### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVILLE A ssi gne d onBr ie fs O ct obe r 24, 200 6

DARRYL LEE ELKI NS V 

### . S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Sulli van Coun ty

No. C48,769 R. Je rry Be ck, Judge

No. E2005-02153-CC A-R3- P C - F iled Janu ary 7, 2008

AND



### RHO ND A G RILL S V 

### . S TAT E OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Sulli van Coun ty

No. C47,524 R. Je rry Be ck, Judge

No

. E 2 0 0 5 -0 2 2 4 2 -C CA -R 3 -PC

The pe titioners, D arr

y l L ee E lkins and Rhonda Grills, were jointly tried and c onvicted of of fense s ag ainst the minor child of Rhonda Gr ills by the Criminal Court for S u l l i v an C o unty . Petitioner E l k i n s w a s c o n v i c t e d

o f r a p e o f a c h i l d ( C l a s s A f

e l o n y ) an d a t t e mp t e d

r a p e o f a c h i l d ( C l a ss B fe lony ). He wa s sen te nc e d to twe nty -f ive y e ars wi th a fin e of $5 0, 00 0 for the Cla ss A fe lony and to twelve y ear s for the Class B felony , to be serve d consec utively . Petitioner Grills was convicte d of fac ilitation of rape of

a child (Class B felony

) and s en t en ced to ten year s with a fine of $25,000. Eac h petitioner appe aled, a nd their sentences were affir med. See S tate v. Elkins, 102 S.W .3d 578 (Tenn. 2003) ; State v. Grills, 114 S.W .3d 548 (Tenn. Crim

. Ap p

. 2 001). B oth petitioners

su bs e qu e ntl y

fi le d p e tit ion s f

or po st- c on vic tio n r e lie f, wh ic h ar e the su bje c t of thi s a pp e a l. T he po stc on vic tio n c ourt

g ra nte d Pe tit ion e r El kin s a ne w tr ia l on his c on vic tio n fo r atte mpt e d r a pe of a c hil d bu t de nie d r e lie f o n th e con vi c tio n f or ra pe of a c hil d. Pe tit ion e r G ri lls wa s d e nie d a ny po stconviction re lief. The State, Petitioner Elkins, a nd Petitioner Grills have a ll appeale d from the or der of the post-c onviction court. Afte r ca ref ul r ev i ew , we a ffirm the judg ment of the post-c onviction court g rantingrelief

to Petiti oner Elkins, and w e af firm t he denial of the re maining issues on a ppeal fo r b oth Pe tit ion e r E lki ns and

Pe tit ion e r G ri lls

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed-2-

J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the cour t, in which J ames Curwood Witt, J r., J ., joined. J oseph M. Tipton, P.J ., filed a se parate conc urringopinion.

L arr y Di llo w, Ki ng sp or

t, T e nn e sse e , f

or the a pp e lla nt, Da rr yl L e e El kin s.

Ge ne Sc ott , Jr. , Joh ns on

City , T e nn e sse e , f

or the a pp e lla nt, Rho nd a

Gr ill s.

Pa ul G . Summe rs , A tto rn e y Ge ne ra l and

Re po rt e r; Da

vid E. Coe ne n, As sis tant A tto rn e y Ge ne ra l; H. Gre eley

Wells, Jr., District Attorney Gene ral; and James F. Goodwin, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Fa cts and Proce dural History

The fa cts underly

ing the peti t i o ners’ convictions are as follows. In April 1997, Petitioner Da rr y l L e e El kin s se xua lly

c on fr on te d th e e le ve n- y e ar- old vic timin t

his c a se on

tw o s e pa

rate

oc c a sio ns in K ing sp or

t, T e nn e sse e . The vi cti m, who wa s th ir te e n y e ars old

a t th e tim e of

tr ia l, testified that the incidents oc curr ed while he was living at his materna l gr andmother’ s house. The victim sa id that his mother, brother, sister, and aunt stay ed at his g randmother ’s home on a r egular ba sis . T he vic tima lso te sti fi e d th a t hi s mo the r’ s b oy fr ie nd , Pe tit ion e r E lki ns , a lso sta y ed at hi s g randmother ’s home on occ asion.

Th e fi rs t sexua l enc ounte r be tw e e n Pe tit ion e r E lki ns and the vic timoc c ur

re d in e arl y Ap ri l 1997, when the pe titioner entere d the victi m ’s b edroom at night while the vic tim was ly ing f ace down on his bed i n h i s u nderw ear . Elkins posit ioned himself on top of the victim and be g an “bouncing ” on him. The victim told the petitioner to stop, but he ref used. The vic tim testi fied that he ca lled for he lp and was a ssisted by his first c ousin, Roy Carric o, who the victim claimed pulled Elkins off of him and wa

rned the petitioner neve r to touc h the victim a g ain. Although he could not see the petitione r’ s fa ce at the time of the attack, the victim identified Elkins by the distinctive tattoos on his arm and hands. Dur ing the attack, th e p et i t i oner did not re move the victim’s

u n d e r w e ar

. T h e v i c t i m d i d

n o tkn o w i f

t h e p e t i t i o n e rw o r e p an t s d u r i n g t h e a t t a c k

. A d d i t i o n a l l y, he testified that he did not tell a ny one about the incident beca use he was embar

rasse d by what Elkins ha d d on e to h im.

