# FILED

June 17, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1997 SESSION

JAMES R. JACKSON ) ) NO. 01C01-9609-CR-00387 Appellant ) ) DAVIDSON COUNTY v. ) ) HON. ANN LACY JOHNS STATE OF TENNESSEE ) ) (Post Conviction) Appellee. ) )

For the Appellant : For the Appellee : William C. Roberts, Jr. John Knox Walkup Parkway Towers, Ste. 1502 Attorney General & Repor ter Nashville, TN. 37219 Karen M. Ya cuzzo Assistant Attorney Gener al 425 Fifth Avenue North 2nd Floor Cordell Hull

Building Nashville, TN. 37243-0493 Victor S. Johnson III District Attorney General Roger D. Moore Assistant District A

ttorney General Washington Square, Ste. 500 222 2nd Avenue North Nashville, TN. 37201-1649

OPINION FILED:_____________________ AFFIRMED WILLIAM M. BARKER, JUDGE2 OPINION The appellant, James R. Jackson, appeals the Davidson County Criminal Court’s dismissal of his petition for post-convic tion relief. We affirm the judgment of the trial court. In 1991, the appellant was con victed by a jury

of aggravated rape and aggravated sexual

battery. The trial cour t entered a judgment of acquitta l on the sexual battery conviction and sentenced the appellant to twenty (20) years, as a Range I offender, for aggravated rape. The appellant ’s conviction and sentence were affirmed by this Court on dir ect appeal. See State v. Jackson , 889 S.W.2d 219, 223 (Tenn. Crim. App. 1993), perm. app. denied (Tenn. 1994). The facts and circumstances of appe llant’s case were summarized in the direct appeal as follows:

The victim, twelv

e years old at the time of the al leged offense, went to the Miller H and Paint Shop to ask if anyone w anted puppies from her dog’s litter. She had visited the shop before and k new the appellant who worked there as a painter. The appellant was alone in the store when she arrived. The victim testified that w hile speaking with the appellant, he pushed her to the floor and sexually penetrate d the victim. The attack was interrupted by a knock at the door, and the victim was able to escape. She returned home and told her family what had happened. The police subsequently ar rested the appellant and took him to General Hospital for a rape k it examination. Once at the hospital, the appellant signed a wai

ver permitting the pol ice to perform the examination upon him. The test included the collection of thirty pubic hairs and thirty head hai rs. The FBI analyzed the hair and determined that the loose hair found in the victim’s “vaginal area microscopically matched the public hairs of Mr. Jackson [appellant] in all characteristics.” See id. at 221. On June 8, 1994, the appellant filed a pro se petition for post-convic tion relief alleging the ineffective

assistance of his trial c ounsel. He contended that counsel was incompetent in failing to res ist the trial judge’s decision to recuse himself, in failing to properly advise hi m about a plea offer, and in failing to raise certain evidenti ary and procedural issues in the d irect appeal. Through a new ly appointed counsel, the1 The appe llant file d his o rigina l pro sepetit ion for post -convict ion rel ief pri or to the amended Post-Convict ion Procedure Act of 1995. Accordi ngly, his petition must be addresse d under the pre- 1995 Act. Te nn. Cod e Ann. § § 40-30 -101 -- 12 4 (repea led 1995 ). 3 appellant filed an amended petition containing the above stated g rounds and additional allegations of ineffective counsel. Following an evi dentiary hearing, the trial court dismissed appellant’s petition upon accrediting the testi mony of his trial counsel and upon finding that appellant “failed to carry his burden of proof with respect to both general and specific all egations of ineffective assistance of counsel.” Th e trial court further determined that any attack upon counsel for failing to chal lenge the recusal of the tri al judge before sentencing was meritless in li ght of evidence that the sentenc ing judge fully and fair

ly performed his duties in review

ing the trial record and in presiding over the sentencing hearing. In this appeal, the appellant raises the issue of his counse l’s ineffectiveness, and for the first time, challeng es the constitutionality of his indictment and the “reasonable doubt” jury instruction. Initially, we conclude that any challenge to the “reasonable doubt” jury instruction is wai

