IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 8, 2016

DAVID CHARDWICK WOOTEN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2010D3322 Cheryl A. Blackburn, Judge

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No. M2015-01141-CCA-R3-PC – Filed November 28, 2016

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Petitioner, David Chardwick Wooten, appeals the dismissal of his petition for postconviction relief in which he alleged ineffective assistance of counsel at trial. More 

specifically he contends that trial counsel failed to present favorable evidence and 

witnesses on his behalf at trial. After a thorough review, we affirm the judgment of the 

post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which D. KELLY 

THOMAS, JR. and CAMILLE R. MCMULLEN, JJ., joined.

Manuel B. Russ, Nashville, Tennessee, for the [petitioner], David Chardwick Wooten.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel, 

Glenn R. Funk, District Attorney General; and Chad Butler and Brian Holmgren, 

Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

Background

Petitioner was convicted of two counts of aggravated sexual battery, a Class B 

felony, and was sentenced to ten years for each conviction to be served concurrently at 

100%. This Court affirmed the convictions and sentence. State v. David Wooten, No. 

M2012-00366-CCA-R3-CD, 2013 WL 4007784 (Tenn. Crim. App. Aug. 6, 2013), perm. 

app. denied (Tenn. Dec. 11, 2013). 

The following facts were set forth by this Court on direct appeal: 
2

In November 2010, the Davidson County Grand Jury indicted the 

[petitioner] for four counts of aggravated sexual battery. According to 

the indictment, the offenses occurred between July 1, 2004, and 

November 30, 2004. The victim of the offenses was the [petitioner]‟s 

daughter, who was born [in 1994].

At the [petitioner]‟s October 2011 trial, the then seventeen-year-old 

victim testified that she currently lived with her fourteen-year-old 

brother, Z.W., and her mother, S.W. In 2004, the victim‟s parents were 

married but separated for three or four months. The victim was about 

ten years old and in the fifth grade, and she and Z.W. spent Wednesdays 

and every other weekend with the [petitioner] at his Preston Run 

apartment in Hendersonville. The victim and Z.W. slept in the 

[petitioner]‟s bed with him, or sometimes the victim slept in the bed with 

the [petitioner] while Z.W. slept on the floor. When the victim and her 

brother both slept in the bed with the [petitioner], the victim or the 

[petitioner] slept in the middle.

The victim testified that she would awake with the [petitioner]‟s hands 

“down [her] pants.” She explained that the [petitioner]‟s hands would 

“go up [her] shorts, like the bottom” and be inside her panties. She 

stated that the [petitioner] touched the inside of her labia but outside her 

vagina and that he moved his fingers “[b]ack and forth like up and 

down.” The victim said she was scared and would “just try and move 

and roll over.” When she rolled over, the [petitioner] stopped touching 

her. The State asked her if the [petitioner] ever touched her when Z.W. 

was not in the bed. The victim said yes and stated, “I just remember that 

there was enough room where I could roll over. And when there was all 

three of us, it was really squeezed together. We were all tight.” One 

time, the [petitioner] got out of bed after he touched her and washed his 

hands. The State asked the victim if she knew how many times the 

[petitioner] touched her, and the victim answered, “No, I just knew it 

happened enough where I would want to wear pants.” She said that 

when she wore pajama pants or sweat pants, the [petitioner] would not 

touch her. During the abuse, the victim never said anything to the 

[petitioner], and he never said anything to her. She said that her parents 

reconciled and that “then there was a long period of time, and then it was 

one last time and it stopped.” Sometime after her parents got back 

together, the [petitioner] told the victim that she should not say anything 

about the abuse and that he would try to get her a cellular telephone for 
3

Christmas. The victim said she got the telephone for Christmas when 

she was eleven years old and in the sixth grade.

The victim testified that about two years before trial, the [petitioner]

spanked her “really hard.” The victim was very upset; telephoned her 

friend, Brittany Kuntz; and went to Kuntz‟s house for a while. There, 

she told Kuntz and Kuntz‟s mother, Samantha Searcy, about the 

touching. The victim said she revealed the abuse to them because it had 

been “eating away” at her and because

I was just tired of the way everything was. And I got in 

trouble for anything and everything, and it wasn‟t like normal 

punishment. It wasn't like you‟re grounded for a week. It 

was let me throw my cell phone at your knee, let me hit you 

and push you, spank you as hard as I can.

After the victim revealed the abuse, Searcy telephoned S.W., and S.W. 

arrived at Searcy‟s home. Searcy told S.W. about the [petitioner]‟s 

touching the victim, and S.W. left to talk with the [petitioner]. Later that 

day, the victim talked with her parents at home. S.W. thought the victim 

was lying. That night, the victim talked with S.W. privately and told 

S.W. “more in detail” about what had happened with the [petitioner]. 

S.W. started to believe the victim. The next morning, S.W. left for a 

business trip while the victim and Z.W. stayed home with the 

[petitioner]. The victim said she was not afraid to stay with the 

[petitioner] because he had not sexually abused her for two or three 

years.

The victim testified that while S.W. was gone, the [petitioner] woke her 

one night and told her that she needed to telephone S.W. and tell S.W. 

that she had lied about the abuse. Otherwise, the [petitioner] and S.W. 

were going to “split up,” and the victim “was going to be the cause of it 

all.” The victim did as the [petitioner] instructed. The victim said that 

after she got off the telephone with her mother, the [petitioner] told her 

that “he felt sorry for everything that had happened and ever since it 

happened he felt like a horrible person and he felt like going to hell.”

The victim said her family did not discuss the abuse again until January 

2010. At that time, the victim revealed to S.W. that the [petitioner] had 

made her call S.W. and claim that she lied about the touching. She said 

that she told S.W. she had been truthful about the sexual abuse and that 

S.W. “immediately started crying and knew exactly that [she] was telling 
4

the truth.” Later that day, S.W. confronted the [petitioner]. The next 

night, the victim‟s parents told her that they were going to divorce, that it 

was not her fault, and that the [petitioner] had “confessed everything” to 

S.W. One or two weeks later, the [petitioner] moved out of their home.

The victim had wanted to keep a relationship with the [petitioner] and 

continued to see him. However, at some point, the victim stopped 

visiting him because he said something rude to her and “was just really 

mean like he used to be.” About two weeks later, a no contact order was 

entered, which prevented the victim and her brother from visiting the 

[petitioner]. At the time of trial, the victim had not spoken with him 

since July or August 2010.

