### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON Se pte m be r 12, 200 6 S es sio n

STA TE OF TEN NES SEE v. WILLIAM GR AN VILL E HOWEL L

Direc t Appeal from the Circ uit Court for Hardem an Coun ty No. 05-01-0064 J. We ber Mc Craw, Jud ge

No. W2005-02837-C CA-R 3-CD - F iled Fe bruary 1, 2007

De fe nd a nt, Willi a m G ranv il le How e ll, wa s in dic te d f or a g g ra va te d a ssa

ult . F oll ow ing a

jury tr ia l, De fe nd a nt w a s c on vic te d o f simp le a ssa ult a ndse nte nc e d to se rv e e le ve n mo nth s, tw e nty -n ine da y s, with the sentenc e suspende d. On ap p ea l, Defe ndant ar g ues that his conviction should be re verse d beca use (1 ) the evidenc e wa s insufficient to support a c onviction of simple assault bey ond a

re a so na ble do ub t; ( 2) the tr ia l c ou rt e rr e d in adm itt ing te sti mon y pe rt a ini ng to a pr ior a ssa ult c la im ag ainst Defe n d ant; and (3) trial counsel wa s ineffe ctive in fa iling to object to the a dmission of the prior convic tion and for ope ning the door for introduction of this evidence . We affirm the judgme nt of the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

T H O M A S T. W O O D A LL , J
., delivere d the opinion of the court, in which D AVI D H. W ELLES and J ERRY L. S MI TH , J J ., joined.

Daniel J. Tay lor, J ackson, Te nnessee , (on appe al); and J on York, Jackson, Tenne ssee, ( at trial), f or the app e lla nt, Willi a m G ra nv ill e Ho we ll.

Robert E. Cooper, Jr., Attorney Gene ral a nd Reporter ; Bria n Clay J ohnson, Assistant Attorney Gene ral; Eli za

b e thT

. Ri c e , D is tric t A tt o r n e y G e n e r a l; Jo e V a n D yk e , A s s is ta n t D is tric t A tt o r n ey Gene ral, for

the appe llee, the State of Tenne ssee.

OP IN ION

I. Bac kgr ound

Ray mond J enkins worke d at the Gr anville Howe ll Sawmill for a pproxi mately

ten y ear s. On J anuary 10, 2005, Mr. J enkins clocke d in to work at 6:55 a.m. Mr. Jenkins stated that after clocking in
, “ I w a s w a lkin g to my jo b a n d [D e f e n d a n t] c a me a t me w ith th e tr u c k
, me a n d [K n ie v e l B r o w n ], and tried to run us ove r with the truck so w e jumped out of the way in the m ud puddle.” Accor ding to Mr. J enkins, Def

endant told him and Mr. Brow n to “g et in the truck” with him. Mr. J enkins g ot-2-

in the fro n t s ea t o f t h e truc k and Mr. B rown g ot in the back in the be d of the truc k. Def endant immediately

pointed a g un at Mr. Jenkins’s head and sa id, “[b] oy , I ’ll kill y ou.” Defenda nt continued driving the truck w hile k ee p i n g his hand on the trig g er. The ride c ontinued for a pproxi mately

one minute until t hey

rea ched the job site. Mr. J enkins and Mr. B rown then jumped out of the truck a nd Def endant drove awa y

. Mr. J enkins said the g un was a “pistol” and de scribed it as “ rusty ” and “ black looking” and said it could have been r usty but he was not c erta in. Mr. J enkins identified De fenda nt as the man w ho pulled the g un on him.

M r. J enkins did not know why Def endant put the g un to his head. He said that on a prior

occa sion D efe ndant pointed a g un at his f eet but he did not report it beca use he was scar ed. Nothing ha d h app e ne d to c a us e pr ob le ms b e tw e e n the tw o me n e ith e r at w or k o r o the rw ise . M r. Jenkins sa id that at the time of the inc ident, he fe lt “scar ed” a nd “ner vous” and “ fea red f or his life .” He state d that since that time, he ha d been “ having acc idents” and had continued to f ear for his life . Despite ne eding

e mpl oy men t, Mr. Jenkins ha d n ot r e turne d to his job a t th e sa wm ill . H is w if e pic ke d u p h is l a st pay chec k beca

use Mr. Jenkins did not fee l like it was safe to return to the sa wmill.

Mr. Knieve l Brow n testified t h at h e had wor ked at the G ranville How ell Sawmill for approximately

three y ear s. On the day of t he incident, he was walking to the job site with Mr. J enkins wh e n D e fe nd a nt s we rv e d h is t ru c k to wa rdthe m. Th e y we re fo rc e d to jump ou t of the way a ndint o

a mud puddle

. Def

endant then told both men to “ g et in the truck.” Mr. B rown g ot in the back of the truck. He did not hear any exchang e of words between Mr. J enkins and Defenda nt. Throug h the bac k window of the truc k, he saw Def endant point a short- barr eled g un at Mr. J enkins’s head. Mr. B rown said that the g un appea

red bla ck but he did not know whe ther the g un was rusty

.

