# FILED
December 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER 1998 SESSION
RICKY EARL MELVIN, ) ) NO. 01C01-9707-CR-00264 Appellant, ) ) Davidson County v. ) ) Honorable Thomas H. Shriver, STATE OF TENNESSEE, ) Judge ) Appellee. ) (Post-Conviction)
For The Appellant : Marian C. Fordyce (at trial) 129 Second Ave., North Nashville, TN 37201-1901 Judson W. Phillips (on appeal) 315 Deaderick St., Ste. 2395 Nashville, TN 37238 For The Appellee : John Knox Walkup Attorney General and Repor ter Daryl J. Brand Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 Victor S. Johnson III District Attorney General Kymberly Haas Assistant

District Attorney General Washington Sq., Ste. 500 222-2nd Ave., North Nashville, TN 37201-1649

OPINION FILED:
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N The petitioner, Ricky E arl Melvin, appeals the dismissal of his petitionfor postconviction relief by

the Davidson County C riminal Court. Hav ing been convicted of seven counts of aggravated rape and serving an effective sentence of sixty-five years in the Department of Correction, the petitioner conte nds he received ineffective assistance of counsel. After a careful rev iew of the record, we affirm the judgment of the trial cour t.

PROCEDURAL HISTORY After his first trial ended with a hung jury, the petitioner was convicted at his second trial on seven cou nts of aggravated rape. The convictions were based upon numerous incidents invol ving two females under thirteen years of age. H e received an effective sentence of eighty- five years. Upon appeal to this court, the sentence w as reduced to an effective term of six ty-five years. See State v. Melvin , 913 S.W.2d 195 (Tenn. Crim.App. 1995). Permission to appeal w

as denied by

the Tennessee Supreme Court.
The pet itioner t imely file d a petiti on for po st-convic tion relie f allegin g ineffe ctive assistance of counsel. After an ev identiary hearing, the trial court dismisse d the petition.

CONTENTIONS OF PETIT IONER The sole issue in th is appea l is whethe r the peti tioner was deprived o f effe ctive assistan ce of cou nsel at hi s trial. Th e petitio ner conte nds trial counsel wa s ineff ective in the following respects:

1. failing to challenge the testimony of the nurse practitioner; 2. failing to utilize the testimony of Dr. Irene Ratner;

3. failing to interview other possible suspects;3 4. failing to have a vi ctim examined by an ex pert; 5. failure to seek funding for an inv estigator; and 6. failing to conduct an adequate investigation of the facts and witnesses.

POST-CONVICTION HEARING The only witness to tes tify at the post-convic

tion hearing was the pe titioner’s trial counsel, Thomas T. Overton. A s ummary of pertinent portions of hi s testimony follows.
At the trial a nurse practitioner testified as to a v ictim’s physical findi ngs that were consistent wi

th sexual abuse. Over ton interviewed the w

itness prior to trial

. Although he did not recall whether he filed a motion in limine to prohib it the tes timony, there was no legal bas is to do so.
The petitioner’s family ret ained the services of Dr . Irene Ratner for an evaluation. Overton decided not to utilize Dr. Ratner at trial. Overton felt her testimony would likely be inadmissible. Furthermore, he feared her testimo ny might be damaging because she concluded the petitioner c ould not be excluded as a poss ible child sex abuser

.
Overton testified that he made efforts to contact other possible sus pects but was unsuccessful. Nevertheless, he argued to the jury that other family membe rs could have been responsible for the al leged crimes.
Although Overton had the petitioner evaluated by Dr. Ratner, he did not ask for funding for any other exper ts to evaluate one of the vi ctims. Overton believ ed that testimony on child sex

abuse syndrome would hav e been inadmissible. Further more, the alleged abuse had taken plac e years earlier. The v

ictim had intercourse si nce that time; therefore, an examination w ould not prove useful.4 Overton testified that he spent over one hundred hours in preparation for the petitioner’s trial. H e investigated the facts hi mself and did not seek funding for an investigator.

TRIAL COUR T’S FINDINGS The trial court found that Over ton rendered competent representati on. It found that Overton was thor

oughly prepared for tri al and had conducted a proper investigation. The trial court found that the decision not to utilize Dr. Ratner was a proper tactical decisi on. It further found the failure to secure an expert to perform an examination on one of the victims was reasonable due to the lapse of time since the alleged abuse. The trial c ourt further found the testimony of the nurse practitioner w as properly admitted. In conc lusion, the trial court found the petitioner had failed to establish ineffective assistance of counsel.

