IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 26, 2019 Session

BRADLEY TOWNSEND v. STATE OF TENNESSEE

Appeal from the Criminal Court for Roane County

No. 12376 Jeffery Hill Wicks, Judge1

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No. E2018-01052-CCA-R3-PC

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The Petitioner, Bradley Townsend, appeals the Roane County Criminal Court’s denial of 

his petition for post-conviction relief from his two convictions of aggravated sexual 

battery, a Class B felony, and resulting sentence of eight years. On appeal, he contends

that he received ineffective assistance of counsel because trial counsel failed to request

jury instructions on certain lesser-included offenses. Based upon the oral arguments, the 

record, and the parties’ briefs, we conclude that the Petitioner received the ineffective 

assistance of counsel with regard to his conviction of aggravated sexual battery in count 

twenty-one. Therefore, we reverse the judgment of the post-conviction court as to that 

count and remand the case to the trial court for further proceedings consistent with this 

opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in

Part and Reversed in Part and Case Remanded

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

Alan R. Moore, Lenoir City, Tennessee, for the appellant, Bradley Townsend.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior

Assistant Attorney General; Russell Johnson, District Attorney General; and Robert 

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

OPINION

I. Factual Background

 

1

Judge Wicks did not preside over the Petitioner’s trial.

02/20/2020
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The Petitioner was indicted in count one for aggravated sexual battery and in 

counts two through twenty-two for rape of child based on acts he allegedly committed 

against his eight-year-old stepdaughter over the course of a five-month period. The 

Petitioner went to trial in 2003. At the close of the proof, the trial court instructed the 

jury on aggravated sexual battery in count one but did not instruct the jury on any lesserincluded offenses. The trial court instructed the jury on rape of a child in counts two 

through twenty-two and the lesser-included offense of aggravated sexual battery. The 

jury convicted the Petitioner of aggravated sexual battery as charged in count one of the 

indictment for an offense that occurred on April 9, 2000, and of aggravated sexual battery 

as a lesser-included offense of rape of a child in count twenty-one for an incident that 

occurred on April 7, 2000. The jury acquitted him of the remaining twenty counts of rape 

of a child. 

On direct appeal of his convictions, this court summarized the proof at trial as 

follows: 

On April 9, 2000, the victim’s mother witnessed an episode that led 

her to believe that the defendant was sexually molesting her eight-year-old 

daughter. After questioning the victim, she contacted the sheriff’s 

department and took the victim to the hospital for a physical examination. 

Based in part on the results of that examination, as well as statements by 

the victim and the victim’s mother, the Roane County Grand Jury returned 

an indictment on June 20, 2000, charging the defendant with one count of 

aggravated sexual battery, twenty-one counts of rape of a child, and one 

count of perjury. The perjury count of the indictment, however, was 

dismissed prior to trial.

The victim’s mother . . . testified at the August 2003 trial that she 

married the defendant in November 1999 and divorced him in January 2001 

after she learned that he had been sexually abusing the victim. At the time 

the events in the case transpired, she and the defendant lived together in 

Kingsport with her two children from a previous relationship: the victim, 

who was then eight years old, and the victim’s younger brother . . . who 

was approximately six. In addition, the defendant had every-other-weekend 

custody of his six-year-old son[.]

[The victim’s mother] testified that the defendant was unemployed 

from November 1999 through April 2000 and during those months 

regularly awakened the children in the mornings while she prepared for 

work. She said she began to develop some vague concerns about his 

relationship with the victim a few weeks prior to the Sunday, April 9, 

incident she witnessed, but nothing definite occurred to arouse her 

suspicions until Friday morning, April 7. On that morning, she stepped out 
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of her bathroom to find the defendant in her bed with the victim. [The 

victim’s mother] explained that the victim had slept with her upstairs the 

previous night while the defendant had slept downstairs with [the victim’s 

younger brother]. She said the defendant jumped when he saw her and 

said, “[O]h, you scared me,” which “didn’t give [her] a good feeling.”