ved under Tennessee Code Annotated s ection 40-30-112(b)(1) (repealed 1995). 1 The appellant has offered no reason w hy he did not raise this

issue in his pro se

and amended post-conviction petition. Because the ap pellant could have, but did not, raise th e issue in an earlier pr oceeding, we decline t

o address it on appeal. I. The appellant first contends that he i s entitled to post-convi ction relief based upon the alleged ineffective ass istance of counsel. He arg ues that his counsel was ineffective in failing to ch allenge the trial judge’s decision to recuse hi mself prior to the sentencing hea ring. This issue is without merit.2 Under the pre-1995 Post Convicti on Procedure Act, the appell ant has the bur den of provi ng the allegations in his petition by a prepon deranc e of the ev idence. See McB ee v. State , 655 S.W.2d 191, 195 (Tenn. Crim . App. 1987).

3 The Strickl and standard has been appl ied to t he right to counsel under Articl e I, Secti on 9 of the Tenn essee Cons titution. State v. Melson , 772 S.W .2d 417, 4 19 n.2 (T enn. 198 9), cert. deni ed , 493 U.S. 874 (1989). 4 Prior to the sentencing h earing, the trial judge was approached by someone working with defense counsel on appellant’s cas e. Based upon the ex-parte communications that followed, the trial judge determined that he could not remain impartial durin g the sentencing p hase of appe llant’s trial. Acco rdingly, the trial jud ge recused himself and the case w as transferred to another div ision of criminal court of Davidson County. Ju dge Randall Wyatt took the case under adv isement and presided over both the sentencing hearing and the motion for a new trial. Appellant’s cou nsel did not challenge the recusal until the motion for a new trial. The appellant argues that he w as prejudiced by counsel ’s failure to object to the recusal during the trial proceeding. To prevail on this claim, the appellant must show by a preponderance of the evidence 2 that the action and servi ces provided by his counsel fell below the range of competence demanded of attorney s in criminal

cases. See Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Furthermore, he must demonstrate “prejudice” by proving that, b ut for counsel’s incompetence, the result of the trial proceedi ng would have been different. See Stricklan d v. Washington , 466 U.S. 668, 687-88, 692, 694, 104 S .Ct. 2052, 2064, 2067-68, 80 L.Ed. 674 (1984); Best v. State , 708 S.W.2d 421, 42 2 (Tenn. Crim. App. 1985). 3 Evidence at the post-conv iction hearing consis

ted of appellant’s testimony and the testimony of his trial counsel. The trial court accredited the testimony of co unsel and determined that the appellant was well represented throughout trial. Moreover, the court ruled tha t any argua ble defi ciency in co unsel’s p erforma nce would n ot have resulted in a different outcome in appellan t’s case. The trial court’s findings of fact in post-conviction proceedings “are conclusive on appeal unless the evidence preponderates against the judgment.” See State v. Buford , 666 S.W.2d 473, 4754 The b asis of c ounse l’s challenge was tha t the trial judge ’s decision to recus e hims elf prior to sentencing deni ed appellant the righ t to a fai r tri al. The “subst itute” judge consider

ed the issue andruled that it was w ithout m erit.

5 Rule 25(b) of the Tennessee Rules of Cri minal Procedure pr ovides that

if, af ter a verdi ct of guilt , the tr

ial j udge comes under a disabil ity precludi ng further partici pation i n the case, anot her judge regu larly sittin g in or who ma y be as sign ed to the c ourt m ay tak e ove r the p roce eding s. Te nn. R . Crim

. P. 25(b). T he new judge is re quired to fa miliarize him self or he rself with the record in order to p roceed

