at the post-conviction ev identiary hearing th at on the night of the aggravated rape, he w orked for Rutherford County E mergency Medical Ser vices. Meador said he assisted the victim, who gav e a statement about what happened. Meador read the following pertinent portion of his repor t into the record: “. . . during intercourse she became afraid he was goi ng to hurt her ---afraid he was go ing to hurt her because he k ept putting his hand over her mou th and telling her to shut up. He was also telling her to shut up prior to the intercour se.” Meador did not remember the victim either expressing that she felt fear prior to the start of intercourse or saying anything about rape, nor did she say that the inter course was consensual. Meador said he met with the petitioner’s attorney before the trial. Although unable to remember ex actly what he told her

at that time, he speculated that they reviewed and d iscussed the contents of his r eport.
C. Testimony of Trial Att orney The petitioner’s attorney conducted an initial interview with the petitioner which lasted thirty minutes to

one hour. She said she heard the petitioner’s versi on of the events and discussed the charges against him. She said the petitioner coope rated in the preparation of his case, although he was arrested s everal times between her appointment and the start of trial.
The attorney said she spoke w ith the convenience store clerk within four day s of her original appointment. She said she participated in the preliminary heari ng on August 10, 1990. She stated that she later received informa tion about another possible8

witness and tried to g et information from the petitioner’s doctor regarding the petitioner’s injury

and his inability to force someone to have sex w ith him.
The attorney testified that in the course of her pre-trial investigation, she s ecured a preliminary hearing

transcript to use in pr

eparing for her cross-e xamination of the victim. She said she al so went to the scene of the cri me. Her case log reflects that the petitioner appeared at his ar raignment, which confir med to her that he knew the charges against him. S he said that a copy of the indic tment would have been made available to the petitione r at that time.
The attorney said she interviewed LaVergne police officers Spicer and Ruch about their involvement with the petitioner on the night of the rape. She said she also contacted several people menti oned by the petitioner as w itnesses to the lightnin g strike and injury he suffered just days before the rape.
The attorney testified that the pet itioner visited her office regularly. Alth ough not every meeting w

as an interview, s he said she did advise hi m about the aggravated rape charge. Before the prelimina ry hearing, she sai d she explained the charg e, and she testified that she would hav e explained the elements of the cr ime. She said that she explained the defense of consent and th at the petitioner seemed to understand their discussions.
The attorney said she discus sed the option of a plea agreement w ith the petitioner,but the petit ioner resi sted and maint ained that he did not rape the victi m. Although her case log reflected an offer to allow the petitioner to ple ad guilty to simple rape, she said she did not rec all receiving or

discussing any spec

ific plea offer with the petitioner. However, she stated that the office policy was to convey any and all9

settlement offers and that there was no reason to believe that the policy was not followed in this case.
The attorney testified that she r eviewed the vict im’s medical records pr ior to trial. Because she understood them, she sai d she felt no need to consult a medical expert or medical library for cl arification of their import. She said the records rev ealed substantial injuries to the vict im. The attorney did not remember reviewing the medi cal records with the petitioner but d id advise him of the serious nature of the victim’s in juries.
The attorney testified that the state did comply with the court’s discovery order, although it was stil l providing disco very four days before t rial. The attorney said she reviewed the state’s

file pursuant to its open-file policy. She said the st ate informed her shortly before trial th at Dr. Sharon Piper w ould be a witness. She sai d she interviewed Dr. Piper the next day, and Dr. Piper expressed her medical opinion that the victim’s injuries were not the result of consensual sex. The attorney said she did not seek another medical professional to assess the opinion , nor did she pursue other possible causes of the victim’s in juries.
The attorney also recalle d that Officer Ruch testified favor ably for the petitioner at trial. She said he testi fied that the victim told hi m that the petitioner did not force her into the kissing and oral intercourse. She said thi s corroborated the petitioner ’s version that the sexual intercour se was consensual.
The attorney said that Dr. Piper testified that in her medical opinion , the victim’sinjuries could only have been caused by force. The attorney said she did not crossexamine Dr. Piper reg arding this aspect of her te stimony because the petitione r did not contest the existence of the v ictim’s injuries. Sh e said that Dr. Eliz abeth LaRoche testified in rebuttal for the st ate that a speculum could not cause the injuries suffered by10