[The victim’s mother] testified that on April 9 she asked the 

defendant to go downstairs to attend to the laundry while she was upstairs 

cooking. While the defendant was downstairs, [the victim’s younger 

brother], who had cerebral palsy, ADHD, and obsessive-compulsive 

disorder, began repeatedly calling to him from his high chair. Because 

something in the tone of the defendant’s voice as he called back to [the 

victim’s younger brother] to wait a minute aroused her suspicions, she 

removed her shoes, tiptoed downstairs, and looked in the victim’s bedroom. 

There, she saw the victim sitting on the defendant’s lap with her dress 

partially hiked up and her legs spread over the defendant’s legs while the 

defendant rubbed her vagina on the outside of her panties. [The victim’s 

mother] recalled that she could see an obvious crease where the victim’s 

panties had been pushed up into the folds of her vagina.

[The victim’s mother] testified that when the defendant saw her, he 

jerked his hand away. She said she walked over to him and took hold of 

the victim’s arms to pull her off his lap, but he held her by the waist in an 

effort to keep her in place. When she finally jerked hard enough to pull the 

victim from him, she saw that he had an erection. Remaining calm, she 

requested that he accompany her into the hall, where she asked him what he 

had been doing. The defendant, who was visibly nervous, told her that he 

had just been touching the inside of the victim’s leg. In response, she told 

him what she had seen and did not want to discuss it further. [The victim’s 

mother] said that the defendant was on his way to a funeral and that he left 

the house approximately thirty minutes later, at about 7:00 p.m.

[The victim’s mother] testified that after the defendant left she went 

downstairs and questioned the victim about the incident. She said she had 

asked the victim approximately a year before if the defendant had ever 

touched her inappropriately and that she said he had not. On this occasion, 

however, the victim told her that it happened “practically every morning” 

and whenever [the victim’s mother] was not at home. Questioned more 

closely, the victim told her that it occurred during the week in which the 

children had stayed home from day care with the defendant and when [the 

defendant’s son] was at the home for his weekend visitation. [The victim’s 

mother] testified that, based on what the victim told her, she was able to 

determine the specific dates of the offenses by consulting her calendar. She 
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stated that the victim herself was able to identify two specific incidents by 

date: April 3 and April 7, 2000. She said the victim told her that 

“something was happening” on April 7 when [the victim’s mother] came 

out of the bathroom to find the defendant in her bed with the victim, and 

that April 3 was the last time she remembered the defendant’s penetrating 

her. [The victim’s mother] testified that after talking to the victim, she 

went to the Roane County Sheriff’s Department and spoke with a detective 

and a representative from the Department of Children’s Services (“DCS”). 

She said she never again shared a home with the defendant and 

subsequently divorced him.

On cross-examination, [the victim’s mother] acknowledged that she 

and the defendant initially kept their marriage a secret because his mother 

was opposed to their union. She acknowledged that the defendant lived and 

worked in Chattanooga for the first two months of their marriage until she 

asked him to quit his job and move to Kingsport to be with her because she 

was pregnant and did not want to live apart. She conceded that the 

defendant worked sporadically as a roofer after he moved to Kingsport and 

therefore, contrary to her direct examination testimony, was not completely 

unemployed during that time. [The victim’s mother] further acknowledged 

that she did not see the defendant doing anything to the victim on the 

morning of April 7; that the victim regularly shared the victim’s double bed 

with [the victim’s younger brother] and with [the defendant’s son] during 

his weekend visits, which meant that both boys were present in bed with the 

defendant and the victim when some of the alleged incidents occurred; and 

that neither [the victim’s younger brother] nor [the defendant’s son] had 

ever said anything to her about the incidents. [The victim’s mother] also 

acknowledged she never found any evidence of blood or semen on the 

victim’s clothing or bedding.

