IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE 

 AT KNOXVILLE 

 January 24, 2024 Session 

JONATHAN M. COOPER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County 

No. 118011 Steven W. Sword, Judge 

 No. E2022-01776-CCA-R3-PC 

The Petitioner, Jonathan M. Cooper, appeals the denial of his petition for post-conviction 

relief challenging his multiple convictions for aggravated sexual battery, incest, and rape 

of a child. On appeal, the Petitioner argues the post-conviction court erred in denying his 

motion to continue the evidentiary hearing requesting more time to develop recently 

discovered evidence—the report of the victim’s medical examination. The Petitioner also 

contends the post-conviction court erred in denying relief because (1) the State violated his 

due process rights by failing to disclose Brady evidence at trial, i.e., the report of the 

victim’s medical examination; (2) he received the ineffective assistance of counsel due to 

trial counsel’s failure to familiarize himself with Rule 412 of the Tennessee Rules of 

Evidence, and this failure resulted in the exclusion of evidence of the victim’s sexual 

behavior with her stepbrother; (3) he received the ineffective assistance of counsel due to 

trial counsel’s failure to object to the State’s improper closing argument; (4) he received 

the ineffective assistance of counsel due to trial counsel’s failure to properly address the 

issue of venue; and (5) the cumulative effect of trial counsel’s deficiencies, along with the 

State’s withholding of Brady evidence, violated his right to a fair trial. After 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 

KYLE A. HIXSON, J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., and TOM GREENHOLTZ, JJ., joined. 

Eric Lutton, District Public Defender; and Jonathan Harwell (at hearing and on appeal), 

and Joseph Sandford (at hearing), Assistant District Public Defenders, for the appellant, 

Jonathan M. Cooper. 

Jonathan Skrmetti, Attorney General and Reporter; Ronald L. Coleman, Senior Assistant 

Attorney General; Charme P. Allen, District Attorney General; and Nathaniel Ogle, 

Assistant District Attorney General, for the appellee, State of Tennessee. 

09/11/2024
- 2 - 

OPINION 

I. FACTUAL AND PROCEDURAL HISTORY

 

A. Trial 

In 2016, the Petitioner was charged by presentment with two counts of aggravated 

sexual battery, five counts of incest, and five counts of rape of a child. See Tenn. Code 

Ann. §§ 39-13-504, -522; -15-302. These allegations involved the Petitioner’s alleged 

sexual abuse of his biological daughter, F.C.,1 and were alleged to have occurred at 

different locations over two sequential time periods: first, between May 28, 2013, to May 

27, 2014, at the victim’s grandparent’s house, where the victim stayed with the Petitioner 

and other relatives; and second, between May 28, 2014, to April 2015, at an apartment in 

Country Oaks Apartments, where the Petitioner and his wife, the victim’s stepmother, later 

moved. See State v. Cooper, No. E2018-00622-CCA-R3-CD, 2019 WL 2185219, at *1-2 

(Tenn. Crim. App. May 21, 2019), perm. app. denied (Tenn. Sept. 18, 2019). 

At the outset of the March 2017 trial, the trial court asked the parties if there were 

any preliminary matters to address. The prosecutor stated that he wanted to make the trial 

court aware “that there was no [Rule] 412 notice in this case” and that the State, therefore, 

“wouldn’t expect any testimony regarding any other sorts of sexual acts on the part of the 

victim[,]” who was twelve years old at the time of trial. Thereafter, trial counsel indicated 

that he did not have any preliminary matters for the trial court on behalf of the defense. 

The trial proceeded. 

The victim [provided her birthdate and] testified . . . that the 

[Petitioner] is her father. Initially, the [Petitioner] lived with his parents, the 

victim’s grandparents, and he had custody of her “every weekend.” The 

victim testified that she would stay with the [Petitioner] in his bedroom 

where she had a small bed to herself. 

The victim testified that one night, when she was “[a]bout nine” and 

in the fourth grade, the [Petitioner] closed the door to his bedroom and told 

her to come to his bed. The [Petitioner] then “started touching [her] private 

parts” over her clothing. The victim explained that her “private parts” were 

her “[b]oobs and vagina.” When he was finished, the [Petitioner] told the 

victim to go back to her bed. The victim testified that she did not tell anyone 

1

 It is the policy of this court to refer to minors and victims of sexual offenses by their initials. 
- 3 - 

about this because she “was scared.” According to the victim, this happened 

“[l]ike three or four times.” During these incidents, the [Petitioner] would 

instruct the victim to take off her clothes and touch his penis. The victim 

recalled an incident at her grandparents’ house when the [Petitioner] “put his 

penis in [her] mouth and kissed and licked [her] privates.” 

The victim testified that around the time she turned ten and started the 

fifth grade, the [Petitioner] got married and moved into an apartment with 

his wife. The [Petitioner] and his wife had a baby . . . in June 2014. The 

victim testified that she shared a bedroom with her baby brother when she 

stayed with the [Petitioner]. 

The victim recalled that, late one night, the [Petitioner] entered her 

bedroom and took her baby brother out of the room. The [Petitioner] returned 

to the room without the baby, he shut the door, took off his clothes, and took 

off the victim’s clothes. The victim testified that the [Petitioner] then started 

“kissing and touching” her “vagina and boobs.” The victim testified about 

another incident when the [Petitioner] took her baby brother out of the 

bedroom, came back without the baby, took off both of their clothes, and 

“[p]ut his penis in [her] mouth and was touching and licking [her] private.” 

When he finished, the [Petitioner] had her put on her clothes and go back to 

bed. 

The victim testified that the final incident occurred at the 

[Petitioner’s] apartment when she was eleven. On that night, the [Petitioner] 

penetrated her vagina with his penis. The victim testified that the [Petitioner] 

was “[g]oing back and forth” with his penis for “a short amount of time” 

before the [Petitioner] “took his penis out of [her] vagina and put white stuff 

on [her] stomach.” The [Petitioner] then put his clothes on, took the victim 

to a bathtub, and “washed it off.” The victim testified that she dried off, 

dressed, and went back to bed. 

After the last incident, the [Petitioner] and his wife moved from their 

apartment to a house. The victim testified that she “waited for a little bit after 

[the Petitioner] moved into his new house” to tell her mother because she 

was “nervous about what they were gonna say and still scared.” In November 

2015, the victim told her mother about what the [Petitioner] had done. The 

victim explained that she “didn’t want it to happen any longer.” 
- 4 - 

The victim testified that no one had told her what to say, that her 

testimony was the truth, and that what she had testified to had really 

happened. The victim testified that she did not sleep in a separate bedroom 

at her grandparents’ house when these incidents occurred. The victim 

clarified that she only slept in a separate bedroom at her grandparents’ house 

“after this like quit.” Additionally, the victim was inconsistent about when 

the last incident took place. The victim initially testified that it occurred 

during the summer, after school had ended for the year. The victim then 

testified that it occurred before her birthday in May, maybe in April, but 

before school had ended for the year. 

Cooper, 2019 WL 2185219, at *1-2. 

 In addition to these details,2 the victim also testified that at the time of trial, she was 

twelve years old, was in the seventh grade, and attended a middle school in Union County. 

She confirmed that her grandparents’ house was located in Knox County and that the 

apartment the Petitioner moved to in 2014, when she was around ten years of age, was 

located inside Country Oaks Apartments complex. When the Petitioner and his wife 

moved into the apartment, the Petitioner’s wife’s mother still lived there, but the 

Petitioner’s wife’s mother subsequently moved out. The victim described who stayed 

where and the furniture in the bedrooms over the time period she visited with the Petitioner 

at the apartment. The victim testified that when she was around eleven, the Petitioner and 

his family moved from the apartment to a residence on Ellison Road. 

The victim also confirmed that she was interviewed about these allegations at the 

ChildHelp center by a woman named “Nicole.” The victim stated that after this interview, 

she had remained at her mother’s house “ever since[.]” 

 On cross-examination, trial counsel asked the victim about her testimony on direct 

examination that she had remained in the home with her mother and stepfather “ever since” 

reporting these allegations. When prompted, the victim agreed that this was not “really 

true[.]” The victim then stated, “But like when I moved out of my dad’s, I was there.” 

When trial counsel again attempted to clarify if the victim had remained at her mother’s 

ever since, the prosecutor objected, and a bench conference ensued. 

The prosecutor indicated trial counsel was “about to try and go into a brief period” 

when the victim was in the custody of the Department of Children’s Services (“DCS”) due 

2

 By order dated April 20, 2023, this court granted the Petitioner’s motion to take judicial notice of 

the underlying trial record in this case. See State v. Lawson, 291 S.W.3d 864, 869 (Tenn. 2009) (noting 

that this court may take judicial notice of its own records). 
- 5 - 

to sexual activity with her stepbrother. The prosecutor asserted that “this line of 

questioning,” which was “starting to go down that path,” was irrelevant. Trial counsel 

responded that the evidence was first relevant because the question bore on the witness’s 

character for truthfulness. Trial counsel then argued the evidence was relevant for an 

additional reason: “After this incident, she went to her mother’s house and was perped on 

by the stepbrother, and the reason why this is relevant is she had the testimony about 

ejaculation[.]” 

The trial court interjected that this was “412 stuff[,]” to which trial counsel agreed. 

Trial counsel observed the State would likely argue the victim only gained knowledge of 

sexual matters based upon her interactions with the Petitioner, and the prosecutor replied 

he would not be arguing such. Trial counsel then said this was “not a question of her sexual 

history[,]” to which the trial court disagreed. The trial court ruled, 

And to show basis of knowledge is one of those reasons under 412 that you 

can delve into this stuff, but we specifically asked at the beginning, and you 

said you weren’t going into it so you’re precluded from it. I don’t think 

there’s any reason to get into the DCS stuff, so I’m going to grant the State’s 

objection. You can’t pursue this line of questioning. 

The bench conference ended, and testimony resumed. 

After the victim’s testimony, the victim’s mother testified that she and the Petitioner 

were both eighteen years old when the victim was born. After their relationship ended, 

they arranged a visitation schedule for the victim, which consisted of “every other week 

until [the victim] reached school age, and then she would stay with [her mother] during the 

week for school, and then she would go visit [the Petitioner] on the weekends.” To 

facilitate the victim’s exchange, she would meet with the Petitioner or his family member 

first at “the CVS in Halls” and then later at “the TVA in Halls.” The victim’s mother 

confirmed that the victim initially visited the Petitioner at his parents’ house and later at an 

apartment in Country Oaks Apartments. The victim’s mother also confirmed that the 

Petitioner’s parents’ house was located in Knox County. 

The victim’s mother . . . testified that she noticed that the victim had 

become “really withdrawn” from the time she was nine until she reported the 

abuse when she was eleven. [The victim’s mother] explained that this was 

especially noticeable when she would pick the victim up from her weekend 

visitations with the [Petitioner]. However, [the victim’s mother] admitted 

that the victim was not “withdrawn” at every pickup. 
- 6 - 

Cooper, 2019 WL 2185219, at *2. In addition, the victim’s mother testified that since the 

end of 2015, the victim was “a much happier child[,] . . . like a weight’s been lifted off of 

her.” 

 On cross-examination, the victim’s mother affirmed that there was a total of five 

children in the household she shared with her husband—three were stepchildren, one was 

the victim, and one was the child of the victim’s mother and stepfather. The victim’s 

mother confirmed that the family had taken two trips to Florida, once when the victim 

accompanied them to Disney World, and another when the victim did not accompany them 

on the trip. However, the victim’s mother clarified that the victim was twelve years old at 

the time of the family trip when the victim did not accompany them, so the trip had been 

recent. 

Knoxville Police Department (“KPD”) Investigator Shaun Sakovich testified that 

he was a police officer with the Special Crimes Unit and that he had worked with the KPD 

since 2008. Inv. Sakovich said that in November 2015, he was assigned to investigate 

allegations of sexual abuse levied against the Petitioner, following a DCS referral from 

Karen Orsulak. Ms. Orsulak had arranged a forensic interview for the victim at ChildHelp, 

which Inv. Sakovich attended. Inv. Sakovich testified that he observed the victim through 

a two-way mirror during her forensic interview at the ChildHelp facility and that she “cried 

for an extended period of time.” Cooper, 2019 WL 2185219, at *2. 

In addition, the day after the victim’s forensic interview, Inv. Sakovich attempted 

to contact the Petitioner at the Petitioner’s workplace, a radio station “off of Old Kingston 

Pike,” but the Petitioner was not present. Inv. Sakovich “learned that [the Petitioner] was 

at . . . another position doing part of his job” at a car dealership on Parkside Drive, so Inv. 

Sakovich proceeded to that location. Once at that location, Inv. Sakovich located the 

Petitioner and spoke with him about these allegations. According to Inv. Sakovich, the 

Petitioner’s demeanor during the interview “started off as confusion and then went more 

towards like worry and concern[.]” Inv. Sakovich then returned to the Petitioner’s 

workplace off of Old Kingston Pike to speak with the Petitioner’s wife. Inv. Sakovich 

described the Petitioner’s wife as “very assertive” when he spoke with her. 

Inv. Sakovich testified that through conversations with the Petitioner, as well as 

“some background investigation” that included a review of “driver’s license records[,]” he 

was able to determine that the Petitioner lived at three different locations during the 

relevant time period. Inv. Sakovich stated that he “believed” the Petitioner moved from 

his parents’ home to an apartment in Country Oaks Apartments in the summer of 2014 and 

that, in the summer of 2015, the Petitioner moved to a residence on Ellison Road. Inv. 

Sakovich said that his recollection of these dates was based “off of like birthdays and 
- 7 - 

things” that he could remember. Inv. Sakovich also contacted “the management company 

at a particular apartment complex and confirm[ed] that [the Petitioner] was a tenant there 

for . . . a given period of time via their paper records.” 

Inv. Sakovich went to the Petitioner’s parents’ house and interviewed the 

Petitioner’s parents and the Petitioner’s sister and observed the various rooms inside the 

house. At one point, Inv. Sakovich, along with an assistant district attorney general, went 

to the victim’s school, and Inv. Sakovich observed the prosecutor speak with the victim. 

At the close of Inv. Sakovich’s direct examination, Inv. Sakovich was asked, “At 

the conclusion of your investigation . . . what did you do?” Inv. Sakovich replied that he 

“turned over [his] case file” to the prosecutor. Inv. Sakovich was then asked, “And did all 

these events take place here in Knox County?”, to which he responded affirmatively. 

Thereafter, the State rested its case. The Petitioner moved for a judgment of 

acquittal, arguing that the evidence was insufficient to support the charges, given the 

victim’s inconsistent testimony and the State had not proven that the allegations occurred 

within the timeframes listed in the indictment. The trial court denied the motion, and the 

defense proceeded with its proof. 

At the outset of the defense proof, the parties stipulated that “in a prior interview,” 

the victim had reported that the Petitioner “inserted his penis into her vagina and that this 

act occurred at the end of summer, 2015.” The defense then called the Petitioner’s father, 

who testified 

that the victim would sleep in his and his wife’s bed when she stayed at their 

house for the victim’s visitations with the [Petitioner]. The [Petitioner’s] 

father testified that they placed a toddler bed for the victim in the 

[Petitioner’s] bedroom in 2008. However, she continued to sleep in their 

bedroom with him and his wife. According to the [Petitioner’s] father, in 

2010, they removed the toddler bed and placed a futon in a separate bedroom 

for the victim. The [Petitioner’s] father testified that the victim never 

actually slept on the futon. Instead, she continued to sleep in his bedroom 

with him and his wife. The [Petitioner’s] father also testified that he had 

never known the victim to lie. 

Cooper, 2019 WL 2185219, at *2. 

 The Petitioner’s father was also asked on direct examination about when the 

Petitioner moved from the family home. The Petitioner’s father indicated the Petitioner 
- 8 - 

moved out of the home once the Petitioner married in 2013. The Petitioner’s father was 

asked where the couple lived after returning from their honeymoon, to which the 

Petitioner’s father replied, “He lived at their apartment . . . over in Pond Gap area. I don’t 

even—.” Trial counsel interjected, “On Papermill?” and the Petitioner’s father said, “I 

don’t even know the name of it. I couldn’t tell you the name. The Petitioner’s father 

averred that he would “beat the crap out” of the Petitioner if he thought these allegations 

were true. 

On cross-examination, the Petitioner’s father confirmed that Inv. Sakovich spoke 

with the Petitioner on a Friday and that the family often had lunch together on Sundays. 

He confirmed he had a conversation with the Petitioner about these events. 

“The [Petitioner’s] sister testified similarly [as the Petitioner’s father] about the 

sleeping arrangements at the [Petitioner’s] parents’ house.” Cooper, 2019 WL 2185219, 

at *2. She confirmed that the Petitioner was married in May 2013 and that the Petitioner 

moved into an apartment with his wife thereafter. On cross-examination, the Petitioner’s 

sister was questioned about her opinion of the victim’s character for truthfulness, and she 

said that victim had never lied to her but that the victim had “not always been honest with 

telling others the truth[.]” 

 The Petitioner’s wife affirmed that she married the Petitioner in May 2013 in 

Knoxville and that they immediately left for their honeymoon after the ceremony. She 

testified that she shared an apartment with her mother prior to her marriage to the Petitioner 

and that the Petitioner moved into that three-bedroom apartment following the marriage. 

The Petitioner’s wife’s son from an earlier relationship also lived there. The Petitioner’s 

wife confirmed that her mother moved from the apartment in September 2013. Thereafter, 

the couple had a child in June 2014. 

The [Petitioner’s] wife confirmed that the victim and [the victim’s 

baby brother] shared a bedroom in their apartment. The [Petitioner’s] wife 

testified that [her son] “was a very fussy and clingy newborn,” who did not 

sleep well and was up “every two to three hours.” The [Petitioner’s] wife 

also testified that she had no indication that there was anything “unusual 

going on” at their apartment. 

Cooper, 2019 WL 2185219, at *2. 

 On redirect, the Petitioner’s wife was asked “how did [the victim] take [her baby 

brother’s] birth.” The Petitioner’s wife replied that the victim “was slightly upset.” 
- 9 - 

“The [Petitioner’s] mother-in-law, who lived with the [Petitioner] and his wife in 

their apartment for several months, testified that she never noticed anything unusual when 

she lived with them.” Id. 

On direct examination, “[t]he [Petitioner] denied touching the victim 

‘inappropriately’” and “denied ever penetrating the victim’s vagina or engaging in any sex 

acts with her.” Id. On cross-examination, “[t]he [Petitioner] claimed that the victim never 

slept in his bedroom when he lived at his parent’s house. The [Petitioner] also claimed that 

he had never been alone with the victim, except for possibly being in a car alone.” Id. 

When the Petitioner was asked about his statement to Inv. Sakovich that he never changed 

the victim’s diaper, the Petitioner explained, “I respected the mother’s position as the 

caretaker of the child. I was raised that the mother changes the diaper of a baby based on 

gender.” The Petitioner clarified he might have changed the victim’s diaper a few times 

but only did so in emergency situations. The Petitioner also confirmed he told Inv. 

Sakovich that he never kissed the victim on the lips. When asked if he had told Inv. 

Sakovich that he had probably not spent “a hundred hours in the past year” with the victim, 

the Petitioner replied that he could not provide “a ballpark figure” but affirmed that he had 

not spent very much time with the victim over the past year. 

In addition, the Petitioner affirmed that he spoke with his wife prior to her ever 

being questioned by law enforcement. The Petitioner confirmed that he often had lunch 

with his parents on Sundays, but he averred, “I did not talk to every single one of these 

people.” He agreed that he had spoken to his witnesses prior to trial. 

At the conclusion of the defense proof, trial counsel renewed his motion for 

judgment of acquittal, revisiting the issue of the victim’s credibility as it pertained to the 

timing of her allegations. However, this motion was denied, and the parties proceeded with 

closing arguments. 

In the State’s initial closing argument, the prosecutor asserted that credibility was 

the central issue in this case, saying that it would “come down to whether or not” the jurors 

believed the victim or the Petitioner. The prosecutor, discussing why the jurors should 

believe the young victim, noted that the victim “didn’t get five minutes into that direct” 

before she started to cry, the “emotion on her face” was visible, and there was “sincerity in 

the story she told[.]” The prosecutor affirmed that “[s]he was very sincere[,]” noting the 

victim’s “body language, her demeanor, [and] the vivid nature of her description.” 

 As to the issue of “potential corroboration” of the victim’s story, the prosecutor 

said the victim’s mother had “no motive to . . . lie about this.” The prosecutor then 

described the “change[]” in the victim’s demeanor as observed by the victim’s mother: 
- 10 - 

“She wasn’t playing with her . . . stepbrothers in the car like she would normally be when 

they were driving back to their house. Instead, she was withdrawn. She was upset.” 