Mr. B rown said that the ride to the j ob site was brie f, appr ox imately thirty seconds. The two men g ot o u t o f t h e t ru ck as soon as they arrived at the site. De fenda nt did not say anything to Mr. Br own or Mr. Jenkins following the inc ident. M r. Br o wn s ai d t hat he a nd Mr. J enkins wer e not friends a nd did not talk outsi de of w ork. At the time of trial, they had not spoke n to one another since the incident occurre d. Mr. Brown had maintained his job at the sawmill, and he a dmitted that he was reluc tant to testify

on behalf o f Mr. J enkins. He w as not awa re of any disag ree ments betwee n Def endant a nd Mr. J enkins prior to January 10, 2005.

De fe nd a nt t e sti fi e d tha t he ow ne d the Gr a nv ill e Ho we ll Sa wm ill a ndha d b e e n in the sa wm ill business for approxi mately fifty y ear s. Acc ording to Defe ndant, Mr. Jenkins had not worked in the

mon th p re c e din g Janu ary 10 , 2 005, and th at daywa s h is f ir st d a y to r e turn to wo rk . A c c or din g to Def endant, Mr. Jenkins and Mr. B rown we re w alking to their job site at the sawmill when De fenda nt

“ e a se d u p b e hin d th e m a ndtoo te d [th e ] ho rn ” of his tr uc k. Mr . J e nk ins jumpe d o ve r i n a mudho le and ca lled Def

endant a “big son-of-a -b - - - - .” Def endant told the men to g et in the truck a nd then drove the m to the sawmill and let them out. He said it wa s not unusua l f or him to g ive his employ ees rides while a t work. De fenda nt said the ride he g ave Mr. J enkins and Mr. Br own lasted a “couple of minutes.”-3-

Def endant de nied having a pistol in the t ruck with him on J anuary 10, 2005. He sa id that the truck seat was “f

ull of wrenc hes” tha t he had been using to work on the saw mill. He describe d the

wre nches a s “silver” and said they had g rea se on them fr om use at the sawmill. He also did not have any pistols i n his house beca use they had bee n stolen when his house was burg larized “a couple of months” prior. De fenda nt denied pointing a pistol at Mr. J enkins, but admitted he was ma d that Mr. J enkins ca lled him a name.

Mik e Ne lso n te sti fi e d th a t he op e rated the fo rk lif t a ndthe kn uc kle bo om at th e Gr a nv ill e Howell Sa w mi ll

. A t t

h e ti me o f

tria l, h e h a d w o rk e d in th a t c ap a c it y f o r ap p r o xim a te ly

thirteen months. On the mor n i n g o f t h e i n cident, Mr. Nelson was driving the forklift whe n he saw Mr. J enkins and Mr. B rown wa lking towa rd the sawmill. He saw Def endant pull his truck behind the me n and toot the horn. The men jumped out of the way of the truc k and into some mud. Mr. Nelson then

sa w the me n g e t int o the truc k wi th De fe nd a nt wh o dr ov e the m the re ma ini ng se ve nty -f ive y ard s to the sawmill. Mr. Nelson said that it was his job to w atch the y ard a round the saw mill. He watche d the pr og re ss of De fe nd a nt’ s tru c k fr om the tim e he pic ke d the tw o me n u p u nti l th e truc k s top pe d in the sawmill y ard. H e said t h at fr o m h i s v antage point insi de the f orklift, he could se e throug h the fr on t w ind sh ie ld a ndint o D e fe nd a nt’ s truc k. He did no t se e De fe nd a nt po int a g un a t Mr . Jen kin s. Mr. Nelson sai d h e h a d n o t s e e n D e f e n d a n t c arr y in g a

p is to l o r o th e r f ir e ar m d u r in g th e th irte en months he had bee n employ ed at the sa wmill.

On c ro ss- e xami na tio n, Mr

. Ne lso n re ite ra te d that he ha d no t se e n De fe nd a nt w ith a fi re arm , but admitted th at De fe n d ant may have ow ned a rifle bec ause he was a far mer who ha d cows. Mr. Ne lso n state d that a lth ou g h he wa s ma ne uv e ri ng the fo rk lif t aro un d the y ard a s t he veh ic le approa ched, he maintained his view of Defe ndant’s truck and the pa sseng ers a s a saf ety prec aution. Over objection from the de fense , Mr. Nelson wa s then asked whether he would be surprised to know that in 2000 a complaint was fi l ed ag ainst Defe ndant in which it was a lleg ed that De fenda nt had pulled a g un on a man a t the sawmill and pointed the g un at hi s head. Mr. Nelson replied, “ [y ]es, sir, it shocked me. I

wasn’t ther e so I

couldn’t tell y ou whether he did or didn’t.”