On cross-examination, the victim denied going through a “lying stage” 

when she was thirteen years old. She acknowledged that a woman 

named Joanne interviewed her about the abuse and that she told Joanne 

the [petitioner] touched her four or five times. She said that Joanne 

“wanted me to give her a number” and that “I didn't want to be like, oh, 

it happened nine times and that be an exaggeration.” She denied fighting 

with her brother about who would get to sleep in the middle of the 

[petitioner]‟s bed and acknowledged that she told her mother the 

[petitioner] penetrated her. On the day in January 2010 when the victim 

reaffirmed the abuse to her mother, the victim‟s parents had been 

fighting. The victim acknowledged that she had felt “badly” for her 

mother, but she denied reaffirming the abuse in order to make her mother 

feel better. She said that the [petitioner] was the primary disciplinarian 

in the family and acknowledged that he was more strict than her mother.

She also acknowledged that a spanking led to her revelation about the 

sexual abuse and that she thought she was too old to be spanked. The 

victim said the [petitioner] never did anything inappropriate to her in her 

bedroom.

On redirect examination, the victim acknowledged that the [petitioner]

did not sexually abuse her every time she visited his apartment in 2004. 

She said she told her mother that the [petitioner] penetrated her because 

she “didn't really understand what all the words meant.” Although the 

victim had told her mother that the [petitioner] “fingered” her, she was 

incorrect; the [petitioner] did not put his fingers inside her vagina. The 

victim said that she did not tell anyone about the abuse earlier because 

she was scared, and she denied making up the allegations to punish the 

[petitioner] for disciplining her. On recross examination, the victim 
5

acknowledged that her brother got a cellular telephone when he was 

twelve years old.

John Barker, a licensed marriage, family, and adolescent therapist, 

testified that he began counseling S.W. in June 2010. On June 9, 2010, 

Barker met with S.W. for the first time. He met with her again on June 

16 and 24. Based on information from their meetings, Barker contacted 

the Department of Children‟s Services (DCS) to report that S.W.‟s 

daughter had been abused by the child‟s father. On June 26, Barker met 

with the victim to inform her that he had filed the report. He also 

questioned the victim about the abuse. The victim told Barker that the 

[petitioner] touched her under her clothing but that he did not penetrate 

her. Barker said the victim “confirmed that it happened five times.”

On cross-examination, Barker testified that when he first met with S.W., 

she said she was separated from her husband because her husband had 

abused their daughter. Barker stated that during his second meeting with 

S.W., he “directed” her to “elaborate on what that meant.” S.W. told 

Barker that her husband had sexually abused their daughter and that the 

abuse had not been reported to authorities.

S.W., the victim‟s mother and the [petitioner]‟s ex-wife, testified that she 

met the [petitioner] when she was fourteen years old. They were 

together for twenty years and married for sixteen years. They had two 

children, and S.W. divorced him in June 2011. In the summer of 2004, 

S.W. and the [petitioner] were living in Hendersonville but decided to 

separate. During that time, the [petitioner] lived in Preston Run 

Apartments and saw their children on Wednesdays and every other 

weekend. Their daughter, the victim, was ten years old, and their son, 

Z.W., was seven years old. S.W. and the [petitioner] reconciled about 

Thanksgiving 2004. After they reconciled, the [petitioner] wanted to 

buy the victim a cellular telephone. S.W. thought the idea was 

“ridiculous” because the victim was only in the sixth grade and did not 

need a phone. S.W. said the [petitioner] “kept pushing and pushing,” so 

they got the victim a cellular telephone for Christmas.

S.W. testified that one day in 2008 when the victim was thirteen years 

old, S.W. was at work and received a telephone call from the victim. 

The victim was very upset and crying and told S.W. that the [petitioner]

had spanked her “really, really bad.” S.W. said that the [petitioner]‟s 

spanking the victim was not unusual and that he could be “very violent 
6

toward her, very angry at her all the time.” The victim wanted S.W. to 

come home, so S.W. decided to leave work. On her way home, she 

received a telephone call from Samantha Searcy and went to Searcy‟s 

house. The victim was there, and S.W. learned that the [petitioner] had 

molested the victim while S.W. and the [petitioner] were separated in 

2004. S.W. drove home and spoke with the [petitioner], and he denied 

the victim‟s allegations. S .W. and the [petitioner] went to the Searcy 

home to speak with the victim. S.W. said that Searcy was “threatening to 

call DCS” and that S.W. and the [petitioner] “were really worried about 

that. ” Therefore, they decided to take the victim home and “settle it as a 

family together by ourselves.” S.W. said that she did not believe the 

victim because she and the [petitioner] had been together their whole 

lives and because she could not imagine the [petitioner]‟s “doing 

anything like that.”

S.W. testified that when the three of them got home, she was the only 

one talking and that the discussion was “tabled because nobody could 

really figure out what had happened.” Later that day, the victim spoke 

with S.W. in S.W.‟s bathroom. The victim told S.W. that “it really 

happened” and that the [petitioner] “washed his hands after he did it.” 

S.W. stated that while the victim was talking with her, the [petitioner]

was outside the bathroom door, pacing back and forth. The victim was 

afraid that the [petitioner] was going to come into the bathroom, so she 

would not say anything else. The next day, S.W. left for a business trip.

She said she was not afraid to leave the victim with the [petitioner]

because she was in shock and “just kind of wanted to shove it under the 

carpet.” While S.W. was away, she telephoned the [petitioner] and told 

him that she could not stop thinking about the victim‟s allegations. She 

said she also told him that if the victim‟s allegations were true, she and 

the [petitioner] were going to divorce, and he was never going to see 

their children again. S.W. said the [petitioner] “freaked out” and hung up 

the telephone. About an hour later, he called her and told her that the 

victim had something to tell her. The victim got on the phone and told 

S.W. that she had made up the allegations. S.W. asked the victim if she 

was sure, and the victim stated, “[N]o, Mom, I made it up.”

S.W. testified that in 2010, when the victim was fifteen years old, she 

went on another business trip. When she returned home, the [petitioner]

screamed at her and accused her of cheating on him. S.W. told the 

[petitioner] that he had an anger problem and that they were going to 

divorce if he did not get help. S.W. said that she and the victim went to 
7

a “smoothie shop” to talk and that the victim wanted to know if S.W. and 

the [petitioner] were going to divorce. S.W. said the victim told her, “I 

cannot go through that again because when you were separated is when 

that happened to me.” The victim told S.W. that the [petitioner] had 

made her lie about the allegations being untrue.

S.W. testified that she and the victim went home and that she confronted 

the [petitioner]. The [petitioner] never claimed the victim was lying. He 

wanted to know what S.W. was going to do and wanted to know if she 

was going to call the police. Later, he confessed to touching the victim, 

and he and S.W. decided to divorce. S.W. said the [petitioner] told her 

that he had been “laying there in the bed,” that “something came over 

[him],” and that he could not stop himself. The [petitioner] touched the 

victim under her underwear. S.W. told the [petitioner] that the victim 

had claimed he washed his hands afterward. She said the [petitioner]

stated that “that was the first time that he did it.” The [petitioner] told 

S.W. that he woke up touching the victim, “freaked out,” and washed his 

hands because he “felt really dirty and he realized what he had done.”