Ap pr oximate ly tw o we e ks late r, Pe tit ion e r El kin s a g a in e nte re d the vic tim ’s ro om a lon g wi th the victim’s mother, Petitioner Grills, while the victim was lying on his be d listening to music. On thi s o c c a sio n, wh ile the vic tim ’s mot he r w a tc he d f

ro m a c ha ir be sid e the be d, El kin s r e mov e d h is pants and then the victim’s clothes and positioned himself on top of hi m. The victim testified that he fe lt E l k i n s i n s er t his “weine r” into his rec tum. He said that the pe netration lasted for approximately

five minutes until he felt a “ g ooey” substance . He a lso said that Elkins held a knife ag ai n s t h is thr o a t an d thr e a te n e d to k il l h im if h e to ld an y o n e w h a t h a p p e n e d

. A f

te r th e r a p e, the victim became unable to contr ol his bowel movements and re peate dly “soiled his pants.”-3-

The victim and his siblings wer e remove d from his mother ’s ca re a nd place d in foster c are for oth e r r e a s o n s s h o rtl y

a f te r th e r a p e

. T h e v ic ti m l a te r

r e p o rte d to h is f o s te r mo th e r th a t h e h ad been rape d. His foster mother contac ted the police and the social worke r assig ned to the victim. At tr ia l, t he vic timof

fe re d c on fl ic tin g te sti mony a s to wh a t he tol d h is co un se lor re g ard ingthe inc ide nts

. He sa id t hat he init ia lly tol d the c ouns e lor that his co us in wa s re sp on sib le fo r the a tta c ks be c a us e his mother had instruc ted him to do so. On cross-examination, he testi fied that he tol d the counse lor he had bee n rape d by

Elkins. The victim also ga ve conf licting state ments to police conc erningwhether his mother was pre sent at the time of the r ape.

Dr. John Heise testified that he examined the victim a fter the victim wa s ref err ed to his office by the Depa rtment of Human Ser

vices. He testified that the victim initially told him that Elkins had

se xua lly a c c os te d him tw ic e and that the ra pe oc c ur re d on the se c on d oc c ur

re nc e . T he do c tor

sa id that the victim’s rec tum had lost much of its natural tone in addition to being “slig htly op en or g aping when it should have be en close d tight.” He said that this c ondition wa s consistent with what the vict i m t o l d h i m about beinganally penetr ated. He testified that the victim often e x perie nced

e nc op re sis , a

n o ozin g and

inv olu nta ry le a ka g e of

fe c e s f ro m the re c tum

. He op ine d that th e vic tim suffe red psychic tra

uma as a result of the r ape a

nd that the enc opresis wa s most likely the re sult of t h e p h ys i c a l i n

j u r y.

The de fense prese nted Roy Carric o as a w itness who testified t hat he had never seen Elkins

a tta c k th e vic timand

de nie d th a t he e ve r p ull e d E lki ns of f o f t he vic tim

.
Th e vic tim ’s mot

he r, Pe tit ion e r Gr ill s, te sti fi e d that Peti tio ne r E lki ns sta y e d o ve rn ig ht w ith her at her mother’ s home. Howe ver, she claimed that, at the time of the incident, the victim was no longe r living in his g randmother ’s home. She said that the vi ctim slept in his gr andmother’ s room when he stay ed at his g randmother ’s home. She testified that she had no per sonal knowledg e of

e ith e r t he a tte mpt e d ra

pe or the ra

pe of the vic tim

. She sa id, “ I wo uld have kil le d Da rr yl. Iwo uld not stand by

and let som ebody hurt my child.” She also de nied that she told the victim to say it was Roy Carric o who attac ked him. She acknow ledg ed that she continued her r elationship with Elkins afte r the a lleg ations were made.
Both pe titioners wer e convicted for their offenses. Elkins was convicted of one count ea ch of ra pe of a child and attempted r ape of a child. Gr ills was convicted o f fa ci l itation of rape of a

c hil d. El kin s r e c e ive d a tot a l e ff e c tiv e se nte nc e of 37 y e ars