When questioned about the April 9 incident, [the victim’s mother] 

expressed her certainty that she saw the defendant rubbing the victim’s 

vagina, testifying that she watched the episode for approximately five 

seconds to be sure of what she saw before she intervened. She 

acknowledged she said nothing about the defendant’s erection to a nurse 

during the May 1, 2000, visit to the Children’s Hospital but insisted she had 

mentioned seeing the erection during her testimony at the first preliminary 

hearing, in which “the tape was no good.” She testified, initially, that she 

had also mentioned, at the second preliminary hearing, having seen the 

defendant’s erection when she pulled the victim from his lap. However, 

when defense counsel told her she was wrong, she apparently conceded her 

mistake, saying, “Sorry.” She acknowledged she had testified at that same 

hearing that she grabbed the defendant’s crotch when they went into the 
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hall, which was a detail she had neglected to mention during her direct 

examination trial testimony. Finally, she acknowledged that, after grabbing 

the defendant’s crotch, she said something to him along the lines of she was 

sorry for thinking he had done something and that her hormones were 

acting up because she was pregnant.

Dr. John Williams, a specialist in pediatric emergency medicine, 

testified that he was on duty at the East Tennessee Children’s Hospital 

during the late evening hours of April 9, 2000, when the victim’s mother 

and a representative from Roane County Children’s Services brought the 

victim to the hospital for an examination. He said he found no signs of 

bleeding or bruising on the victim and no abnormal dilations of her vagina 

or anus. He did, however, find a small tear to the victim’s hymen, which, 

he said, “could [have] happen[ed] a multitude of different ways.” Although 

he was unable to tell the exact time the injury occurred, he did not believe it 

had occurred within the “past hours to day” because he saw no signs of 

dried blood around the edges of the tear. Dr. Williams testified that injuries 

to the vagina heal quickly due to the area’s rich blood supply and that it 

was possible for a tear to the hymen to heal without leaving any trace of 

injury. Therefore, he was not surprised to learn that the physician who 

examined the victim three weeks later was unable to detect the injury. Dr. 

Williams testified that, according to the literature he had reviewed, in 

approximately 75% of child sexual abuse cases the child’s physical 

examination is normal. He stated that, based on his findings, he was unable 

to determine if the victim had been sexually penetrated.

On cross-examination, Dr. Williams acknowledged that the victim’s 

hymen was intact with the exception of the defect or “questionable tear” 

that he had noted. He testified that the victim was consistent when 

describing digital penetration but inconsistent when describing penile 

penetration, in that her answers were not the same each time he asked her 

about it. He said he was not aware of any allegation of anal penetration at 

the time he performed the physical exam. He testified that the term “R/O 

sexual abuse,” which he had written on the victim’s medical records, meant 

“rule out sexual abuse.” On redirect examination, he clarified that he wrote 

the term to reflect the reason the victim had been brought to the hospital 

and not to indicate that his physical examination had ruled out that she had 

been the victim of sexual abuse.

Linda Booth testified she was currently a 9-1-1 dispatcher but 

formerly worked as a detective with the Roane County Sheriff’s 

Department and in that capacity spoke by telephone with the victim’s 

mother on the evening of April 9, 2000. Based on that conversation, she 
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arranged for a DCS worker to meet the victim and the victim’s mother at 

the Children’s Hospital. The next morning, the defendant was brought 

from the jail to her office for an interview. During the interview, the 

defendant provided his version of the previous evening’s incident, telling 

her that the victim’s dress had been up and that his hands had been “like 

this,” as he stood and demonstrated by placing his hands on his upper inner 

thighs. Referring to her notes, Booth testified that, during the course of the 

interview, the defendant also said that the victim’s mother believed the 

victim because she had no reason to disbelieve her; described himself as 

“real sexually active”; asked whether there would not have been blood if he 

had penetrated the victim with his finger or his penis; said the victim was 

“real sexual”; told her that he got in bed with the children in the mornings; 

and said that he liked to cuddle with the victim. Booth identified the 

following written statement the defendant completed during the interview, 

which she read aloud for the jury:

I don’t know why [the victim] would say these things. I have 

tried to be the best stepfather I know how to be. When I 

would go to get in bed in the mornings with her, nothing 

inappropriate ever happened. She is my daughter and I love 

her very much. I could never do such a thing to any child.