The [petitioner] admitted to S.W. that he touched the victim more than 

once.

S.W. testified that she and the [petitioner] talked with the victim. The 

[petitioner] told the victim that he and S.W. were going to divorce and 

that it was not the victim‟s fault. S.W. and the [petitioner] decided that 

he would not date anyone with children, that he would get counseling, 

and that they would not contact DCS or the police. The [petitioner]

moved out of their home in January 2010, and S.W. filed for divorce in 

March 2010. S.W. started having trouble sleeping and eating, so she 

decided to see a counselor. She did not know that the counselor was 

required to report the abuse to DCS. Although S.W. told her counselor 

about the abuse, she never heard from DCS or the police. In August 

2010, she contacted the police herself. She said she never tried to extort 

money from the [petitioner] and was not jealous about his dating other 

women. The [petitioner] had breached their agreement by seeing women 

with children and by not receiving counseling. At some point, S.W. and 

the police made a controlled call to the [petitioner], and he made 

admissions to her. Although S.W. had allowed her children to visit the 

[petitioner], the victim decided to stop seeing him. The State closed its 

direct examination of S.W. by asking her if she ever noticed any unusual 

behavior by the victim while she and the [petitioner] were separated in 

2004. S.W. recalled that one time when the victim was preparing to visit 
8

the [petitioner], the victim had a “major outburst” because her pajama 

pants were not clean. S.W. said the victim was “screaming and crying 

and saying that she wanted her pajama bottoms.”

On cross-examination, S.W. testified that the victim was “rebelling a 

little” when the victim was thirteen years old. She said that the victim 

would lie sometimes when the victim got into trouble but that “I 

wouldn't say she was a liar.” S.W. did not remember telling anyone that 

the victim was going through a “lying phase” when the victim was 

thirteen. Defense counsel asked S.W. if the victim was going through a 

lying phase at that age, and S.W. answered, “I don‟t know.” S.W. 

acknowledged that she did not believe the victim‟s allegations at first but 

said that she had some doubts about the [petitioner]‟s denying the abuse. 

The [petitioner] never told S.W. that he touched the victim‟s vaginal area 

only to apply medication when she was a baby. In 2008, the victim told 

S.W. that the [petitioner] had penetrated her. S.W. said that the victim 

did not understand the meaning of “penetrate” and that she explained it 

to the victim. The victim then said that the [petitioner] had not 

penetrated her. S.W. acknowledged telling someone at DCS in 2010 that 

the [petitioner] had penetrated the victim. She said she was referring to 

what the victim revealed to her in 2008. S.W. also acknowledged telling 

someone at DCS that the victim had claimed the [petitioner] always 

made her sleep between him and Z.W. S.W. stated that when the victim 

telephoned in 2008 and said that she had lied about the abuse, S.W. 

wanted to believe the victim was lying and “chose to do that.” She said 

the victim and the [petitioner] used to argue frequently.

S.W. testified that she did not want to report the abuse to the police 

because the [petitioner] was paying her eight hundred dollars per month 

for child support and that she was worried he would not be able to pay 

her if he went to jail. She said she may have sent a text message to the 

[petitioner] stating, “[W]hy are you ignoring me?” However, she did not 

remember if or when she sent the message. She acknowledged sending 

another message that stated, “[Y]ou will regret this.” However, she said, 

“I can‟t tell you what [the message] was about.” The controlled 

telephone call was made to the [petitioner] at work. S.W. acknowledged 

that she continued to have a sexual relationship with him after they 

separated in January 2010. She said she and the [petitioner] still loved 

each other after they separated and had sex as late as October 2010. She 

denied using the victim‟s allegations to force the [petitioner] to do what 

she wanted, including paying child support.
9

On redirect examination, S.W. testified that after the [petitioner] moved 

out of their home in January 2010, they maintained a very close 

relationship. On the day of the [petitioner]‟s arrest in December 2010, 

he telephoned her fifteen times from jail. The [petitioner] was not angry 

with her and never accused her of trying to get money from him.

Travis Belcher testified that in the fall of 2004, he and the [petitioner]

were roommates and good friends. They shared a two bedroom 

apartment in Preston Run Apartments. Belcher‟s children would visit 

him at the apartment one weekend, and the [petitioner]‟s children would 

visit the [petitioner] the following weekend. A pull-out sofa was in the 

living room, and Belcher‟s children slept on it when they visited. The 

[petitioner]‟s children always slept in his bedroom.

Samantha Searcy testified that her daughter, Brittany Kuntz, was good 

friends with the victim and that Searcy knew the victim‟s parents 

through the girls‟ friendship. One day, Kuntz received a telephone call 

from the victim. Kuntz told Searcy they had to pick up the victim 

because the [petitioner] had “beat her” and the victim could not contact 

her mother. Searcy went alone to the victim‟s house. The victim was 

sitting on the front steps and was crying. The [petitioner] came to the 

door and allowed the victim to leave with Searcy. Searcy and the victim 

returned to Searcy‟s home, and the victim showed Searcy red marks on 

her arms, legs, and back. The victim and Kuntz went into Kuntz‟s 

bedroom for a while. Then Kuntz told Searcy that the victim had 

something to tell her. Searcy went into Kuntz‟s bedroom, and the victim, 

who was shaking, nervous, and crying, told Searcy that the [petitioner]

had been molesting her. Searcy said the victim told her “some very 

specific things that he had done to her,” including that the [petitioner]

had “fingered her while she was in her bed at night, that he would come 

into her room.” Searcy spoke with the victim‟s mother and told her what 

the victim had said. Later that day, the victim‟s parents arrived at 

Searcy‟s house and talked with Searcy and her husband. Searcy told the 

victim‟s parent that she did not “feel good” about the victim‟s returning 

home with them. Searcy wanted to report the victim‟s allegations to the 

police but did not because the victim was scared and asked her not to 

report the allegations. Searcy said the victim‟s parents “wanted to 

handle it as a family unit.”
10

On cross-examination, Searcy testified that when she went to pick up the 

victim, the [petitioner] was calm. The victim told Searcy that the 

[petitioner] had sexually abused her in her bedroom while she was 

sleeping.