the victim. The attorney said she did not object to the testimony and chose not to cross-examine Dr. LaR oche. She said that she did not w ant to risk Dr. LaRoche testifying that the petiti oner could have caused the i njuries.
The attorney said that she and the petitioner discussed his decision to take the stand at trial. She said th at in preparation, they r ehearsed his testimony w ith her playing the role of prosecutor. She also related that a week before trial, the DistrictPublic Defender, Gerald Melton, put the petitioner through a “grueling” crossexamination.
The attorney testified that the pet itioner made the final decision to testify during the trial. She said that the victim’s testimony was very sy

mpathetic and effective and that she felt the jury w anted to hear from the petitioner. She said the petitioner had done well in rehearsal, and she hoped he would come across well to the jury. She said she did not discourage the pe titioner from testifying,but the choice ultimately remained the petitioner’s to make.
According

to the attor

ney, the pet itioner had

three defenses

available

to him: alibi, consent, and mistake. She said that alibi was not an option unde r the facts of this case. Although she said sh e felt that mistake can be a legi timate defense, she said she was unaware of any cas e in which it was

used successfully. She s aid she decided not to assert it and did not req uest a jury instruct ion. Instead, she said she ass erted the defense of consent.
Based on her pre-trial meeti ng with David M eador, the attorney believ ed that Meador felt the intercourse be tween the petitioner and the victim was consensu al. She said the district attorney successfully objected to Meador’s testimony about the victim’s statement based upon the requirement that a witness first be given an opportunity to11

explain a prior incons istent statement. She said she made a conscious decision not to cross-examine the vi ctim regarding her al leged statement to Meador that the intercourse was consen sual. She said the state rul e regarding impeachment by use of a prior inconsistent sta tement was in question, a nd the federal rule would hav e required the state to recall the v ictim to explain her s

tatement. She admitted that she did not make an o

ffer of pr oof.

Nevertheless, the attor ney said she was prep

ared for trial. She said sh e presented the defense of consent as planned. She also felt that the petitioner was prepared to go to trial a nd to assist in his defense. She said there were no real surprises regarding

the evidence presented other than the judge’s evident iary ruling against her with r

egard to Meador’s testi mony. The attorney felt that, ov erall, she effectively represented the petitioner.

TRIAL COUR

T’S FINDINGS The tria l court fo und that the atto rney rende red comp etent, e ffecti ve representation. In response to the petitioner’s claim that the ca se was insufficiently investigated, the cour

t found otherwise. The court found that the attorney and members of the public defender’s office had numer ous meetings with the pet itioner during which the cas

e was discussed to ev

eryone’s apparent satisfact ion. It found that the attorney review

ed the medical evidence aga inst the petitioner and that s he did a good job cross-examin ing the state’s witnesses. The trial court note d that this case was essentially a credibi lity contest between the petitioner and the vic tim. The jury chose to believe the victim. The trial court concluded that the attorney presented a def ense within the require

d range of competence.12 STANDARD OF REVIEW In a post-conviction ca

se, the burden is on the petiti oner to prove his gr ounds for relief by clear and conv incing evidence. Tenn. C ode Ann. § 40-30-210(f). Under the Sixth Amendment, when a clai m of ineffective assistance of counsel is made, the burden is upon the petitioner t o show (1) that counsel's performance was deficient and (2) that the deficiency w as prejudicial in terms