On cross-examination, Booth acknowledged that she did not tape the 

interview and that it was possible the defendant had made other comments 

besides the statements she recorded in her notes. She testified she had 

written down everything she thought pertinent but admitted she had not 

recorded the questions she asked the defendant during the interview. She 

further acknowledged that she never questioned [the victim’s younger 

brother] or [the defendant’s son] about the incidents. In explanation, she 

testified that the victim had told her that both boys were asleep when the 

incidents occurred. Finally, she conceded she swore out the defendant’s 

arrest warrant after talking with the victim’s mother and the DCS worker, 

who told her that the victim’s physical examination had confirmed vaginal 

penetration.

The victim began her testimony by relating the April 9, 2000, 

incident that occurred in her bedroom, testifying that she was sitting on the 

defendant’s lap watching television and the defendant was rubbing her on 

her front privates when her mother walked into the room and pulled her off 

his lap. She stated that the defendant was sitting on the couch in her 

bedroom, that her legs were over the outside of his legs, and that she 

believed “Smart Guy” was playing on the Disney Channel at the time. She 

testified that the defendant initially tried to hold her down as her mother 
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pulled on her but that her mother succeeded in pulling her off his lap. She 

said her mother then asked the defendant to go into the hall with her. Later, 

after the defendant had left the house, her mother talked to her about what 

the defendant had been doing to her.

The victim testified that she had told her mother “no” on previous 

occasions when she had asked if the defendant had ever touched her 

inappropriately, even though he had, because she was scared and knew her 

mother loved the defendant. However, when her mother asked her again on 

the evening of April 9, she told her everything. The victim testified that the 

inappropriate touching “happened all the time.” Referring to her vagina 

and anus as her front and rear private parts, respectively, and the 

defendant’s penis as his front private part, she testified that the defendant 

regularly got into her bed with her in the mornings and, depending on her 

position at the time, put either his finger or his penis in her vagina or anus. 

She said the defendant once asked her if what he was doing “felt good,” 

and she told him “no.” She agreed that her brother slept in the bed with her 

and that the defendant’s son slept there as well whenever he stayed over. 

She said that the defendant was always quiet and that she did not know 

whether the boys knew what was happening. She testified that she told her 

mother that the incidents happened during a week in which she stayed 

home from day care and during the times when the defendant’s son was 

visiting in the home.

The victim testified that she usually slept in a long t-shirt and 

underwear. She said that on the Friday prior to the April 9 incident in 

which her mother walked into her bedroom to find her sitting on the 

defendant’s lap, the defendant put his finger and his penis in her vagina 

when she was in her mother’s bed and her mother was in the shower. She 

said that the defendant jumped when her mother came out of the shower, 

but she could not remember if her mother said anything to him at that time. 

The victim testified she had never really liked the defendant, but she 

had no reason to lie about him. She said no one had told her what she 

should say during her trial testimony. On cross-examination, she 

acknowledged that the defendant had never threatened her or instructed her 

not to tell anyone about the abuse. She said she did not remember having 

testified in a preliminary hearing that the incidents happened once a week 

as opposed to every day. She was also unable to remember having 

previously said that she pretended to be asleep when the defendant came 

into the room or that the incident in her mother’s bed occurred about a 

week before the April 9 incident. On redirect examination, she agreed that 
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she was doing her best to recall events that had transpired three years before 

and that she would never intentionally not tell the truth.

The thirty-three-year-old defendant testified that he was a high 

school graduate and a decorated Navy veteran. He said he was living and 

working in Chattanooga before and after his November 1999 marriage to 

[the victim’s mother] but, at her request, quit his job in January 2000 in 

order to move to Kingsport to live with her and her children. He adamantly 

denied that he had ever touched the victim in any inappropriate manner and 

gave the following version of the events that transpired on April 9, 2000. 

On that evening, he stopped by the victim’s room after doing the laundry, 

took her on his lap, and began talking to her about not giving her mother a 

hard time while he was away from home attending a funeral. As he talked 

to her, his hands were on top of her legs, her hands were interlaced with his, 

and he was patting her on the top of her legs. After requesting permission, 

the defendant stood and demonstrated the position during his testimony. 