The prosecutor next contended the Petitioner had testified to “some amazing 

things.” The prosecutor submitted that after the Petitioner spoke with Inv. Sakovich, he 

then spoke “to every single person from his immediate family” prior to their being 

interviewed by law enforcement. According to the prosecutor, “they had an opportunity to 

collaborate” and “to try to get their stories straight,” and the defense witnesses testified 

consistently with this preplanned story. 

The prosecutor claimed the Petitioner tried “to minimize any contact that he had 

with his daughter” when questioned by Inv. Sakovich, noting that the Petitioner “wanted 

to impress upon” Inv. Sakovich that he had “never once” changed the victim’s diaper, 

“never spent any time alone with” the victim, and spent less than “a hundred hours with 

her for the past year.” The prosecutor commented that “when [he] listened to that 

interview[,] [he] thought, that’s weird.” The prosecutor asked, “Why would the 

[Petitioner] go to such great, almost ridiculous, lengths to minimize the contact he had with 

his daughter?” The prosecutor then told the jurors, “I would submit to you that that’s 

because he was scared” knowing “this story was finally coming out,” and the Petitioner 

needed to “create some separation between he and [the victim].” 

The prosecutor also pointed out that the Petitioner’s father said the victim was “an 

honest little girl” and a “truthful young lady.” The prosecutor surmised, “Members of the 

jury, [the victim] did not lie about this. She didn’t make this up. . . . She described in great 

detail the first time something happened between she and her dad.” The prosecutor 

concluded, “And I’m confident that by the close of proof you will be convinced by any 

reasonable doubt that [the victim] is not lying about these things[.]” 

Trial counsel started closing argument by stating, “So you have to decide who you 

believe.” Trial counsel asserted that it was “inaccurate to say [the victim testified] in great 

detail” and that it was not “borne out” by the proof that the Petitioner’s family was “a bunch 

of liars.” According to trial counsel, there was nothing “sinister” about the Petitioner’s 

talking with his family after he was approached by Inv. Sakovich. 

As to the allegations in the apartment, trial counsel recounted that the victim’s baby 

brother was “a fussy baby” and that the victim’s story about the Petitioner’s removing the 

baby from the room and then returning the baby to the room without waking the baby “just 

[did not] make sense.” Trial counsel said the jurors could judge the veracity of that story 

“based on [their] own life experiences” and their “own common sense.” 
- 11 - 

Trial counsel maintained that the jurors were likely wondering why the victim 

would be “lying on her father.” He continued, “It’s always a difficult question. But think 

of what you heard.” Trial counsel observed the Petitioner’s admission that he had spent 

little time with the victim during the period covering these allegations. Trial counsel noted 

that the Petitioner had remarried and had a new baby, which left the victim “feeling pushed 

out by the new family, by the new baby.” Trial counsel also noted the victim’s mother had 

taken a vacation to Florida and left the victim behind. He contended the victim was upset 

for these reasons, so she made up these allegations, and it was “too late” for the victim to 

recant because she was in “too deep.” 

Trial counsel commented that it was the jurors’ responsibility to “judge the 

credibility of these witnesses” based upon what they saw in court. Trial counsel said that 

the jurors should not discount the defense witnesses’ testimony simply because they were 

the Petitioner’s family members. Trial counsel asserted, “His father can be an honest man. 

Would you lie for your child accused of raping your grandchild?” 

Trial counsel pleaded with the jurors to ask themselves, “Does this make sense?”, 

and “Am I sure?” Trial counsel further urged the jurors to respect the reasonable doubt 

standard of proof and not to give in “out of sympathy” for the victim or to respond based 

upon emotion. 

The prosecutor then began his rebuttal argument by noting that “the big question” 

in this case was whether the victim was lying and, if so, why would she lie. The prosecutor 

commented that the victim had not admitted to being upset about her new baby brother and 

that the victim’s mother indicated the missed vacation happened after the allegations 

against the Petitioner had already been made. The prosecutor asserted that the Petitioner 

had admitted to talking “to every single person that testified,” giving them the opportunity 

to collaborate. 

In discussing the allegations that occurred at the victim’s grandparents’ house, the 

prosecutor asked the jurors, “What I’m telling you is what [the victim] said. I’m asking 

that you listen to [the victim] and that you believe in what [the victim] said[.]” The 

prosecutor explained, “[T]he reason why I’m telling you that is because you are the 

ultimate deciders of who’s telling the truth. You’re the ones who get to make that decision 

. . . . You get to make the decision about who was telling the truth.” He suggested that the 

victim was able to testify “in great detail about things” because these events “that [were] 

forever burned into her mind took place.” 

The prosecutor also acknowledged the victim had testified inconsistently regarding 

the timing of the sexual abuse but claimed she only did so because she was “nervous” and 
- 12 - 

“upset.” The prosecutor maintained that the victim was young and “that sometimes kids 

don’t remember little details[.]” The prosecutor observed that the victim clarified the 

timing on redirect. In conclusion, the prosecutor said, 

This little girl did not make up the fact that her dad got on top of her, 

took his clothes off, and put his penis inside of her vagina when she was 10 

years old, and then when . . . he was done, put ejaculate on her belly. She 

didn’t make that up. She didn’t make it up. She did not make up the fact 

that her dad, his head was at the top of the headboard and that he told her to 

put his penis in her mouth. She didn’t make that up. And then at same time 

during the same session, he then said, “You move to the top of the bed and 

I’m going to kiss your private.” And he started to do this. She didn’t make 

that up. That is absolute baloney, not true. These things happened to this 

little girl, and what she said and the story that she told you is the truth. 

 Thereafter, the jury convicted the Petitioner of the allegations occurring at the 

Country Oaks apartment—one count of aggravated sexual battery, three counts of incest, 

and three counts of rape of a child. Cooper, 2019 WL 2185219, at *1-2. The Petitioner 

was acquitted of the remaining charges that occurred at the victim’s grandparents’ house. 

Id. The trial court later imposed a total effective sentence of fifty years. 

B. Direct Appeal 

 The Petitioner filed a direct appeal to this court challenging his convictions, wherein 

he challenged the sufficiency of the evidence and raised an additional issue with Inv. 

Sakovich’s testimony that is not relevant to this appeal. See Cooper, 2019 WL 2185219, 

at *1. Relative to the sufficiency of the evidence, the Petitioner assailed the victim’s 

credibility, noting that the jury rejected the victim’s “story regarding the events at her 

grandparents’ house,” and submitting that the victim was inconsistent in her statements 

about when the last incident occurred and that her testimony about the Petitioner’s taking 

her baby brother out of the bedroom prior to sexually abusing her “strains belief.” Id. at 

*2. This court concluded that sufficient evidence supported the Petitioner’s convictions, 

observing that the testimony of a victim, by itself, was sufficient to support a conviction; 

that the jury was free to reject some portions of the victim’s testimony while accepting 

others; and that issues of witness credibility, conflicts in testimony, and the weight and 

value to be given to evidence were resolved by the jury. Id. at *4. Ultimately, this court 

affirmed the Petitioner’s convictions. Id. at *5. 
- 13 - 

C. Post-Conviction Proceedings 

1. Relevant Procedure 

The Petitioner’s pro se petition for post-conviction relief was filed on September 

17, 2020, and post-conviction counsel3 was appointed to represent the Petitioner on January 

25, 2021. Thereafter, post-conviction counsel filed six documents titled “Status Report 

and Request for Extension of Time,” sequentially, on February 23, 2021; April 27, 2021; 

June 25, 2021; September 7, 2021; November 5, 2021; and February 14, 2022. 

In the sixth “Status Report and Request for Extension of Time,” post-conviction 

counsel averred that since the last status report, he had continued working with an 

investigator to locate and interview the remaining possible witnesses and had also engaged 

in legal research relating to this case. Post-conviction counsel noted that he was filing 

several accompanying motions “seeking additional information or documentation that 

could be relevant to claims in the pro se petition or in any amended petition” and requesting 

more time for the purpose “of resolving these pending motions.” The accompanying 

motions included (1) a motion for preparation of transcripts of jury selection, opening 

statements, and closing argument; (2) a motion for discovery of any information in the 

possession of the State relating to the charges against the Petitioner and the claims made in 

the pro se petition for post-conviction relief, specifically requesting any information related 

to the disclosure the victim had engaged in sexual activity with her stepbrother, the way 

the disclosure came to light, how this revelation was treated within the family, and any 

subsequent developments relating to the disclosure that occurred prior to the trial in this 

case; and (3) and a motion pursuant to Pennsylvania v. Ritchie, 480 U.S. 39 (1987),for the 

post-conviction court to inspect the DCS records of the victim and her stepbrother, who 

was two years older than the victim, for material, exculpatory information pertaining to 

any sexual activity between the two, such as when this activity began, how often it 

occurred, any connection between this activity and the allegations against the Petitioner, 

how this activity came to light, and any punishment imposed. Following a hearing, the 

Petitioner’s motions were granted, and the motion for discovery was “complied with by 

the State.” 

The post-conviction court ultimately received the records from DCS and reviewed 

them. Thereafter, on May 19, 2022, the post-conviction court ruled that portions of the 

DCS records “contain[ed] potential exculpatory material” and that a copy of those portions 

would be provided to the defense subject to a protective order. Those records included 

DCS documents relating to certain sexual incidents involving the victim and her 

3

 The Petitioner was represented by two assistant public defenders in these post-conviction 

proceedings. We will refer to them collectively as post-conviction counsel. 
- 14 - 

stepbrother, as well as documents relating to DCS’s involvement with the family in the 

aftermath of these allegations. The post-conviction court retained the remaining records 

under seal. 

The records provided to the post-conviction defense are included in the record on 

appeal. One document titled “Tennessee Department of Children’s Services Collateral 

Contact” includes details of the victim’s forensic interview. It was noted therein that DCS 

investigator, Ms. Karen Orsulak, informed the victim’s mother that due to the victim’s 

disclosure in the interview, “another hotline call” would be placed regarding the victim’s 

“new allegation” of sexual contact with her stepbrother and that the victim’s mother “was 

[in] agreement.” Also included was a DCS “Case Recording Summary” detailing the 

victim’s stepbrother’s forensic interview that occurred on January 15, 2016. In the 

interview, the victim’s stepbrother said the victim “approached him asking to see him 

naked and then asking to perform oral sex.” He indicated this had happened “a couple of 

times closer to the beginning of the school year[,]” but it had not happened since then. He 

also indicated the victim had “a problem with constantly having ‘urges’ and wanting to 

masturbate.” 

Post-conviction counsel filed a second motion pursuant to Ritchie for the postconviction court to inspect the forensic interview of the victim’s stepbrother, a copy of 

which was believed to be in the custody of the Union County Juvenile Court. The 

post-conviction court entered an order requesting the Union County Juvenile Court to 

provide a copy of the interview, if one existed, under seal to the post-conviction court. 

On September 13, 2022, post-conviction counsel filed another Ritchie motion 

asking the post-conviction court to perform an in-camera inspection of the DCS records 

relating to the victim and for the post-conviction court to then disclose the information that 

related to the allegations of sexual abuse levied against the Petitioner. Post-conviction 

counsel noted that there was a claim of ineffective assistance of counsel tied to the DCS 

records based upon trial counsel’s failure to obtain these records and that the Petitioner 

would be required to establish prejudice. Accordingly, post-conviction counsel requested 

that, following the post-conviction court’s review of the pertinent records and its 

determination of which records related to the allegations of sexual abuse at the hands of 

the Petitioner, the Petitioner be allowed to review those records in camera in their entirety. 

The basis for this request was that trial counsel failed to ask for such a review and that the 

DCS records would contain references relating to the allegations; would disclose the course 

of the investigation of the case by DCS, including the timing and content of the initial 

referral, the identity of witnesses and their statements, and actions taken by the 

investigators. 
- 15 - 

However, the post-conviction court denied the Petitioner’s request to review the 

DCS records pertaining to the victim in their entirety, finding that the Petitioner was not 

entitled to such review of confidential DCS records. In its September 19, 2022 order, the 

post-conviction court said that it had conducted “a further review of the records for 

potentially exculpatory information relating [to] the [P]etitioner’s case” and that “[s]aid 

review revealed no exculpatory information.” 

Post-conviction counsel filed the first amended petition for post-conviction relief 

under seal on September 21, 2022. Shortly thereafter, on September 28, 2022, postconviction counsel filed a motion to continue the evidentiary hearing, which was scheduled 

for October 6, 2022. In the motion, post-conviction counsel averred that he had discovered 

“two facts of potential relevance to the petition”: (1) that the victim’s mother did not 

initially report to law enforcement any allegation from the victim involving vaginal 

intercourse with the Petitioner, only oral sex, and (2) that the victim had undergone a 

forensic medical evaluation that indicated there was no injury to either her hymen or 

vagina. According to post-conviction counsel, it was believed that neither was known by 

trial counsel at the time of trial, but at minimum, it was clear that neither was used by trial 

counsel during the Petitioner’s trial. Post-conviction counsel argued that he had 

insufficient time to explore this new information and to discuss it with the Petitioner. 

On October 3, 2022, the post-conviction court held a hearing on the Petitioner’s 

motion to continue the evidentiary hearing. At the outset of the motion hearing, 

post-conviction counsel reviewed the motion with the post-conviction court and asked for 

a continuance due to recent discoveries found in “last-minute preparations” for the 

evidentiary hearing. 

Post-conviction counsel’s request for a continuance first involved receipt of 

“information regarding the initial report that was made to the DCS hotline by a police 

officer . . . based on information provided by the [victim’s] mother.” According to 

post-conviction counsel, this “information differed in one significant way from the 

[victim’s] testimony at trial, in that there was no mention of intercourse, only of oral sex,” 

and “[i]t also indicated that the mother, when she first contacted DCS, not only failed to 

mention the other issue with the stepbrother, but, in fact, affirmatively asserted that the 

[victim] had not provided any other similar information.” Post-conviction counsel asserted 

that this evidence could have impeached the victim’s and her mother’s testimony. 

Post-conviction counsel requested additional time to investigate whether there was a 

recording of that DCS hotline call and to determine the specific police officer who was 

initially contacted by the victim’s mother and relayed the information to DCS. 
- 16 - 

As a second reason for a continuance, post-conviction counsel observed that “last 

week,” they learned the victim received a forensic medical examination following her 

report of sexual abuse at the hands of the Petitioner. According to the report from the 

medical examination, “there were no injuries to the vagina or the hymen that were 

observed.” Post-conviction counsel opined, “It may be, ultimately, that this would not have 

been hugely probative, but I’m not a doctor. I’m not in [a] position, really, to rule that out 

at this point.” Post-conviction counsel noted that the State did not mention the information 

contained in the report at trial and submitted that “even if it wasn’t immensely probative, 

the defense could potentially have used this to at least tell the jury, you’re not getting the 

full story because the State’s only telling you the things that help them.” 

In conclusion, post-conviction counsel asserted this “was a very close case” because 

the victim’s testimony was “largely[] uncorroborated.” Post-conviction counsel observed 

that the allegations in this case involved two different timeframes and locations and that 

the jury found the Petitioner not guilty of one set of offenses. According to post-conviction 

counsel, “even a relatively small piece of information, relatively small decision that [trial] 

counsel took, relatively small Brady matter could actually have changed the outcome of 

the case.” 

The prosecutor asked that the evidentiary hearing go forward as planned. The 

prosecutor opined that none of this information was new because he had the same 

“open-file policy” with trial counsel as he did with post-conviction counsel. The 

prosecutor indicated that post-conviction counsel had apparently seen this information their 

“second time through” the State’s file and now believed it to be important; however, 

post-conviction counsel had been provided with prior access to these records. Furthermore, 

the prosecutor asserted that there was nothing material or exculpatory in these records and 

that there was no reason for an additional continuance. 

The post-conviction court denied the Petitioner’s motion to continue, noting the 

length of time the post-conviction petition had been pending. Specifically, the 

post-conviction court reasoned, 

I think, in a case like this, as we keep digging, there’s always 

something new to discover. And I think if we continue it again and set it out 

six more months, you’re probably going to find more things. But I think, 

based upon what’s been brought before the [c]ourt now, it’s not grounds for 

a continuance on a case that’s been pending post-conviction for sometime 

now, . . . almost two years. 
- 17 - 

 The Petitioner’s second amended petition for post-conviction relief was filed under 

seal that same day, October 3, 2022. 

2. Issues Raised in the Petitions 

In his various petitions, the Petitioner raised a number of claims for relief. 

Specifically, of relevance to the issues presented in this appeal, the Petitioner argued the 

following. First, the Petitioner argued that he was denied the effective assistance of counsel 

due to trial counsel’s failure to file a pretrial Rule 412 motion seeking to introduce evidence 

the victim had engaged in sexual activity with her stepbrother. According to the Petitioner, 

such activity was admissible pursuant to Rule 412 and the Tennessee and federal 

constitutions on the questions of (a) the victim’s knowledge of sexual matters and (b) the 

victim’s motivation to fabricate allegations against the Petitioner, given that said 

allegations were made contemporaneously with the revelation of her sexual activity with 

her stepbrother and with her mother’s imposition of discipline for that activity. The 

Petitioner submitted that because of trial counsel’s failure in this regard, he was precluded 

from (1) using the victim’s forensic interview to establish facts relating to the sexual 

activity with her stepbrother; (2) presenting evidence and arguing that the victim’s 

knowledge of sexual matters derived from her sexual activity with her stepbrother, rather 

than from the Petitioner, and that the discovery of her sexual activity with her stepbrother 

provided a motive for her to fabricate the allegations against the Petitioner; (3) arguing that 

the reason the victim was depressed when returning home from the Petitioner’s residence 

was not because of any abuse she suffered at the hands of the Petitioner while away, but 

rather, because she was returning to a home where she was either being abused by her 

stepbrother or in a relationship that she feared would be discovered; and (4) attacking the 

victim’s testimony that she had been at her mother’s house ever since reporting the 

allegations. 

Next, the Petitioner claimed that trial counsel was ineffective for failing to object to 

multiple different statements made by the prosecutor during closing argument. The 

Petitioner cited numerous statements as improper, among other things, that: (1) the victim 

was “very sincere”; (2) the Petitioner “wanted to impress” upon Inv. Sakovich that he never 

changed the victim’s diaper and spent limited time alone with her; (3) the Petitioner’s 

statements to Inv. Sakovich were “weird”; (4) the Petitioner’s explanations of the limits of 

his relationship with the victim were “ridiculous”; (5) the victim “did not lie about this” 

and “didn’t make this up”; and (6) “She didn’t make that up. That is absolute baloney, not 

true. These things happened to this little girl, and what she said and the story that she told 

you is the truth.” According to the Petitioner, these comments were improper because they 

constituted vouching for the victim’s credibility by the prosecutor, interjected the 
- 18 - 

prosecutor’s personal opinions into the case, or were inconsistent with the evidence. 

The Petitioner also complained that trial counsel provided ineffective assistance 

regarding venue. He contended that trial counsel was ineffective for failing to argue—in 

his motion for judgment of acquittal, in the motion for new trial, or on appeal (regardless 

of whether it had been argued below)—that the State did not establish venue for the 

offenses alleged to have taken place at the Petitioner’s apartment in Country Oaks 

Apartments. In a similar vein, the Petitioner argued that, given the State’s failure to 

establish venue, trial counsel was ineffective in asking the Petitioner’s father where the 

Petitioner lived after getting married and eliciting the answer that the Petitioner lived in an 

apartment in the Pond Gap area, thus, potentially providing evidence of venue. 

Citing Brady v. Maryland, 373 U.S. 83, 87 (1963), the Petitioner also argued that 

the State violated his due process rights by failing to disclose material, exculpatory 

evidence. Specifically, the Petitioner referenced a December 2015 report following a 

forensic medical evaluation of the victim, wherein it was stated that no injuries to the 

victim’s vagina or hymen were observed. 

Finally, the Petitioner asserted that he was “denied the effective assistance of 

counsel by the cumulative effect of the errors and omissions” he had described. The 

evidentiary hearing took place as scheduled on October 6, 2022. 

3. Evidentiary Hearing 

a. Exhibits 

 At the outset of the hearing, the Petitioner introduced an agreed-upon stipulation 

regarding what the victim’s testimony would have been had she testified at the hearing. 

The stipulation provided that the victim was the subject of a November 12, 2015 forensic 

interview conducted by Nicole Mullinax at the ChildHelp Children’s Center of East 

Tennessee in Knox County. “During that interview, the victim was questioned in part 

about a sexual incident or incidents that occurred with her stepbrother.” The stipulation 

specified that an approximate thirteen-minute portion of the forensic interview would be 

introduced as an exhibit to the post-conviction hearing and that, if the victim were called 

to testify at the evidentiary hearing, her testimony would be consistent with her statements 

in that portion of the interview. It was also stated therein that, if the victim had been asked 

“what answers she would have given at any pretrial hearing or at the trial in this case had 

she been asked relevant questions, [then] her testimony would [have been] consistent with 

her statements in [that] portion of the interview.” 
- 19 - 

In the approximate thirteen-minute portion of the forensic interview introduced at 

the hearing, the victim was first asked “if anyone else besides her dad had ever done that?” 