. See State v. Bilbrey , 858 S.W .2d 911, 914 (Tenn. Crim . App. 1993). 5 (Tenn. Crim. App. 1983). We find no evidence to disturb the trial court ’s findings and conclude that appellant’s couns el performed with reasonable diligence and competency in representing the appellant at trial. The reco rd reflec ts that ap pellant ’s trial co unsel spe nt appro ximately si xty five (65) hours preparing an d handling appellant’s defense. Although counsel did not object to the trial judg e’s recusal during the trial proceeding, she testified that she challenged the recusal in appellant’s motion for a new trial. 4 Assuming arguendo

that counsel was somehow deficient in failing to objec t to the recusal before or at sentenci ng, the appellant has failed to de monstrate any resulting prejudice. Based upon the finding of the post-co nviction court, the “substitute” judge in appellant’s case carefully reviewed the tria l record and made other preparations before presi ding over the sentencin g and the motion for a new trial. 5 Appellant has offered no evidence to prove otherwise and has failed to show any prejudice from the recusal and the performance of his counsel. His claim is without merit. II. The appellant next challeng es the validity of the i ndictment charging him w ith aggravated rape. Re lying on this Cour t’s opinion in State v. Roger Dale Hill , No. 01C01-9508-CC-00267 (Tenn. Cr im. App. at Nashville, June 20, 1996), he contends that his indictment was fatal ly deficient in failing to include the requisite mens rea for the aggravated rape offense. We note that the app ellant did not raise this issue in his pro se and amended petitions for post-conviction relief. However, at the time of filing those petitions, this6 Under Tennessee Code Annotated sect ion 40-13-202 (1991), an i ndictment must state the charged offenses i n ordinary and concise l anguage that wi ll pro vide the accu sed with a common unders tanding a nd will enab le the trial cour t to enter a p roper jud gme nt. 6 Court had not yet rendered the decision in Hill . We, therefore, conclude that the issue is not waived and choos e to address it, de novo , as a quest ion of la w. The appellant argues that his conviction of aggravated rape is invalid because of a fatal defect in the indictment ch arging him with that offense. Count two of his indictment stated in pertinent part: [O]n the 18th day of April, 1990,in Davidson County,Tennessee and before the finding of this indictment, [Jam es Richard Jackson] did engage in unlawful sexual penetration of Sandra Harrison, a child less than thirteen (13) years of age, in violation of Tennessee Code Annotated § 39-13-502, and against the peace and dignity of the S tate of Tennessee. Appellant’s claim must fail in light of our Supreme Court’s recent decision in State v. Hill , 954 S.W.2d 725, 729 (Tenn. 1997). In Hill , the Court upheld an indictment that is vir

tually identical to th e indictment in appellant’s c ase. Id. at 727. The Court recognized that modern statutory codes ser ve to avoid the hyper

technical nature of common law pleading. Therefore, according to the C ourt, an omission of the

mens rea

element from an offense is not alway s fatal to an indictment. See id. at 727- 28. For offenses which neither ex pressly require nor plainly dispense w ith the requirement for a culpable mental state, an indictment whic h fails to allege the requisite mens rea

will nevertheles

s be legally sufficient if: (1) Its language s atisfies the constitutional requi rement of notice to the accused; (2) Its form meets the requirements set forth in Tennes see Code Annotated section 40-13- 202; 6 and (3) The requisite mental state can be logically inferr

ed from the alleged criminal conduct. See id. at 726-27. In appellant’s case, we conclude that the mens rea element can be inferred from the indictment language ch arging aggrav ated rape. The indictment sets forth the statutory provision making it a Class A Felony for anyone to unlawfully sexually******* Judge Jones died on May 1, 1998, fol lowing a di stingui shed career as a tr ial at torney andas a respected member of this Cour t since hi s appointment i n November, 1986. He wil l be great ly missed.

7 penetrate a victim, if the v ictim is less than thir

teen (13) years of age. Tenn.Code Ann. § 39-13-502. Moreover, it states the facts constituting the offense and provides appellant with sufficient noti ce of the charges as mandated by our constitution. Accordingly, w

e conclude that the indictment i s valid. Based upon the foregoing, the ju dgment of the trial court is affirmed.

___________________________ WILLIAM M. BARKER, JUDGE

CONCUR: (Not Participating) ******* JOE B. JONES, JUDGE

___________________________ DAVID H. WELLES, JUDGE