He said that [the victim’s mother] called to him a few times and he 

answered that he would be there in a minute. She then came into the room, 

walked over to him, said, “I caught you, you son of a bitch,” lifted the 

victim off his lap, and repeated, “I caught you, you son of bitch.” He 

replied that he did not know what she was talking about and suggested that 

they discuss it in the hall.

When they reached the hall, [the victim’s mother] grabbed his crotch 

and he said, “[I]f that’s what you’re talking about, I don’t have an erection, 

as you see.” At that point, she apologized, explaining that her hormones 

were “going crazy” and that she was “just emotional.” They both then went 

upstairs and he ate his meal and kissed her goodbye before leaving for the 

funeral. When he returned later that evening, the house was dark and no 

one was home. As he was in the process of telephoning [the victim’s 

mother]’s relatives to find out where she was, deputies pulled into his 

driveway and arrested him on an outstanding warrant for driving on a 

suspended license. According to the defendant, the charge was later 

dismissed.

The defendant testified that he agreed to the interview with 

Detective Booth because he wanted to clear up the matter. He explained 

that his statement that the victim was “real sexual” was in direct response to 

her question about whether the victim was sexual. He testified he added 

that the victim had been involved in a kissing episode at day care and had 

also been caught lying naked on top of another young girl, who was also 

naked, during a visit she had made to the other girl’s home. The defendant

denied that he ever told Booth that he cuddled with the children in bed. He 
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testified that he instead told her that, at [the victim’s mother]’s request, he 

“went down every morning to sleep a little while longer with the kids, 

because she liked her morning time alone.”

On cross-examination, the defendant testified that if he were guilty 

of the crimes, he would never have gone to trial but instead would have 

taken the eight years that had been offered by the State. He said that most 

mornings he got into bed and under the covers with the children and that he 

did not see anything inappropriate with the behavior. He denied that he 

ever put his hands between the victim’s legs and said that Booth was lying 

when she testified that he had demonstrated, during his interview, having 

placed his hands on the victim’s upper inner thighs.

State v. Bradley David Townsend, No. E2005-00115-CCA-R3-CD, 2006 WL 1439661, 

at *1-6 (Tenn. Crim. App. at Knoxville, May 25, 2006), perm. app. denied, (Tenn. Oct. 2, 

2006). 

On direct appeal of his convictions, one of the issues raised by the Petitioner was 

that the evidence was insufficient to support his convictions. Id. at *7. This court found 

the evidence sufficient. See id. at *7-8. The Petitioner also alleged that the trial court 

committed reversible error by not instructing the jury on misdemeanor assault and child 

abuse as lesser-included offenses of rape of a child and aggravated sexual battery. Id. at 

*8. The State argued that the Petitioner waived the issue because he failed to request the 

lesser-included instructions in writing as required by Tennessee Code Annotated section 

40-18-110(c). Id. This court agreed with the State but addressed the issue under the 

plain error doctrine. Id. at *9. This court noted that five factors had to be present in 

order to find plain error: (1) the record must clearly establish what occurred in the trial 

court; (2) a clear and unequivocal rule of law must have been breached; (3) a substantial 

right of the defendant must have been adversely affected; (4) the accused must not have 

waived the issue for tactical reasons, and (5) consideration of the error was necessary to 

do substantial justice. See State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (adopting 

the five factors set out in State v. Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim. App. 

1994)).

In addressing the trial court’s failure to instruct the jury on the lesser-included 

offenses, this court applied the three-step analysis set out in State v. Allen, 69 S.W.3d 

181, 187 (Tenn. 2002), which involved a determination of (1) whether the offense was a 

lesser-included offense under the test adopted in State v. Burns, 6 S.W.3d 453 (Tenn. 