The victim replied that her stepbrother had done so before. The victim indicated that it was 

“both” of their ideas to engage in this sexual activity. 

Initially, the victim indicated that the sexual behavior started only recently after they 

had completed playing a game of “Truth or Dare.” However, she later said that the sexual 

contact with her stepbrother began around the time she was nine years old. When the 

victim was asked to provide details of their behavior, she said that her stepbrother would 

“like do the same thing that happened with [her] dad.” The victim relayed that her 

stepbrother would touch her “privates” with his hand. She indicated that this took place in 

her stepbrother’s bedroom and that it happened two or three times in total. She then relayed 

that she touched him also. 

At first, the victim stated that the touching was always on top of their clothes. Later, 

the victim explained that, once in her stepbrother’s room, they would lock the door, and 

her stepbrother would pull down her shorts, and she would pull down his clothes as well. 

She would then “touch his and he would touch” hers. She explained the sexual contact 

first began on top of their clothes, which was why she had said that originally, but 

acknowledged it progressed during subsequent encounters. 

The interviewer asked the victim whether there was any “licking or sucking or 

anything like that” with her stepbrother, to which she assented. When pressed for more 

details, the victim said during the “last time” with her stepbrother, they touched each other, 

and then she “sucked it like she did [her] dad.” During that time, her stepbrother was 

touching her. The victim indicated that she was around ten years old when this occurred. 

The victim was asked if “white stuff” ever came out of her stepbrother’s body on 

any of these occasions, and she responded affirmatively. The interviewer inquired what 

was taking place when the “white stuff” came out, and the victim answered, “He would do 

what my dad does, like squeeze it like that,” while making a hand motion. 

According to the victim, no one ever saw or walked in on them while she was 

engaging in this behavior with her stepbrother. The victim maintained that her stepbrother 

had not participated in this type of behavior with anyone else. The victim also indicated 

that the sexual activity with the Petitioner started prior to any of the incidents with her 

stepbrother. 

The victim indicated that both her mother and stepfather knew of this “sucking” and 

“licking” behavior between the two children. The victim indicated that after being asked 
- 20 - 

questions by her stepfather, she and her stepbrother disclosed their behavior. The victim 

relayed to the interviewer that she first divulged to her parents the abuse with her 

stepbrother before revealing the abuse by the Petitioner. The victim stated that she and her 

stepbrother were grounded for three weeks as a consequence and that they were still 

grounded at the time of the interview. The victim explained that her mother expressed the 

belief the victim had engaged in this behavior with her stepbrother because the Petitioner 

“had done that” to the victim and the victim was “curious” and wanted to try it with 

someone her “own size.” 

Various DCS records were exhibited to the hearing. One such document was a 

“Tennessee Child Abuse Hotline Summary,” which indicated that the victim “gave no other 

information” besides the allegations that the Petitioner had “been touching her private area, 

kissing her in [the] mouth, and wanting [her] to perform oral sex on him.” 

The DCS records also included a December 11, 2015 forensic summary prepared 

by sexual assault nurse examiner Gail Clift (“SANE nurse”) following her examination of 

the eleven-year-old victim. In the report, the SANE nurse stated that the victim’s mother 

had informed her that the victim’s stepfather caught the victim and the victim’s stepbrother 

“touching each other without their clothes on” and that “[a]fter this, [the victim] disclosed 

. . . what was happening with [the Petitioner].” The victim was interviewed alone regarding 

the allegations involving both the Petitioner and the victim’s stepbrother, and the SANE 

nurse relayed in the report the details the victim provided during that interview. After 

providing those details, the SANE nurse reported that the victim “had a complete physical 

exam including examination of her genitalia using the colposcope” and that photographs 

were taken during the examination. According to the SANE nurse’s findings that followed, 

the victim’s “genital exam revealed a Tanner 2-3 female”; “[n]o dermatitis was present”; 

“[t]he labia had no injury”; the victim’s “hymen was visualized and there were no injuries”; 

“[t]here was early estrogen effect of the hymen”; the victim’s “anal exam revealed normal 

anal tone”; “[n]o anal injuries were noted”; the victim “had laboratory testing for HIV, 

Hepatitis B and C and syphilis”; “[a] urinalysis and a urine test for gonorrhea and 

chlamydia were completed”; and the victim’s “exam findings were consistent with the 

history provided.” 

Another document was a “Child Protective Services Investigation Summary and 

Classification Decision of Child Abuse/Neglect Referral.” It was noted in the document 

that the victim was interviewed at ChildHelp on November 12, 2015, and that she “gave a 

very detailed disclosure of the sexual abuse she endure[d] at the hands of [the Petitioner].” 

The victim disclosed having oral sex with the Petitioner where he “licked her,” she “sucked 

him,” she rubbed him “up and down,” and “[i]t came out rubbery and warm[.]” The victim 

said that when the Petitioner was finished, he would “hold it at the end until hot, white, 
- 21 - 

chunky stuff” came out on her stomach. She also said that he put his penis “in and out of 

her.” The Petitioner instructed her not to tell anyone. The victim was able “to describe 

how her body reacted to the touches . . . as well.” According to the victim, the abuse went 

on for over two years, and she finally told her mother because she wanted it to stop. It was 

also noted that the victim received a December 2015 forensic medical examination that 

was performed by the SANE nurse at ChildHelp. 

 The victim’s forensic interview was also detailed in a “Case Recording Summary” 

prepared by Ms. Orsulak on December 27, 2015. Further details of the interview were 

provided. The victim said that she “finally felt comfortable” having sex with the Petitioner 

because they “had done it so much.” According to the victim, they had engaged in 

intercourse at least ten or more times. A “Case Recording Summary” prepared by Ms. 

Orsulak in January 2016 also noted that the victim received a forensic medical examination 

by SANE nurse at ChildHelp in December 2015. Another one, also prepared by Ms. 

Orsulak in January 2016, established that Ms. Orsulak went to the victim’s school in Union 

County and spoke with the victim there. 

Also, three separate orders from the Union County Juvenile Court were introduced. 

Those orders indicated that on February 16, 2016, the victim was placed in the custody of 

relatives. On March 22, 2016, the victim was removed from her relatives’ home, as it was 

determined to be contrary to her welfare to stay in the home, and she was placed in foster 

care. A May 17, 2016 order indicated that the victim would remain in foster care until at 

least the next hearing in August of 2016. 

b. Testimony 

Trial counsel was the first to testify. He stated that he was licensed to practice law 

in 2006; that since that time, he had tried approximately forty-six jury trials as lead counsel 

in both state and federal courts; and that he almost exclusively practiced criminal defense 

work. He said that, prior to the Petitioner’s trial, he had maybe tried two or three jury trials 

in child sex abuse cases. 

Trial counsel was retained to represent the Petitioner when “[t]he investigation was, 

essentially, concluded and [the case] was ready for trial.” Trial counsel indicated that he 

was aware at the time he was retained there had been some prior juvenile court proceedings 

involving the victim and her stepbrother. Upon being retained, trial counsel filed motions 

for and received discovery materials from the State. Trial counsel confirmed that he had 

received a copy of, and had watched, the victim’s forensic interview at ChildHelp “early 

on in the case.” In watching the video, trial counsel ascertained details about inappropriate 

sexual contact between the victim and her stepbrother. Trial counsel believed that the 
- 22 - 

sexual contact between the two children was what prompted the juvenile court proceedings 

in Union County and resulted in their being removed from the home for a time. Trial 

counsel relayed that he also had discussions with the Petitioner about the victim’s sexual 

behavior with her stepbrother. 

Trial counsel testified that he had never filed a motion pursuant to Tennessee Rule 

of Evidence 412 prior to the Petitioner’s trial and that he did not recall doing any legal 

research regarding Rule 412 in connection with this trial. He explained that, as he 

understood it, “the [stepbrother] question, as a prior inconsistent statement or as a prior 

statement to indicate that she had made a prior report, was not itself sexual activity” 

covered by Rule 412. Trial counsel asserted that, if he had it to do over again, he “certainly, 

without question, would have filed a 412 notice.” Trial counsel claimed that his failure to 

file such a motion was not a strategic decision, given that he “genuinely believed that this 

evidence was going to be admitted on the question of prior claim, right, a prior accusation.” 

Trial counsel affirmed his understanding of the law proved incorrect in light of the court’s 

ruling at trial. 

Trial counsel believed using this information at trial about the victim and her 

stepbrother was “important strategically” to the case. According to trial counsel, “the 

overall defense strategy” was to challenge the victim’s story given “its numerous 

inconsistencies” regarding the timeline and to assert that she had “a reason to make up a 

story about her father, because of this issue with [her stepbrother], . . . in [an] effort to 

deflect attention” away from them. Relative to the victim’s motive to lie, trial counsel 

explained: “[Y]ou can’t say that someone’s lying unless you can also explain why they 

would[.] . . . [A] jury will not accept . . . that someone’s a liar unless they have a reason.” 

He articulated how this insinuated a motive to lie for the victim: “That everybody’s all 

upset about her and [her stepbrother], and she makes the allegation against her father and 

now everybody’s all upset about her father and has forgotten to be upset with her about 

[her stepbrother].” Additionally, trial counsel noted another goal of introducing this 

evidence at trial was to establish the victim’s basis of sexual knowledge: 

[I]f you have a young child who is on the witness stand describing sexual 

activity, there’s sort of this assumption that they would not be able to do that 

if they had not been the victim of something, right? . . . And if there can be 

. . . an explanation that that knowledge came as a result of something 

someone else did, not [the Petitioner], then that impacts it. 

Trial counsel opined that there was no inconsistency between pursuing the issue involving 

the victim’s stepbrother and also pointing out the inaccuracies in the victim’s timeline. 
- 23 - 

Trial counsel was also asked about the potential use of evidence as it related to the 

victim’s mother’s testimony at trial. He said that, through admission of this evidence, he 

would have been able to provide “an alternative explanation” as to why the victim was 

“sullen and withdrawn” upon returning from her visits with the Petitioner—because her 

stepbrother was abusing her. 

Trial counsel noted that the jury was persuaded by some of the defense’s argument 

because it acquitted the Petitioner of the charges at the victim’s grandparents’ house. He 

further opined that this additional argument regarding the victim’s stepbrother “could only 

have been positive” because it would have provided “a little more ammunition and [the 

defense] might have won the day.” According to trial counsel, he would have utilized this 

evidence during closing argument and argued the following to jury: 

[T]he issue with [the victim’s stepbrother] is the reason why we’re here; that 

this is an effort to draw away from this; and that whatever she knows, she 

learned from what’s going on with [her stepbrother] and not from her father. 

. . . [W]e don’t think she’s being honest about what happened at the house, 

and that should inform your view of her honesty about what happened at the 

apartment. And all of this is because of this [stepbrother] question, this is all 

just a problem with [the stepbrother]. 

Trial counsel confirmed that he did not impeach the victim on cross-examination 

with her statement in the forensic interview that the act of intercourse occurred at the end 

of summer 2015. When trial counsel attempted to establish the victim’s statement during 

cross-examination of Inv. Sakovich, the State objected on hearsay grounds, and the 

objection was sustained. The trial court then suggested that, rather than recalling the 

victim, the parties enter into a stipulation reflecting what the victim’s testimony would 

have been had she been asked. Trial counsel confirmed that the parties ultimately entered 

into this stipulation. Trial counsel opined that the stipulation was “less effective in terms 

of impact on the jury” because a stipulation “is kind of dry[,]” whereas “[i]mpeachment 

can be dramatic[.]” 

Trial counsel affirmed that there were several other inconsistencies in the victim’s 

trial testimony versus statements she made during the forensic interview, such as whether 

the Petitioner called her to him before performing the sexual acts and if she recalled how 

she cleaned off the ejaculate on her stomach. Trial counsel said he did not recognize these 

statements as being inconsistent during the trial. Moreover, he did not recall forming a 

strategic reason not to impeach the victim on these topics. 
- 24 - 

Trial counsel was asked if he could have used the victim’s forensic interview “to 

confront her as part of impeaching her testimony[.]” While trial counsel agreed that he 

could have used the forensic interview as an impeachment tool, he cautioned, “You always 

run the risk that the victim says, well, I was talking about a different time. Right? And 

now you’ve got . . . an extra incident.” He further cautioned that there was also “a very 

real possibility that the prosecutor [would] just press play and [they would] listen to the 

whole thing.” 

Next, trial counsel reviewed the orders from the Union County Juvenile Court. He 

stated that, although he did not recall having these specific orders in his possession at the 

time of trial, he did recall having similar information. Trial counsel agreed that, based 

upon the information contained in these orders, it was fair to say that the victim did not live 

in the home with her mother and stepfather from February until at least August of 2016. 

Trial counsel affirmed that the victim’s testimony she had remained at her mother’s 

house ever since the forensic interview amounted to a “point of possible impeachment, 

because [the defense] knew that that was not so.” Trial counsel noted that when he 

attempted to ask the victim on cross-examination about her living situation, he was 

prohibited from doing so because of the trial court’s 412 ruling. Had trial counsel been 

allowed to explore this topic, he would have used this information as an additional attack 

on the victim’s credibility. 

Trial counsel was asked about possible information at trial that reflected on the 

victim’s mother’s “credibility or bias.” Trial counsel replied that there was potential “ill 

will” because the victim’s mother and the Petitioner were no longer together, and the 

victim’s mother was now in a relationship with the father of the victim’s stepbrother. Trial 

counsel opined that this made the victim’s mother “more inclined to preserve” her current 

relationship, meaning that “she’s going to have a preference to put [the Petitioner] in 

trouble and not her stepson.” He cited, for example, that the victim’s mother called and 

reported the allegations against the Petitioner, but she did not mention the allegations 

regarding the victim’s stepbrother. He testified that, in preparation for trial, he was unsure 

if he even knew the specifics of the victim’s mother’s report to law enforcement, but he 

affirmed that he “intended to argue that the [the Petitioner] angle saves [the stepbrother] or 

gets attention away from [the stepbrother].” He reiterated that he could not make such an 

argument because of the trial court’s Rule 412 ruling. 

Trial counsel testified that he was aware of case law providing limits on appropriate 

closing arguments by the State. Trial counsel confirmed that, although the prosecutor 

stated he had listened to the Petitioner’s interview and thought it was “weird,” the 

Petitioner’s actual interview was never admitted into evidence. He thought this was the 
- 25 - 

“prosecutor’s personal belief of the testimony[,]” which was improper. Referencing the 

prosecutor’s statements that the victim was not “making things up,” trial counsel opined 

those statements amounted to improper witness vouching. Trial counsel said that there was 

no point during the State’s closing argument he withheld any objections for strategic 

reasons, however, he also noted that the main issue in this case was the victim’s credibility 

and that the State had “to put forward some form of this argument[.]” Trial counsel 

clarified that objections must be chosen wisely and that it might be better to forego some 

valid objections so as not to emphasize certain information with the jury. 

 Relative to any issue of venue, trial counsel testified that he understood the legal 

concept, as well as that the State had the burden of establishing venue to avoid dismissal. 

Trial counsel confirmed that venue was established for the first five counts of the 

indictment with direct testimony reflecting the victim’s grandparents’ house was located 

in Knox County. He thought at the time of trial the State had met its burden of establishing 

venue with regard to the offenses that occurred in Country Oaks Apartments, counts 6 

through 12, but by the time of the post-conviction hearing, he believed it was questionable 

in retrospect. Trial counsel confirmed that Inv. Sakovich was asked, “And did all these 

events take place here in Knox County?” to which Inv. Sakovich replied, “Yes, they did.” 

Trial counsel opined that Inv. Sakovich’s response related to the actions he took during his 

investigation, such as whom he talked with and where he went; but at trial, trial counsel 

assumed that Inv. Sakovich’s response meant “all of everything” relating to the case. Trial 

counsel observed no one testified at trial that Country Oaks Apartments was located in 

Knox County. Trial counsel also did not think that “any resident of Knox County” would 

necessarily know where Country Oak Apartments was located, stating that it was not a 

“notorious and well-known” location. 

Trial counsel confirmed that he did not have any discussions with the defense 

witnesses about issues relating to venue or provide them with any guidance to avoid 

volunteering information about venue. Trial counsel did not think about his question to 

the Petitioner’s father regarding where the Petitioner and his new wife would live when 

they returned from their honeymoon as potentially eliciting evidence to support venue; trial 

counsel thought the State had established venue by that time. He testified that he did not 

raise the issue of venue in any post-trial pleadings or on appeal because, at those times, he 

persisted in his belief the State had established venue. 

Finally, trial counsel testified regarding the discovery letter he sent to the State. In 

that letter, which was filed on July 19, 2016, trial counsel requested “all results or reports 

of physical or mental examinations.” The State sent a discovery response on August 3, 

2016, in which it stated, “No examinations or tests known to the State at this time.” Trial 

counsel also indicated that he received “a number of discs” in this case: “There was the 
- 26 - 

911 call, I think, and [the Petitioner’s] statement[.]” According to trial counsel, he met 

with the prosecutor, they “went through” the prosecutor’s file, and they agreed trial counsel 

had “what was available.” 

Trial counsel indicated that, if he had known the victim had undergone a forensic 

medical examination one month after her forensic interview that reflected there were no 

injuries to the victim’s vagina or hymen, he would certainly have been interested in that 

information and would have investigated further. He explained his potential use of the 

report at trial: “[I]f she’s alleging that he had inserted his penis and had intercourse with 

her and a medical provider is saying that her hymen is intact, I think I . . . certainly would 

have wanted the jury to hear that.” Likewise, trial counsel would have been interested in 

information that when this matter was first reported to law enforcement, only an allegation 

of oral sex was levied. However, he was not sure what benefit this information would have 

provided because it was not necessarily “a contradiction[,]” but rather, an omission. Trial 

counsel did not recall seeing or receiving any DCS records from the State. 

The victim’s mother was next to testify. She stated that she contacted the 

Maynardville Police Department in November 2015 to report the victim’s claim of 

inappropriate sexual contact with the Petitioner, which included that the Petitioner had 

“touched [the victim’s] private area” and had “kissed [the victim] on the mouth[.]” Though 

the victim’s mother did not remember the entire details of her report to the police, she 

affirmed that she told both law enforcement and DCS about what happened between the 

victim and her stepbrother, in addition to reporting the allegations against the Petitioner. 

She confirmed that, after DCS began an investigation into the allegations of sexual 

behavior between the victim and her stepbrother, the victim was removed from the family 

home and placed into foster care. She could not recall the exact date the victim was 

removed from their home but believed the victim was away for “almost a year.” 

Karen Orsulak testified that she had worked as a DCS investigator for Knox County 

in 2015. This case was referred to her after a hotline call was placed in November 2015 

reporting allegations of sexual abuse that involved the victim and Petitioner. According to 

Ms. Orsulak, no other allegations were made during the hotline call. However, she did not 

personally take the hotline call; rather, it went through a reporting system in Nashville. 

Ms. Orsulak explained that not all allegations of sexual contact result in an investigation if 

they do not meet certain criteria for child abuse. She opined that an age difference of less 

than two years between the two individuals involved may not meet such criteria. 

Ms. Orsulak said that she devised a plan with Inv. Sakovich, after he was also 

assigned to the case, to speak with the victim and interview the Petitioner. Ms. Orsulak 

also had several conversations with the victim’s mother following the hotline call. Later, 
- 27 - 

a forensic interview for the victim was arranged with ChildHelp, during which the victim 

disclosed sexual contact between her and her stepbrother. Ms. Orsulak testified that this 

was the first instance she became aware of this information. Ms. Orsulak affirmed that the 

victim’s mother had never mentioned in any of their prior conversations this sexual contact 

involving the stepbrother, although the two women did discuss it after the forensic 

interview. When Ms. Orsulak learned of the sexual contact involving the victim’s 

stepbrother, she “took the steps that needed to be taken on the case.” 

c. Arguments and Proposed Findings 

 At the conclusion of the evidentiary hearing, post-conviction counsel indicated that 

he desired to file a brief setting forth argument on the issues presented. The post-conviction 

court granted this request and indicated that post-conviction counsel had until “week after 

next” to get something filed. On October 17, 2022, post-conviction counsel filed a 

“Proposed Post-Hearing Findings of Fact and Conclusions of Law.” 