Pe rry Ho we ll, Jr., De fe nd a nt’ s g ra nd so n, te sti fi e d th a t he wa s e mpl oy e d a t Gr a nv ill e Ho we ll Sawmill at the time of the incident and he was operating the knuckle boom on the morning of January 10, 2005. He e x plained that a knuckle boom is a machine us ed to unload and c ut logs fr om the log
truc k. As he was “un bo omi ng ” so me of the log s, he no tic e d tw o me n w a lki ng tow ardthe sa wm ill followed by

Def endant’ s truck. He said that as De fenda nt pulled the t ruck up behind t he men, “they just kind of st epped over and one gentlema n g ot in the t ruck and the ot her one g ot on the bac k of the truck a nd he ca

rried the m on down to the mill.” Mr. Howell said th at De fe n d an t d i d not own any pistols at the tim e of the incident bec ause the y had bee n stolen when his house wa s burg lar i zed approximately

six months prior.

On cross-e x amination, Mr. Howell admitted that he did not know exactly what was t aken wh e n D e fe nd a nt’ s h ome wa s bur g lari zed

. I t wa s his be lie f tha t th e g un s w e re sto le n b e c a us e that is what De fenda nt told him but he did not have pe rsonal knowledg e of this fac t. H e also said that he did not remember

the names of

the men w h o got in the truck with Def endant, a nd he only

rec alled-4-

that the date of

the incident wa s J anuary

10, 2005, beca

use t he defense attorney said that it occurr ed on that date. Mr. H owell re iterate d that the burg lary occur red six mont hs p ri o r t o t he incident a nd stated t h at h e was sure the burg lary was re ported to the sheriff’s de partment. He said he would be surprised to lea

rn that no burg lary

had bee n reported to the sherif f’s de partment in 2004.

Wil liam Nelms testified that he lived in a house on the sawmill property owned by

Def endant and had known Def

endant f or twenty y ear s. Mr. Nelms said that De fenda nt did not carry a pistol and ha d no t ow ne d a pis tol sin c e his ho us e wa s bu rg lari zed a nd his g un s we re sto le n. On c ro ssexamination, Mr. Nelms said the burg lary occur red “ three or four months” prior to the January 10, 2005 incident. B eca

use he w as unsure about the date of the burg lary , Mr. Nelms said he would not be surpr ised to learn that there w ere no burg laries reported to the sherif f’s off ice in 2004. He further stated that he did not actua lly know whether Def endant owne d any

pistols. He said that althoug h he ha d n e ve r p e rs on a lly

se e n D e fe nd a nt w ith a

pis tol , it wa s p os sib le that D e fe nd a nt o wn e d a pis tol

. Deputy Andy Hamburg of the Ha

rdema n Sheriff’ s Depa

rtment testified t hat he took the initial report of the incident from Mr. J enkins. He f urther te stified that an inquiry reve aled that no bur g laries had bee n reported to the sherif f’s de partment in 2004. Howe ver, he did find a re port of a bur g lary in the latter pa

rt of 2003. On cross-e x amination, Deputy Hamburg said that he did not r ead the report of the burg lary . He state d that he spoke w ith Mr. J enkin s an d M r. Brown a bout what occ urre d on J anuary 10, 2005, but did not speak to Def endant until afte r cha

rg es had be en filed. H e neve r

sear ched f

or a g un or a sa w a gu n i n p l ai n view in Def endant’ s truck. His re port included a de sc ri pti on of

a ru sty , . 38 c a lib e r p ist ol b e c a us e that is the de sc ri pti on g ive n to him by Mr . Jen kin s. Deputy Hamburg was aware that a si milar claim was filed aga inst Def endant in 2000 and he admitted using this knowledg e during his investigation of the J anuary 2005 incident.

II. Ana lys is

A. Sufficienc y of the Evidenc e

Def endant first contends that the evidence was insufficient to convict him of assault bey ond

a re a so na ble do ub t. In s up po rt

of his arg ume nt, he a sse rt s th a t Mr. Jenkins ’s te sti mon y wa s in c re dib le beca use he c laimed t h at De fendant pointed a fire arm a t him and threate ned him for no r eason. H e further asserts that Mr. J enkins g ave inc onsistent descriptions of the we apon. Specifically , Mr. J enkins could not describe the color of the we apon or w hether it wa s a long or short bar rel pistol. He

a lso a sse rt s th a t Mr. Jenkins ’s c la im tha t he wa s mad a t De fe nd a nt fo r f or c ing him

int o a mudpu dd le is inconsistent with t he ey ewitness testimony . He arg ues t hat t he ey ewitnesses obse rved nothing out of the ordina

ry and saw only

Def endant giving Mr. J enkins a ride in his truck. Fina lly , he asse rts that Mr . B ro wn didno t c or

ro bo rate Mr . Jen kin s’ s c la im tha t he wa s thr e a te ne d an d p oin ts o ut tha t he did not contact the police or volunteer information until contacted by the sherif

f’s off ice.