. Gr ill s re c e ive d a se nte nc e of te n y e ars

. Se e State v. El kin s, 10 2 S. W.3 d 5 78 (T e nn . 2 00 3) ; State v. Gr ill s, 11 4 S. W.3 d 5 48 (T e nn . Cr im. App. 2001).
At the post-conviction hea ring
, Petitioner Elkins testified that he and his trial counse l did not discuss lesser include d offe nses and that counse l did not request the jury be cha rg ed with the lesser included off

enses. He claimed that he lear ned about the lesser included offe nses of child abuse a nd

a tte mpt e d c hil d a

bu se wh ile in p ri so n. El kin s c la ime d th a t hi s c ouns e l f a ile d to fu lly

inv e sti g a te his

case and fa iled to call all t he witnesses he wanted t o testify

. He did ac knowledg e that he disc ussed his case w ith counsel on sever al occasions. He said he assumed counsel wa s prepa ring for his ca se,-4-

bu tt h e y n e v e r d i s c u s s e d

t r i a l s t r a t e g y

o r d e f e n s e s

. H e s a i d

t h a th e w an t e d

o t h e r w i tne sse s, specific ally

Shonda Woli ber, B arba

ra Shaf fer , and James Dix on, to te stify beca use he thoug ht they

wo uld be he lpf ul t o his de fe ns e

. He ma int a ine d his inn oc e nc e thr ou g ho ut h is t e sti mony . E lki ns sa id that counsel should have called the victim’s school principal to t es t i fy t hat, prior to the a lleg ed incidents, he ha d sent the victim home from school more t h an once bec ause the victim had soiled his pa nts

. Shonda Marie Woliber, the vic tim’s aunt, testified that the victim ne ver told he r that Elkins

ra pe d o r m ole ste d h im. She sa id that the de fe ns e atto rn e y s ask e d he r ab out the ra pe and tha t sh e tol d the m th e vic timdid

no t te ll h e r a

bo ut t ho se inc ide nts . Sh e te sti fi e d th a t th e de fe ns e a tto rn e y s to ld he r t hat th e re wo uld be no ne e d to ca ll he r be c a us e sh e ha d no kno wl e dg e of the inc ide nts . Sh e sa id t h at she found out about the r ape when her mother and sister told her about it following a

court he ari ng . Sh e a c kn ow le dg e d th a t sh e wa s v e ry up se t w ithbo th p e tit ion e rs

.

B ar b ar a Sh a f f e r te s ti f ied th a t t h e v ic ti m w a s h e r

g r an d s o nan d

th a t G r il ls w a s h e r

e xdaug hter-in- law. She said that she knew Elkins. She testified that the victim did not tell her about the ra pe. She said that she lear

ned of the rape afte r a c ourt hea ring and that the ne ws “blowe d [si c] [her] m ind.” She said that she met with E lkins’ tr ial counsel and asked, “ Sir, how can y ou defe nd two people that do a

kid like that? ” S he said that she t old them that she lea rned of the abuse later.

El kin s’ c ouns e l at th e tr ia l and in t he a pp e al tes tifie d th a t he re pr e se nte d E lki ns a t tr ia l in S ep t em b er 1999. Counsel testified that he wa s an experienc ed trial lawy er a nd had pra cticed criminal law since 1984. He said that he met with Elkins on sever al occasions when they discussed their def ense strateg y . He sa id that Elkins claimed he did not commit these crimes. He testified that their def ense w as ce ntere d around the cre dibilit y of the victim and that they discussed in detail how to approa ch the a lleg ations made a nd, in effe ct, destroy

the victim’s cre dibilit y . Counsel testified that he sp ok e wi th t

he wi tne sse s E lki ns a lle g e d s ho uld have be en cal le d to te sti fy and , a s a re su lt, he dec ided ag ainst calling them as wit nesses. Ms. Shaffe r wa s very ang ry at Elkins and would have hurt him with her testimony

. Ms. Wol iber did not volunteer a ny information that would have been helpful to the def

ense. Counsel a

nd Elkins met and discussed the pros a nd cons of e ach w itness.

Couns el sai d th at he me t w iththe vic timbe fo re and duri ngtr ia l to qu e sti on

him a bo ut h is encopr esis. Additionally
, he met with Mr. Dix on and examined the school re cords f or mention of the vic tim ’s e nc op re sis but sa w “ no thi ngto o ff

e r i n te rm s o f p ro vin g that th e re wa s any e nc op re sis befor e the r ape oc curr ed.” O n cross-e x amination, counsel said that Elkins ag ree d with his reasoning that Mr . D ixon s ho uld

no t be c a lle d a s a

wi tne ss.
Counsel testified that he thoroug hly rese arc hed the ca uses of e ncopre sis and that the transcr ipt would reflec t that he had discusse d his resea rch in a conver sation with the t rial j udg e. He said th at he dec ided not to reque st an expert beca use he did not fe el an e x pert wa s neede d. He test if ie d th a t h e d is c u s s e d

h is tr ia l s tr a te g y

r e g ar d in g th e d o c to r

w it hh is c li e n t. Co u n s e l b e li eved that Dr. He ise had g iven an ac cu ra t e desc ription of the ca use of e ncopre sis and that any other

e vid e nc e wo uld

have be e n “ sim ila

r i f n ot i de nti c a l.” He te sti fi e d that th e ir the or y wa s th a t th e vic tim-5-

suffe red f rom the condition when he wa s y oung beca use he w itnessed a tra

umatic alter cation betwee n his pa

rents in which a shotgun was used, his mother suffe red a broken a rm, and the police

wer e involved.