Detective Sergeant Patrick Brady of the White House Police Department 

testified that he began investigating the case in August 2010 and met 

with the victim‟s mother, S.W. A few days later, Sergeant Brady and 

S.W. made a controlled telephone call to the [petitioner]. The State 

played an audio recording of the call for the jury. During the call, the 

[petitioner] said he touched the victim‟s vagina “on the top” but denied 

penetrating the victim. Sergeant Brady said that he did not interview the 

victim because it was standard protocol in sexual abuse cases for 

juvenile victims to be interviewed by someone from the Child Advocacy 

Center. Sergeant Brady also never interviewed the [petitioner].

At the conclusion of Sergeant Brady‟s testimony, the State rested its case 

and moved that counts 3 and 4 be dismissed. The trial court granted the 

motion. Regarding count 1, the State made an election of offenses 

reflecting that the aggravated sexual battery was based on the alleged 

incident in which the [petitioner] washed his hands. Regarding count 2, 

the State made an election of offenses reflecting that the aggravated 

sexual battery was based on the alleged incident in which the victim 

rolled away from the [petitioner] to make the touching stop.

Cicilly Dixon a DCS Child Protective Services investigator testified for 

the [petitioner] that she investigated the victim‟s case and interviewed 

the victim‟s mother. Dixon acknowledged that the victim‟s mother said 

the victim was going through a “lying phase” in 2008. The victim‟s 

mother also told another DCS employee that the victim had claimed 

digital penetration. S.W. never told Dixon that the penetration did not 

occur.

Heather Hesson testified that she babysat the victim and her brother in 

the summer of 2004. Hesson babysat the children Monday through 

Friday and got to see the victim interact with the [petitioner]. Hesson 

never saw the [petitioner] act in a threatening manner toward the victim.

She said that the victim did not seem afraid of the [petitioner] and that 

they appeared to have a typical father/daughter relationship. On crossexamination, Hesson acknowledged that the victim‟s parents were still 

living together in 2004 when she babysat the children.
11

Rocky Isabell testified that he began working with the [petitioner] about 

eight years before trial and that they were good friends in 2004. Isabell 

visited the [petitioner]‟s apartment while the [petitioner] was separated 

from S.W. and saw the [petitioner] discipline the victim. Isabell did not 

see the [petitioner] spank the victim or act in a mean or hateful manner 

toward her. The victim never acted afraid of the [petitioner].

The then thirty-seven-year-old [petitioner] testified that he worked on 

heaters and air conditioners prior to his arrest in this case. When the 

victim was young, the [petitioner] babysat her during the day while S.W. 

worked as a waitress. He said that the victim got diaper rash “quite a 

bit” and that he and S.W. applied medication to her vaginal area. When 

the victim got older, S.W. worked many hours each day, so the 

[petitioner] kept the victim and Z.W. The [petitioner] acknowledged that 

he ended up as the children‟s main disciplinarian but said that he was not 

physically abusive to the victim and never threw a cellular telephone at 

her. He acknowledged that he spanked the victim with a paint stick but 

said that he did not leave bruises on her.

The [petitioner] testified that one time when the victim was thirteen 

years old, he spanked her, causing welts on her legs and buttocks. He 

acknowledged that the spanking was “harsh.” Samantha Searcy arrived 

at the [petitioner]'s home, and the [petitioner] allowed the victim to leave 

with her. Later, the [petitioner] received a telephone call from S.W., 

who told him that the victim was claiming he touched her a couple of 

years ago. The [petitioner] and S.W. went to Searcy‟s house. That 

night, they returned home with the victim. He said that he and S.W. 

tried to talk with the victim about her allegations but that the victim was 

upset and “wasn‟t saying much.” The victim and S.W. went into the 

bathroom to talk while the [petitioner] watched television in the 

bedroom. He did not try to interfere with their conversation. The next 

day, S.W. left for a business trip. While she was gone, the [petitioner]

and the victim discussed the victim‟s allegations. The [petitioner] knew 

the victim‟s allegations were untrue and told her that he could get into 

trouble. The victim told the [petitioner] that she wanted to call S.W. and 

tell S.W. that she had lied. The [petitioner] did not stand over the victim 

while she made the call.

The [petitioner] testified that although the victim recanted her 

allegations, S.W. continued to bring them up. The [petitioner] said he 
12

would tell S.W. that the only time he touched the victim was “to 

medicate her.” One day in January 2010, the [petitioner] and S.W. had a 

terrible argument. The next day, the [petitioner] and S.W. mutually 

decided to separate. The [petitioner] said that at some point, S.W. told 

him that the victim‟s allegations of sexual abuse had “come up again” 

and that “if you do this, this, and this, then I won‟t report it.” The 

[petitioner] agreed to pay S.W. $830 per month for child support. 

However, S.W. was making more money than the [petitioner], and he 

told her in June or July 2010 that he was going to have to reduce the 

amount. He was also dating women, and S.W. expressed jealousy. The 

[petitioner] said that S.W. would bring up reporting the victim‟s 

allegations, that she would ask him to do things, and that she would be 

“hard to get along with” if he did not do them. In August 2010, the 

[petitioner] received a text message from her stating, “„You will regret 

this.‟” Four days later, he received the controlled call. At the time of the 

call, the [petitioner] was working inside a school air conditioning unit 

and was having trouble hearing. He said that when he told S.W. during 

the call that he touched the victim, he was referring to the medication he 

put on the victim as a child. He had told S.W. about the medication 

many times before. He said he did not specifically mention the 

medication during the controlled call because he was busy working and 

assumed S.W. knew what he was talking about. On the day of the 

[petitioner]‟s arrest, he telephoned S.W. because he wanted to see their 

children.

On cross-examination, the [petitioner] acknowledged that the victim was 

fabricating her sexual abuse allegations. The victim told the [petitioner]

that she wanted a cellular telephone because most of her friends had 

phones, so the [petitioner] got her a phone for Christmas. He 

acknowledged that after he and S.W. separated in January 2010, he 

agreed to get counseling and stay away from women with children. 

However, he said that he was “just trying to appease” S.W. because he 

was scared and because S.W. wanted child support and “other things.” 

He acknowledged that in a prior proceeding, he stated that S.W. did not 

threaten him over child support. He also acknowledged that although 

S.W. made false allegations against him, he continued to have a sexual 

relationship with her. S.W. sent a text message to the [petitioner] saying 

that “you will regret this” because she had been “texting” him and he 

would not respond to her. On the day of his arrest, the [petitioner]

telephoned S.W. and was nice to her because he wanted her to bring their 

children to see him.
13

Brittany Kuntz testified for the [petitioner] that the victim revealed to her 

the [petitioner]'s sexual abuse. The victim told Kuntz that the 

[petitioner] touched her in her bedroom.