On app e a l, the s ta te is e nti tle d to the str on g e st l e g iti ma te vie w o f the e vid e nc e a nda ll

rea sonable infe renc es which mig ht be dra wn there from. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 1978) . The c redibility of the witnesse s, the weig ht to be g iv en t h ei r t es timony , and the-5-

rec onciliation of conflicts in the proof a re ma tters entrusted to the jury as the trier

of fa ct. Byrge v

. Sta te , 5 75 S.W. 2d29 2, 29 5 ( Te nn . Crim. Ap p. 19 78 ). Whe n th e su ff ic ie nc y of the e vid e nce is

c ha lle ng e d, the re le va nt q ue sti on is w he the r, a ft e r r e vie wi ng the e vid e nc e in the lig ht m os t f a vo ra ble to the state, any

rational trier

of fa ct could have found the essential elements of the crime be y ond a

re a so na ble do ub t. Ten n. R. App. P. 1 3( e ); State v. W illiams , 657 S.W .2d 405, 410 (Tenn. 1983)

. “This rule is applica

ble to finding s of g uilt predicate d upon direc t evidence , circ umstantial evidence
, or a c ombination of both direct and c ircumstantial evidenc e.” State v. Land , 34 S.W .3d 516, 533 (Tenn. Crim. App. 2000) . Be cause a ver dict of g uilt aga inst a defen dant re moves the pre sumption of innoce nce a nd raises a

presumption of g uilt, the convicted criminal defe ndant bea rs the burde n of showing that the evi d en ce wa s leg ally insufficient to sustain a g uilty verdic t. State v. Ev ans , 838 S.W .2d 185, 191 (Tenn. 1992)

.

Te nn e sse e Cod e An no ta te d s e c tio n 3 9

- 1 3

- 1 0 1 p r o v i d e s i np e rt ine nt p a rt that a pe rs on c omm its assault who intentionally

or knowing ly

cause s another to r easona bly fea r im m inent bodily

injury

. T.C.A. § 39-13-101( a)( 2). I n the ca se sub judice , Mr. J enkins testified that as he was wa lking to the mill wit h Mr. B rown, De fenda nt pulled his truck behind them, swer ved at them, a nd cause d the
tw o me n to jump in to a

mudpu dd le . A t D e fe nd a nt’ s in str uc tio n, Mr . Jen kin s a ndMr . B ro wn g ot i nto his truc k w he re De fe nd a nt i mme diate ly pu t a g un to M r. Jenk

ins’s head a ndsa id, “ [b]oy , I ’l l ki ll y ou .” De fe nd a nt c on tin ue d to hold the g un to Mr . J e nk ins ’s he a d, wi th his ha ndon the tr ig g e r, wh ile driving to the mill. M r. B rown testified th at fr o m his posit ion in the back of the truck he saw De fe nd a nt p ut the g un to M r. Jenkins ’s he a d. Mr . J e nk ins sa id that he wa s “ sc are d” a nd“ ne rv ou s” and that he f

ear ed for his life and had c ontinued to do so until the time of trial. Mr. Nelson testified that he witnes s ed t h e truc k ride a nd did not see De fenda nt put a g un to Mr. J enkins’s hea d. Mr. Howell and Mr

. Nelms testified that Def endant did not own any

g uns because they

had bee n stolen du ri ng a ho me bu rg lary

. As e vid e nt by De fe nd a nt’ s c on vic tio n, the jury re so lve d a ny

dis c re pa nc y

in evidenc e in favor of the S tate. We conclude tha t the jury could re asonably

find Def endant g uiltyof assault and we will not second-g uess the jury ’s determination. Acc ording ly
, Def endant is not entitled to relief on this issue.

B. Evide nce of Prior Conduct

Def endant ne x t contends that the trial c ourt should not have allowe d th e p r o s e c u to r to question Mr. David Ne lson about a prior a g g ravated assault cla im a g ainst Def endant. The g ener al rule is that

e vid e nc e of

pr ior c on du c t is ina dmi ssi ble , e sp e c ia lly whe n prev io us crime s o r a c ts a re of the sa me char acte r as the char g ed off ense, be cause such evide nce is irr eleva nt and invites the “finde r of f act to infer g u i l t fr o m propensity .” State v. Hallock , 875 S.W .2d 285, 290 (Tenn. Crim. App. 1993)

. Tenne ssee Rule of E vidence 404(b) pe rmits the ad m i s s i o n o f evide nce of prior conduc t if the evidenc e of othe r ac ts is relevant to a litigated issue such as identity
, intent, or rebuttal of acc ident or mistake, and the pr obative value outweig hs the dang er of unfair pr ejudice. See Tenn. R. Evid. 404(b) Ad vis ory Com m’ n Co mme nts ; State v. Parton , 6 94 S.W. 2d 29 9, 30 3 ( Te nn . 1 98 5) ; State v. Hooten
, 735 S.W .2d 823, 824 (Tenn. Crim. App. 1987). Howeve r, “[e]vidence of other c rimes, wrong s, or