STANDARD OF REVIEW This court reviews

a claim of ineffective assistanc e of counsel under the standar ds of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Stricklan d v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance w as deficient, and (2) the deficie nt perfor

mance re

sulted i n prejud ice to t he defenda nt so as to depri ve him o f a fair trial. Strickland v. Washington , 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Te nn. 1994); Butler v. State , 789 S.W.2d 898, 89 9 (Tenn. 1990).

The test in Tenne ssee in de terminin g whether co unsel pro vided eff ective assistance is whether

his performance was wi thin the range of competence demanded of attorneys in criminal cases. Baxter v. Rose , 523 S.W.2d at 936. T he petitioner must overcome the presumption that c ounsel’s conduct falls within the wide range of5

acceptable professional assis tance. Strickland v. Washington , 466 U.S. at 689, 104 S. Ct. at 2065; Alley v. State , 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997); State v. Williams , 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996). Therefore, in order to prove a deficiency, a petitioner mus t show that counsel’s ac ts or omissions were so serious as to fall below an objectiv e standard of reasonableness under pr evailing professional
norms. Strickland v. Washington , 466 U.S. at 688, 104 S. Ct. at 2065; Henley v. State , 960 S.W.2d at 579; Goad v. State , 938 S.W.2d at 369.
In reviewing counsel's conduct, a "fair assessment . . . requires that every effort be made to eliminate the distorti ng effects of hindsight, to recons truct the circumstances of counsel's c hallenged conduct, and to ev aluate the conduct from counsel's perspective at the time." Strickland v. Washington , 466 U.S. at 689, 104 S. Ct. at 2065. The fact that a particul ar strategy or tactic failed or hurt the defense, does not, standing alone, establi sh unreasonable representation.However, deference to matters of strategy and tac tical choices applies onl y if the choices are informed o nes based upon adequate preparation. Goad v. State , 938 S.W.2d at 369; Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982); Alley v. State , 958 S.W.2d at 149; Cooper v. State , 847 S.W.2d 521, 528 (T enn. Crim. App. 1992).
The trial judge's findings of fact on post-conviction he arings are conclusiv

e on appeal unless the evidence pr eponderates otherwise. Butler v. State , 789 S.W.2d at 899; Adkins v. State , 911 S.W.2d 334, 34 1 (Tenn. Crim. App. 1995). The trial court’s findings of fact are afforded the weig ht of a jury verdict,and this court is bound by the trial court’s findings unless the evidence in the record preponderates against those findings. Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State , 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State , 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). The burden of establ ishing that the evidenc e preponderates otherwise is on the peti tioner. Henley v. State , 960 S.W.2d at 579.6 ANAL YSIS As to the testimony of the nurse practitioner, the petition er has not shown that the testimony was inadmissible. This court reached the same conclusion on direct appeal. State v. Melvin , 913 S.W.2d at 200. Accordingly, the petitioner has failed to establish prejudice.

The failure to utilize the t estimony of Dr. Ratner w as a tactical decision. We may not second-guess this deci sion.
As to the alleged failure to develop other possible su spects, the petitioner has not shown any deficiency on the part of counsel. Further more, he has not established what else trial couns

el could have done nor w hat he would have discov ered.

As to the failure to have one of the victims examined by an expert, the petitioner has failed to establish that an examination would have revealed any favorable evidence. See Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). In shor t, the petitioner has failed to establish prejudice.
As to the alleged failure to secure the services of an investigator and properly investigate the facts, the petitioner again falls s hort. The petitioner has failed t o establish that a further inv estigation would rev

eal favorable evidence. There is no showing of prejudice.7 The trial court’s findings of fact are conclusive unless the evidence preponderates otherwise. The evidence does not preponderat e against the findings of the trial court. W e, there fore, co nclude p etitione r has fail ed to est ablish in effect ive assistance of counsel.
Based upon the foregoing, w e affirm the judgment of the trial cour t.

______________________________ Joseph M. Tipto n, Judge

CONCUR:

______________________________ Paul G. Summe rs, Judge

______________________________ Joe G. Riley, Judge