Kyle Marquardt testified for the [petitioner] as an expert in the 

determination and calculation of child support. He stated that was 

employed by Child Support Services PSI, a subcontractor for the 

Department of Human Services to establish paternity, determine support, 

and pursue people not paying support. In cases such as this one, where 

the mother‟s annual income was $90,000 per year and the father‟s 

income was $70,000, the parents‟ sharing custody would have resulted in 

the mother‟s paying child support to the father. If the mother had 

primary custody, the father would have paid the mother $800 to $900 per 

month for two children.

State v. David Wooten, 2013 WL at *1-10. 

Post Conviction Hearing

Initially, we note that Petitioner was also tried in Robertson County for similar 

offenses against the victim. He was ultimately convicted of lesser-included misdemeanor 

offenses in that case. 

Rocky Isabell testified that he had known Petitioner for twelve years through his 

work with Petitioner at Nashville Machine. He was called to testify on Petitioner‟s 

behalf at trial. Mr. Isabell testified that Petitioner shared an apartment with Travis 

Belcher. Mr. Isabell visited the apartment at least three times a week for four or five 

hours at a time during the period of time that Petitioner and Mr. Belcher lived together. 

He said that Petitioner and Mr. Belcher usually had their children at the apartment on the 

same weekends. Petitioner‟s children slept in Petitioner‟s bedroom, and Mr. Belcher‟s 

children slept on a “pull-out sofa.” Mr. Isabell testified that Petitioner‟s attorney never 

asked him about any of those facts at trial. On cross-examination, Mr. Isabell was not 

aware that Mr. Belcher corroborated his post-conviction testimony at Petitioner‟s trial. 

Trial counsel testified that the theory of defense in Petitioner‟s case was that the 

“charges were false or manufactured” by the victim. He further testified:

Because the first instance as I recall was - - the first time she made an 

allegation the theory was that it was in response to some discipline 

[Petitioner] administered. Then she recanted that allegation. No charges 
14

were brought at that time. It wasn‟t even reported to the authorities. But 

then later on when she reinitiated the allegations [Petitioner] and his wife 

were going through a very rough period. They had a very bad argument 

where [Petitioner] said some very mean things to his then wife, which 

[the victim] overheard, so that - - and then ultimately the parties moved 

to divorce. And so the theory was that [the victim] was basically siding 

with her mother, was angry at her father for what he had said to her in 

that argument. And therefore when she went to her mother and said, 

well, before when I said I lied it was actually true. So the theory was 

that it was still false, but she was bringing it because she was trying to 

side with her mother in the - - in the separation. 

Trial counsel testified that there was no physical proof in Petitioner‟s case, and there 

were no eyewitnesses to the allegations. 

Trial counsel testified that Petitioner‟s Robertson County trial occurred first. He 

said that the State called Petitioner‟s father-in-law, Mark Brant, to testify at the trial. Mr. 

Brant testified about a family gathering at the “Searcy” residence after the allegations 

were made against Petitioner. He said that Petitioner called him to the gathering. Mr. 

Brant heard the allegations made against Petitioner at the family meeting but he did not 

report them to anyone. Trial counsel testified that Mr. Brant also indicated that Petitioner 

probably felt that Mr. Brant would be more loyal to Petitioner than the victim because the 

victim had been “going through some rough times” and having “some severe or 

significant/severe rebellious or discipline problems at the time.” Trial counsel also agreed 

that Petitioner had not attempted to shield Mr. Brant from the victim. He felt that Mr. 

Brant‟s testimony supported Petitioner‟s credibility “to some extent.” Trial counsel 

pointed out in closing argument that Petitioner brought Mr. Brant into the situation 

instead of hiding it from him and hoping the victim would not say anything. 

Trial counsel testified that he did not call Mr. Brant to testify as a witness in 

Petitioner‟s Davidson County trial. He noted that the State called Mr. Brant as a witness 

at the first trial in Robertson County. Concerning the decision not to call Mr. Brant to 

testify at the Davidson County trial, trial counsel testified:

And then we developed that other information on cross. But after the 

Robertson County case, which did result in basically an acquittal - - or 

[Petitioner] was found guilty of a simple assault, I believe, or 

misdemeanor child abuse maybe, I don‟t recall. In any manner the 

verdict resulted in a misdemeanor lesser offense. But after that trial and 

gearing up and preparing for this case here in this county I did consider 

whether I wanted to call Mr. Brant. And I ultimately decided against it 
15

despite this other favorable testimony. The reason was the Robertson 

County case, there was no one on the State‟s side of that case. Not [the 

victim], not her mother, there was no one that in my view was a 

sympathetic witness to the jury. [The victim] came across as a spoiled 

teenager that in my view a jury could easily believe would make a lie 

because she wasn‟t getting her way. [The victim‟s] mother, 

[Petitioner‟s] wife, came across as a vindictive, dysfunctional - -

vindictive - - I‟m struggling for another term, but the whole relationship 

was very obviously dysfunctional between [Petitioner] and his wife. 

And just overall she was not a sympathetic witness for the State. She in 

my view came across as a woman who would either encourage or 

support or foster a false allegation. She just was not sympathetic. The 

only witness in the entire case that in my view was a sympathetic 

witness, someone who the jury would identify with and find to be 

credible, was Mr. Brant. He played it straight down the middle. He had 

a good demeanor about himself. He was a pastor or former pastor. And 

he was clearly - - in politics they always use this word. Just the optics - -

well, let me back up. He was clearly aligned - - by the time this case 

came to trial in both counties he was clearly aligned with [the victim‟s] 

situation. And although he played it straight down the middle as a 

witness and just told the truth the optics of it was that he was clearly 

aligned with [the victim]. And if anyone would have asked him that or 

been allowed to ask that he would have said, well, I believe [the victim]. 

And I had to struggle against that coming out. You know, I had to guard 

against that being blurted out or it being improperly asked by the State. 

And the State tried very hard in the Robertson County case to be allowed 

to ask Mr. Brant his opinion about [the victim‟s] character. And I was 

able to keep that from being asked. I was therefore concerned not only 

just about the general optics that he was a pretty credible, believable 

witness and him being aligned with the other party, but I was concerned 

about whether Judge Blackburn would make a different decision and 

allow Mr. Brant to testify as to [the victim‟s] general character. I don‟t 

think that would have been the correct decision, but I was worried the 

judge - - I know judges often make rulings I don‟t think they should. So 

I was concerned about Judge Blackburn allowing Mr. Brant to testify 

that in his opinion that [the victim] is a truthful, credible witness despite 

her problems years ago. So those were my decisions why I did not call 

Mr. Brant despite this other favorable testimony. 

Trial counsel believed that Mr. Brant testified truthfully during the Robertson 

County trial. Mr. Brant‟s testimony was that Petitioner called him to a meeting about the 
16

victim‟s allegations against Petitioner and that Petitioner did not “run from it.” Mr. Brant 

did not report any of the allegations after the family meeting. 