Couns e l tes tif

ie d that he re pr e se nte d Elk ins on a pp e a l and that he did

no t r e a lize that State

v. Bur ns, 6 S.W .3d 453 (Tenn. 1999) , had bee n decide d in 1999. He said he filed a g ener al motion in eve ry cri mi nal c a se , a sk ingthe tr ia l c ourt to i ns tr uc t th e jur

y on a ll l e sse r i nc lud e d o ff

e ns e s, beca use he did not know at t he ti me t hat child abuse was a lesse r included of fense . He testified that he and the counsel for

Petitioner Grills worked tog ethe r as much a s possible to develop a trial str a te g y . H e sa id t

hat th e y dis c us se d th e sc ie nti fi c pr oo f at tr ia l, i nc lud ingthe te sti mony of Dr . H e ise and how they

would cross-e x amine him. Counsel testified that he aske d the most questions of the doctor on c ro s s -e x am i n at i o nan d
, af t erwa rd s , co n fe rr edwi t hb o t hd ef en s e c o u n s el an d

t h e p et itioners to d e te rm ine wh e the r t o a sk a dd iti on a l qu e sti on s.
Counsel testified that he propose d all lesser included off enses whic h he believe d fairly fit the law and the fac ts as they

ca m e i n d u ri n g t h e trial. He said that he talke d with Elkins before a nd during the trial and asked him if there was any thing else he wanted hi m to ask or say

. Elkins was well aw ar e of their strateg y and eve n rema

rked to c ounsel as the jury went out, “Well, Ithink we

wer e a little better

prepa red tha n they wer e.”

Petitioner Grills te stified that the cour t should have instructed the jury on the lesser

included offe nses of fa cilitation of rape of a c hild: child abuse, fac ili t at i o n o f child abuse, f acilitation of ag g ravated sexual battery , faci l i t at ion of sexual battery , and fa cilitation of assault by offe nsive touching . She conte n d ed t hat her counsel should have soug ht those instructions and should have

ra ise d th e le sse r i nc lud e d o ff e ns e iss ue on

a pp e a l.

Counsel for Gr ills t estified that he did not re quest t he instructions on the off enses of fac ilitation of child abuse or c hild abuse bec ause he was una war e t h at t h ey were lesser included offe nses of ra

pe of a child. He f

ully re v i ew ed t h e j u ry

char g e bef

ore the trial court g ave the instructions and said he did not find it appropr iate t o reque st instructions on facilitation of ag g ravated sexual battery

and fa cilitation o f assault by offe nsive touching . He state d that he did extensive

re se arc h o n th e le sse r i nc lud e d o ff e ns e s and c ou ld n ot f

ind any thi ng th at fi t be c a

us e it w a s a fac ilitation charg e. Gr ills’ counsel did not reca ll if he was a war e of th e Bu rn s decision whe n he wrote the appellate brief. He sa id that, based on his knowledg e of the case and the e x isting law, the tr ia l c ourt pr op e rl y ins tr

uc te d the jur

y re g ard ing fa c ili tatio n of ra pe of a c hil d. He a g re e d th a t bo th de fe ns e c ouns e l w or

ke d to g e the r i n f

or min g a tr ial st rat e g y . H e e c ho e d th e te sti mony of El kin s’

c ouns e l th a t th e re wa s n oth inghe lpf ul M r. Di xon c ou ld a dd re g ard ing the e xiste nc e of e nc op re sis prior to the victim’s ra

pe.

Th e po st- c on vic tio n c ourt fo un d that ne ith e r c ouns e l w a s in e ff e c tiv e fo r f

a ili ngto a nti c ipate the dec ision in Burns. The post-c onviction court found that no lesser included offe nses were g iven in E lki ns ’ atte mpt e d r a

pe of a c hil d c a se and

fu rt he r f ound that it wa s c on sti tut ion a l e rr or to f a il t o char g e attempted a g g ravated sexual battery and attempted c hild abuse. The c ourt found that it was-6-

ha rm l e s s e r

r o r a s t o G r i l l s t o f

a i l t o c h ar g e h e r

p r o p o s e d l e s s e r i n c l u d e d o f f e n s e s an d s p e c i f ic a lly found that any err or for failing to instruc t the proposed lesser included offe nses had no e ffe ct on the jur y a t tr ia l. E lki ns ’ a lle g a tio n th a t c ouns e l w a s n ot a de qu a te ly pr e pa re d r e g ard ingthe e nc op re sis issue was de termined to be w ithout merit. Elkins prese nted no proof a s to what another expert might say that would have be en of a ssistance.

An a ly sis

First, we addre ss the State’s ar g ument that the post-conviction c o urt err ed in g ranting Petitioner Elkins post-conviction relief a s to his attempted child rape conviction. The State c ontends that any err or in failing t o ch ar g e lesser included off

enses wa s harmless and that counsel wa s not ineffe ctive beca

use Elkins f

ailed to prove a

ny prejudice . Elkins sim ply states that it was plain er

ror for the t ri al cour

t to fail to charg e lesser

included off

enses a nd urg es this court to aff

irm the relief g rante d by

the post-conviction cour

t.