1999); (2) whether the evidence supported an instruction on the lesser-included offense; 

and (3) whether the failure to instruct on the lesser-included offense constituted harmless 

error. Bradley David Townsend, No. E2005-00115-CCA-R3-CD, 2006 WL 1439661, at 

*9. This court first held that misdemeanor assault and child abuse were lesser-included 

offenses of rape of a child and that misdemeanor assault was a lesser-included offense of 
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aggravated sexual battery. Id. In the next step, this court determined that the evidence 

supported instructions on child abuse and misdemeanor assault as lesser-included 

offenses of rape of a child with respect to the April 7 incident and that the evidence 

supported an instruction on misdemeanor assault as a lesser-included offense of 

aggravated sexual battery with respect to the April 9 incident. Id. at *10-11. In the final 

step of whether the failure to instruct constituted harmless error, this court was unable to 

conclude beyond a reasonable doubt that no reasonable juror would have convicted the 

Petitioner of the lesser-included offenses. Id. at *11. However, this court noted that the 

Petitioner bore the burden of persuasion with plain error claims and that he had not 

shown that his failure to request the lesser-included instructions was not part of his 

defense tactics at trial. Id. at *12. This court, therefore, found that the trial court’s failure 

to instruct the jury on the lesser-included offenses did not rise to the level of plain error. 

Id.

Our supreme court denied the Petitioner’s application for permission to appeal, 

and he filed a timely petition for post-conviction relief. In his pro se petition and the 

amended petitions filed by counsel, the Petitioner alleged, relevant to this appeal, that he 

received ineffective assistance of counsel because trial counsel failed to request jury 

instructions on certain lesser-included offenses.

At the post-conviction evidentiary hearing, trial counsel testified for the Petitioner 

that he began practicing law in 1984 and retired in September 2017. Before the 

Petitioner’s trial, trial counsel asked that the trial court charge every lesser-included 

offense. Trial counsel said that at that time, it was a defendant’s constitutional right for

the trial court to instruct the jury on all lesser-included offenses. Subsequently, but prior 

to trial, the legislature changed the law so that defendants had to ask for lesser-included 

offenses in writing. Trial counsel said that he intended to request that the trial court 

instruct the jury on specific lesser-included offenses such as child abuse and simple 

assault but that he never did so. Trial counsel raised the issue of the trial court’s failure 

to instruct the jury on lesser-included offenses on direct appeal of the Petitioner’s 

convictions.

On cross-examination, trial counsel acknowledged that the defense’s theory was 

that “none of his happened.” He said that the victim’s story “just didn’t add up” and that 

he thought the jury would acquit the Petitioner of all twenty-two counts. Instead, the jury 

acquitted the Petitioner of twenty counts of rape of a child, which trial counsel thought 

was a “compromised verdict.” Trial counsel denied that part of his trial strategy was to 

have the trial court instruct the jury only on the charged offenses. He explained,

It’s always been my opinion that in a situation like this you have so many 

counts in a sex case that many times juries compromise and for that reason 

I always want as many lesser included offenses [as] I can get because I 
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want them, if they are going to compromise, I want them to compromise as 

low as possible. I never want it to be all or nothing.

Trial counsel said that after the victim’s mother witnessed the April 9 incident, the family 

sat down and ate a meal as if nothing had happened. Trial counsel used that to support 

the Petitioner’s defense. Trial counsel said that he thought the allegations against the 

Petitioner were “a fabrication.” He acknowledged that there was no physical evidence

against the Petitioner and that he “significantly undermined” the credibility of the 

victim’s mother during her cross-examination.

After the hearing, the post-conviction court entered a written order denying the 

petition for post-conviction relief. First, the court found that trial counsel rendered 

deficient performance by failing to request instructions on lesser-included offenses in 

writing. The court then considered prejudice, i.e., “whether a reasonable probability 

exists that a properly instructed jury would have convicted the petitioner of the lesserincluded offense instead of the charged offense.” Moore v. State, 485 S.W.3d 411, 420-

21 (Tenn. 2016). In doing so, the court used the analysis set forth in Allen, which 

provided that courts “should conduct a thorough examination of the record, including the 

evidence presented at trial, the defendant’s theory of defense, and the verdict returned by 

the jury.” 69 S.W.3d at 191. The post-conviction court determined that no reasonable 

probability existed that a properly instructed jury would have convicted the Petitioner of 

child abuse instead of aggravated sexual battery for the April 7 incident or of 

misdemeanor assault instead of aggravated sexual battery for the April 7 or April 9 

incidents. Accordingly, the post-conviction court concluded that trial counsel’s deficient 

performance was harmless beyond a reasonable doubt and, therefore, that the Petitioner 

failed to show prejudice. 