4. Post-Conviction Court’s Order 

The post-conviction court filed its initial order denying relief on December 13, 

2022, and entered a corrected order the following day.4 In the order, the post-conviction 

court first noted that the Petitioner did not testify at the post-conviction hearing. 

Accordingly, if any of the Petitioner’s issues involved substantial issues of fact, the 

Petitioner had failed to meet his burden. See Tenn. Code Ann. § 40-30-110(a) (“The 

petitioner shall appear and give testimony at the evidentiary hearing if the petition raises 

substantial questions of fact as to events in which the petitioner participated[.]”). 

The post-conviction court then addressed the Petitioner’s various allegations of 

ineffective assistance of counsel. First, the post-conviction court discussed the Petitioner’s 

allegation that trial counsel failed to file a written motion prior to trial pursuant to Rule 412 

for the purposes of introducing evidence of the victim’s sexual behavior with her 

stepbrother. The post-conviction court determined that trial counsel was deficient for 

failing to file said motion, noting trial counsel’s testimony that though he was aware of 

Rule 412, he mistakenly believed the evidence was admissible under other evidentiary 

rules. The post-conviction court found that, had trial counsel filed a Rule 412 motion, “the 

evidence would have likely been admissible to explain knowledge of sexual matters and, 

4

 The corrected order modified one line to accurately reflect the post-conviction court’s 

determination that trial counsel’s performance during closing argument was not deficient. 
- 28 - 

perhaps,[5] to show a motive for the victim to lie[,]” and “the probative value would have 

outweighed the danger of unfair prejudice to the victim.” 

Addressing whether trial counsel’s deficiency was prejudicial due to the omission 

of this evidence to explain knowledge of sexual matters, the post-conviction court noted 

that the victim was twelve years old when she testified at trial and that she would have been 

approximately eleven years old when she spoke to law enforcement about the allegations 

of sexual abuse. Though the victim’s “knowledge of sexual matters could certainly be 

questioned due to her age[,]” the post-conviction court determined that the Petitioner was 

not prejudiced. The post-conviction court reasoned the prosecutor never contended during 

closing argument that, “but for the abuse of the Petitioner, [the victim] would not have 

[had] knowledge of these sexual matters[,]” and therefore, “[t]he issue contemplated by 

Rule 412 was really not an issue argued by the State or raised during the trial in this case.” 

Relative to whether the omission of this evidence was prejudicial due to the 

Petitioner’s inability to establish a motive for the victim to lie, the post-conviction court 

noted that “[t]here was evidence presented at trial regarding how the family dynamics were 

affecting the victim” and that trial counsel argued to the jury “that the victim was lying 

because of the changes that had occurred in the family that resulted in the victim[’s] feeling 

left out or neglected.” According to the post-conviction court, “[i]t would not [have been] 

reasonable to argue both the desire for attention and the desire to get out of trouble for her 

behavior with [her stepbrother,]” given that these two theories were “contradictory in 

nature.” The post-conviction court also noted the jurors heard both the victim and the 

Petitioner testify at trial and were able to judge their credibility. Finally, the postconviction observed, 

The Petitioner presented no evidence during the post-conviction hearing that 

the victim was in trouble for her behavior with [her stepbrother] when this 

behavior allegedly occurred, when it was discovered by the family in relation 

to the allegations against the Petitioner, or what if any punishment the victim 

was subjected to because of the behavior with [her stepbrother]. 

For these reasons, the post-conviction court determined “the Petitioner ha[d] failed to 

establish by clear and convincing evidence that proof of the victim’s behavior with [her 

5

 In this regard, the post-conviction court stated in a footnote, 

Whether or not the evidence would be admissible to establish a motive to lie is a 

close call. It is not a permissible purpose under Rule 412. However, it might qualify as 

evidence which is required by the Constitution in order to be able to present a defense. In 

any event, the evidence would have been admissible to show knowledge of sexual matters. 
- 29 - 

stepbrother] would have been a stronger argument for motive to lie than what was 

presented to the jury.” 

 In conclusion, the post-conviction court stated that, “[a]fter considering all of the 

arguments made by the defense regarding the failure to file a Rule 412 motion, . . . the 

reliability of the verdict [was] not called into question.” Therefore, the Petitioner had failed 

to establish prejudice with regard to trial counsel’s deficiency. 

 The post-conviction court also addressed the Petitioner’s argument that trial counsel 

was ineffective by failing to object to certain statements made by the prosecutor during 

closing arguments. The post-conviction court noted trial counsel’s testimony that, 

generally, it is important to make objections wisely and that the State had to make some 

form of argument about the victim’s credibility, given that was the primary issue at trial. 

The post-conviction court then stated that it had reviewed the challenged statements made 

by the prosecutor and determined that they did “not involve any egregious behavior” and 

that, “[a]lthough some of the arguments could have been worded more artfully, they [were] 

not obviously objectional.” The post-conviction court reasoned that “it was clear that the 

prosecutor was appealing to reason from the facts and not trying to convince the jury to 

trust his opinion on the facts or his opinion on the credibility of the witnesses.” In sum, 

the post-conviction court concluded the Petitioner had failed to establish trial counsel was 

deficient in this regard. Moreover, relative to the prejudice prong, the post-conviction court 

determined the Petitioner had not shown that, if trial counsel had objected to the arguments 

and the court had ordered the jury to disregard the statements, then the outcome of the trial 

would likely have been any different. 

 Relative to the issue of venue, the post-conviction court noted the Petitioner had 

argued that trial counsel was ineffective for “asking a question of a witness at trial that 

ended up establishing venue[.]” On this issue, the post-conviction court determined that 

the Petitioner had failed to establish either prong of ineffective assistance because he 

“failed to present any evidence to support” this argument. Additionally, the 

post-conviction court concluded “that venue was established at trial by a preponderance of 

the evidence and that the evidence was sufficient to support each conviction.” 

 Finally, the post-conviction court addressed the Petitioner’s Brady claim regarding 

the SANE nurse’s report detailing the victim’s medical examination. Addressing the 

elements required to establish a Brady violation, see State v. Edgin, 902 S.W.2d 387, 390 

(Tenn. 1995), as amended on rehearing (Tenn. July 10, 1995), the post-conviction court 

found that (1) the defense requested discovery including reports by experts; (2) “[a]lthough 

apparently not in possession of the prosecutor, the report was certainly in possession of a 

state agency, DCS, and was not provided to the defense”; (3) it was “not apparent from the 
- 30 - 

report itself that the information was favorable” to the Petitioner; and (4) “[t]he Petitioner 

ha[d] not presented any testimony from an expert or other qualified witness that the medical 

findings contained in the report were exculpatory.” Relative to favorability, the 

post-conviction court observed that, contrary to the Petitioner’s claim, “the report state[d] 

that the medical findings were consistent with the victim’s report of sexual assault reported 

to the SANE nurse which included the allegation of penile/vaginal penetration.” As for 

materiality, the post-conviction court specified that “[w]ith no evidence to the contrary, the 

report itself supports the victim’s allegations.” Accordingly, the post-conviction court 

concluded that the Petitioner had “failed to establish that he was prejudiced by the absence 

of the report during the trial, that the report was favorable to the defense, or that the report 

was constitutionally material.” 

 The Petitioner timely filed a notice of appeal with this court. The case is now before 

us for our review. 

II. ANALYSIS

Post-conviction relief is available when a “conviction or sentence is void or 

voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The 

burden in a post-conviction proceeding is on the petitioner to prove allegations of fact by 

clear and convincing evidence. Id. § -110(f); see Dellinger v. State, 279 S.W.3d 282, 293-

94 (Tenn. 2009). 

A. Motion to Continue Evidentiary Hearing 

 Before we address the Petitioner’s substantive arguments, we consider his claim that 

the post-conviction court erred in denying his motion to continue the evidentiary hearing. 

According to the Petitioner, the post-conviction court abused its discretion when it denied 

the Petitioner’s “reasonable request for a continuance in order to be able to present 

evidence, including medical evidence, regarding the significance of” the SANE nurse’s 

medical examination report. He notes the post-conviction court denied relief on the Brady

issue because the Petitioner had not presented any evidence “from an expert or other 

qualified witness that the medical findings contained in the report were exculpatory.” The 

Petitioner surmises that “[t]he unfairness of this procedure is patent” and that the case, if 

relief is not granted on the record as it stands, should be remanded to provide him with 

another opportunity to develop this issue. The State contends the post-conviction court 

properly exercised its discretion in denying the Petitioner’s motion to continue the 

evidentiary hearing. 
- 31 - 

The Post-Conviction Procedure Act mandates that a post-conviction court proceed 

under certain deadlines. For instance, an evidentiary hearing shall be held within four 

months of entry of the post-conviction court’s scheduling order. Tenn. Code 

Ann. § 40-30-109(a); Tenn. Sup. Ct. R. 28, § 8(B). That deadline shall not be extended by 

agreement of the parties and may only be extended by order of the post-conviction court 

finding that unforeseeable circumstances render a continuance a manifest necessity. Tenn. 

Code Ann. § 40-30-109(a); Tenn. Sup. Ct. R. 28, § 8(B). But, in no case shall an extension 

of the evidentiary hearing exceed sixty days. Tenn. Code Ann. § 40-30-109(a); Tenn. Sup. 

Ct. R. 28, § 8(B). The Act further directs that “[t]he court shall rule within sixty (60) days 

of conclusion of the proof.” Tenn. Code Ann. § 40-30-111(d). That deadline also “shall 

not be extended by agreement, and the deadline may be extended only by order of the court 

based upon a finding that unforeseeable circumstances render a continuance a manifest 

necessity. An extension shall not exceed thirty (30) days.” Id. 

 

That said, the decision whether to grant a continuance is left to the post-conviction 

court’s sound discretion, which will only be overturned on appeal when the post-conviction 

court has “clearly” abused its discretion. Teague v. State, 772 S.W.2d 915, 928 (Tenn. 

Crim. App. 1988) (citing Moorehead v. State, 409 S.W.2d 357, 358 (Tenn. 1966)), 

overruled on other grounds by State v. Mixon, 983 S.W.2d 661, 671 n.13 (Tenn. 1999). An 

abuse of discretion is demonstrated by showing that the failure to grant a continuance 

denied the Petitioner a fair evidentiary hearing and that the Petitioner was prejudiced as a 

result. Harris v. State, 947 S.W.2d 156, 173-74 (Tenn. Crim. App. 1996); Brotherton v. 

State, 477 S.W.2d 522, 524 (Tenn. Crim. App. 1971). The burden rests upon the party 

seeking the continuance to show how the post-conviction court’s action was in error. See 

Harris, 947 S.W.2d at 174. 

Post-conviction counsel was appointed on January 25, 2021, and had more than 

one-and-a-half years to investigate this case before the evidentiary hearing finally took 

place on October 6, 2022. During that time, post-conviction counsel sought and received 

six extensions of time, with the last request being filed on February 14, 2022. No motions 

had been filed on the Petitioner’s behalf prior to that time, and post-conviction counsel had 

been on the case for over a year at that point. However, with the sixth request for an 

extension of time filed on February 14, 2022, post-conviction counsel filed three 

motions—one, a request for preparation of certain transcripts; another, a discovery motion 

seeking any information relating to the Petitioner’s pro se petition filed in September 2020; 

and a third, a Ritchie request for an in-camera review of DCS records relating to the 

incidents of sexual contact between the victim and her stepbrother. The post-conviction 

court granted all three of the Petitioner’s motions and ultimately turned over portions of 

the DCS records that “contain[ed] potential exculpatory material” to post-conviction 

counsel. The post-conviction court further entertained the two additional Ritchie motions 
- 32 - 

from post-conviction counsel that followed regarding the victim’s stepbrother’s forensic 

interview and post-conviction counsel’s request to review the DCS records, in-camera in 

their entirety, that related to the victim’s allegations of sexual abuse levied against the 

Petitioner. 

After these motions had been dispensed with, post-conviction counsel, nonetheless, 

filed a motion on September 28, 2022, to continue the evidentiary hearing, just days before 

the hearing was scheduled on October 6, 2022. In that motion, post-conviction counsel 

cited two pieces of evidence that had been discovered during “last-minute preparations” 

requiring more investigation—(1) that the victim’s mother’s initial report involved only an 

allegation of oral sex, not vaginal intercourse, and the defense needed time to obtain a copy 

of that hotline call and speak with the police officer who took the mother’s report, if 

possible; and (2) that a report detailing the victim’s forensic medical examination was 

made, and the defense was unaware prior to that time that an examination had even been 

performed and needed more time to speak with medical personnel. The post-conviction 

court held a hearing on the Petitioner’s motion on October 3, 2022, ultimately denying the 

motion to continue citing the time the case had been pending, and the hearing took place 

as scheduled. 

On appeal, the Petitioner’s argument focuses only on the post-conviction court’s 

denial of his motion to continue as it pertains to the second piece of evidence—the SANE 

nurse’s report detailing the victim’s forensic medical examination. At the motion hearing, 

the prosecutor indicated that this was post-conviction counsel’s “second time through” the 

file, and post-conviction counsel failed to respond to the prosecutor’s allegation that this 

evidence had previously been made available to post-conviction counsel. Post-conviction 

counsel did little to illuminate why the SANE nurse’s report was not discovered sooner 

given the more than one-and-a-half years post-conviction counsel had to prepare for the 

evidentiary hearing. 

The Petitioner contends that the denial of a continuance prohibited him from 

presenting evidence regarding the significance of this report and that for the 

post-conviction court to use this against him in rendering its Brady ruling was patently 

unfair. However, the Petitioner failed to take any steps to ameliorate any harm from this 

denial. There was no evidence that the Petitioner attempted to subpoena the SANE nurse 

to the evidentiary hearing or that the Petitioner attempted to contact a medical expert, but 

the expert was unavailable. The Petitioner was also allowed to submit a brief following 

the hearing, but the denial of the Petitioner’s motion to continue was not mentioned therein. 

Mere vagaries and speculation on appeal are insufficient to support a finding that 

the post-conviction court abused its discretion in denying the motion to continue. See, e.g., 
- 33 - 

Keller v. State, No. W2020-00590-CCA-R3-PC, 2021 WL 2886338, at *7 (Tenn. Crim. 

App. July 9, 2021) (affirming post-conviction court’s denial of the petitioner’s motions for 

continuances seeking to have an independent DNA test of the ski mask and to allow him 

to re-subpoena the State’s DNA expert to testify at the evidentiary hearing because (1) the 

ski mask was not critical to the State’s case, (2) the petitioner had ample time to seek 

independent DNA testing of the ski mask prior to his evidentiary hearing, and (3) the 

expert’s testimony, at most, would cast doubt on the veracity of the State’s DNA testimony 

of the ski mask); Alston v. State, No. W2019-00930-CCA-R3-PC, 2020 WL 3639101, at 

*8 (Tenn. Crim. App. July 2, 2020) (concluding that the petitioner failed to establish 

prejudice on appeal from the denial of his motion for a continuance or bifurcated 

proceeding to allow appellate counsel to testify because the petitioner had failed to present 

any evidence surrounding the circumstances of appellate counsel’s absence from the 

hearing, failed to include any information regarding whether appellate counsel was under 

subpoena to testify at the post-conviction hearing, and had been granted two previous 

continuances). 

 

Finally, the post-conviction court has a responsibility to ensure the orderly 

administration of its dockets and to make sure that post-conviction cases do not linger in 

trial courts for years. See Tenn. Code Ann. § 40-30-109(a); Tenn. Sup. Ct. R. 28, § 8(B). 

As discussed above, post-conviction counsel had previously been granted six requests for 

extensions of time. Also, the post-conviction court held the issue under consideration for 

an ample amount of time after the hearing, but the Petitioner never sought to enter any 

additional proof. In Teague v. State, a case involving a death-row petitioner’s request for 

post-conviction relief and a writ of error coram nobis, this court affirmed the denial of the 

petitioner’s motion to continue requesting “a reasonable opportunity to investigate the 

grounds alleged in the petition ‘given the limited resources that were available to him.’” 

772 S.W.2d at 928. The Teague court reasoned that the petitioner’s family had retained 

counsel and a private investigator, who both resided in the city of the petitioner’s 

confinement, and that they had more than seven months to investigate his cases. Id. In so 

holding, this court noted, “Theoretically, one could continue an investigation into the facts 

of a capital case until the person laboring under a death sentence died from natural causes.” 

Id. Though not a capital case, a similar sentiment was echoed by the post-conviction court 

in this case in its ruling denying the Petitioner’s motion to continue. 

Based on the proof presented, the Petitioner has failed to establish he was prejudiced 

or denied a fair hearing by the post-conviction court’s denial of his motion to continue 

seeking additional time to develop further proof surrounding the medical report. See 

Harris, 947 S.W.2d at 173-74. Accordingly, we conclude that the post-conviction court 

did not abuse its discretion, and the Petitioner is not entitled to relief from the 
- 34 - 

post-conviction court’s denial of his motion to continue the evidentiary hearing. We now 

turn to the Petitioner’s substantive post-conviction claims. 

B. Brady Evidence 

 The Petitioner argues that the State violated his due process rights by failing to 

disclose material, exculpatory evidence prior to trial, specifically, the report from the 

SANE nurse detailing the victim’s forensic medical examination. The Petitioner contends 

that all four prongs of the Brady test have been established: (1) the material was obviously 

exculpatory and, even if it were not, was directly requested by the defense; (2) the 

information was suppressed by the State; (3) such information—showing no injuries to the 

hymen or labia of the child victim who alleged she was vaginally penetrated by the 

Petitioner, an adult male—was obviously favorable because it “was inconsistent with, or 

not corroborative of,” the victim’s story, and the defense could have used this information 

to argue “that the State was presenting a cherry-picked version of facts to the jury”; and 

(4) the evidence was material, given that this “was a very close case” where the jury 

acquitted the Petitioner of one series of events, and this information “could have supplied, 

in the eyes of one or more jurors, a reasonable doubt as to [the Petitioner’s] guilt.” He also 

observes that this was not merely a case of the State’s non-disclosure, but rather, “there 

was an affirmative representation in the [d]iscovery [n]otice that the State was not aware 

of any examination.” 

 The State concedes that the Petitioner established the first two prongs in that the 

Petitioner requested the information and the State failed to provide the report. However, 

the State contends that the Petitioner failed to show that the document at issue was 

favorable or material, in which case the post-conviction court properly denied relief. 

 The Due Process Clause of the Fourteenth Amendment to the United States 

Constitution and article I, section 8 of the Tennessee Constitution afford every criminal 

defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001). As 

a result, the State has a constitutional duty to furnish a defendant with exculpatory evidence 

pertaining to his guilt or lack thereof or to the potential punishment faced by a defendant. 

See Brady, 373 U.S. at 87. 

 In Brady, the United States Supreme Court held that any “suppression by the 

prosecution of evidence favorable to an accused upon request violates due process where 

the evidence is material either to guilt or to punishment, irrespective of the good faith or 

bad faith of the prosecution.” Id. The duty to disclose extends to all “favorable 

information” regardless of whether the evidence is admissible at trial. State v. Marshall, 

845 S.W.2d 228, 232-33 (Tenn. Crim. App. 1992). However, the State is not required to 
- 35 - 

disclose information that the accused already possesses or is able to obtain or information 

that is not possessed by or under the control of the prosecution or another governmental 

agency. Id. at 233. 

 To prove a Brady violation, a defendant must demonstrate all of the following: (1) 

the defendant requested the information (unless the evidence is obviously exculpatory, in 

which case the State is obligated to release such evidence regardless of whether it was 

requested); (2) the State suppressed the information, (3) the information was favorable to 

the defendant; and (4) the information was material. Edgin, 902 S.W.2d at 390. The 

defendant bears the burden of proving a Brady violation by a preponderance of the 

evidence. State v. Dotson, 450 S.W.3d 1, 94 (Tenn. 2014) (citing Edgin, 902 S.W.2d at 

389). 

Here, the Petitioner sent a letter to the State in July 2016 requesting discovery 

materials, including “all results or reports of physical or mental examinations.” The State 

then sent a response, stating that “[n]o examinations or tests [were] known to the State” at 

that time, though the victim’s forensic medical examination was performed in December 

2015. At the post-conviction hearing, the prosecutor indicated that the same information 

available to post-conviction counsel was also available to trial counsel, however, trial 

counsel testified that he never saw any medical report from the SANE nurse. Because the 

State concedes that the first two Brady factors are met, and the post-conviction concluded 

the same, we will focus our analysis on the third and fourth Brady factors, i.e., whether the 

information was favorable and material. 

Evidence “favorable to the accused” includes both “evidence deemed to be 

exculpatory in nature and evidence that could be used to impeach the [S]tate’s witnesses.” 