a c ts is no t a dmi ssi ble to pr ov e the c ha ra c te r of a pe rs on in o rd e r t o s ho w a c tio n in c on fo rm ity wi th the c ha ra c te r tr ait.” Te nn . R. Ev id. 40 4( b) . B e fo re a dmi tti ng e vid e nc e un de r r ule 40 4( b) , th e ru le-6-

provides that (1) upon reque st, the court must hold a hearing outside the j ury ’s presence ; (2) the c ourt must determine that the e vidence is probative on a material issue and mus t, if reque sted, state on the

rec ord the mate rial issue and the rea sons for a dmitti ng or excluding the evidenc e; and ( 3) the c ourt

mus t e xclu de the e vid e nc e if the da ng e r o f u nf

a ir pr e jud ic e ou tw e ig hs its pr ob a tiv e va lue . T e nn . R. Evid. 404(b).

I n the pre sent ca se, during a pre -trial hea ring , the following discussion was held:

THE COURT: Counsel, what’s the issue y ou want the Court to decide h e r e s p e c i f

i c a l l y?

[TR I AL COUNSEL ]: Specifica lly , if there is testimony t h at s t ates that Mr. Howell did not have a

h an d gu n with him on that day

a nddidno t r ou tin e ly

or re g ula rl y c arry a ha nd g un int o the sa wm ill , th a t th a t w ill no t pr ov ide the op po rtun ity for Mr. V an Dy

k e t o b ring up [Defenda nt’s] prior conviction.

THE COURT: All rig ht. That re q u es t wi l l b e denie d. Any other p r e l i m i n ar y

i s s u e s ?

G E N E R A L

V A N D Y K E : I ’ m s o rr y

. W h a td i d t h e C o u r tru l e ?

TH E CO UR T: I de nie d his mot ion , his re qu e st, be c a us e the a ff ida vit that we ha ve a f

inding of g uilty on appar ently

occur red at the same sawmill that’s at issue today

. During t h e t es t i mony

of Mr. Da vid Nelson, trial counse l asked Mr. N elson if he ha d seen Def en d ant carry ing a

firea rm or pistol during the thirteen months he had be en employ ed at the sawmill. Mr. Nelson denied e ver se eing Def endant with a g un. On cross-examination, the prosecutor asked Mr . Nelson if he w ould be surprised to learn that on a prior occ asion in 2000, a complaint wa s filed ag ainst D ef

en d an t fo r ag g ravated assault in which the c omplainant alleg ed that he w as at the sawmill when De fenda nt pulled a g un on him, cocke d it twice, and pointed the gun at his head. Ove r objection from the de fense , the t rial court found t hat t rial counsel opened the door t o the prosec utor’s question by

asking Mr. Nelson if he had seen Def endant with a gun during the cour se of his thirteen months of employ ment. Thus, the prior a g g ravat ed as s au l t complaint ag ainst Defe ndant was mentioned in the pre sence of the jury . The co m p l ai n t wa s also ref ere nced during subse quent testimonyfrom other

witnesses as we ll as closing a rg ument. The pertinent portions of the testimony

a t is su e are a s f

oll ow s:

[TR I AL COUNSEL ]: You’ve been w orking [at the sawmill] for thirtee n (13)

mon ths ?-7-

MR. NEL SON: Yes, sir.

[T RIA L CO U N SE L ]: I n that thirteen (13) mo n th s , h a v e y ou seen Mr. Gr a nv ill e c arry

a fi re arm - - a pis tol ?

MR. NEL SON: No, sir.

* * *

G E N E R A L V A N D Y K E : [Tr ia l C o u n s e l ] a s k e d y o u a n i n t e r e s t i n g qu e sti on , if y ou’ve e ver know n Mr. Howe ll to have a g un.

MR. NEL SON: No, sir.

GENERAL

VAN DY KE: Neve r have ?

MR. NEL SON: No, sir, not the whole time I ’ve w orked the re.

G E N E R A L

V A N D Y K E : A tn o t i m e w h a t s o e v e r ? N o te v e n a r i f l e ?

MR. NEL SON: He may have. H e’s a

farmer, g ot cows.

GENERAL VAN DYKE: Okay

. Well, would it come as a surprise to y ou, then-

[TR I AL COUNSEL ] Your Honor ?

T H E C O U R T : D o y o u w a n tt o ap p r o a c h ?

( Wh er eu p on , a benc h confe renc e wa s had on the re cord in the pr esenc e of the jury bu t ou t of the he ari ng of

the jury a ndthe fo llo wi ng pr oc e e din g s w e re ha d, to- wi t:)

[TR I AL COUNSEL ]: I know we discussed this ear lier. I think Mr. Van Dy ke is s tr e tc hin g the re sp on se that I ha d w he n I a sk e d h im in the time that he had worke d there
, the thirteen ( 13) months that h e had wor

ked ther e, if he had eve r see n Mr. Howe ll with a gun.

