FILED

June 17, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL 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 & Reporter

Nashville, TN. 37219

Karen M. Yacuzzo

Assistant Attorney General

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 Attorney General

Washington Square, Ste. 500

222 2nd Avenue North

Nashville, TN. 37201-1649

OPINION FILED:_____________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
2

OPINION

The appellant, James R. Jackson, appeals the Davidson County Criminal

Court’s dismissal of his petition for post-conviction relief. We affirm the judgment of

the trial court. 

In 1991, the appellant was convicted by a jury of aggravated rape and

aggravated sexual battery. The trial court entered a judgment of acquittal 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 direct 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 appellant’s case were summarized in the direct

appeal as follows:

The victim, twelve years old at the time of the alleged offense,

went to the Miller Hand Paint Shop to ask if anyone wanted puppies from

her dog’s litter. She had visited the shop before and knew the appellant

who worked there as a painter. The appellant was alone in the store

when she arrived. The victim testified that while speaking with the

appellant, he pushed her to the floor and sexually penetrated 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 arrested the appellant and took him to

General Hospital for a rape kit examination. Once at the hospital, the

appellant signed a waiver permitting the police to perform the

examination upon him. The test included the collection of thirty pubic

hairs and thirty head hairs. 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-conviction relief

alleging the ineffective assistance of his trial counsel. He contended that counsel was

incompetent in failing to resist the trial judge’s decision to recuse himself, in failing to

properly advise him about a plea offer, and in failing to raise certain evidentiary and

procedural issues in the direct appeal. Through a newly appointed counsel, the
1

The appe llant file d his o rigina l pro se petition for post-conviction relief prior to the amended

Post-Conviction Procedure Act of 1995. Accordingly, his petition must be addressed 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 grounds and

additional allegations of ineffective counsel.

Following an evidentiary hearing, the trial court dismissed appellant’s petition

upon accrediting the testimony of his trial counsel and upon finding that appellant

“failed to carry his burden of proof with respect to both general and specific allegations

of ineffective assistance of counsel.” The trial court further determined that any attack

upon counsel for failing to challenge the recusal of the trial judge before sentencing

was meritless in light of evidence that the sentencing judge fully and fairly performed

his duties in reviewing the trial record and in presiding over the sentencing hearing. 

In this appeal, the appellant raises the issue of his counsel’s ineffectiveness,

and for the first time, challenges the constitutionality of his indictment and the

“reasonable doubt” jury instruction.

Initially, we conclude that any challenge to the “reasonable doubt” jury

instruction is waived under Tennessee Code Annotated section 40-30-112(b)(1)

(repealed 1995).1 The appellant has offered no reason why he did not raise this issue

in his pro se and amended post-conviction petition. Because the appellant could

have, but did not, raise the issue in an earlier proceeding, we decline to address it on

appeal.

I.

The appellant first contends that he is entitled to post-conviction relief based

upon the alleged ineffective assistance of counsel. He argues that his counsel was

ineffective in failing to challenge the trial judge’s decision to recuse himself prior to the

sentencing hearing.

This issue is without merit.
2

Under the pre-1995 Post Conviction Procedure Act, the appellant has the burden of proving the

allegations in his petition by a prepon deranc e of the ev idence. See McBee v. State , 655 S.W.2d 191,

195 (Tenn. Crim . App. 1987).

3

The Strickland standard has been applied to the right to counsel under Article I, Section 9 of the

Tenn essee Cons titution. State v. Melson, 772 S.W .2d 417, 4 19 n.2 (T enn. 198 9), cert. denied, 493 U.S.

874 (1989).

4

Prior to the sentencing hearing, the trial judge was approached by someone

working with defense counsel on appellant’s case. Based upon the ex-parte

communications that followed, the trial judge determined that he could not remain

impartial during the sentencing phase of appellant’s trial. Accordingly, the trial judge

recused himself and the case was transferred to another division of criminal court of

Davidson County. Judge Randall Wyatt took the case under advisement and presided

over both the sentencing hearing and the motion for a new trial. Appellant’s counsel

did not challenge the recusal until the motion for a new trial.

The appellant argues that he was 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 evidence2 that the action and services provided by

his counsel fell below the range of competence demanded of attorneys in criminal

cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Furthermore, he

must demonstrate “prejudice” by proving that, but for counsel’s incompetence, the

result of the trial proceeding would have been different. See Strickland 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, 422 (Tenn. Crim. App. 1985).3

Evidence at the post-conviction hearing consisted of appellant’s testimony and

the testimony of his trial counsel. The trial court accredited the testimony of counsel

and determined that the appellant was well represented throughout trial. Moreover,

the court ruled that any arguable deficiency in counsel’s performance would not have

resulted in a different outcome in appellant’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, 475
4

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 denied appellant the right to a fair trial. The “substitute” judge considered the issue and ruled

that it was w ithout m erit. 

5

Rule 25(b) of the Tennessee Rules of Criminal Procedure provides that if, after a verdict of

guilt, the trial judge comes under a disability precluding further participation in the case, another judge

regu larly sittin g in or who ma y be as signed to the court 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 counsel performed with reasonable diligence and

competency in representing the appellant at trial. 

The record reflects that appellant’s trial counsel spent approximately sixty five

(65) hours preparing and handling appellant’s defense. Although counsel did not

object to the trial judge’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 object to

the recusal before or at sentencing, the appellant has failed to demonstrate any

resulting prejudice. Based upon the finding of the post-conviction court, the

“substitute” judge in appellant’s case carefully reviewed the trial record and made

other preparations before presiding over the sentencing 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 challenges the validity of the indictment charging him with

aggravated rape. Relying on this Court’s opinion in State v. Roger Dale Hill, No.

01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, June 20, 1996), he contends

that his indictment was fatally deficient in failing to include the requisite mens rea for

the aggravated rape offense.

We note that the appellant did not raise this issue in his pro se and amended

petitions for post-conviction relief. However, at the time of filing those petitions, this
6

Under Tennessee Code Annotated section 40-13-202 (1991), an indictment must state the

charged offenses in ordinary and concise language that will provide the accused with a common

unders tanding a nd will enab le the trial court 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 choose to address it, de novo, as a question of law.

The appellant argues that his conviction of aggravated rape is invalid because

of a fatal defect in the indictment charging 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, [James 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 State

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 virtually identical to the indictment in appellant’s case. Id. at 727. 

The Court recognized that modern statutory codes serve to avoid the hypertechnical

nature of common law pleading. Therefore, according to the Court, an omission of the

mens rea element from an offense is not always fatal to an indictment. See id. at 727-

28. 

For offenses which neither expressly require nor plainly dispense with the

requirement for a culpable mental state, an indictment which fails to allege the

requisite mens rea will nevertheless be legally sufficient if: (1) Its language satisfies

the constitutional requirement of notice to the accused; (2) Its form meets the

requirements set forth in Tennessee Code Annotated section 40-13-202;6 and (3) The

requisite mental state can be logically inferred 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 charging aggravated 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, following a distinguished career as a trial attorney and as

a respected member of this Court since his appointment in November, 1986. He will be greatly missed.

7

penetrate a victim, if the victim is less than thirteen (13) years of age. Tenn. Code

Ann. § 39-13-502. Moreover, it states the facts constituting the offense and provides

appellant with sufficient notice of the charges as mandated by our constitution. 

Accordingly, we conclude that the indictment is valid.

Based upon the foregoing, the judgment of the trial court is affirmed.

___________________________ 

WILLIAM M. BARKER, JUDGE

CONCUR:

 (Not Participating)*******

 

JOE B. JONES, JUDGE

___________________________

DAVID H. WELLES, JUDGE