I n order to preva il on a cla im that trial counsel and/or a ppellate c ounsel wer e inef fec tive for failing to challeng e the tria l court’s fa ilure to instruct the jury on lesser inc lu d ed o ff

en s es , the pe tit ion e r m

us t pr ov e by

c le ar a nd c on vin c ing e vid e nc e that couns e l’ s per fo rm anc e wa s d e fi c ie nt i n failing to pr esent the issue and that the petitioner was prejudice d by its omission. Tenn. Code Ann. § 40-30-110( f).

To pr ov e de fi c ie nt p e rf

or manc e o f e i t h e r t r i a l c ouns e l or

a pp e llate c ouns e l, t

he omi ssi on

mus t be “so se rious as to fall below a n objective standa

rd of reasona

bleness under preva iling prof essional norms.” Strickland v. W ashing ton, 466 U.S. 668,688; 104 S . Ct. 2052, 2064 (1984). In Bax ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975), our supreme court require d that the servic es be r ender ed within the rang e of c ompetence demande d of attorne y s in criminal ca s es

. I n revie wing counsel’s

c on du c t, “ a

fa ir a sse ssm e nt o f atto rn e y

pe rf or manc e re qu ir e s that e ve ry e ff or t be ma de to e lim inate the dis tor tin g e ff e c ts o f h ind sig ht, to re c on str uc t the c ir c ums tanc e s of c ouns e l’ s c ha lle ng e d c on du c t, and to eva luate the c onduct from c ounsel’s per spective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct . at 2065; see N ichols v. State, 90 S.W .3d 576, 587 (Tenn. 2002)

. To prove tr ial counsel’s omission was prejudicia l, the petitioner must show that, but for the omi ssi on , t h e r e w a s a

r e a s o n a b l e p r o b a b i l i t y t h a tt h e o u t c o m e o f

th e t r i a l w o u l d

b e d i f f e re nt. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

To prove appellate counsel’s omission was prejudicial, the pe titioner must show that there

wa s a re a so na ble pr ob a bil ity that the outc ome of the a pp e a l w ou ld b e dif

fe re nt. Smith v . Ro bb ins
, 528 U.S. 259, 285, 120 S. C t. 746, 764 (2000); Brown v. Polk, 135 Fe d. Appx. 618, 628 (2nd Cir. 2005); Mapes v. Tate, 388 F.3d 187, 194 (6th Cir. 2004); Thompson v. Spencer , 111 Fe d. Appx. 11, 13 (1st Cir. 2004); Hemstree t v. Greine r, 367 F .3d 135, 142 (2nd Cir. 2004).

A fa ilure on the pa

rt of t h e petitioner to prove both de ficient pe rfor mance and pre

judice prec ludes any

relief . Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).-7-

We c on c lud e tha

t Pe tit ion e r E lki ns fa ile d to pr ov e that tr ia l c ouns el was def ic ie nt i n h is perf ormanc e in failing to a

nticipate the ruling in State v. B urns, 6 S.W.3d 453 (Tenn. 1999). Tria l counsel c annot be he ld to a standard of being clairvoyant conc erninga ca se not y et dec ided. The Bur ns opinion was rele ased a

month after the petitioner’s jury trial. Even if trial counsel was awa re of the iss ue s pr e se nte d in

the B ur ns c a se , h e c ou ld n ot h a ve fo re tol d it s h old ing s o r t he imp a c t th is

case would have on jur isprudence in Tennesse e. L ooking at th e k nowledg e of tria l counsel at the tim e of the a lle g e d e rr or , w e c on c lud e his pe rf or manc e wa s n ot d e fi c ie nt.
Although the law at the time of trial may be conf using a nd unclea r, it may be settled a

nd clea r at the time of a

ppellate c onsideration. We re cog nize Burns a s a landmar k case that set a ne w standard f or dete rmination of what lesser included off

enses we re but, e qually

important and more g erma ne to the issues at ha

n d , soug ht to ex plain when a lesser inc luded offe nse instruction was require d. When a lesser included off ense instruc tion was requir ed, pre -B urns, was c onfusing and unclea r. Carpe nter v. State, 126 S.W.3d 879, 891 (Tenn. 2004).

Ne xt, w e de te rm ine wh e the r a pp e llate c ouns e l re nd e re d de fi c ie nt pe rf or manc e fo r f

a ili ngto raise a challeng e to the t rial court’s failure to char g e any lesser included offe nses pos t-Bur ns. Bur ns was filed on N ovember

8, 1999. Petitioner Elkins’ case was not argued before our supreme c ourt until J anuar

y 7, 2003, and its opinion was filed on April 20, 2003.

We c on c lud e that an obj e c tiv e ly re a so na ble a tto rn e y , k e e pin g a

br e a st o f l e g a l de ve lop me nts related to hi s case as he should, would have discove red B urns as providinghis client a solid, meritorious argument and providing controlling prec edent as to when a trial court must char g e lesser included off

enses, whic h should have be en discove red b y ap p el late counse l and broug ht to the court’s attention. Although we are unable to be c erta in as to what month or wee k appellate counsel should have discove red suc h a mer itorious argument, it was clea rly befor e ar g ument was sche duled in our supreme court on January 7, 2003.