GENERAL VAN DYKE: I don’t t h i n k h i m t ry i n g to limi t that time fra me can keep me from bring ing up w hat had happened on that oth e r o c c a sio n. I

thi nk that he ha s o pe ne d th e do or to whether o r n o t Mr. Howell had g uns there at the lumber y ard.-8-

[TRIAL CO UN SEL ]: Yo ur Ho no r, thi s h app e ne d in 20 00 . M r. Ne lso n s a id he ’s on ly wo rk e d th e re fo r thirte e n ( 13 ) m on ths

.

GENERAL

VAN DY KE: And I

think the State - -

THE COURT: L et me see that judgme nt.

G E N E R A L V A N D Y K E : Mr . Je n k i n s s a i d M r. Ho we ll h a d d on e thi s to him befor e.

THE COURT: What was y our l ast question to the gentle m an? Have y ou ever know him to - -

GENERAL

VAN DY KE: I said [t rial counsel] asked him if h e had bee n known

to have a g un at the saw mill.

TH E CO UR T: An d th e n y ou a sk e d h im t ha t a s w e ll.

GENERAL VAN DYKE: I f he would find it surprising to know that at this point he did.

THE COURT: Any thing f urther.

[TR I AL COUNSEL ]: No, Your H onor.

THE COURT: I think the door has b ee n o p ened. I ’m g oing to allow it.

(Said bench confe renc e having been completed, the f ollowing pr ocee dings w ere had

on the re c or d in the pr e se nc e a ndhe ari ng of the jury , to -w it: )

THE COURT: You’ll nee d to restate y our question.

GENERAL

VAN DY KE: Mr. Nelson - -

MR. NEL SON: Yes, sir.

GENERAL VAN DYKE: - - y ou say y ou’ve never known [Defenda nt] to have a g un the re a t th e sa w m ill

.

MR. NEL SON: No, sir, neve r known it.-9-

GE NE RA L

VA N D YKE: So wou ld it com e a s a sur pr ise to y ou to kn ow that in October of 2000 a Mr. Curtis Br own filed a complaint for a g g ravated assault say ing that at the sawmill Mr. Gra nville H owell pulled a g un on him and pointed it at h i s h e a d ? W o u l d t h a tc o m e a s a s u rp r i s e t o y o u ?

MR. NE L SON : Ye s, sir , it sh oc ke d me . I

wa sn ’t the re so I c ou ldn ’t te ll y ou whether

he did or didn’t.

G E N E R A L V A N D Y K E : W e l l
, I’ l l t e l l yo u w h a t

. J u s tt o s h o w y o u , t h i s s a ys “On the above date Curtis B rown g ave information that he wa s at Gra nville Howe l l ’s s awmill in Bolivar, Ha rd e ma n Co un ty , T e nn e sse e , wh e n G ra nv ill e Ho we ll pu lle d ou t a g un on him
, c oc ke d it tw ic e a nd po int e d it

a th i s h e a d

. ” T h a t ’ s w h a tt h a ts a y s , i s n ’ ti t ?

MR. NEL SON: Yes.

We first note that mentioning the prior c harg e ag ainst Defe ndant does not fa ll into one of the

rec og nized ex ceptions for admitting evide nce of

prior bad a cts, i.e., identity , intent, or rebuttal of

acc ident or mistake. See Tenn. R. Evid. 404(b) Advisory Comm’n Comments. Furthermore
, the trial judge did not specifica lly weig h the proba tive value of the evidenc e ag ainst its potential pre judicial eff ect in his finding s of fac t, nor do any of his c omments indicate that he considere d the ev i dence highly probative of

any particula r litiga ted fa ct. Tenn. R. Evid. 404(b). I n our view, the testimony

a t is su e la c ke d a ny

sig nif ic a nt pr ob a tiv e va lue a s to th e c ri me a lle g e d a ndre fl e c te d o nly a pr op e ns ity on the part of Def

endant to have committed the crime. Te nn. R. Evid. 4 0 4 (a ). Ac cording ly , we conclu d e t h at t h e trial court failed to c omply with the require ments of 404(b), a nd the evidenc e admitted as a r esult of this failure pr esente d a dang er of unfair pr ejudi ce t h at out weig hed any probative va lue the evide nce ma y have posse ssed.

Neve rtheless, view ing the contested e vidence in light of the e ntire re cord, w e find that it was harmless e rror to allow evidence of a prior c laim ag ainst Defe ndant to be admitted. Te nn. R. App. P. 36. Mr. J enkins positively identified Def endant at trial, and testi fied that Def endant held a g un to h is h e a d, wi th h is fi nger on the tr ig g e r, a ndthr e a te ne d M r. Jenkins ’s lif e . M r. B ro wn a lso positivelyidentified De fenda nt at t rial, identify ing him both as his employ er, a nd the man who he had

se e n h olda

g un to M r. Jenkins ’s he a d. Th is e vid e nc e wa s su ff ic ie nt f or a c on vic tio n o f a ssa

ult without the collatera l evidenc e of the prior char g e aga inst Def endant. Additionally
, as poi nted out by the State, the jury