of rendering a reasonable pr obability that the result of the trial w

as unreliable or the procee dings fundamentally unfair. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell , 506 U.S. 364, 369-72, 113 S. Ct.838, 842-44 (1993). The Strickland standard has been applied, as well,to the right to counsel un der Article I, Section 9 of the Tennessee Constitution. State v. Melson , 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose , 523 S.W.2d 930, 93 6 (Tenn. 1975), our supreme court decided that attorneys shoul d be held to the general standar d of whether the servic es rendered were withi n the range of competence demanded of attorney s in criminal cases. Further, the court stated that the range of competence w as to be measured by the duties and criteria se t forth in Beasley v. United St ates , 491 F.2d 687, 696 (6th Cir. 1974) and United States v. DeCost er , 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also, in reviewing c

ounsel's conduct, a "fair asses sment of attorney performance req uires that every effort be made to eliminate the distorting eff ects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to ev aluate the conduct from counsel's perspective at the time." Strickland , 466 U.S. at 689, 104 S. Ct. at 2 065; see Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will not be measured by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic failed or even hurt the defense does not, alone, suppo rt a claim of ineffective assistance. Deference is made to trial strateg

y or tactical choic

es if they are informed ones based upon adequate preparation. See Hellard , 629 S.W.2d at 9; DeCoster , 487 F.2d at 1201.13 Also, we note that the approac h to the issue of the ineffective ass istance of counsel does not have to start with an analysis of an attorney's conduct. If prejudice is not shown, we need not seek to determine the validity of the allegations about deficient performance. Strickland , 466 U.S. at 697, 104 S. Ct. at 2 069.
On appeal, we are bound by the trial court’s findings unless we conclude that the evidence preponderates aga inst those findings. In thi s respect, we may not reweigh or reevaluate the evidence or substitute our inferences for those drawn by the tr ial court. See Henley v. State , 960 S.W.2d 572, 578-79 (1997); Black , 794 S.W.2d at 755. Questions concerning the c redibility of witnesses and the weight and value to be given to their testimony are r esolved by the trial

court. Henley , 960 S.W.2d at 579; Black , 794 S.W.2d at 755. The petitioner has the burden on appeal of i llustrating how the evidence preponderates aga inst the judgment entered. Id.

ANAL YSIS 1. As for the alleged failure to investigate the case sufficiently, the trial court found that the attorney adequately investigated the case.The evidence does not preponderate against this finding. Furthermore, the petition er has failed to establish that further investigati on would have benefited his defense. The petitioner has not shown deficiency or pr ejudice.

2. As for the alleged failure to p resent a defense within the r equired range of competence, the trial court s pecifically found that the defense w as competent. The record does not preponderate ag ainst this finding. The attor ney’s failure to present the defense of mistake was a tactical decision which this

court may not second-gue ss. The petitioner has not shown de ficiency.14 3. As for th e alleged failure to cross-e xamine th e state’s witnesses properly,the trial court specifically found that the attorney did a good job in her crossexamination. The record does not preponderate against this finding. The petitioner has not shown deficie ncy.

4. As for the alleged failure to prepare adequately for trial, the attorne y’s case log reflects ample pre paration. The petitioner has demons trated neither any deficiency on her part nor that additional preparation w ould have resulted in a di fferent outcome. The petitioner has failed to show prejudice.

5. As for the alleged failure to r eview the petitioner

’s preliminary heari ng testimony prior to trial, the attorney testified that she had a transcript made from which to prepare for the victim’s cross-examination. The petitioner has failed to prove that his attorney did not review the transcript, nor does the petitioner establish that this would have affected the trial’s outcome. The pet itioner has not made a showing of deficiency or prejudice.

6. As for the alleged failure to advise and prepare the petitioner suf ficiently for his testimony at tria l, the attorney testified that they discussed this issue. She testified that they rehearse d the petitioner’s testimony and that the petitioner made the final choice during the tr ial to testify. The petiti oner has failed to show any deficiency by counsel or prejudice.

7. As for the alleged failure to advise petitioner adequately of the evidence against him, the attorney testified that the petitioner w as advised of, and understood, the evidence against him. The petitioner has failed to prov e otherwise or to show deficiency or prejudice.15 8. As for the failure to contest the al legedly “fatally defective” indictment, the petitioner makes no reference to the record and f ails to cite any authority. This issue is waived. T.R.A.P. 27(a )(7); Tenn. Ct. Crim. App.R. 10(b). We also note that this issue has been previously det ermined against the petition er in a prior habeas corpu s appeal. See Donald Wayne Holt v. Howard C arlton & State , No. 03C01-9702-CR-00059, Johnson County (Tenn. Crim. App. Dec. 23, 1997).