Af te r t he B ur ns de c isi on

in 1 99 9, thi s c ourt be g an re vie wi ng wh e n a les se r i nc lud e d o ff e ns e instruction was re quired. I n April of 2000, S tate v. Carte r, 2000 Tenn. Crim. App. L EXI S 340, was filed, and a panel of this c ourt conclude d that plain err or occ urre d in failing to instruct the jury on lesser inc luded offe nses citing to the holding in B urn s as controlling authority . There afte r, B urns
was c ited in more than 400 Te nnessee Court of Criminal Appeals’ c ases be tween D ece mber of 1999 and De cembe r of 2002.

Ap pe llate c ouns e l are no t

c o n s t i t ut i o n a l l y r e qu ir e d to ra ise e ve ry

c on c e iva ble iss ue on

a pp e a l. King v. State, 989 S.W .2d 319, 334 (Tenn. 1999) ; Camp b el l v

. State, 904 S.W .2d 594, 596-97 (Tenn. 1995) . I ndeed, “ experience d advocates have long ‘emphasized the importanc e of w innowing out w eake r arguments on appea l and foc using on one centr al issue if possible, or at most a fe w key iss ue s.’” Co op er v. State , 8 49 S.W. 2d 74 4, 74 7 ( Te nn . 1 99 3) (q uo tin g Jone s v . B arn e s, 46 3 U .S. 745, 751, 77 L . Ed. 2d 987, 103 S. Ct. 3308 (1983)); see a lso Sm ith v. Robbins, 528 U.S. 259, 288, 14 5 L . E d. 2d

75 6, 12 0 S. Ct. 74 6 ( 20 00 ). Th e de te rm inatio n of wh ic h iss ue s to ra ise on a pp e a l is g ener ally within appellate counsel’s sound discretion. J ones, 463 U.S. at 751; King , 989 S.W .2d at-8-

334; Cooper, 849 S.W.2d at 747. Theref ore, appellate counsel’s profe ssional judg ment with reg ard to which i ssues will best serve the appe llant on appea l should be g iven consider able de fer ence . See Campb e ll, 90 4 S. W.2 d at 59 7; see a lso Str ic kla nd , 4 66 U. S. at 68 9. We s ho uld no t se c on d- g ue ss such decisions, and ever

y eff ort must be made to e liminate the distorting eff ects of hindsig ht. See Campbell, 904 S.W .2d at 597; see a lso St rickland, 466 U .S. at 689; Hellard v. State, 629 S .W.2d 4, 9 (Tenn. 1982) . Def

ere nce to counsel’s t actica l choice s, howeve r, applies only if such choic es ar e within the rang e of c ompetence require d of attorne y s in criminal cases. Campbell, 904 S.W .2d at 597.

I n th e in s ta

n t c a s e , a p p e ll a te c o u n s e l s im

p ly s tate d h e w a s u n aw ar e o f

th e B u r n s c a s e

. We

c on c lud e that an obje c tiv e ly re a so na ble a tto rn e y , k e e pin g a

br e a st o f l e g a l de ve lop me nts re late d to his case, a s he should, would have disc overe d Bur ns and wo u l d h av e n oticed that we had applied B ur ns in o the r c a se s d e c ide d b e fo re the pe tit ion e r’ s c a se wa s argue d b e fo re our sup re me c ourt

. Solid, m eritorious ar g uments based on dire ctly controlling prec edent s h ould be discover ed by eff ective a ppellate c ounsel and broug ht to the c ourt’s attention. Upon this re cord, w e conc lude that appellate counsel wa s deficie nt in his performanc e in fa il i n g t o d i s co v er or bring to the court’s attention the B urns issue on beha lf of this petitioner.

Next, we must inquire as to whether Petitioner Elkins wa s prejudice d by appellate counsel’s omi ssi on

. To that end , we de te rm ine wh e the r the re wa s a re a so na ble pr ob a bil ity tha t th e outc ome of El kin s’ a pp e a l w ou ld h ave be e n d if fe re nt.

B ur ns no te d th a t of

fe ns e s are le sse r i nc lud e d o ff e ns e s o f t

he greater offe ns e s w he n s o de sig nate d b y

statut e , a nd the B ur ns c ourt sp e c if ic a lly e xemp lif ie d th e c omm e nt b y

re fe rr ingto Tenne ssee Code A nnotated sec tion 39-15-401(e ), which de signated child abuse as a lesser included of fe ns e of , inte r a lia , a

se xual off

ens e whe re in t

he vic timis a

c hil d a nd the e vid e nc e su

pp or ts a char g e under

this section. Burns, 6 S.W.3d at 467. Also, Burns “ b” rubr ic for le sser in cluded offe nses was c raf

ted t o addre ss situations when the “lesser included off

ense” contains an e lement not require d for the g reater offense” and whe n the unava ilability of a le sser include d offe nse in that situation “deprives the defe ndant of the rig ht to pr esent a defe nse.” I d. at 465. The c ourt cited the State c ha rg ingra pe and pr ov ingse xua l batte ry