acquitted Defe ndant of the charg ed offense of ag g ravated assault despite ha ving k n o w le d g e th a t a p r e v io u s c o mp la in t ha d b e e n f il e d a g a in s t D e f

e n d a n t f o r a n id e n ti c a l o f

f e n s e

. We fi n d t h i s p er s u as i v e a n d co n cl u d e t h at t h e j u ry“w as n o t u n d u l y o r u n fa i rl y af fe ct ed ” b y

k n o wl ed ge of the prior

complaint. Se e Sta te v . Ve nit a Mic he lle Bu rc he ll , No. M2002-02153-CCA-R3-CD, 2001 WL 31520651, *10 (Tenn. Crim. App., at Nashville, Nov. 13, 2002) ( no Tenn. R. App. P. 11 application filed) . Def

endant is not entitled to relief on this iss ue.-10- C. I neff ective A ssistance of Counsel

I n his final issue, Def

endant asserts tha t “ if this Court finds that trial counsel ope ned the door to admission of his prior conviction by asking Mike Nelson about his knowledg e as to whe ther in the last thirteen month s t h e Appellant had a f irea rm” then this Court should find that “counse l was ineffe ctive and [Def

endant] suffer ed as a

result of this ineff

e c ti v e n e s s .” De fendant specifica lly arg ues on appea l that trial counsel was ineffe ctive beca use (1) he failed to f

ile a motion in lim ine to exclude evidenc e of D efe ndant’s prior conviction; (2) he mistakenly believed the prior convic tion would be admissible; (3) he f

ail ed t o o b

j ect to the St ate’ s introduction of evidenc e of the prior ag g ravated assault complaint; (4) he failed to objec t to Deputy Hamburg ’s testimony

reg arding the prior

c on vic tio n; ( 5) he fa ile d to ob je c t to the Sta te ’s us e of

the pr ior c on vic tio n d ur ing c los ing arg ume nt, (6) tria l counsel discussed the c onviction during closing arg ument, and trial c ounsel opene d the door for a dmission of the prior assault into evidenc e.

We f ir st n ote that c la ims of

ine ff e c tiv e a ssi sta nc e of c ou ns e l are g e ne ra lly mor e app ro pr ia te ly raised in a petition f

or post-conviction relief rathe r than on direc t appea l. Se e Sta te v . Ca rru the rs , 35 S.W .3d 516, 551 (Tenn. 2000). This Court has consist ently “wa rned de fenda nts and their counse l of the dang ers of

raising the issue of inef

fec tive assistance of t rial counsel on direc t appea l because of the s ignif icant amount of development and fa ct finding such an issue e ntails.” Ke nd ric k s v . S tat e , 13 S.W .3d 401, 405 (Tenn. Crim. App. 1999)

. Raising the issue of ineff ective a ssistance of c ounsel on direc t a ppeal is “a

prac tice fr aug ht with peril.” State v. Thompson , 958 S.W. 2d15 6, 16 1 ( Te nn . Crim. App. 1997). This peril is t wo-fold. First, ineffe ctive assistance can r are ly be esta blished without an evidentiary

hearing. See Strickland v. W ashington
, 466 U.S. 668, 689-90, 694, 104 S. Ct . 2052, 2065, 2067, 80 L . Ed. 2 d 6 7 4 (1 984). Post-conviction proce dures a ffor d an evide ntiary hearing to a Def endant with color able c laims. See T.C.A. §§ 40-30-109( a), - 110 (2006). Sec ond, raising the issue in the direc t appeal co u l d result not only in losing on appe al, but also in barring the claimant from ra ising the issue la ter in the post-c onviction are na. T.C.A. §§ 4 0 -3 0-106(f ) & (h) ( 2006). A post-conviction claim for ineffe ct i v e as sistance of

counsel will be dismissed wher e that cla im has pr e vio us ly

be e n d e te rm ine d b y

a no the r c ou rt . T .C. A. § 4 0- 30 -1 06 (f ). “ A g ro un d f

or re lie f i s pr e vio us ly

de te rm ine d if

a c ou rt of c omp e te nt jurisd ic tio n ha s ru le d on the me ri ts a ft e r a fu ll a ndfa ir he ari ng . A fu ll a nd fa ir he ari ng ha s oc c ur re d wh e re the pe tit ion e r i s a ff or de d th e op po rtun ity

to c a ll witnesses and othe r w is e p r e s e n t e v id e nce, r eg ardle ss of whethe r the pe titioner actua lly introduced a ny evidenc e.” T .C.A. § 40-30-106(h) . Howeve r, bec ause t h ere is nothing bar ring a def endant f rom bring ing a n ineffe ctiveness c laim in a direc t a ppeal, we will procee d with our ana ly sis of Defe ndant’s

c la im.