II. Analysis

The Petitioner challenges the post-conviction court’s denial of his petition. The 

State asserts that the post-conviction court properly denied the Petitioner’s claim of 

ineffective assistance of counsel because he failed to demonstrate any reasonable 

probability that a jury would have convicted him of child abuse or misdemeanor assault if 

the trial court had instructed the jury on such lesser-included offenses.

To be successful in a claim for post-conviction relief, a petitioner must prove the 

factual allegations contained in the post-conviction petition by clear and convincing 

evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means 

evidence in which there is no serious or substantial doubt about the correctness of the 

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. 

Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 

1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded 

their testimony, and the factual questions raised by the evidence adduced at trial are to be 
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resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 

S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are 

entitled to substantial deference on appeal unless the evidence preponderates against 

those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. 

See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction 

court’s findings of fact de novo with a presumption that those findings are correct. See

Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s 

conclusions of law purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective 

assistance of counsel, “the petitioner bears the burden of proving both that counsel’s 

performance was deficient and that the deficiency prejudiced the defense.” Goad v. 

State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 

687 (1984)). To establish deficient performance, the petitioner must show that counsel’s 

performance was below “the range of competence demanded of attorneys in criminal 

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the 

petitioner must show that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 U.S. at 694. Further,

[b]ecause 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. Indeed, a court need not address 

the components in any particular order or even address both if the 

[petitioner] makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

Whether a petitioner has suffered prejudice resulting from his counsel’s failure to 

request proper jury instructions depends on whether a reasonable probability exists that a 

properly instructed jury would have convicted the petitioner of the lesser-included 

offense instead of the charged offense. Moore, 485 S.W.3d at 420-21 (citing Pylant v.

State, 263 S.W.3d 854, 869 (Tenn. 2008)). The prejudice inquiry on post-conviction 

mirrors the harmless error inquiry on direct appeal. Moore, 485 S.W.3d at 421. In cases 

where the jury did not reject the immediately lesser offense, or was given no option to 

convict of any lesser-included offense, courts apply the harmless error analysis adopted 

in Allen, 69 S.W.3d at 191. Id. at 422.

Under the Allen analysis, courts “should conduct a thorough examination 

of the record, including the evidence presented at trial, the defendant’s 
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theory of defense, and the verdict returned by the jury.” In examining the 

evidence presented at trial, the harmless error analysis focuses on the 

distinguishing element between the greater and lesser offenses, the strength 

of the evidence of the distinguishing element, and the existence of 

contradicting evidence of the distinguishing element. 

Id. (footnote and internal citations omitted).

Turning to the instant case, the post-conviction court found that trial counsel was 

deficient for not requesting the instructions on the lesser-included offenses. We agree

with the post-conviction court. Trial counsel testified that he was aware of the 

amendment in our Code that required a written request for lesser-included offenses, that 

he intended to make such a request, and that he simply failed to do so. He also denied 

that his not making the request was part of his trial strategy and explained that in a “sex 

case” with “so many counts,” he never wanted a jury to be instructed on “all or nothing”

because the jury could render a “compromised verdict.” In his opinion, the jury returned 

a compromised verdict in this case. Accordingly, trial counsel was deficient for not 

requesting the lesser-included offenses.

As to prejudice, the Petitioner was charged with rape of a child for the incident in 

the bed on April 7, but the jury convicted him of aggravated sexual battery. Using the 

Allen analysis, the post-conviction court concluded that there was no reasonable 

probability that a jury would have found the Petitioner guilty of child abuse instead of 

aggravated sexual battery. The record supports that determination. 