Johnson, 38 S.W.3d at 55-56 (citation omitted). Stated another way, evidence is favorable 

if it “provides some significant aid to the defendant’s case, whether it furnishes 

corroboration of the defendant’s story, calls into question a material, although not 

indispensable, element of the prosecution’s version of the events, or challenges the 

credibility of a key prosecution witness.” Id. at 56-57 (quoting Commonwealth v. Ellison, 

379 N.E.2d 560, 571 (Mass. 1978)). Additionally, in Johnson, our supreme court cited 

with approval a Nevada case stating that evidence is favorable under Brady if “it provides 

grounds for the defense to attack the reliability, thoroughness, and good faith of the police 

investigation . . . or to bolster the defense case against prosecutorial attacks.” Id. (citing 

Mazzan v. Warden, 993 P.2d 25, 37 (Nev. 2000)). 

Moreover, the evidence is deemed material if “there is a reasonable probability that, 

had the evidence been disclosed to the defense, the result of the proceeding would have 

been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). 
- 36 - 

The question is not whether the defendant would more likely than not have 

received a different verdict with the evidence, but whether in its absence he 

received a fair trial, understood as a trial resulting in a verdict worthy of 

confidence. A “reasonable probability” of a different result is accordingly 

shown when the government’s evidentiary suppression “undermines 

confidence in the outcome of the trial.” 

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678). 

 Appellate courts review the lower court’s “findings of fact, such as whether the 

defendant requested the information or whether the state withheld the information . . . de 

novo with a presumption that the findings are correct unless the evidence preponderates 

otherwise.” Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004). 

“[C]onclusions of law, however, such as whether the information was favorable or 

material, are reviewed under a purely de novo standard with no presumption of 

correctness.” Id.

 For the Petitioner’s convictions for rape of a child and incest to be valid, the jury 

needed to be convinced beyond a reasonable doubt that sexual penetration occurred. See 

Tenn. Code Ann. §§ 39-13-522(a) (“Rape of a child is the unlawful sexual penetration of 

a victim by the defendant or the defendant by a victim, if the victim is more than eight (8) 

years of age but less than thirteen (13) years of age.”); -15-302 (“A person commits incest 

who engages in sexual penetration . . . with a person, knowing the person to be, without 

regard to legitimacy[,] . . . [t]he person’s natural . . . child[.]”). Our Code defines “sexual 

penetration” as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other 

intrusion, however slight, of any part of a person’s body or of any object into the genital or 

anal openings of the victim’s . . . body, but emission of semen is not required.” Id. § 39-

13-501(7) (emphasis added). There is no requirement for the State to prove injury to a 

child victim’s vagina or that hymenal rupture occurred for these convictions to be 

supported by sufficient evidence. See, e.g., State v. Franklin, 585 S.W.3d 431, 456-59 

(Tenn. Crim. App. 2019) (concluding that sufficient evidence supported the defendant’s 

convictions for rape of a child, aggravated sexual battery, and child abuse because, 

although there was no physical evidence of the sexual offenses, the four-year-old victim 

reported the abuse and consistently stated the defendant had sexually penetrated her and 

had her perform sexual acts, and the victim’s mother testified the defendant was not acting 

normally following the offense); State v. Gibson, 973 S.W.2d 231, 234-39 (Tenn. Crim. 

App. 1997) (finding that sufficient evidence supported the defendant’s convictions for rape 

of a child involving digital and penile penetration despite the victim’s normal medical test 

and intact hymen where expert testimony explained that penetration could have occurred 
- 37 - 

consistent with the test results, the victim testified that penetration occurred, the defendant 

admitted to sexual contact with the child, and the statute defined sexual penetration as 

including intrusion “however slight”). 

 While there is no requirement that the State prove injury to a child victim’s vagina 

or that hymenal rupture occurred to establish penetration, evidence is favorable if it 

“provides some significant aid to the defendant’s case, whether it furnishes corroboration 

of the defendant’s story, calls into question a material, although not indispensable, element 

of the prosecution’s version of the events, or challenges the credibility of a key prosecution 

witness.” Johnson, 38 S.W.3d at 56-57 (quotation omitted). Certainly, if the victim’s 

medical examination did in fact reveal vaginal injury or hymenal rupture, such would have 

been weighty, corroborative proof in support of the victim’s allegations and, thus, bolstered 

her credibility. But, depending upon the nature of the allegations, the absence of these 

findings may also bear on the victim’s credibility. The SANE nurse’s report could have 

provided aid to the Petitioner’s case by calling into question a material, although not 

indispensable, element of the prosecution’s version of the events and challenging the 

victim’s credibility. Cf. Lingle v. Iowa, 195 F.3d 1023, 1027 (8th Cir. 1999) (noting, in a 

child sexual abuse case, that “[p]erhaps, . . . the [victim’s medical] report could have been 

used to raise doubts in the jurors’ minds as to [the defendant’s] guilt or innocence”); 

Bautista v. State, 474 S.W.3d 770, 779-80 (Tex. App. 2014) (indicating, in a conviction for 

continuous sexual abuse of a child, that if the defendant had proven the victim’s medical 

records contained information the victim’s hymen remained intact, such would have been 

favorable to the defense). Accordingly, we agree with the Petitioner that the evidence was 

favorable because it “was inconsistent with, or not corroborative of,” the victim’s story and 

conclude that the Petitioner has successfully established the third Brady factor for this 

reason. 

 Turning to our examination of the fourth Brady factor—materiality—we observe 

that the report does not conclusively establish whether the victim had or had not been 

penetrated prior to the medical examination performed by the SANE nurse. Indeed, the 

report itself indicates that, despite the lack of vaginal injury or hymenal rupture, the 

victim’s physical examination was consistent with her account of the abuse. The 

examination took place sometime after the last incident of intercourse. Moreover, as noted 

by the post-conviction court, the Petitioner failed to present any proof that would establish 

the exculpatory nature of the report. Again, there was no evidence that the Petitioner 

attempted to subpoena the SANE nurse to the evidentiary hearing or that the Petitioner 

attempted to contact a medical expert, but the expert was unavailable. In addition, the 

Petitioner made no efforts in the two plus months following the evidentiary hearing before 

entry of the post-conviction court’s order to place any relevant proof on this issue before 

the post-conviction court. 
- 38 - 

In this case, the victim consistently reported that the Petitioner raped her, which 

included an allegation of penile penetration: to her mother, during the forensic interview, 

to the SANE nurse, and at trial. The SANE nurse stated in the report that the victim’s 

“exam findings were consistent with the history provided”; a fact emphasized by the postconviction court in its Brady ruling. Even if the SANE nurse’s report could have been used 

to raise doubts in the jurors’ minds as to the Petitioner’s guilt or innocence, there is a 

considerable difference between merely raising doubts and the creation of a “reasonable 

probability” that the trial’s “result . . . would have been different” had the prosecutor made 

a timely disclosure of this evidence. See Bagley, 473 U.S. at 682; e.g., Ives v. Boone, 101 

Fed. Appx. 274, 287 (10th Cir. 2004) (in an incest case, holding that a medical report 

stating “the victim’s ‘hymen was thought to be intact’” did “not conclusively establish the 

victim had not engaged in sexual intercourse prior to the 1987 examination”; thus, the 

petitioner’s Brady claim was “without merit because the report [was] neither exculpatory 

nor material”); Lingle, 195 F.3d at 1027 (concluding, in a child sexual abuse case where 

the victim alleged digital and penile penetration, that the State’s failure to disclose an 

examination report showing the victim’s hymen was intact did not satisfy the fourth Brady

factor because “[t]here is a considerable difference . . . between merely ‘raising doubts’ 

and the creation of a reasonable probability that the trial’s result would have been different” 

(quotation omitted)); Bautista, 474 S.W.3d at 780 (holding, in a conviction for continuous 

sexual abuse of a child, that even if the medical records established the victim’s hymen 

was still intact, the defendant still failed to prove the victim could not have suffered sexual 

abuse and maintained an intact hymen, and “[t]he mere possibility that an item . . . might 

have helped the defense or might have affected the outcome of the trial does not establish 

‘materiality’ in the constitutional sense) (citation omitted)). While the SANE nurse’s 

report was favorable to the Petitioner, it was not material in the sense that there is a 

reasonable probability that disclosure before trial would have caused a different result. See 

Bagley, 473 U.S. at 682. Accordingly, we conclude that the absence of the SANE nurse’s 

report from the Petitioner’s trial does not “destroy confidence” in the reliability of his 

convictions. See Kyles, 514 U.S. at 439. We hold the SANE nurse’s report fails to meet 

the required constitutional standard of materiality. 

In addition, the Petitioner, in discussing materiality, observes that this is not merely 

a case of non-disclosure, but one where the State made an affirmative misrepresentation 

regarding the report’s existence. However, in Brady, the Supreme Court held that 

constitutional due process is violated when a prosecutor suppresses evidence favorable to 

a defendant “where the evidence is material either to guilt or to punishment, irrespective 

of the good faith or bad faith of the prosecution.” 373 U.S. at 87 (emphasis added). “The 

mere possibility that an item of undisclosed information . . . might have affected the 

outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United 
- 39 - 

States v. Agurs, 427 U.S. 97, 109-10 (1976). For these reasons, we conclude that the 

Petitioner has failed to satisfy the fourth Brady factor, and he is not entitled to relief. 

C. Ineffective Assistance of Counsel 

In this appeal, the Petitioner asserts that he received the ineffective assistance of 

counsel at trial and on direct appeal.6 The Petitioner contends that trial counsel was 

ineffective because he (1) failed to file a pretrial motion pursuant to Tennessee Rule of 

Evidence 412 seeking to have evidence of the victim’s sexual interactions with her 

stepbrother admitted for various purposes, (2) failed to object to the State’s improper 

closing argument, and (3) failed to properly address the issue of venue. We will address 

each of the Petitioner’s contentions in turn. 

On appeal, the Petitioner argues he is entitled to post-conviction relief due to 

multiple instances of the ineffective assistance of counsel. Criminal defendants are 

constitutionally guaranteed the right to effective assistance of counsel. U.S. Const. amend. 

VI; Tenn. Const. art. I, § 9; see Cuyler v. Sullivan, 446 U.S. 335, 344 (1980); Dellinger, 

279 S.W.3d at 293. When a claim of ineffective assistance of counsel is made under the 

Sixth Amendment to the United States Constitution, the burden is on the petitioner to show 

(1) that counsel’s performance was deficient and (2) that the deficiency was 

prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 

506 U.S. 364, 368-72 (1993). “Because a petitioner must establish both prongs of the test, 

a failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on 

the ineffective assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). 

The Strickland standard has been applied to the right to counsel under article I, section 9 

of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989). 

Deficient performance requires a showing that “counsel’s representation fell below 

an objective standard of reasonableness,” and reviewing courts “must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Strickland, 466 U.S. at 688-89. When a court reviews a lawyer’s 

performance, it “must make every effort to eliminate the distorting effects of hindsight, to 

reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from the 

perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) 

(citing Strickland, 466 U.S. at 689). We will not deem counsel to have been ineffective 

merely because a different strategy or procedure might have produced a more favorable 

result. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize, 

however, that “deference to tactical choices only applies if the choices are informed ones 

6

 As noted previously, trial counsel also represented the Petitioner in his direct appeal. 
- 40 - 

based upon adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. 

App. 1992) (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)). 

As to the prejudice prong, the petitioner must establish “a reasonable probability 

that, but for counsel’s errors, the result of the proceeding would have been different[.]” 

Vaughn v. State, 202 S.W.3d 106, 119 (Tenn. 2006) (citing Strickland, 466 U.S. at 694). 

“A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must establish that his 

counsel’s deficient performance was of such a degree that it deprived him of a fair trial and 

called into question the reliability of the outcome.” Pylant v. State, 263 S.W.3d 854, 869 

(Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)). 

“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. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). On appeal, 

we are bound by the post-conviction court’s findings of fact on appeal unless we conclude 

that the evidence in the record preponderates against those findings. Id. Because they 

relate to mixed questions of law and fact, the post-conviction court’s conclusions as to 

whether counsel’s performance was deficient and whether that deficiency was prejudicial 

are reviewed under a de novo standard with no presumption of correctness. Id. at 457. 

1. Tennessee Rule of Evidence 412 Motion 

The Petitioner argues that “his right to the effective assistance of counsel was 

violated when [trial counsel] failed to file a Rule 412 motion and thus was unable to 

introduce evidence of the [victim’s] sexual activity with her stepbrother.” The Petitioner 

notes trial counsel’s testimony that he was unaware evidence of this sexual behavior was 

governed by Rule 412 and that he did not research Rule 412 or file a pretrial motion. We 

agree with the Petitioner, and the post-conviction court, that this evidence constitutes 

“sexual behavior” governed by Rule 412. 

Tennessee’s rape shield rule, which is found in Tennessee Rule of Evidence 412, 

“was enacted to reflect the general view that evidence of prior sexual behavior is irrelevant 

or, if relevant, has little probative value compared to its prejudicial effect, unless the 

evidence is within one of the enumerated exceptions.” State v. Brown, 29 S.W.3d 427, 

429-30 (Tenn. 2000). Rule 412 “recognizes that, despite the embarrassing nature of the 

proof, sometimes the accused can only have a fair trial if permitted to introduce evidence 

of the alleged victim’s sexual history.” Tenn. R. Evid. 412, Advisory Comm’n Cmts. (2005 

amendment). The rule’s “purpose is to exclude all evidence regarding the complainant’s 
- 41 - 

prior sexual behavior unless the procedural protocol is followed and the evidence conforms 

to the specifications” of the rule. Brown, 29 S.W.3d at 430. 

Rule 412 defines “sexual behavior” as “sexual activity of the alleged victim other 

than the sexual act at issue in the case.” Tenn. R. Evid. 412(a). “This broad definition 

‘deals with sexual intercourse as well as every other variety of sexual expression.’” State 

v. Wyrick, 62 S.W.3d 751, 770-71 (Tenn. Crim. App. 2001) (quoting State v. Sheline, 955 

S.W.2d 42, 47 n.6 (Tenn. 1997)). The provisions of Rule 412(c) provide, in pertinent part, 

as follows: 

Specific Instances of Conduct. Evidence of specific instances of a 

victim’s sexual behavior is inadmissible unless . . . the evidence is: 

(1) Required by the Tennessee or United States Constitution, or 

(2) Offered by the defendant on the issue of credibility of the 

victim, provided the prosecutor or victim has presented evidence as to the 

victim’s sexual behavior, and only to the extent needed to rebut the specific 

evidence presented by the prosecutor or victim, or 

(3) If the sexual behavior was with the accused, on the issue of 

consent, or 

(4) If the sexual behavior was with persons other than the accused, 

[and is offered] 

(i) to rebut or explain scientific or medical 

evidence, or 

(ii) to prove or explain the source of semen, injury, 

disease, or knowledge of sexual matters, or 

(iii) to prove consent if the evidence is of a pattern of 

sexual behavior so distinctive and so closely resembling the 

accused’s version of the alleged encounter with the victim that 

it tends to prove that the victim consented to the act charged or 

behaved in such a manner as to lead the defendant reasonably 

to believe that the victim consented. 

Relative to the procedure to be followed, Rule 412 provides that if a defendant 

intends to offer evidence regarding specific instances of conduct of the victim’s sexual 

behavior, then the defense must “file a written motion to offer such evidence.” Tenn. R. 

Evid. 412(d)(1). This motion 

shall be filed no later than ten days before the date on which the trial is 

scheduled to begin, except the court may allow the motion to be made at a 
- 42 - 

later date, including during trial, if the court determines either that the 

evidence is newly discovered and could not have been obtained earlier 

through the exercise of due diligence or that the issue to which such evidence 

relates has newly arisen in the case. 

Id. (d)(1)(i). In addition, the motion “shall be served on all parties, the prosecuting 

attorney, and the victim[,]” and it “shall be accompanied by a written offer of proof, 

describing the specific evidence and the purpose for introducing it.” Id. (d)(1)(ii), (iii). 

Finally, if the trial court determines that the evidence meets the admissibility requirements 

of the rule and that the probative value of the evidence outweighs its unfair prejudice to the 

victim, “the evidence shall be admissible in the proceeding to the extent an order made by 

the court specifies the evidence which may be offered and areas with respect to which the 

alleged victim may be examined or cross-examined.” Id. (d)(4). 

a. Multiple Avenues for Admission 

To properly frame our analysis of these issues, we find it necessary to discuss how 

the Petitioner’s argument was presented in his post-conviction petitions, as opposed to how 

it was presented by post-conviction counsel in closing argument at the evidentiary hearing, 

in the “Proposed Post-Hearing Findings of Fact and Conclusions of Law” submitted to the 

post-conviction court following the evidentiary hearing, and, likewise, on appeal. To do 

so, we must set forth some additional procedural background. 

In the post-conviction petitions, the Petitioner first argued that trial counsel was 

ineffective for failing to file a Rule 412 motion seeking to introduce evidence of the 

victim’s sexual activity with her stepbrother, detailing that such activity was admissible to 

show the victim’s sexual knowledge and her motive to fabricate allegations against the 

Petitioner. Then, as a separate enumerated issue, the Petitioner contended that trial counsel 

was ineffective for failing to file a Rule 412 motion seeking admission of this evidence, 

thereby, precluding him from arguing 

that the reason the [victim] was depressed when returning to the home of [her 

mother and stepfather] was not . . . because she had been abused by [the 

Petitioner,] but rather[,] because she was returning to a home where she had 

been and was being abused by her stepbrother or was in a relationship she 

found shameful or embarrassing or was concerned would be discovered. 

In another enumerated allegation, the Petitioner submitted that trial counsel’s 

ineffectiveness relative to Rule 412 precluded him from “attack[ing] the [victim’s] 
- 43 - 

inaccurate testimony that she had been at her mother’s house ever since reporting the 

allegation.” 

Next, he levied separate ineffective assistance allegations involving trial counsel’s 

failure to adequately question the victim’s mother about (1) “her decision to inform DCS 

and/or law enforcement that the [victim] had disclosed an allegation against her father but 

not to inform DCS and/or law enforcement that the [victim] had disclosed an allegation 

against her stepbrother”; and (2) “her failure to comply with the safety plan ordered by the 

Juvenile Court, which resulted in the [victim’s] being taken into DCS custody[.]” 

According to the Petitioner, such questioning of the victim’s mother “would have cast 

doubt on” her credibility. Finally, as it related to these topics, the Petitioner argued that 

trial counsel was ineffective for failing to argue “that the State had opened the door to 

presentation of evidence regarding the [victim’s] whereabouts” when the victim testified 

that she had remained at her mother’s house ever since making the allegations against the 

Petitioner, specifically, evidence that the victim had been removed from the custody of her 

mother and stepfather. 

Then, following the conclusion of the proof at the evidentiary hearing, 

post-conviction counsel concentrated his ineffectiveness argument regarding evidence of 

the victim’s activity with her stepbrother on two specific enumerated avenues for relief 

pursuant to Rule 412—knowledge of sexual matters and motive to lie. Similarly, in the 

Petitioner’s “Proposed Post-Hearing Findings of Fact and Conclusions of Law”—the 

Petitioner’s deficiency argument focused on whether the evidence would have been 

admissible under Rule 412 to show the victim’s knowledge of sexual matters or, pursuant 

to the Tennessee or United States Constitutions, her motive lie. See Tenn. R. Evid. 

412(c)(1), (4). Relative to prejudice, the Petitioner argued that there was a reasonable 

probability that introduction of this information would have led to a different outcome and 

pointed to “a variety of ways” in which this evidence would have been useful to the 

defense—(1) establishing the victim’s motive to lie; (2) explaining the victim’s mother’s 

testimony regarding the victim’s demeanor that the victim was withdrawn upon returning 

from the Petitioner’s home and that after the disclosure of the Petitioner’s abuse, the victim 

acted as if a weight had been lifted; (3) showing the victim’s mother’s bias because she 

only informed DCS and law enforcement about the victim’s allegations against the 

Petitioner, but did not mention the sexual activity between the victim and her stepbrother; 

(4) impugning the victim’s credibility relative to her testimony that she had lived with her 

mother ever since reporting the allegations; and (5) providing the source of the victim’s 

knowledge of sexual matters. According to the Petitioner, the inclusion of this information 

for these reasons could have led to a different outcome, particularly where, as here, “the 

State’s evidence was already flawed enough that the jury rejected an entire set of counts 

relating to the [victim’s grandparents’] house[.]” 
- 44 - 

The post-conviction court, in its ruling on the Petitioner’s ineffectiveness claim 

regarding Rule 412, restricted its discussion to the two avenues for admission as set forth 

in the Petitioner’s post-hearing brief. The post-conviction court noted trial counsel’s 

testimony that, although he was aware of Rule 412, he mistakenly believed the evidence 

was admissible under other evidentiary rules, and it concluded that trial counsel was, 

therefore, deficient in this regard. The post-conviction court reasoned that, had trial 

counsel filed a Rule 412 motion, “the evidence would have likely been admissible to 

explain knowledge of sexual matters and, perhaps, to show a motive for the victim to lie[,]” 

and it additionally determined that the probative value of the evidence “would have 

outweighed the danger of unfair prejudice to the victim.” The post-conviction court then 

went on to examine prejudice as it related to these two proposed avenues of admission and 

concluded that the Petitioner was not prejudiced by trial counsel’s deficiency. 