Trial counsel testified that two of the victim‟s former babysitters were called to 

testify at the Robertson County trial: Becky Cassinova and Heather Hesson (Ms. 

Hesson‟s last name is spelled “Heston” in the transcript of Petitioner‟s Robertson County 

trial). The transcript of Petitioner‟s Robertson County trial shows that Ms. Cassinova

testified that she knew the Petitioner and his wife, and she babysat Petitioner‟s children, 

including the victim, at her home during the summer of 2005, after the timeframe of the 

allegations against Petitioner. Ms. Cassinova testified that Petitioner usually brought the 

children in the mornings and picked them up in the afternoons. She described 

Petitioner‟s interaction with the victim as “just normal.” Ms. Cassinova noted that the 

victim would be indifferent when Petitioner arrived in the afternoons to pick her up. 

The transcript from Petitioner‟s Robertson County trial also shows that Ms. 

Hesson testified that she babysat Petitioner‟s children, including the victim, from May 

until September of 2004, before and during a portion of the timeframe of the allegations 

against Petitioner. She thought that the victim was nine or ten years old at the time. Ms. 

Hesson babysat the children at the family‟s apartment in Hendersonville. She described 

Petitioner‟s relationship with the victim as “an appropriate father/daughter relationship. 

She was happy to see her father.” Ms. Hesson testified that the victim did not show any 

“physical apprehension” toward Petitioner. 

Trial counsel testified that he called Ms. Hesson to testify at Petitioner‟s Davidson

County trial. Trial counsel said that during the Davidson County trial, he realized that he 

may have called the wrong babysitter to testify as Ms. Hesson had been the victim‟s 

babysitter before the allegations against Petitioner occurred. Specifically, trial counsel 

testified:

Of course, we had different time frames for the Robertson County 

allegations and the Davidson County allegations. And so we had babysitters that had baby-sat for the kids. And so we had called in the 

Robertson County case one or more of the baby-sitters just to testify, you 

know, that they didn‟t see anything unusual in the interaction between 

[the victim] and [Petitioner]. And so we did - - or attempted to do the 

same thing in Nashville. But what I had done was I had gotten the time 

frames mixed up with the baby-sitters as to who baby-sat when. And as 

the transcript bears out, the baby-sitter we called had baby-sat before, I 

believe, any of the allegations regarding sexual contact had occurred.
17

Therefore, it was trial counsel‟s opinion that there would have been no reason for the 

victim to act unusual while in Ms. Hesson‟s care. Trial counsel agreed that during the 

Davidson County trial, Ms. Hesson testified that she had degrees in child development 

and family development relationships. She was asked by the State whether it would be 

unusual for the victim‟s behavior toward the offending parent to change after the sexual 

abuse began. Ms. Hesson testified that it would not be unusual. Trial counsel 

acknowledged that the defense theory was that the victim was going through a rebellious 

phase and fabricated the allegations against Petitioner. He testified that Ms. Hesson‟s 

testimony contradicted the defense theory “to a very minor degree.” Trial counsel further 

testified that Ms. Hesson‟s testimony was not “significant testimony,” and he did not 

“believe it made a difference one way or the other.” He also noted that Ms. Hesson‟s 

testimony was not considered expert testimony. 

Trial counsel testified that Travis Belcher testified at the Robertson County trial, 

and his testimony contradicted that of Petitioner concerning the sleeping arrangements at 

the apartment that Petitioner shared with Mr. Belcher. Trial counsel did not recall any 

discussions with Petitioner about whether Rocky Isabell‟s testimony would corroborate 

or refute Mr. Belcher‟s testimony that there were other sleeping arrangements at the 

apartment for Petitioner‟s children and that Mr. Belcher and Petitioner had their children 

at the apartment on opposite weekends. 

On cross-examination, trial counsel estimated that he had handled more than 175 

jury trials, and approximately twenty-five to fifty of those cases were child sexual abuse 

cases. He was also a “certified criminal trial specialist.” Trial counsel successfully tried 

Petitioner‟s case in Robertson County for similar allegations as those in the present case. 

He testified that he planned to use the same strategy in Petitioner‟s Davidson County 

trial. He said:

Which, I mean, I - - I wish I could have changed strategies because - - I 

mean, I knew the State would have the benefit of the transcripts from 

Robertson County, and I knew that they would make effects to plug the 

hole so to speak, which this hasn‟t been said and I haven‟t been directly 

asked it but I think it should be part of the record is I think the difference 

between the two cases is just the two main witnesses, [the victim] and 

her mother. One of the failings for the State in the Robertson County 

case was just the demeanor. And as I testified earlier, they were not 

sympathetic, appeared spoiled and vindictive, just the general demeanor 

on how they answered questions and how they carried themselves. It 

was night and day. So somebody told them how to testify. I‟m not 

saying anything improper was done, but they cleaned up their act. And I 

suspect - - I was suspicious that was going to happen. But, you know, 
18

we committed to the theory, we couldn‟t change it. There were no facts 

to change it. 

Analysis

Petitioner contends that his trial counsel provided ineffective assistance because 

trial counsel failed to adequately cross-examine Mr. Isabell at trial, and he failed to call 

Mr. Brant and Ms. Cassinova to testify. We disagree. 

In a post-conviction proceeding, the burden is on the Petitioner to prove his facts

for relief by clear and convincing evidence. T.C.A. § 40-30-110(f); see Dellinger v. 

State, 279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal, we are bound by the trial 

court‟s findings of fact unless we conclude that the evidence in the record preponderates 

against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Additionally, 

“questions concerning the credibility of the witnesses, the weight and value to be given 

their testimony, and the factual issues raised by the evidence are to be resolved” by the 

post-conviction court. Id. Because they relate to mixed questions of law and fact, we 

review the trial court‟s conclusions as to whether counsel‟s performance was deficient 

and whether that deficiency was prejudicial under a de novo standard with no 

presumption of correctness. Id. at 457.

In order to prevail on an ineffective assistance of counsel claim, the petitioner 

must establish that (1) his lawyer‟s performance was deficient and (2) the deficient 

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. 

Ct. 205, 280 L. Ed. 2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 

“[A] failure to prove either deficiency or prejudice provides a sufficient basis to deny 

relief on the ineffective assistance claim. Indeed, a court need not address the 

components in any particular order or even address both if the [petitioner] makes an 

insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 

1996) (citing Strickland, 466 U.S. at 697).