Un de r T e nn e sse e Cod e An no ta te d s e c tio n 4 0- 30 -1 10 (f ) ( 20 03 ), a

de fend ant se e kin g po stconviction re lief on the ba sis of ineffe ctive assistanc e of c ounsel is require d t o p ro v e h i s or her alleg ations “by

clea r and c onvincing evidenc e.” T his same standar d applies even when the claim of in e f f e c ti v e a s s is ta n c e o f

c o u n s e l i s r a is e d o n d ir e c t a p p e al. S t a t e v

. B urns , 6 S.W .3d 453, 461 n.5 (Tenn. 1999) (citing State v. Ande rson , 835 S.W .2d 600, 607 (Tenn. Crim. App. 1992) ). The f actua l finding s entere d by

the pos t-conviction court are conclusive unless the defendant e stablishes that the eviden ce p re p o n derates ag ainst those finding s. Fi e lds v . S tat e , 40 S.W .3d 450, 457 (Tenn. 2001)

.-11-

For a def endant to succ essfully

overturn a

conviction base d on ineffe ctive assistanc e of c ounsel, the defe ndant must first establish that the service s rende red or the advice given was below “the rang e of competenc e dema nded of attorney s in criminal case s.” Ba x te r v . R os e , 523 S.W .2d 930, 936 (Tenn. 1975). S econd, the defe ndant m ust show that the deficiencie s “ac tually had an a dverse eff

ect on the defe nse.” Strickla n d

v. W a s h i n gton , 466 U.S. 668, 693, 104 S. C t. 2052, 2067, 80 L . Ed. 2d 674 (1 98 4) . T he de fe nd a nt i s n ot e nti tle d to the be ne fi t of hin ds ig ht; the de fe nd a nt m a y no t se c on d- g ue ss

a re a so na bly ba se d tria l s tr ate gy ; andthe de fe nd a nt m a y no t c ri tic ize a

so un d, bu t un su c c e ssf

ul, tactica l decision made afte r ade quate pr epar ation for the c ase. Ad k ins v . S tat e , 911 S.W .2d 334, 347 (T e nn . Crim. Ap p. 19 94 ); Coo pe r v . S tat e , 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

.

I n this ca s e, al t h o ug h Def endant’ s counsel at the he aring on the motion for new trial made leg al ar g uments and re fer ence s to the transcript, Defe ndant did not testify , nor did he e licit testim ony of his trial counsel o r an y o t h er ev idence in support of his assertion that his trial counsel r ender ed ineffe ctive assistanc e of counsel. Given the nature of the re cord, it is easy to conclude that Defe ndant failed to provide clea

r and convincing proof of ineffe ctive assist ance of counse l, despite being g iven the opportunity

to do so. I n any

event, a s discussed ea

rlier in this o p i n i on, the er ror in mentioning Def endant’ s prior criminal charg e is attributed to the trial c ourt. This is beca use t he trial court fa iled
to fo llo w the pr oc e du ra l re qu ir e me nts of Te nn e sse e Rul e of

Ev ide nc e 40 4( b) fo r a dmi tti ng pr ior a c ts of the de fenda nt into evidence. As such, we cannot, a s Defe ndant urg es, conc lude that trial counse l was inef fec tive in opening the door to admit the prior conviction. Nor can we find counsel inef fec tive for f ailing to f ile a motion in lim ine to exclude the prior c onviction. Rule 404(b) requires only that counsel re quest a he aring be conduc ted outside th e p re s en ce of the jury in order to de termine the admissibili ty

of the e vidence

. The recor d ref lects t hat at counsel’s request the trial court addr essed the is s u e o f th e p r io r c o n v ic ti o n o u ts id e th e p r e s e n c e o f th e ju r y

. A lth o u g h th e o u tc o me of that hearing was unfavor able to D efe ndant, he ha s not demonstrated that he was pre judiced by

counsel’s decision not to file a motion in limi ne. With respect to the r emainder of De fenda nt’s claims that counsel wa s ineffe ctive, he f ailed to ra ise these claims either in his amende d motion for new tria l or

a t th e he ari ng on the mot ion fo r ne w tr ia l. Th e se c la ims c a nn ot b e ra ise d f or the fi rs t ti me on app e a l. State v. Alvarado , 9 61 S.W. 2d 13 6, 15 3 (T e nn

. Cr im. Ap p. 19 96 ) (s ta tin g “ a n is su e ra ise d f or the fi rs t time on appea l is waived”) . Even had the claims not been waived, Defe ndant has failed to show he was pre judiced. Ha ving f

ailed to ca ll trial co u n s el as a witness, we c annot pre sume that counsel’ s de c isi on no t to ob

je c t to te sti mon y

abo ut the pr ior

c on vic tio n o r h is u se of

the pr ior c on vic tio n in

c los ing arg ume nt w e re a nythi ng oth e r tha n tria l strate g y . Ac c or din g ly , D e fe nd a nt i s n ot e nti tle d to relief on this iss ue.

CO NC LU SION

For the fore g oing r easons, the judg ment of the trial c ourt is affirmed.

_____________________________ THOMAS T. WOODAL

L , J UDGE