The post-conviction court addressed separately the Petitioner’s contentions that trial 

counsel was ineffective for failing to call the victim’s mother “to testify about the 

disclosures of behavior with [her stepson] and the victim” and to question the victim’s 

mother “about her failure to disclose the behavior between [her stepson] and the victim.” 

The post-conviction court found that the Petitioner had failed to present any evidence 

supporting these arguments, and thus, he had not carried his burden of proof. 

On appeal, the Petitioner makes the precise argument as he did in his “Proposed 

Post-Hearing Findings of Fact and Conclusions of Law”—i.e., his deficiency argument 

again focuses on whether evidence of the sexual activity between the victim and her 

stepbrother would have been an admissible exception under Rule 412 to show the victim’s 

knowledge of sexual matters or her motive lie, and his prejudice argument lists the same 

five ways in which the evidence would have been useful in his defense to establish a 

reasonable probability that introduction of this information would have led to a different 

outcome. However, the Petitioner’s prejudice argument rests on the presumption that, if 

the evidence were admissible for one of the two enumerated reasons as it related to trial 

counsel’s deficiency, then the Petitioner could have used the evidence in his defense in any 

of the five ways at trial. The Petitioner is attempting to bootstrap three additional avenues 

for admissibility under Rule 412 into his prejudice argument without enumerating them as 

separate grounds supporting trial counsel’s deficiency. 

Rule 412 “strikes a balance between the paramount interests of the accused in a fair 

trial and the important interests of the sexual assault victim in avoiding an unnecessary, 

degrading, and embarrassing invasion of sexual privacy.” Tenn. R. Evid. 412, Advisory 

Comm’n Cmts. (2005 amendment). Rule 412 is generally a rule of exclusion, subject to 

certain exceptions. It only permits evidence of specific instances of sexual conduct by the 
- 45 - 

victim with someone other than the accused for the enumerated purposes stated therein. 

See generally Tenn. R. Evid. 412(c). The rule’s intent is not to provide a defendant with 

unfettered use of the victim’s past sexual behavior once any of the enumerated grounds for 

admissibility specified in the rule have been established. See generally id. (d)(4) (stating 

that “the evidence shall be admissible in the proceeding to the extent an order made by the 

court specifies the evidence which may be offered and areas with respect to which the 

alleged victim may be examined or cross-examined”). 

We cannot indulge any attempt to comingle these additional avenues for 

admissibility under Rule 412 within the Petitioner’s prejudice argument. We would first 

need to find that the evidence was admissible for these additional purposes as it relates to 

the issue of trial counsel’s deficiency, and the Petitioner’s argument was not presented to 

the post-conviction court or on appeal in such a manner. Accordingly, we will only address 

the Petitioner’s ineffectiveness claim—both deficiency and prejudice—in regard to Rule 

412 as it relates to presenting evidence of the source of the victim’s sexual knowledge and 

the victim’s motive to lie. 

b. Knowledge of Sexual Matters 

i. Deficiency 

The Petitioner argues that evidence of the victim’s sexual activity with her 

stepbrother would have provided a basis for the victim’s knowledge of sexual matters, and 

therefore, trial counsel was deficient for failing to file a Rule 412 motion seeking admission 

of this evidence pursuant to the sexual knowledge exception. The post-conviction court 

determined that trial counsel was deficient for this reason, and the State concedes trial 

counsel’s deficiency in this respect. However, we are not bound by the State’s concession. 

See Clardy v. State, 691 S.W.3d 390, 409 (Tenn. 2024). Before accepting a concession, 

this court should independently analyze the underlying legal issue to determine whether 

the concession reflects a correct interpretation of the law. See State v. Gomez, 163 S.W.3d 

632, 654 (Tenn. 2005), vacated on other grounds, 549 U.S. 1190 (2007). 

Here, the post-conviction court found that the evidence was admissible pursuant to 

the sexual knowledge exception of Rule 412 and determined that the evidence was more 

probative than prejudicial. See Tenn. R. Evid. 412(c)(4)(ii), (d)(4). Despite the State’s 

concession on appeal, the prosecutor, at the conclusion of the evidentiary hearing, observed 

that “[i]t’s one thing to say that this type of proof falls within the purview of Rule 412[,]” 

but “[i]t’s another thing to say that it’s actually admissible in trial.” The prosecutor argued 

that it would not have been admissible at trial to show the source of the victim’s sexual 

knowledge because the victim indicated that the Petitioner’s abuse predated any sexual 
- 46 - 

behavior with her stepbrother. The post-conviction court interjected that it was not relevant 

which happened first in time and stated that “anything that happened before her testimony” 

could go to the victim’s sexual knowledge and that the evidence would have been 

admissible at trial for that reason. 

A minor victim’s knowledge of sexual matters is typically a fact of consequence in 

prosecuting sexual abuse cases. See Tenn. R. Evid. 401 (“‘Relevant evidence’ means 

evidence having any tendency to make the existence of any fact that is of consequence to 

the determination of the action more probable or less probable than it would be without the 

evidence.”). The sexual knowledge exception to Rule 412 

will most frequently be used in cases where the victim is a young child who 

testifies in detail about sexual activity. To disprove any suggestion that the 

child acquired the detailed information about sexual matters from the 

encounter with the accused, the defense may want to prove that the child 

learned the terminology as the result of sexual activity with third parties. 

State v. Lyle, No. E2012-00468-CCA-R3-CD, 2013 WL 1281857, at *13-14 (Tenn. Crim. 

App. Mar. 28, 2013) (citing Tenn. R. Evid. 412, Advisory Comm’n Cmts.). Here, the 

Petitioner’s defense was that the victim, who was eleven years old at the time she disclosed 

the Petitioner’s abuse, fabricated the accusations against him for attention, but the victim 

undoubtedly had knowledge of sexual matters far beyond her age. The prosecutor 

mentioned during closing argument that the child victim testified in great detail about these 

sexual acts. As trial counsel observed during the post-conviction hearing, the jury would 

certainly be seeking an alternative explanation for how this knowledge came to be in a 

child of the victim’s age. 

Nonetheless, the Petitioner offers only an unrefined allegation that this sexual 

relationship between the victim and her stepbrother would have been relevant to provide 

the source of the victim’s knowledge of sexual matters. The victim stated in her forensic 

interview that the sexual activity with the Petitioner began first. The Petitioner failed to 

develop any additional details at the evidentiary hearing regarding the chronology of the 

victim’s sexual behavior as it progressed with the Petitioner and then with her stepbrother. 

See Tenn. Code Ann. § 40-30-110(f); Dellinger, 279 S.W.3d at 293-94. 

A DCS “Case Recording Summary” included in the record on appeal details the 

victim’s stepbrother’s forensic interview that took place on January 15, 2016. The 

information in this summary largely discounts any allegation that the stepbrother was 

“perping” on the victim. In the interview, the victim’s stepbrother said that the victim 

“approached him asking to see him naked and then asking to perform oral sex.” He 
- 47 - 

indicated that this had happened “a couple of times closer to the beginning of the school 

year.” He also mentioned that the victim had “a problem with constantly having ‘urges’ 

and wanting to masturbate.” This information implies that the victim was, in fact, the one 

with prior knowledge of sexual matters at the time she approached her stepbrother. On the 

record as presently before us, we conclude that admitting this evidence at the Petitioner’s 

trial would have offered only marginal support, if any, for the insinuation that the victim’s 

relationship with her stepbrother provided the source of her sexual knowledge. See State 

v. West, 737 S.W.2d 790, 793-94 (Tenn. Crim. App. 1987) (holding that evidence of any 

sexual relationship between the young rape victim, who was the defendant’s stepdaughter, 

and her boyfriend which occurred subsequent to the offenses charged had no tendency to 

make it more or less probable that the defendant had repeatedly raped his stepdaughter, and 

thus, such evidence was properly excluded as irrelevant to the victim’s knowledge of 

sexual matters, and its exclusion did not violate the defendant’s confrontation right).7 

In addition, the victim also disclosed only fondling and fellatio with her stepbrother, 

but she disclosed, additionally, cunnilingus and intercourse with the Petitioner. These 

sexual acts are not substantially similar. The victim’s behavior with her stepbrother, even 

if occurring first in time, does not explain the young victim’s knowledge of these other two 

sexual acts. Accordingly, any probative value of this evidence is lessened given that the 

victim’s sexual behavior with her stepbrother does not account for her knowledge of other 

distinct sexual acts. See Lyle, 2013 WL 1281857, at *14 (“Any sexual play or 

experimentation that the victim may have engaged in with another child is in no way 

relevant to the issue of how the [d]efendant’s hand came into contact with the victim’s 

genital region, unless the play or experimentation mimicked either theory of the 

touchings.”). 

Following our de novo review and for these reasons, we conclude that this evidence 

would have been inadmissible at trial under Rule 412 and that trial counsel was thus not 

deficient for failing to file a Rule 412 motion seeking admission of this evidence to explain 

the source of the victim’s sexual knowledge. See, e.g., Colwell v. State, No. M2019-00212-

CCA-R3-PC, 2020 WL 3886031, at *11-12 (Tenn. Crim. App. July 10, 2020) (holding that 

trial counsel was not deficient for failing to file a Rule 412 motion so that the petitioner 

could question the victim about her prior sexual involvement with boys when such 

evidence was inadmissible). We remain steadfast in this conclusion regardless of whether 

trial counsel subjectively believed that the evidence was covered by Rule 412. 

7 West was decided prior to the adoption of the Tennessee Rules of Evidence under the common 

law definition of relevance. See State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978) (stating that “‘[r]elevant 

evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to 

the determination of the action more probable or less probable than it would be without the evidence”). 
- 48 - 

ii. Prejudice 

Relative to prejudice, the Petitioner maintains that, absent an answer for the jury 

relative to how the child victim learned of sexual matters, “even the weakest 

testimony . . . might well be enough to convince a jury that something must have 

happened—otherwise how would the [child victim] have known how to explain in any 

detail the mechanics of sexual acts[.]” The State responds that the Petitioner failed to 

establish prejudice because the victim’s knowledge of sexual matters was not really in issue 

at the Petitioner’s trial. 

At the post-conviction hearing, trial counsel did not detail the depth to which he 

intended to explicate the victim’s sexual relationship with her stepbrother but was 

prohibited from doing so by the trial court’s Rule 412 determination. The only instance 

apparent from the record was when trial counsel asked the victim on cross-examination 

about her statement that she had remained in the house with her mother ever since making 

the allegations against the Petitioner. Other than intended argument on the topic, trial 

counsel did not indicate any additional questions he intended to ask any of the witnesses 

or mention any additional evidence he would have sought to introduce. 

Relative to use of the victim’s forensic interview, trial counsel agreed that he could 

have used it as an impeachment tool on the victim’s cross-examination. However, trial 

counsel also indicated that, had he done so, the victim might have alleged an entirely 

separate incident of sexual intercourse and that there existed “a very real possibility that 

the prosecutor [would] just press play and [they would] listen to the whole thing.” 

Trial counsel’s concerns were well-founded. If trial counsel had sought to develop 

evidence of the victim’s sexual behavior with her stepbrother through cross-examination 

of the victim, the State likely would have sought and been permitted to clarify on redirect 

that the victim’s knowledge of sexual matters originally came from the Petitioner. See 

State v. Osborne, 251 S.W.3d 1, 20 (Tenn. Crim. App. 2007) (concluding that, when 

defense counsel cross-examined one victim at length about her grandfather’s inappropriate 

conduct when she was eight years old, and before she had met the other victim, the State 

was entitled to rebut this evidence because the jury was left with the clear implication that 

the first victim’s grandfather was the first person to sexually abuse the victim and provide 

the victim with knowledge of sexual matters). Furthermore, if trial counsel had delved into 

the details of the victim’s forensic interview, then there existed a possibility that the 

prosecutor could have played the entire interview. See State v. Cox, No. E2020-01388-

CCA-R3-CD, 2022 WL 325596, at *12-13 (Tenn. Crim. App. Feb. 3, 2022) (holding that 

pursuant to the rule of completeness, the trial court did not abuse its discretion in allowing 
- 49 - 

the entire video of the victim’s forensic interview to be played for the jury, though the 

defendant requested to play only the portions of the interview). 

In addition, we note that the Petitioner did not introduce the victim’s entire forensic 

interview as an exhibit to the post-conviction hearing but only introduced the 

thirteen-minute portion where she discussed the sexual behavior with her stepbrother. And, 

given that the State would have been entitled to rebut the Petitioner’s evidence, any 

comprehensive determination of prejudice would include review of the entire forensic 

interview. See Tenn. Code Ann. § 40-30-110(f); Dellinger, 279 S.W.3d at 293-94. 

As for the documents that were admitted at the post-conviction hearing, we observe 

that the DCS document titled “Child Protective Service Investigation Summary and 

Classification Decision of Child Abuse/Neglect Referral” provided details of the victim’s 

entire forensic interview. It was noted in the document that the victim “gave a very detailed 

disclosure of the sexual abuse she endure[d] at the hands of [the Petitioner].” The victim 

disclosed having oral sex with the Petitioner where he “licked her,” she “sucked him,” she 

rubbed him “up and down” and “[i]t came out rubbery and warm[.]” The victim said that 

when the Petitioner was finished, he would “hold it at the end until hot, white, chunky 

stuff” came out on her stomach. She also said that he put his penis “in and out of her.” 

The Petitioner instructed her not to tell anyone. The victim was able “to describe how her 

body reacted to the touches . . . as well.” The victim also indicated that the abuse went on 

for over two years, and she finally told her mother because she wanted it to stop. 

The victim’s forensic interview was also detailed in a “Case Recording Summary” 

prepared by Ms. Orsulak on December 27, 2015. That document reflected that the victim 

informed the interviewer that she “finally felt comfortable” having sex with the Petitioner 

because they “had done it so much.” According to the victim, they had engaged in 

intercourse at least ten or more times. 

It was indeed likely that, if trial counsel had attempted to introduce evidence of the 

victim’s sexual behavior with her stepbrother, then undesired results would have ensued. 

Importantly, trial counsel would have run the risk that the victim would have mentioned 

additional acts of intercourse with the Petitioner. Also, many of the details of the 

encounters between the two children do not support the Petitioner’s claim that the victim’s 

stepbrother provided the source of her sexual knowledge rather than the Petitioner. In fact, 

as noted above, the record reflects that the victim was the one with prior knowledge of 

sexual matters at the time she approached her stepbrother. Furthermore, while there were 

some minor inconsistencies between the victim’s statements in the interview and her trial 

testimony, delving into these topics would have served only to show that the victim made 

prior consistent disclosures of sexual abuse at the hands of the Petitioner. 
- 50 - 

For these reasons, we cannot say that there was a reasonable probability that, absent 

trial counsel’s failure to present an alternative source of the victim’s knowledge of sexual 

matters, the result of the proceeding would have been different, and the jury would have 

discredited the victim’s testimony and believed the testimony of the Petitioner and his 

witnesses that the abuse did not occur. Thus, we agree with the post-conviction court that 

the Petitioner has failed to establish prejudice for any alleged deficiency in this regard. 

c. Motive to Lie 

The Petitioner submits that this evidence was admissible to show the victim’s 

motive to lie and that its admission was required by the United States and Tennessee 

Constitutions, thus, an exception to the prohibition as stated in Tennessee Rule of Evidence 

412. According to the Petitioner, “[t]here are well recognized examples of situations where 

the United States Constitution requires that specific act proof be admitted into evidence to 

prove that a key government witness had a motive to lie.” In support of his argument, the 

Petitioner cites two cases mentioned in the Advisory Commission Comments to Rule 412: 

State v. Jalo, 557 P.2d 1359 (Or. Ct. App. 1976); and Commonwealth v. Black, 487 A.2d 

396 (Pa. Super. Ct. 1985). 

The State first notes the post-conviction court’s ruling that the evidence could 

“perhaps” be used for this purpose under Rule 412’s constitutional exception. The State 

asserts that, despite the post-conviction court’s ruling suggesting that the evidence was 

admissible for this purpose, the Petitioner “has not shown that this is the law in Tennessee,” 

especially where he could present “proof of a motivation to lie[,]” i.e., that the victim was 

feeling neglected and wanting attention. 

i. Deficiency 

The post-conviction court here did not make a definitive determination on whether 

the evidence was admissible to show the victim’s motive to lie, finding only that it was 

“perhaps” admissible. It appears that, for the sake of analysis, the post-conviction assumed 

this evidence was admissible for this purpose pursuant to the constitutional exception of 

Rule 412, given that it had already determined that the evidence was admissible to establish 

the victim’s knowledge of sexual matters, but ultimately denied relief due to the 

Petitioner’s failure to demonstrate prejudice. We repeat that merely because evidence is 

admissible for one purpose under Rule 412 does not mean that it becomes admissible to 

use for any and every purpose during trial. With this principle in mind, we turn to our de 

novo review of whether trial counsel was deficient in this regard. 
- 51 - 

Initially, we observe, contrary to the post-conviction court’s conclusion, that the 

defense could have proceeded simultaneously with both theories regarding the victim’s 

motive to lie, i.e., that the victim accused the Petitioner to deflect attention away from her 

sexual behavior with her stepbrother and also that the victim felt neglected and wanted 

attention. The simple fact that these theories might have been seen as somewhat 

contradictory in nature would not have precluded the Petitioner from pursuing both in the 

hope of obtaining a not guilty verdict. Trial counsel “may reasonably decide as a matter 

of strategy to present alternative, even inconsistent defense theories to the jury[.]” Felts v. 

State, 354 S.W.3d 266, 280 (Tenn. 2011) (citation and footnote omitted). 

Turning to the requirements of Rule 412, in addition to establishing specific 

circumstances in which evidence of a victim’s prior sexual history may be admissible, the 

rule also states that such evidence is admissible if required under either the Tennessee or 

United States Constitutions. Tenn. R. Evid. 412(c)(1). The Sixth and Fourteenth 

Amendments to the United States Constitution guarantee the accused the right to present a 

defense, which includes the right to present witnesses favorable to the defense. Brown, 29 

S.W.3d at 432. A denial or “significant diminution” of this right endangers the integrity 

of the judicial process. Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). 

“Although this right is critical, at times it ‘must yield to other legitimate interests in the 

criminal trial process,’ including ‘established rules of procedure and evidence designed to 

assure both fairness and reliability in the ascertainment of guilt and innocence.’” Wyrick, 

62 S.W.3d at 770 (quoting Brown, 29 S.W.3d at 432). “So long as the rules of procedure 

and evidence are not applied arbitrarily or disproportionately to defeat the purposes they 

are designed to serve, these rules do not violate a defendant’s right to present a defense.” 

State v. Flood, 219 S.W.3d 307, 316 (Tenn. 2007). Ordinarily, an evidentiary decision 

does not rise to the level of constitutional error. Id. In determining error, 

[t]he facts of each case must be considered carefully to determine whether 

the constitutional right to present a defense has been violated by the 

exclusion of evidence. Generally, the analysis should consider whether: (1) 

the excluded evidence is critical to the defense; (2) the evidence bears 

sufficient indicia of reliability; and (3) the interest supporting exclusion of 

the evidence is substantially important. 

Brown, 29 S.W.3d at 433-34. 

Relative to whether the constitution requires admission of certain evidence of a 

victim’s history of sexual behavior, the comments to Rule 412 cite two examples from 

other states that involve a victim’s motive to lie: Jalo, 557 P.2d 1359; and Black, 487 A.2d 

396. Tenn. R. Evid. 412, Advisory Comm’n Cmts. (2005 amendment); see also Sheline, 
- 52 - 

955 S.W.2d at 48. In the first case from Oregon, the defendant, in a rape-sodomy case, 

claimed that the ten-year-old victim falsely accused him of rape to garner sympathy for 

herself after the defendant had threatened to tell the victim’s parents about her active sexual 

conduct with others. Jalo, 557 P.2d at 1360. The Oregon court concluded that the 

defendant’s right to confrontation was violated when the rape shield law prevented him 

from proving the victim’s “ulterior motive for making a false charge” against the 

defendant. Id. at 1361-62. In the second case from Pennsylvania, the defendant, in a 

rape-incest case, was prevented from trying to show that his thirteen-year-old daughter 

accused him of rape to get him out of the house so that her older brother, with whom the 

defendant had been quarrelling, would return home and they could renew their sexual 

relationship. Black, 487 A.2d at 398. The Pennsylvania court held that, where “the Rape 

Shield Law purports to prohibit the admission of evidence which may logically 

demonstrate a witness’ bias, interest or prejudice or which properly attacks the witness’ 

credibility, it unconstitutionally infringes upon an accused’s right of confrontation under 

the Sixth Amendment to the United States Constitution[.]” Id. at 401-02 (footnote 

omitted). 