A petitioner successfully demonstrates deficient performance when the clear and 

convincing evidence proves that his attorney‟s conduct fell below “an objective standard 

of reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 

466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated 

once the petitioner establishes “„a reasonable probability that, but for counsel‟s 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.‟” Id. at 370 (quoting Strickland, 466 U.S. at 694). In reviewing counsel‟s 

performance, the distortions of hindsight must be avoided, and this Court will not secondguess counsel‟s decisions regarding trial strategies and tactics. Hellard v. State, 629 
19

S.W.2d 4, 9 (Tenn.1982). The reviewing court, therefore, should not conclude that a 

particular act or omission by counsel is unreasonable merely because the strategy was 

unsuccessful. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Rather, counsel‟s alleged 

errors should be judged from counsel's perspective at the point of time they were made in 

light of all the facts and circumstances at that time. Id. at 690, 104 S.Ct. at 2066.

Following the evidentiary hearing, in a written order denying relief, the postconviction court concluded that Petitioner had failed to prove that trial counsel‟s

performance was deficient or that Petitioner was prejudiced by any alleged deficiency. 

Concerning Petitioner‟s claim that trial counsel erred by not calling Becky 

Cassinova as a witness at the Davidson County trial, we first point out that it is well 

settled that “[w]hen a petitioner contends that trial counsel failed to discover, interview, 

or present witnesses in support of his defense, these witnesses should be presented by the 

petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. 

App. 1990). Neither the post-conviction court nor the reviewing court may speculate on 

“what a witness‟s testimony might have been if introduced by defense counsel.” Id. 

Although Ms. Cassinova did not testify at the post-conviction hearing, the trial court 

considered her testimony during the Robertson County trial. The trial court held: 

As reflected in the Davidson County transcript and testified to by Trial 

Counsel, Heather Hesson was called as a defense witness at trial. . . . 

Trial Counsel admitted during the evidentiary hearing that he had some 

concerns that he may have called the wrong babysitter, noting that the 

Robertson and Davidson County allegations involved different time 

frames. As reflected in the transcript, although [sic] Ms. Hesson‟s 

babysitting occurred during part of the time period alleged in the 

Davidson County indictment, but only when Petitioner and his wife were 

living together. Trial Counsel testified, however, that he did not recall 

Ms. Hesson making any “damaging” statements at trial or any significant 

issues requiring a curative instruction request. Having reviewed the 

transcript, this Court agrees. Ms. [Hesson‟s] direct testimony essentially 

mirrors that of her Robertson County testimony. During crossexamination, the Court limited the State‟s questioning after bench 

conference resulting from Trial Counsel‟s objection. . . . While Ms. 

[Hesson‟s] testimony did not necessarily benefit the Petitioner, Petitioner 

has not demonstrated by clear and convincing evidence that her 

testimony caused any prejudice. Further, Petitioner has not met his 

burden that Trial Counsel was ineffective for failing to call Ms. 

Cassinova or that Petitioner was prejudiced by Ms. Cassinova not 

testifying at his Davidson County trial; that is, having reviewed Ms. 

Cassinova‟s Robertson County testimony, the Court finds that Petitioner 
20

has not demonstrated that a reasonable probability exits that, but for 

counsel‟s deficient performance, the result of the proceeding would have 

been different, particularly in light of Petitioner‟s statements made 

during the controlled call. Petitioner‟s post-conviction request is denied 

as to this claim. 

The record does not preponderate against the trial court‟s findings and conclusions 

concerning this issue. Although trial counsel thought that he may have called the wrong 

babysitter to testify at trial in the Davidson County case, he testified that her testimony 

was not “significant testimony”, and he did not believe that it made a difference at trial 

“one way or the other.” We note that neither Ms. Cassinova nor Ms. Hesson babysat the 

victim during all of the time period of the events listed in the indictment, although Ms. 

Hesson did watch the victim during a portion of the timeframe. Both women testified 

during Petitioner‟s Robertson County trial that they did not notice anything inappropriate 

between Petitioner and the victim. At Petitioner‟s Davidson County trial, Ms. Hesson 

testified that Petitioner and the victim had a typical father-daughter relationship, and the 

victim did not appear apprehensive of him. Her testimony covered a period of time listed 

in the indictments as to when the offenses occurred. Petitioner has not proven this claim 

by clear and convincing evidence. 

Next Petitioner contends that trial counsel erred by not calling Mark Brant, the 

victim‟s grandfather, who had testified for the State at Petitioner‟s Robertson County 

trial. Again, Petitioner did not call Mr. Brant to testify at the post-conviction hearing and 

relied on Mr. Brant‟s testimony from the Robertson County trial. See Black v. State, 794 

S.W.2d 752, 757 (Tenn. Crim. App. 1990). Concerning Mr. Brant, the trial court made 

the following findings:

The Robertson County trial transcript speaks for itself. Specifically, on 

direct examination, Mr. Brant testified that Petitioner disclosed [the 

victim‟s] allegations against him to Mr. Brant, and they all met to have a 

family meeting. [ ]. [The victim] did not speak at this particular 

meeting, and the matter was not discussed until sometime later. [ ] Mr. 

Brant then became aware of an argument between Petitioner and his wife 

described by the State as a “knock-down, drag-out fight” that occurred in 

2010 on Martin Luther King holiday weekend. [ ] The summer 

thereafter, he and his wife spent time with [the victim] while taking her 

on a genealogical tour. [ ] The State attempted to inquire about Mr. 

Brant‟s opinion of [the victim‟s] trustworthiness and whether [the 

victim] discussed the allegations against Petitioner, but trial counsel‟s 

objections were sustained by the court. [ ]
21

On cross-examination, Trial Counsel elicited testimony from Mr. Brant 

that “at the time” of the disclosure, Petitioner may have thought Mr. 

Brant‟s loyalty lied more towards him than [the victim], [ ], but Mr. 

Brant ultimately stated that his loyalty at the time did not lean towards 

either his daughter, Sharon, or Petitioner, [ ] When asked to explain his 

answer, Mr. Brant noted that, “[the victim] was going through a 

particularly difficult time,” when Petitioner called Mr. Brant to let him 

know about the allegations, but he did not provide any details. [ ]

The Court sustained Trial Counsel‟s objection to the one question the 

State asked on redirect: “[Trial counsel] asked you about why you 

thought [the victim] - - [Petitioner] would think that you[r] loyalty would 

be with him over [the victim] and you said because of the opinion that 

you had of [the victim] at that time; do you still have that same opinion 

now?” [ ] 

Trial Counsel testified that although he elicited “some useful” testimony 

from Mr. Brant during the Robertson County trial, he elected not to call 

Mr. Brant at the Davidson County trial because Mr. Brant had been a 

State‟s witness and it was clear that as the case progressed that Mr. 

Brant‟s loyalty leaned towards his daughter and the victim, L.W., 

making him a less favorable witness at the subsequent trial. 