Relevant to this case, rape of a child is the unlawful sexual penetration of a victim 

by the defendant if the victim is less than thirteen years of age. Tenn. Code Ann. § 39-

13-522(a). Aggravated sexual battery is unlawful sexual contact with a victim by the 

defendant when the victim is less than thirteen years of age. Tenn. Code Ann. § 39-13-

504(a)(4). “‘Sexual contact’ includes the intentional touching of the victim’s . . . intimate 

parts, or the intentional touching of the clothing covering the immediate area of the 

victim’s . . . intimate parts, if that intentional touching can be reasonably construed as 

being for the purpose of sexual arousal or gratification.” Tenn. Code Ann. § 39-13-

501(6). Child abuse occurs when a person knowingly, other than by accidental means, 

treats a victim in such a manner as to inflict injury. See Tenn. Code Ann. §§ 39-15-

401(a). 

Dr. Williams, the physician who examined the victim, found no signs of bleeding 

or bruising on the victim and no abnormal dilations of her vagina or anus. Although Dr. 

Williams found a small tear to the victim’s hymen, he indicated that it “could [have] 

happen[ed] a multitude of different ways.” Id. Moreover, the jury obviously discredited 

the victim’s claim that the Petitioner penetrated her vagina on April 7. Therefore, the 
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Petitioner has failed to show that, but for trial counsel’s deficiency, the jury would have 

convicted him of child abuse as a lesser-included offense of rape of a child. 

The post-conviction court also determined that there was no reasonable probability 

that a jury would have found the Petitioner guilty of misdemeanor assault instead of 

aggravated sexual battery for the April 7 incident. Misdemeanor assault occurs when a 

person intentionally or knowingly causes physical contact with another and a reasonable

person would regard the contact as extremely offensive or provocative. See Tenn. Code 

Ann. § 39-13-101(a)(3). 

Although the victim testified that the Petitioner penetrated her vagina with his 

penis and his finger on April 7, the victim’s mother testified that she did not see the 

Petitioner doing anything to the victim in the bed and that the victim claimed the 

Petitioner last penetrated her on April 3. The jury discredited the victim’s claim of 

penetration but found that the Petitioner had unlawful sexual contact with her and 

convicted him of the only lesser-included offense charged to the jury, aggravated sexual 

battery. However, given the proof, a properly instructed jury could have found the 

Petitioner guilty of misdemeanor assault. Therefore, we must conclude that the trial 

counsel’s failure to request an instruction on misdemeanor assault as a lesser-included 

offense of rape of a child in count twenty-one was prejudicial to the Petitioner and that he 

received the ineffective assistance of counsel. Accordingly, the Petitioner’s conviction of 

aggravated sexual battery in count twenty-one is reversed, and the case is remanded to 

the trial court for a new trial. 

As to the incident on the Petitioner’s lap on April 9, the Petitioner was charged 

and convicted of aggravated sexual battery. The post-conviction court determined that 

there was no reasonable probability that a jury would have convicted the Petitioner of 

misdemeanor assault instead of aggravated sexual battery. Again, the record supports 

that determination. The Petitioner’s defense was that the victim’s mother fabricated the 

allegations against him. However, the Petitioner’s two convictions share a significant 

commonality in that they were witnessed to some degree by the victim’s mother and she 

corroborated the victim’s testimony. The victim’s mother testified that she saw the 

Petitioner rubbing the victim’s vagina over her clothes and that he had an erection. Thus,

the State presented proof that the Petitioner’s unlawful sexual contact with the victim on 

April 9 was for the purpose of sexual arousal or gratification. Therefore, we agree with 

the post-conviction court that the Petitioner has failed to show that, but for trial counsel’s 

deficiency, the jury would have convicted him of misdemeanor assault as a lesserincluded offense of aggravated sexual battery. 

III. Conclusion

The judgment of the post-conviction court is affirmed as to the Petitioner’s 

conviction of aggravated sexual battery in count one but reversed as to count twenty-one. 
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The case is remanded to the trial court for further proceedings consistent with this 

opinion.

____________________________________

 NORMA MCGEE OGLE, JUDGE