 

However, the victim’s alleged motive to lie here is distinguishable from those 

present in Jalo and Black. The victims in both of those cases had a precise motivation to 

fabricate a story against the defendants exclusively. Not so here. 

In her report, the SANE nurse stated that the victim’s mother had informed her that 

the victim’s stepfather caught the victim and the victim’s stepbrother “touching each other 

without their clothes on” and that “[a]fter this, [the victim] disclosed . . . what was 

happening with [the Petitioner].” In the victim’s forensic interview, the victim indicated 

that after being asked questions by her stepfather, she and her stepbrother disclosed their 

behavior. Though the victim said she first divulged the sexual behavior with her 

stepbrother before revealing the abuse by the Petitioner, the victim did not indicate whether 

this occurred during the same conversation or what prompted the additional disclosure. 

The victim told the interviewer that because of her behavior with her stepbrother, they were 

both grounded for three weeks and that they were still grounded at the time of the interview. 

But again, the Petitioner offers only a bare allegation that this sexual relationship 

between the victim and her stepbrother would have been relevant to establish a motive for 

her to fabricate the allegations against the Petitioner. See Tenn. Code Ann. § 40-30-110(f); 

Dellinger, 279 S.W.3d at 293-94. The Petitioner did not question the victim’s mother at 

the evidentiary hearing about the details surrounding the discovery of the victim’s and her 

stepson’s sexual behavior, the substance of the family’s conversations on these matters, or 

the punishment meted out to the victim and her stepbrother following the disclosure. The 

Petitioner has failed to present evidence, which was available to him, reflecting the exact 
- 53 - 

timing of the victim’s disclosures or the tone of the various conversations with her parents 

surrounding the separate incidents, such as whether there was any aggressive questioning 

by her mother or stepfather that led to the disclosure involving the allegations against the 

Petitioner. In fact, the victim’s punishment for her behavior with her stepbrother, by her 

own statement, did not appear to have been lessened in any way following her accusations 

against the Petitioner. 

While certainly true that the victim’s disclosure of sexual abuse at the hands of the 

Petitioner happened shortly after the victim’s being discovered engaging in sexual behavior 

with her stepbrother, it was only speculative that the victim faced any parental pressure 

that would have led her to identify an additional individual, particularly her father, as a 

perpetrator of unrelated sexual abuse. Revealing that the victim engaged in sexual acts 

with her stepbrother, by itself, does little to shed light on why the victim would also be 

motivated to accuse the Petitioner specifically, of all the people in the world, her biological 

father, of sexually abusing her. See, e.g., State v. Quinonez-Gaiton, 54 P.3d 139, 144 (Utah 

Ct. App. 2002) (making a similar comment in determining that the exclusion of evidence 

of the child victim’s sexual encounter with his stepbrother was proper where the defendant, 

who had lived in the household with the victim for approximately five years, could have 

challenged the child victim’s credibility and motive to identify the defendant as his abuser 

without revealing that sexual conduct). The Petitioner has failed to establish any genuine 

causal connection between the discovery of the victim’s sexual activity with her 

stepbrother in relation to her motive to fabricate allegations of sexual abuse against the 

Petitioner, other than their imprecise nearness in time. 

Furthermore, the Petitioner’s defense in this regard is not particularly viable. For 

example, this is not a case where the Petitioner defended the charges based upon a theory 

of misidentification, meaning that the victim accused him, but it was actually someone else, 

in this case, the stepbrother. See Arnold v. State, No. M2018-00710-CCA-R3-PC, 2020 

WL 569928, at *35 (Tenn. Crim. App. Feb. 5, 2020) (finding an attorney’s failure to renew 

the Rule 412 motion was prejudicial because the timing of the sexual contact between the 

minor victim and the other individual was crucial in showing that the other individual was 

responsible for the offenses described in the indictment, rather than the petitioner). Any 

probative value of the evidence was indeed minimal. 

For these reasons, we cannot say that admission of this evidence for this purpose 

was critical to the Petitioner’s defense. See Brown, 29 S.W.3d at 433-34. Moreover, while 

the evidence bears sufficient indicia of reliability, “the interest supporting exclusion of the 

evidence is substantially important” in our assessment. Id. The introduction of the 

complete details of the victim’s relationship with her stepbrother would have done little 

more than result in a “trial of the [minor] rape victim based on her past sexual conduct,” 
- 54 - 

the exact opposite result to the purpose of the rape shield law. Sheline, 955 S.W.2d at 44. 

Accordingly, to the extent the post-conviction court suggested that such evidence would 

have been admissible at trial, we respectfully disagree, and for that reason, determine that 

trial counsel was not deficient in this regard. See, e.g., Colwell, 2020 WL 3886031, at 

*11-12. 

ii. Prejudice 

Relative to prejudice, the Petitioner argues that, without this evidence, the defense 

had no compelling proof to explain why the victim would have made a false allegation 

against the Petitioner. According to the Petitioner, trial counsel could have used this 

information to construct “a straightforward and entirely plausible narrative of fabrication,” 

that being that when the victim’s sexual activity with her stepbrother was discovered, she 

attempted “to deflect the blame away from herself by pointing to someone else as a 

perpetrator and characterizing herself as a victim.” And given that this developed “into a 

very serious matter, [she] decided it was easier to continue with the allegation rather than 

retract it.” 

The State responds that the Petitioner cannot establish prejudice because he was 

already able to present proof of the victim’s motive to lie at trial, i.e., she was feeling 

neglected and wanted attention, so she made up the allegations. According to the State, 

“[p]resenting an alternate theory that directly contradicts this motivation—by arguing [the 

victim] wanted to deflect attention away from her—would weaken the [P]etitioner’s 

defense rather than bolster it, as he would appear to be desperate.” The State also notes 

that the jury heard the Petitioner’s testimony and assessed his credibility and that he 

“cannot establish a reasonable probability that simply presenting an alternate motivation to 

lie would [have] cause[d] the jury to reject its determination that he was the one who was 

lying.” 

Similarly, we cannot say there was a reasonable probability that, absent trial 

counsel’s failure to present this alternate motivation for the victim to lie, the result of the 

proceeding would have been different, and the jury would have discredited the victim’s 

testimony and believed the testimony of the Petitioner and his witnesses that the abuse did 

not occur. As noted above, if trial counsel had sought to develop this inference through 

cross-examination of the victim, the State likely would have been permitted to clarify on 

redirect that the victim’s knowledge of sexual matters originally came from the Petitioner. 

See Osborne, 251 S.W.3d at 20. Furthermore, the recording of the victim’s forensic 

interview, which presumably contained prior consistent statements by the victim, could 

have been played for the jury to rehabilitate her credibility after it was impeached by the 

Petitioner on cross-examination when he suggested she had a motive to lie. See Cox, 2022 
- 55 - 

WL 325596, at *13-14; see also State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim. App. 

1993) (concluding that a prior consistent statement may be admissible when a witness is 

impeached through the introduction of a prior inconsistent statement that suggests that the 

witness’s testimony was either fabricated or based upon faulty recollection). 

Had trial counsel elicited this information, all of the graphic details that the victim 

recounted in her interview would likely have been placed before the jury—such as her 

assertions that intercourse with the Petitioner had taken place over ten times and that she 

had become so accustomed to the act that it no longer hurt. Moreover, the jury could have 

viewed this sexual activity between the victim and her stepbrother as evidence of the 

victim’s acting out as a result of the Petitioner’s abuse, and thus, entirely corroborative 

proof that she was sexually abused by the Petitioner as she claimed. 

In his prejudice analysis, the Petitioner notes that the jury found him not guilty of 

the first set of offenses alleged to have occurred at the Petitioner’s parents’ house. The 

Petitioner argues that “the jury’s verdict did not fully ‘square with’ the State’s theory of 

the case, making it much harder to find that trial counsel’s deficiencies were harmless.” 

We cannot accept the Petitioner’s assumption that the differing verdicts in this case call for 

the conclusion that the jury had not fully accepted the State’s theory of the case. Our 

supreme court has emphasized “the sanctity of the jury’s deliberations and the strong policy 

against probing into its logic or reasoning, which would open the door to interminable 

speculation.” State v. Davis, 466 S.W.3d 49, 61 (Tenn. 2015) (quoting United States v. 

Zane, 495 F.2d 683, 690 (2nd Cir. 1974)). A jury’s acquittal can occur for a multitude of 

reasons, such as a variance between the dates of the offenses in the indictment and the 

testimony at trial, a rationale that is not entirely improbable in this case given our review 

of the underlying trial record. Or an acquittal can represent nothing more than a jury’s 

exercise of lenity. See Dunn v. United States, 284 U.S. 390, 393 (1932) (“We interpret the 

acquittal as no more than [the jury’s] assumption of a power which they had no right to 

exercise, but to which they were disposed through lenity.”) (quoting Steckler v. United 

States, 7 F.2d 59, 60 (2nd Cir. 1925)); see also Wiggins v. State, 498 S.W.2d 92, 93 (Tenn. 

1973). Here, we are dealing with allegations levied by a twelve-year-old child victim. The 

jury found the victim credible relative to the second set of offenses and the State’s proof 

sufficient beyond a reasonable doubt. For the reasons stated, the fact that the jury found 

the Petitioner not guilty of the first set of offenses is not determinative for the purposes of 

our prejudice analysis. 

Finally, we note that the Petitioner was able to present a motive for the victim to lie 

at trial, that of her feeling neglected and wanting attention. Accordingly, we affirm the 

post-conviction court’s conclusion that the Petitioner was not prejudiced by any alleged 
- 56 - 

deficiency regarding trial counsel’s failure to file a Rule 412 motion and seek introduction 

of evidence of the victim’s sexual activity with her stepbrother. This issue is without merit. 

2. Closing Argument 

The Petitioner next argues that “trial counsel provided ineffective assistance in 

failing to object to the egregiously improper arguments of the State[.]” According to the 

Petitioner, the challenged comments were improper because they constituted repeated 

vouching for the victim’s credibility by the prosecutor, interjected the prosecutor’s 

personal opinions into the case, and went beyond the evidence introduced at trial or were 

inconsistent with the evidence. The Petitioner contends that trial counsel’s failure to lodge 

simultaneous objections to these statements constitutes deficient performance. And the 

Petitioner asserts that he was prejudiced by trial counsel’s failure in this regard: “Given the 

close nature of this case, there is a reasonable probability of a different outcome had 

counsel properly performed his role and objected to the improper arguments.” 

The State responds that the post-conviction court properly determined that the 

Petitioner failed to show either deficiency or prejudice. The State surmises that the 

challenged statements do not intentionally misstate the evidence, do not express a personal 

opinion on the evidence or the Petitioner’s guilt, do not intentionally refer to or argue facts 

outside the record, and do not amount to improper vouching; thus, trial counsel was not 

deficient in failing to lodge objections to these statements. The State also submits that even 

if an objection were somehow warranted, the Petitioner cannot establish prejudice because 

the prosecutor focused on the specific facts to which the victim testified, the prosecutor 

also told the jury that it would have to use its own common sense and gauge witness 

credibility on its own, and finally, the fact that the jury returned acquittals on multiple 

charges showed that it was not overwhelmed or inflamed by any improper argument. 

Closing arguments are intended “to sharpen and to clarify the issues that must be 

resolved in a criminal case.” State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008) (citation 

omitted). In closing arguments each side should “present their theory of the case and to 

point out the strengths and weaknesses in the evidence to the jury.” Id. (citations omitted). 

Although both prosecution and defense counsel in criminal cases are expected to be zealous 

advocates, “prosecutors must not lose sight of their duty to seek justice impartially[.]” 

State v. Hawkins, 519 S.W.3d 1, 47 (Tenn. 2017) (quotation omitted), overruled on other 

grounds by State v. Enix, 653 S.W.3d 692, 700-01 (Tenn. 2022). “Closing arguments in 

criminal cases have a rough and tumble quality about them because they are traditionally 

the one place in the trial where the lawyers are given the greatest leeway in their manner 

of expression.” Banks, 271 S.W.3d at 131 (internal quotation and citation omitted). 

“[P]rosecutors, no less than defense counsel, may use colorful and forceful language in 
- 57 - 

their closing arguments, as long as they do not stray from the evidence and the reasonable 

inferences to be drawn from the evidence or make derogatory remarks or appeal to the 

jurors’ prejudices.” Id. (internal citations omitted). 

This court has recognized five general areas of improper closing argument by the 

State: 

(1) intentionally misstating the evidence or misleading the jury as to the 

inferences it may draw; 

(2) expressing a personal belief or opinion as to the truth or falsity of any 

testimony or evidence or the guilt of the defendant; 

(3) making an argument calculated to inflame the passions or prejudices 

of the jury; 

(4) making an argument which would divert the jury from its duty to 

decide the case on the evidence, by injecting issues broader than the guilt or 

innocence of the accused under the controlling law, or by making predictions 

of the consequences of the jury’s verdict; and 

(5) intentionally referring to or arguing facts outside the record unless the 

facts are matters of common public knowledge. 

State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (internal citations omitted). 

Moreover, “[t]he prosecution is not permitted to reflect unfavorably upon defense counsel 

or the trial tactics employed during the course of the trial.” State v. Gann, 251 S.W.3d 446, 

460 (Tenn. Crim. App. 2007). 

When a closing argument is found to be improper, the established test for 

determining whether there is reversible error is whether the conduct was so improper or 

the argument so inflammatory that it affected the verdict to a defendant’s detriment. 

Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). In measuring the prejudicial 

impact of any misconduct, this court should consider: (1) the facts and circumstances of 

the case, (2) any curative measures undertaken by the court and the prosecutor, (3) the 

intent of the prosecution, (4) the cumulative effect of the improper conduct and any other 

errors in the record, and (5) the relative strength or weakness of the case. Judge v. State, 

539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see also State v. Buck, 670 S.W.2d 600, 

609 (Tenn. 1984). 

a. Trial Counsel’s Testimony 

Trial counsel’s decisions about whether to object to the arguments of opposing 

counsel “are often primarily tactical decisions.” Payne v. State, No. W2008-02784-CCA-
- 58 - 

R3-PC, 2010 WL 161493, at *15 (Tenn. Crim. App. Jan. 15, 2010). Trial counsel could 

refrain from objecting for several valid tactical reasons, including not wanting to emphasize 

unfavorable evidence. Id. As a result, “testimony from trial counsel as to why he or she 

did not object to the allegedly prejudicial remarks is essential to determine whether trial 

counsel was ineffective.” Brooks v. State, No. M2010-02451-CCA-R3-PC, 2012 WL 

112554, at *14 (Tenn. Crim. App. Jan. 11, 2012). Absent testimony from trial counsel or 

evidence indicating that the decision was not tactical, “we cannot determine that trial 

counsel provided anything other than effective assistance of counsel.” State v. Sexton, No. 

M2004-03076-CCA-R3-CD, 2007 WL 92352, at *5 (Tenn. Crim. App. Jan. 12, 2007). 

Here, trial counsel was questioned at the evidentiary hearing about his decision not 

to object during closing arguments. He testified that he was aware of case law providing 

limits on appropriate closing arguments by the State but that he never objected to the 

prosecutor’s allegedly inappropriate statements. Trial counsel opined that the prosecutor 

should not have commented on the Petitioner’s actual interview because it was never 

admitted into evidence, should not have stated his personal belief on the Petitioner’s 

testimony, and should not have vouched for the victim’s credibility. Despite trial counsel’s 

apparent legal knowledge and belief regarding the impropriety of the prosecutor’s remarks, 

trial counsel could not explain his failure to object to any of these statements, instead 

asserting that there was no point during the State’s closing argument that he withheld any 

objections for strategic reasons. 

Although trial counsel did not provide an explanation for his failure to object to 

these comments during closing argument, he indicated that objections must be chosen 

wisely and that it might be better to forego some valid objections so as not to emphasize 

certain information with the jury. The post-conviction court credited this testimony in 

finding that trial counsel was not deficient in failing to object to any improper comments. 

b. Petitioner’s Statements During His Interview 

First, the Petitioner focuses on the prosecutor’s comments regarding the Petitioner’s 

statements when he was questioned by Inv. Sakovich. During the State’s initial closing 

argument, the prosecutor emphasized that the Petitioner had attempted to minimize his 

contact with the victim by “want[ing] to impress upon” Inv. Sakovich that he had “never 

once” changed the victim’s diaper, had “never spent any time alone with” the victim, and 

had “spent less than a hundred hours with her for the past year.” The prosecutor then 

commented that “when [he] listened to that interview[,] [he] thought, that’s weird.” The 

prosecutor questioned why the Petitioner would “go to such great, almost ridiculous, 

lengths to minimize the contact he had with his daughter?” The prosecutor told the jury, 

“I would submit to you that that’s because he was scared” knowing “that this story was 
- 59 - 

finally coming out,” and the Petitioner needed to “create some separation between” himself 

and the victim. 

The Petitioner argues that the prosecutor misstated the evidence because the 

Petitioner did not testify that he never once changed the victim’s diaper nor that he spent 

less than one hundred hours with her in the past year. The State responds that the 

prosecutor’s comments regarding changing the victim’s diaper and the amount of time the 

Petitioner had spent with the victim in the past year do not rise to the level of intentionally 

misstating the evidence. 

At trial, in response to cross-examination with his prior statements, the Petitioner 

seemingly confirmed that he had never changed the victim’s diaper, but he subsequently 

clarified that he might have changed the victim’s diaper a few times in emergency 

situations. When asked if he had told Inv. Sakovich that he had probably not spent “a 

hundred hours in the past year” with the victim, the Petitioner replied that he could not 

provide “a ballpark figure” but affirmed that he had not spent very much time with the 

victim in the past year. During closing argument, the prosecutor was recounting these facts 

in an effort to show the “ridiculous” lengths the Petitioner took to minimize his contact 

with the victim when questioned by Inv. Sakovich. We agree with the post-conviction 

court that the prosecutor’s comments in this regard during closing argument were not a 

model of precision, given that the Petitioner clarified he might have changed the victim’s 

diaper in emergency situations and that he could not provide “a ballpark figure” relative to 

the amount of time he had spent with the victim in the prior year, though it was not a lot. 

While these statements “could have been worded more artfully,” they do not involve any 

egregious behavior on the part of the prosecutor. Accordingly, we conclude that these 

statements do not amount to an intentional misstatement of the evidence. See, e.g., State 

v. Spears, No. M2023-00346-CCA-R3-CD, 2024 WL 391019, at *7 (Tenn. Crim. App. 

Feb. 2, 2024) (holding that, even if the prosecutor’s remark referring to a portion of the 

defendant’s statement was a misstatement of the evidence, it was not an intentional 

misstatement, given that it was difficult to interpret on the recorded interview and the 

transcript contained a typographical error), perm. app. denied (Tenn. Aug. 14, 2024). 

The Petitioner further contends that the prosecutor’s comment amounted to an 

expression of personal opinion or belief when he said he had listened to the Petitioner’s 

interview and thought the Petitioner’s answers therein were “weird.” The State responds 

that this does not rise to the level of improper argument because the State was attacking 

the Petitioner’s credibility and highlighting his attempts to minimize his contact with his 

daughter. 
- 60 - 

As for the prosecutor’s comment that he thought the Petitioner’s responses to Inv. 

Sakovich were “weird,” a prosecutor should not assert a personal opinion as to the 

credibility of a witness or as to a defendant’s guilt or innocence. Goltz, 111 S.W.3d at 6. 

The prosecutor, however, “may argue based upon an analysis of the evidence and the 

conclusion supported by the evidence.” State v. Lowe, No. E2017-00435-CCA-R3-CD, 

2018 WL 3323757, at *25 (Tenn. Crim. App. July 6, 2018) (citing Tenn. Sup. Ct. R. 8, 

RPC 3.4(e)(3)). Whether the prosecutor’s statements qualify as misconduct often is 

“dependent upon the specific terminology used.” State v. Willis, 496 S.W.3d 653, 754 

(Tenn. 2016) (citing Gann, 251 S.W.3d at 460). Argument predicated by the words “I 

think” does not necessarily indicate an expression of personal opinion. Id. at 754-55 (citing 

Gann, 251 S.W.3d at 460). Here, the statements of the prosecutor, when viewed in the 

context in which they were made, do not constitute expressions of personal opinions or 

beliefs regarding the credibility of a witness or the Petitioner’s guilt or innocence. Rather, 

it was a characterization of the Petitioner’s responses when interviewed. The prosecutor 

made arguments based upon an analysis of the evidence and the conclusions supported by 

the evidence. See, e.g., Spears, 2024 WL 391019, at *7 (holding the prosecutor’s 

characterization of the defendant’s statement that the victim’s death was an accident as 

“self-serving” did not violate a clear and unequivocal rule of law); State v. Lockhart, No. 