9. As for the alleged failure to a dvise the petitioner in

a timely manner of medical evidence to be pres ented at trial, trial co unsel testified otherwis e. Further, the petitioner has failed to show that any benefit could have been derived from additional preparation or that the outcome w ould have been different. The petitione r has failed to show deficiency or pr

ejudice.

10. As for the failure to cross-e xamine the victim conc erning her alleged statement to David Meador, we again see no deficiency. At the time of the trial, no case law existed tha

t interpreted whether R ule 613(b), Tenn. R. Evid. , required that the witness be given the opportunity to admit, ex plain or deny a prior inconsistent statement as a prerequisite to pr

oving the inconsistent

statement by extrinsi c evidence. We note that the identical Rule 613( b), Fed. R. Evid., w as contemplated to do away with the traditional foundation requi rement of confronting the impeached w itness with the prior inconsistent statement during cross-examination. See Notes of Advisory Committee on Proposed Rules , Fed. R. Evid. 613. In fact , in 1996, this court concl uded that it was unnecessary to confront the w itness with a statement before the statement was declared admissible. See State v. Henry Lee Martin , No. 01C01-9411-CR-00397, Davidson C

ounty (Tenn.Crim. App. May 24, 1996 ). Howev

er, the Tennes

see Supreme Court refused to adopt this cour t’s position, holding that extrinsic evi dence of an inconsistent statement is i nadmissible until the witness either denies or eq uivocates as to having made the prior inconsistent statement. State v. Martin , 964 S.W.2d 564, 56716

(Tenn. 1998). Defense counsel’s actions cannot be evaluated from hindsight but must be evaluated from counsel’s per spective at the time of the conduc t. Strickland , 466 U.S. at 689, 104 S. Ct. at 2065. The attorney’s reliance upon mo st federal courts’ interpretation of the same langua ge as found in Rule 613(b), Tenn. R. Evid., was reasonable under the circumstances. W e conclude that the attorney’s performance was not deficient.
In any event, we note that Officer Ruch’s testimony regarding the victim’s statements to him also impeached the victim’s testimony . Ironically, althou gh the state objected to Officer Ruch testify ing about the victim’s

statement because the defendant had not cross-examined the v ictim about the statement, the tri al court admitted the evidence. Thus, the petitioner did get the benefit of impeaching evidence on the consent issue.

11. As for the failure of counsel to make an of fer of proof to preserve David Meador’s testimo ny, the pe titioner has not sh own that t he offe r of proo f would ha ve affected the outcome of the direct appeal. On direct appeal, this court decided this issue on its merits and si mply noted the lack of an offer of proof as an al ternative basis. See Donald Wayne Holt , slip. op. at 8.

12. The failure to object to the testimony of Dr. Elizabeth LaRoche was a tactical decision. We may not second g uess this decision. The petitioner has not shown deficiency or pr

ejudice.

13. As for the failure to present evidence concerning scientific laborato ry results, the petitioner mak es no reference to the record and fails to cite any authority. This issue is waiv

ed. T.R.A.P. 27(a)(7); Tenn. C t. Crim. App. R. 10(b). Furthermore, the petitioner has failed to show prejudice.17 The trial court’s findings of fact are conclusive unless the evidence preponderates otherwise. The evidence does not preponderat e against the findings of the trial court. We, therefore, conclude that the petitioner has failed to est ablish the ineffective assistance of counsel.

CONCLUSION Based upon the foregoing and the r ecord as a whole, we affirm the judgment of the trial court.

__________________________ Joseph M. Tipton, Judge

CONCUR:

__________________________ Joe G. Riley, Judge

_________________________ Alan E. Glenn, J udge