wi th n o e vid e nc e of

pe ne tr a tio n a s th e “ c la ssi c
e xamp le ” of

su c h a se xua l batte ry

wi thi n a ra pe c ha rg e . I d. Thus , B ur

ns a t le a st p or

te nd e d th e c a se law that later

held that ag g ravated sexual battery is a lesser included offe nse of a g g ravated ra pe. The

re c or d s up po rt s a hold ingthat pe tit ion e r E lki ns ’ c ouns e l on dir e c t a pp e a l pe rf

or me d d e fi c ie ntl y

in not raising the lesser

included off

ense issues on the attempted child rape count. Although pe titioner El kin s h a d b e e n tr ie d a

nd c on vic te d b y

a jur y be fo re B ur

ns wa s d e c ide d, B ur

ns a pp lie d “ re tr oa c tiv e ly to case s that wer e either in the ‘a ppellate pipeline’ or pendingat the time [Burns wa s] announced.” Fr eder ick K. Morr ow v. State, No. M2005-00554-CCA-R3-PC, slip op. at 13 (Tenn. Crim. App. at Nashville, Jul y

11, 2006)(c iting State v. Stokes, 24 S.W .3d 303 (Tenn. 2000)); See Har old Way neB oth B ur ns an d B owl es made t he i s s ue of wh et her at t emp t ed ch i l d abus e a nd at t emp t ed ag gr ava t ed s exu al 1
b at t ery w e re lesser i ncl ud ed off enses of at t em p t ed chi l d rape clear and ob vi o us, whi ch rel at es equall y t o de f i ci ent p e rfo rm a n c e a n d p re ju d ic e

.

At t emp t t o com mi t ch i l d abus e woul d be t he appropri at e l es s er i ncl uded of f ens e, as opp ose d t o chi l d abus e, 2
becau s e t he r ecor d was devoi d of an y evi dence t hat t hi s of f ens e r es ul t ed i n t he i nf

l i ct i on of i nj ur y upon t he vi ct i m. See i d.

-9- Shaw v. State, No. M2003-02842- CCA-R3-PC, slip op. at 17 (Te nn. Crim. App. at Nashville, May 25, 2005). See, e .g . State v. Bow les, 52 S.W .3d 69 (Tenn. 2001)

. 1

We conclude, in view of Bur ns and Bow les, that the appellate courts would have he ld that attempt to commit ag g ravated s exual battery was a lesser included offe nse of attempt to commit rape of a c hild, had the issue been raised on appea l. Although the proof at trial would have suppor ted a verdic t o f ag g ravated sexual battery , see Te nn. Code Ann. § 39-13- 504(a) (4) ( 2003) (pr oscribing

a g g ra vate d s e xua l ba

tte ry a s a Cla ss B fe lony

), it is no t a “ le sse r” of

fe ns e tha n atte mpt to c omm it

ra pe of a c hil d, a lso a Cla ss B fe lony , see id. § 39- 13 -5 22 (p ro sc ri bin g ra pe of a c hil d a s a Cla ss A felony ); see a lso id. § 39-121-107(a) (g radingattempt as one offe nse cla ss less than the class of the offe n s e attempted). Howe ver, attempt to commit ag g ravated sexual battery , as a le sser include d offe nse of a g g ravated s exual battery and of rape of a c hild, was a lesse r included of fense of attempt to commit rape of a

child.

I n Pe tit ion e r E lki ns ’ t

ri a l, t he e vid e nc e su ff

ic ie ntl y su pp or te d a ve rd ic t of a tte mpt

to c omm it rape of the victim, a c hild. However , “[e]rror in omitting a lesser- included offe nse instruction is not neg ated mer ely

beca use the e vidence also is sufficient to convic t on the g reater off ense.” State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002).

We a lso c onclude that the appellate courts would not ha ve viewed the instructional err or as harmless. “ When a lesser -included of fense instruction is improperly omitted, . . . the harmless er ror inquiry is the same as f

or other c onstitut ional err ors: whether it appea rs beyond a re asonable doubt that the er ror did not af

fec t the outcome of the trial.” Allen, 69 S.W .3d at 191. The a ppellate c ourt review i n g s u ch an issue should “conduct a thoroug h examination of the rec ord, including the evidenc e pre sented at trial, the defe ndant’s theory of defe nse, and the verdic t r eturne d by the jury .” I d. The e vidence of Petitioner Elkins’ initial assa ult of the victim de monstrated no penetr ation – an element of

rape . The e vidence , howeve r, indicate d attempted ag g ravated sexual battery , see Te nn. Code Ann. § 39-13- 504 (2003), a nd attempt to commit child abuse, see id. § 39-15-401(a ) (2003)

. 2 There fore , we c onclude that the post-c onviction court prope rly g rante d relief

on the conviction of attempt to commit child rape.