W2018-00051-CCA-R3-CD, 2019 WL 1753056, at *9 (Tenn. Crim. App. Apr. 17, 2019) 

(determining that no clear and unequivocal rule of law had been breached by the 

prosecutor’s comment, “I think the facts of this case are pretty simple, albeit, these kind of 

cases sometimes aren’t the things we want to talk about or hear about. Certainly you in 

this case had to see a video that, I submit, is very troubling to watch.”). 

The Petitioner also indicates that the prosecutor was “describing his own reaction 

to listening to an interview that was not in evidence and which the jury never heard.” We 

agree with the Petitioner that this comment was improper as it interjected facts outside the 

record. See, e.g., State v. Perry, No. M2019-01311-CCA-R3-CD, 2021 WL 1111368, at 

*25 (Tenn. Crim. App. Mar. 23, 2021) (concluding that the prosecutor improperly referred 

to matters outside the record “when he discussed the role of the victim’s family in [a 

codefendant’s] plea deal and their acquiescence of the plea deal, the weight of three packets 

of Sweet-n-Low, and the weight of an Oreo cookie, and when he referred to [additional 

codefendants] as ‘liars’ when neither of them testified at trial and their statements were not 

introduced into evidence”). Even so, the prejudicial effect of this comment was limited 

because the prosecutor simply recounted the Petitioner’s responses to Inv. Sakovich, which 

were also discussed during his impeachment of the Petitioner, and this isolated remark was 

not a pattern of improper conduct by the prosecutor. It is fundamental that an attorney’s 

questions, comments, and arguments are not evidence. See State v. Morrow, No. 02CO1-

9709-CR-00358, 1998 WL 351223, at *3 (Tenn. Crim. App. July 2, 1998); see generally

7 Tenn. Prac. Pattern Jury Instr. T.P.I.—CRIMINAL 1.07 (26th ed. 2022) (“Statements 
- 61 - 

and arguments of counsel”).8 We conclude that this conduct was not so improper or 

inflammatory that it affected the verdict to the Petitioner’s detriment. See Harrington, 385 

S.W.2d at 759. 

Finally, though trial counsel gave somewhat conflicting testimony in this regard, 

trial counsel indicated that it was important to make objections wisely and that sometimes 

a weak objection would serve only to emphasize unfavorable evidence. The 

post-conviction court relied upon this testimony from trial counsel in rendering its ruling. 

Here, any objection to the prosecutor’s remarks—which, even if improper, were not so 

prejudicial as to warrant a new trial—would have served only to highlight the Petitioner’s 

unusual responses in the interview. Accordingly, we cannot say that trial counsel’s failure 

to object to these comments rose to the level of constitutionally deficient performance. See, 

e.g., Payne, 2010 WL 161493, at *15 (noting trial counsel’s testimony that he generally 

did not object during the State’s closing arguments unless he determined the statements 

were actually prejudicial to his client and concluding that the failure to object to the closing 

argument did not rise to the level of constitutionally deficient performance). Thus, any 

omission by trial counsel was not so serious that it fell outside an objective standard of 

reasonableness under prevailing professional norms. 

c. Vouching for the Victim 

The Petitioner’s next claim centers upon the prosecutor’s comments on the victim’s 

credibility during closing argument. He cites to the prosecutor’s repeated references that 

the victim “didn’t make it up” and to the conclusory comment at the end of rebuttal 

argument, “That is absolute baloney, not true. These things happened to this little girl, and 

what she said and the story that she told you is the truth.” He submits that it was improper 

for the prosecutor to repeatedly vouch for the credibility of the victim. The State responds 

that these remarks did not constitute improper vouching because the complained-of 

comments stemmed from the attack on the victim’s credibility made on behalf of the 

Petitioner in trial counsel’s closing argument. 

Our supreme court has condemned a prosecutor’s expression of personal belief in 

the truth or falsity of evidence. See Goltz, 111 S.W.3d at 6-7. Vouching occurs when a 

prosecutor expresses a personal opinion that a witness is telling the truth. See State v. 

Sexton, 368 S.W.3d 371, 419-20 (Tenn. 2012). For instance, improper vouching can occur 

when a prosecutor uses personal examples as a way to buttress the victim’s credibility or 

lauds the victim’s general character through exalted references. See State v. O’Rourke, No. 

M2017-00375-CCA-R3-CD, 2018 WL 4492744, at *7 (Tenn. Crim. App. Sept. 19, 2018) 

8

 We note that the Petitioner did not include the jury instructions in the record on appeal, nor were 

they included in the underlying direct appeal record. 
- 62 - 

(determining that the prosecutor impermissibly vouched for the victim’s general character 

by describing the victim as her “hero”); State v. Smith, No. E2012-02587-CCA-R3-CD, 

2014 WL 3940134, at *20 (Tenn. Crim. App. Aug. 13, 2014) (concluding that the 

prosecutor improperly used personal examples as a way to vouch for the victim’s 

credibility). However, it is proper to point to “specific evidence which tended to” reflect 

on a witness’s credibility. Sexton, 368 S.W.3d at 420. 

Here, both parties summarized the crux of this case during their respective closing 

arguments—whether to believe the victim’s testimony or to believe the testimony of the 

Petitioner and his witnesses. During closing argument for the Petitioner, trial counsel 

attacked the victim’s credibility, and the prosecutor’s argument in rebuttal was focused on 

explaining why the jury should accredit the victim’s version of events and discredit the 

Petitioner’s. As admitted by trial counsel, the State had “to put forward some form of this 

argument” in this regard. 

The more prudent course for prosecutors is to preface such argument with “I argue” 

or “I submit” that a witness is credible or incredible. See Willis, 496 S.W.3d at 754-55; 

State v. Spencer, No. E2022-01276-CCA-R3-CD, 2024 WL 228412, at *22 (Tenn. Crim. 

App. Jan. 22, 2024), perm. app. denied (Tenn. June 20, 2024). Nonetheless, we conclude 

that when the prosecutor’s statements are viewed in their entire context, they were based 

upon the evidence and were focused on trying to explain why the victim testified truthfully. 

Specifically, in making these remarks that the victim was telling the truth and that “she 

didn’t make it up,” the prosecutor was recounting the precise details of these offenses as 

they were relayed by the victim. Moreover, at the conclusion of rebuttal argument, the 

prosecutor reminded the jury that they were the “ultimate deciders of who’s telling the 

truth.” 

Accordingly, we cannot say that the prosecutor made inappropriate comments about 

his personal belief in the victim’s testimony. See, e.g., Spencer, 2024 WL 228412, at 

*21-22 (noting concern with the prosecutor’s remarks during closing argument but finding 

that the prosecutor did not make inappropriate statements about her personal belief in the 

victim’s testimony and the defendant’s statements to the police, but rather, to the contrary, 

the prosecutor’s statements were based upon the evidence and were focused on explaining 

why the victim testified truthfully and why the State theorized that the defendant’s 

explanations in the text messages and in the subsequent police interview were inconsistent 

and not credible); State v. Hill, No. E2015-00811-CCA-R3-CD, 2017 WL 532481, at *35 

(Tenn. Crim. App. Feb. 9, 2017) (holding that despite the theme of the prosecutor’s 

argument that certain witnesses were believable, the argument was limited to explaining 

why the jury should accredit the testimony of those witnesses and was focused on 

explaining why those witnesses testified truthfully). What is more, any objection by trial 
- 63 - 

counsel to these comments may have served to emphasize them when both parties admitted 

that this was the overriding issue for the jury’s consideration. See Ward v. State, No. 

E2023-01024-CCA-R3-PC, 2024 WL 3206593, at *12 (Tenn. Crim. App. June 27, 2024) 

(rejecting an ineffective assistance claim that trial counsel failed to object to improper 

vouching during the State’s closing argument, noting that “[t]rial counsel could have 

decided not to object for several valid reasons, including not wanting to emphasize the 

unfavorable statements” (quotation omitted)), perm. app. filed (Tenn. Aug. 23, 2024). 

Accordingly, we conclude that the Petitioner has failed to show trial counsel was deficient 

in failing to lodge objections to the prosecutor’s remarks relating to the victim’s credibility. 

3. Venue 

The Petitioner argues that, because venue was not established at trial, trial counsel 

was ineffective by failing to raise the issue at the conclusion of the State’s proof, in the 

motion for new trial, or on appeal. The Petitioner argues in the alternative that, if the 

reference to Pond Gap by the Petitioner’s father on direct examination established venue, 

then trial counsel was ineffective in eliciting that testimony. Finally, in this regard, the 

Petitioner raises a stand-alone claim that venue, as a jurisdictional matter, was not 

established at trial. 

The State responds that trial counsel’s failure to challenge venue was not ineffective, 

given that Inv. Sakovich testified that all of the events took place in Knox County. The 

State then submits that the Petitioner has waived any stand-alone challenge to venue due 

to his failure to raise the issue on direct appeal. 

The Petitioner’s various claims on this point hinge on the central question of 

whether the State had established venue during its case-in-chief. As such, we turn to that 

question. 

 

Article I, section 9 of the Tennessee Constitution provides that an accused must be 

tried in the county in which the crime is committed. See also Tenn. R. Crim. P. 18(a) 

(“Except as otherwise provided by statute or by these rules, offenses shall be prosecuted in 

the county where the offense was committed.”). Our supreme court has said, “[p]roof of 

venue is necessary to establish the jurisdiction of the court, but it is not an element of any 

offense and need only be proved by a preponderance of the evidence.” State v. Hutcherson, 

790 S.W.2d 532, 535 (Tenn. 1990); see also Tenn. Code Ann. § 39-11-201(e) (“No person 

may be convicted of an offense unless venue is proven by a preponderance of the 

evidence.”). Extensive proof is not required; rather, “[s]light evidence is enough to carry 

the prosecution’s burden of proof if such evidence is uncontradicted.” State v. Ellis, 89 

S.W.3d 584, 598 (Tenn. Crim. App. 2000) (citations omitted). Venue is a question of fact 
- 64 - 

to be determined by the jury, which may “draw reasonable inferences from the evidence” 

and may make its determination based solely upon circumstantial evidence. State v. Young, 

196 S.W.3d 85, 101-02 (Tenn. 2006) (citations omitted). 

The Petitioner notes that the State never asked any witness directly if Country Oaks 

Apartments was located in Knox County. The Petitioner also argues about the question 

posed to Inv. Sakovich if “all [of] these events [took] place here in Knox County.” The 

Petitioner notes that Inv. Sakovich “did not testify as to any ‘event’ that actually took place 

at Country Oaks [A]partment[s,]” Inv. Sakovich’s testimony centered on the investigation 

that took place, and Inv. Sakovich never testified that he visited Country Oak Apartments 

or the management office. According to the Petitioner, “whatever the State intended to 

accomplish by asking him the question, the literal meaning of his testimony that ‘these 

events’ (i.e., the ones he testified about) took place in Knox County was that each step of 

his investigation (interviews, visit to Cecil Johnson, etc.) took place in Knox County.” 

From the proof presented, it appears that at the time of these events, the victim lived 

with her mother and stepfather in Union County where she attended middle school. At 

trial, the victim testified that, when she was nine years old, the Petitioner lived with his 

parents in Knox County, the location of the first set of charges. The victim said that she 

was approximately ten years old and in the fifth grade when the Petitioner remarried and 

moved from his parents’ house to an apartment in Country Oaks Apartments, the location 

of the second set of charges. Then, when the victim was eleven, the Petitioner and his 

family moved to a house on Ellison Road. 

The victim’s mother confirmed that the Petitioner’s parents’ house was in Knox 

County. To accomplish the visitation schedule that she had arranged with the Petitioner 

after their relationship ended, the victim’s mother and the Petitioner or a member of his 

family would meet at “the CVS in Halls” to facilitate the victim’s exchange and later at 

“the TVA in Halls.” The victim’s mother confirmed that the victim initially visited the 

Petitioner at his parents’ house and later at an apartment in Country Oaks Apartments. 

Inv. Sakovich testified that he was a police officer with the Special Crimes Unit of 

the KPD and that he had worked with the KPD since 2008. Inv. Sakovich said that he 

attended the victim’s ChildHelp forensic interview. The following day, Inv. Sakovich 

attempted to contact the Petitioner at the Petitioner’s workplace, a radio station “off of Old 

Kingston Pike,” but the Petitioner was not present. After learning that the Petitioner was 

off-site working at a car dealership on Parkside Drive, Inv. Sakovich went to that location 

and spoke with the Petitioner. Inv. Sakovich then returned to the Petitioner’s office at the 

radio station and talked with the Petitioner’s wife. 
- 65 - 

Inv. Sakovich confirmed that the Petitioner moved from his parents’ residence to an 

apartment in Country Oaks Apartments in the summer of 2014 and that, in the summer of 

2015, he moved to a residence on Ellison Road. Inv. Sakovich went to the Petitioner’s 

parents’ Knox County residence and interviewed the Petitioner’s parents and the 

Petitioner’s sister. Relative to the Country Oaks Apartments, Inv. Sakovich indicated that 

he contacted “the management company at a particular apartment complex and confirm[ed] 

that [the Petitioner] was a tenant there for . . . a given period of time via their paper records.” 

At the conclusion of his testimony, Inv. Sakovich said that he ended his investigation by 

turning over his file to the prosecutor. He was then asked, “And did all these events take 

place here in Knox County?”, to which he responded affirmatively. 

The Petitioner takes his interpretation of this question and Inv. Sakovich’s response 

to literal extremes. As noted above, venue only need be established by a preponderance of 

the evidence, and venue is a question of fact to be determined by the jury, which may “draw 

reasonable inferences from the evidence” and may make its determination based solely 

upon circumstantial evidence. Young, 196 S.W.3d at 101-02. Based upon the testimony 

cited, the jury could draw as a reasonable inference from Inv. Sakovich’s affirmative 

response that all these events occurred in Knox County that he meant the crimes for which 

the Petitioner was charged occurred in Knox County. See, e.g., State v. Smith, No. 03C01-

9807-CR-00259, 1999 WL 619042, at *2 (Tenn. Crim. App. Aug. 17, 1999) (holding that 

venue had been established when the State’s proof indicated that the drug transactions took 

place in a particular city and that a detective, who monitored all three transactions, 

responded affirmatively when asked if “all these events occurred in McMinn County, 

Tennessee.”). 

Furthermore, when the victim lived with her mother in Union County, they used a 

pickup spot in Knox County, creating an inference that the pickup spot was halfway 

between her residence and the Petitioner’s location in Knox County. Because the evidence 

was uncontradicted, slight evidence was enough to carry the day. See Ellis, 89 S.W.3d at 

598. 

Importantly, the record reveals no evidence or allegation that these particular 

offenses occurred in any other county. See Ellis, 89 S.W.3d at 598. And the Petitioner did 

not testify at the post-conviction hearing to indicate that Country Oaks Apartments was 

located somewhere other than Knox County. See Tenn. Code Ann. § 40-30-110(a) (“The 

petitioner shall appear and give testimony at the evidentiary hearing if the petition raises 

substantial questions of fact as to events in which the petitioner participated[.]”). 

For these reasons, the record shows that the State had sufficiently established venue 

during its case-in-chief. Because Petitioner’s venue issue was meritless, trial counsel was 
- 66 - 

not deficient for failing to raise the issue during trial or in the Petitioner’s motion for new 

trial. See, e.g., Wilson v. State, No. W2018-01588-CCA-R3-PC, 2020 WL 7658417, at 

*12 (Tenn. Crim. App. Dec. 22, 2020) (rejecting a claim that trial counsel was ineffective 

by failing to argue the State did not establish venue for the offense of especially aggravated 

sexual exploitation of a minor because, although the victim did not specifically testify that 

the videos were filmed in Shelby County, she testified that the “massages” the petitioner 

performed and videotaped occurred first in their apartment in the Laurelwood Apartments, 

then in their apartment in the Windsor Place Apartments when she was twelve, and later in 

the petitioner’s hotel room after he had moved out of their apartment but continued to 

occasionally pick her up after school and take her to his hotel room). Likewise, trial 

counsel was neither deficient for failing to raise the issue on appeal nor was the Petitioner 

prejudiced by any such failure. See Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004) 

(applying the Strickland standard to appellate-ineffectiveness claims). 

In addition, we note that trial counsel admitted that at the time of trial, he thought 

the State had met its burden of proving venue in counts 6 through 12—the set of offenses 

that occurred at Country Oaks Apartments—based largely upon Inv. Sakovich’s statement 

that “all [of] these events [took] place here in Knox County[,]” which was why he did not 

raise the issue. Based upon trial counsel’s testimony, it was clear that at the time, he made 

a strategic decision not to object at trial, raise the issue in the Petitioner’s motion for new 

trial, or on direct appeal. Moreover, while trial counsel stated his new-found belief at the 

post-conviction hearing that it was questionable whether venue had been established at 

trial, he never emphatically stated that venue had not been proved by a preponderance of 

the evidence. We will not now fault trial counsel for his reasonable decision at the time to 

forego raising the venue issue, given that it was meritless, and any subsequent skepticism 

in trial counsel’s mind does not affect our decision in this post-conviction proceeding. 

 

Finally, because the State had sufficiently established venue during the direct 

examination of witnesses in its case-in-chief, the Petitioner similarly cannot show 

deficiency or prejudice as it relates to trial counsel’s examination of the Petitioner’s father, 

which elicited the Pond Gap reference. As to the Petitioner’s stand-alone jurisdictional 

argument regarding venue, our determination that the issue lacks merit made within the 

confines of the Petitioner’s ineffective assistance claims obviates the need for us to 

determine whether such a claim can be raised independently on post-conviction appeal. 

D. Cumulative Error 

The Petitioner argues that the cumulative effect of trial counsel’s deficiencies, 

coupled with the State’s failure to disclose Brady evidence, violated his constitutional 

rights so that his convictions cannot stand. The State responds that the Petitioner has failed 
- 67 - 

to establish any error, much less multiple errors, rendering the cumulative effect doctrine 

inapplicable. 

“The cumulative error doctrine exists to protect a criminal defendant’s state and 

federal constitutional right to a fair trial.” State v. Herron, 461 S.W.3d 890, 909 (Tenn. 

2015). In the trial context, the cumulative error doctrine applies to circumstances in which 

there have been “multiple errors committed in trial proceedings, each of which in isolation 

constitutes mere harmless error, but which when aggregated, have a cumulative effect on 

the proceedings so great as to require reversal in order to preserve a defendant’s right to a 

fair trial.” State v. Hester, 324 S.W.3d 1, 76-77 (Tenn. 2010). When determining whether 

to apply this doctrine, a reviewing court must consider the nature and number of the errors, 

their interrelationship, any remedial measures taken by the trial court, and the strength of 

the State’s case. Id. at 76. However, circumstances which would warrant reversal of a 

conviction under the cumulative error doctrine “remain rare.” Id. (citation omitted). 

In the post-conviction context, this court has concluded, relative to ineffective 

assistance of counsel claims, that multiple instances of deficient performance by counsel 

may be considered together in assessing whether a petitioner suffered prejudice. State v. 

Zimmerman, 823 S.W.2d 220, 228 (Tenn. Crim. App. 1991). A petitioner must establish 

that the cumulative effect of trial counsel’s errors deprived the petitioner “of a meaningful 

defense” and placed “the reliability of the verdict in question” to such an extent that “there 

is a reasonable probability that the results would have been more favorable” to the 

petitioner. Id. Similarly, as noted by the Petitioner, materiality in the Brady sense is 

determined in the aggregate. See Kyles, 514 U.S. at 436 (stating that “[t]he fourth and final 

aspect of Bagley materiality to be stressed here is its definition in terms of suppressed 

evidence considered collectively, not item by item”) (footnote omitted)). 

We have determined that no Brady violation occurred from the single piece of 

evidence cited by the Petitioner, the SANE nurse’s report. In addition, we have found no 

instances of deficient performance. As such, there are no errors by trial counsel to 

accumulate, and we need not address the Petitioner’s contention that a Brady violation may 

be considered together with findings of deficient performance under a cumulative error 

analysis in the post-conviction setting. For these reasons, the Petitioner is not entitled to 

relief. 
- 68 - 

III. CONCLUSION

In consideration of the foregoing and the record as a whole, we affirm the judgment 

of the post-conviction court. 

______________________________ 

KYLE A. HIXSON, JUDGE