This Court finds Trial Counsel‟s testimony credible and exhibited an 

informed strategic decision. Accordingly, the Court denies postconviction relief as to this claim. Adkins, 911 S.W.2d at 347; Cooper, 

847 S.W.2d at 528. 

The record does not preponderate against the trial court‟s findings as to this claim. 

Trial counsel testified that he made a strategic decision not to call Mr. Brant as a witness 

at the Davidson County trial. Mr. Brant had been the State‟s witness at the Robertson 

County trial, and trial counsel considered calling him as a defense witness at the 

Davidson County trial because his testimony was somewhat favorable to the defense. 

However, trial counsel ultimately decided against calling Mr. Brant. Trial counsel noted 

that during the first trial, neither the victim nor her mother were very sympathetic 

witnesses because the victim came across to the jury as a spoiled teenager, and her

mother seemed vindictive. He thought that the only witness who seemed sympathetic 

and credible was Mr. Brant. Trial counsel testified that Mr. Brant “played it straight 

down the middle,” and he “had a good demeanor about himself.” Trial counsel testified 

that when it came time for both trials, Mr. Brant was “clearly aligned” with the victim‟s 

situation. He felt that if anyone asked Mr. Brant if he believed the victim, trial counsel 
22

believed that Mr. Brant would have said yes. Trial counsel noted that during the 

Robertson County trial, he had to “guard against that being blurted out or being 

improperly asked by the State.” He said, “And the State tried very hard in the Robertson 

County case to be allowed to ask Mr. Brant his opinion about [the victim‟s] character.” 

Trial counsel feared that the trial court in the Davidson County case might allow Mr. 

Brant to testify concerning the victim‟s character and that she was a “truthful, credible 

witness despite her problems years ago.” 

We conclude that the post-conviction court properly found that trial counsel made 

a sound strategic decision not to call Mr. Brant as a witness, and this court will not 

second-guess trial counsel's decision regarding this issue. Hellard v. State, 629 S.W.2d 4, 

9 (Tenn.1982). Petitioner is not entitled to relief. 

Finally, Petitioner argues that trial counsel failed to adequately question Rocky 

Isabell at trial to rebut Travis Belcher‟s testimony that he and Petitioner had their children 

at the apartment on alternating weekends and that the victim and her brother could have 

slept on a pull-out sofa rather than in the bedroom with Petitioner when they were at the 

apartment. Concerning this issue, the trial court held:

Mr. Isabell actually had been called as a defense witness at the Davidson 

County trial. [ ]; Wooten, 2013 WL 4007784, at *8. At that time, he 

testified that he had met Petitioner through work and had known him for 

8 years. [ ] The focus of his direct testimony concerned how Petitioner 

acted toward his daughter; specifically, that Mr. Isabell had not observed 

any inappropriate, threatening, or abusive behavior. [ ] Mr. Isabell 

confirmed that he had spent the night at Petitioner‟s apartment 

previously and observed a pull-out couch. [ ] At the post-conviction 

evidentiary hearing; however, Mr. Isabell testified, as summarized in 

Part III of this Order, about how often he visited the apartment, that 

Petitioner‟s children slept in Petitioner‟s room while Mr. Belcher‟s 

children slept on the pull-out couch, and that Petitioner had custody of 

his children on the same weekends as his roommate. Mr. Isabell testified 

that he was present at trial, but that he was not present during Mr. 

Belcher‟s testimony. 

The primary purpose of Mr. Isabell‟s new testimony – the timing of 

which undermines its credibility – would be to establish that Petitioner 

and Petitioner‟s roommate, Mr. Belcher, had custody of their children 

simultaneously, necessitating the sleeping arrangements. Mr. Isabell‟s 

testimony contradicting Mr. Belcher‟s testimony regarding custody of 

his own children is insufficient on its own to meet the clear and 
23

convincing evidence standard. Moreover, Petitioner was present at his 

own trial and heard Mr. Belcher testify about the custody arrangements, 

and could have advised his counsel during the trial about the veracity of 

the statements, which if untrue, could have been addressed on crossexamination, by raising the issue during questioning of Mr. Isabell when 

he was called as a trial witness, and/or by introducing documentation of 

custody arrangements, etc. Petitioner did not testify at his postconviction hearing to provide any proof about the veracity of Mr. 

Belcher‟s testimony. For all these reasons, the Court finds that 

Petitioner has not established that Trial Counsel was ineffective for 

failing to call Mr. Isabell to rebut Mr. Belcher‟s testimony or that 

Petitioner was prejudiced by any alleged deficiency. The Court 

reiterates that Petitioner still must overcome the statements made during 

the phone call. Petitioner‟s request for post-conviction relief is denied as 

to this claim. 

The record does not preponderate against the trial court‟s findings concerning this 

claim. Trial counsel did not recall any conversations with Petitioner about whether Mr. 

Isabell‟s testimony would corroborate or refute Mr. Belcher‟s testimony that there were 

other sleeping arrangements at the apartment for Petitioner‟s children and that Mr. 

Belcher and Petitioner had their children at the apartment on opposite weekends. We 

also point out that during direct examination at the Davidson County trial, Mr. Belcher 

testified:

I remember when we had our kids together there one time, and we had 

some other people over. And they slept - - you know, a friend, Rocky 

Isabell, he slept there. And we had another friend that, you know, came, 

you know for a short time and stayed two or three nights, Keith Lambert 

(phonetic). 

Therefore, there was testimony that Petitioner and Mr. Belcher‟s children were at the 

apartment at the same time on occasion when Mr. Isabell was present. Therefore, 

Petitioner has not proven this claim nor has he demonstrated that he was prejudiced by 

trial court‟s alleged failure to properly question Mr. Isabell at trial. As pointed out by the 

trial court, evidence at trial showed that during a recorded phone call, Petitioner admitted 

that he touched the victim‟s vagina “on the top” but denied penetrating her. 

We also point out that trial counsel specifically testified that in his opinion, the 

difference between the outcome of Petitioner‟s two trials was the “two main witnesses, 

[the victim] and her mother.” He felt that the demeanor of the two witnesses changed 

from the Robertson County trial to the Davidson County trial. Trial counsel testified: 
24

And as I testified earlier, they were not sympathetic, appeared spoiled 

and vindictive, just the general demeanor on how they answered 

questions and how they carried themselves. It was night and day. So 

somebody told them how to testify. I‟m not saying anything improper 

was done, but they cleaned up their act.

Petitioner has failed to establish that trial counsel provided ineffective assistance. For the 

foregoing reasons, the judgment of the post-conviction court is affirmed. 

____________________________________________

THOMAS T. WOODALL, PRESIDING JUDGE