Next, P eti t i oner Elkins conte nds that trial counsel wa s ineffe ctive for failing to interview witnesses that he w anted c alled to testify on his behalf a

nd for f ailing t o ad eq u at ely

counter the State’s ex pert witness. Specifica lly
, Elkins contends that counsel did not instruct the petitioner or his family

that they could hire a

n expert witness to testify o n h i s b eh al f and that counsel did not eff ectively cross-e x amine the e x pert for the State.-10-

Duri ngthe po st- c on vic tio n he ari ng , co un se l tes tif ie d that he ma de a

ta c tic a l de c isi on

no t to reque st an expert to e x plain the ca uses of e ncopre sis. He re sear ched the cause s of enc opresis and testified that the tra

nscript re flec ted a c onversation with the trial judge that he had c onducted

re se arc h o n th e iss ue . H e did no t r e qu e st a

n e xpe rt to e xpla in t

he c a us e of e nc op re sis be c a

us e he did not think he neede d one. The post-conviction cour t found that coun sel proper ly develope d the ca

uses of enc opresis at trial a

nd that counsel a dequate ly repr esente d Elkins.

Our re view of the rec ord reflec ts that the findi ng s of t he post -convic tion court a re suppor ted by the re cord. Counsel made a strate g ic dec ision not t o reque st an expert aft er co n d u cti ng an adequate amount of rese arc h into the cause s of encopr esis. His rese arc h reve aled that testimony of another expert would have be en similar if not identical. The post-conviction court found that trial counsel wa s adequately

prepa red and made a sound tactica l decision. Petitioner Elkins is not entitled to the benef

it of hindsight; he may not se cond-guess a rea sonably based trial strateg y ; a nd may not criticize a sound, but unsucces s fu l
, tactica l decision made a fter a dequate prepa ration for the ca se. Adkins v. State, 911 S.W .2d 334, 347 (Tenn. Crim. App. 1994) ; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). Here , the petitioner ha s not met his burden of provingthat a diffe rent expert would hav e aided his defense or that counse l did not adequately cross-e x amine the State’ s expert. There fore , he is entitled to no relief on this iss ue.

Petitioner Elkins contends that counsel wa s ineffe ctive for failing to use sever al witnesses he wa nted ca lled to testify

on his behalf. Spec ifically , he wa nted two of the vic tim’s relatives called to testify that the victim had neve r told them of any sexual abuse. Counsel testified that he spoke with the proposed witnesses and decide d not to call them beca use they had no k n o wl ed ge o f t he

a lle g a tio ns un til a ft e r c ha

rg e s had be e n fil e d. Couns e l te sti fi e d d ur ingthe he ari ngthat he me t w ith Ms. Shaffer

prior to trial and that she i ndicated she knew nothing of the sex ual alleg ations but was “ver y ang ry ” at the pe titioner. Counsel concluded Ms. Shaff er’ s testimony

would hurt the petitioner. Couns e l als o met wi th the oth e r pr op os e d witn e ss, Ms. Woli be r, and c on c lud e d she wo uld no t a id in t he pe tit ion e r’ s def

e ns e be c a us e sh e wa s als o una

wa re of the a lle g a tio ns pr ior to t he pe tit ion e rs ’ first court a

ppear ance . Duringthe pos t-conviction hea ring , both witnesses testified that they had no knowledg e of a

ny sexual assault on the victim until afte r t he charg es had been filed a nd, there fore
, would not have be en able to testify about the alleg ed abuse

.

Tr ia l c ouns e l in te rv ie we d b oth wi tne sse s and

ma de the str a te g ic de c isi on no t to c a ll the m to testify for the de fe n d an t . He c oncluded that their testimony

would not aid the def

ense of the pe tit ion e r. Pe tit ion e r E lki ns ha s f a ile d to sh owthat th e pr op os e d w itn e sse s w ou ld have a ide d in his defe nse; there fore , he is not entitled to any relief

. Next, P etitioner Elkins argues that trial counsel was ineffec tive for failing to file a pre- trial mot ion in l imi ne re str ic tin g the State’ s wi tn ess e s f ro m te sti fy

ingthat th e a lle g e d v ic timha d to ld them that the petit ioner alleg edly “bounce d” on top of him and subseque ntly rape d him. The crux of Elkins’ ar g ument is that counsel’s fa ilure to object to t he admissi on of t he st atements pre vented him fr om s ho wi ngthat e ith e r t he tr ia l c ourt

or thi s co urt wou ld h a ve e nte rt a ine d th e mot ion in limine. El k i n s then ac knowledg ed that this issue is not enough to show de ficient pe rfor mance by-11-

counsel. We ag ree

. This pe titioner has failed to show how the proposed motion would have been

su c c e ssf ul o r to s tate any

g ro un ds to s up po rt

his argume nt. Th e re fo re , th is i ssu e is w ith out me ri t, and Petitioner Elkins is entitled to no relief.

Conclusion

B a se d o n th e fo re g oin g and the re c or d a s a

wh ole , w e a ff

ir m th e jud g me nt o f t

he po stconviction cour

t gr anting relief

to Petiti oner Elkins, a

nd we aff irm the denial of the rema ining issues

on a pp e a l f or bo th P e tit ion e r E lki ns and Pe tit ion e r G ri lls

.

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