IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs June 19, 2012

CAULEY McCILTON CROSS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Marshall County No.

2011-CR-64Robert Crigler, Judge

No. M2012-00020-CCA-R3-PC - Filed January 18, 2013

The petitioner, Cauley McCilton Cross, appeals the denial of his petition for post-conviction relief.

The petitioner is currently serving an effective ten-year sentence in the Department of Correction

following his convictions for two counts of aggravated sexualbatteryand three counts of exhibition

of obscene materials to a minor. On appeal, he contends that the postconviction court erroneously

denied his petition because the proof established that he was denied his right to the effective

assistance of counsel. On appeal, he specificallycontends that trial counsel was ineffective for failing

to file a motion to dismiss the charges against the petitionerbased upon a constitutionalchallenge to

Tennessee Code Annotated section 39-13504. Following review of the record, we affirm the denial

of relief.

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

JOHNEVERETTWILLIAMS,J.,delivered the opinion of the Court,in which JOSEPHM.TIPTON, PJ.,

and THOMAS T. WOODALL, J., joined.

David J. McKenzie, Lewisburg, Tennessee, for the appellant, Cauley McCilton Cross.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; Charles

Frank Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Procedural History and Factual Background

The charges against the petitioner arose from his actions involving his nine-year-old 

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stepson, the boy victim, and a twelve-year-old girl, the girl victim, who lived next door. The 1

petitioner, his wife, the boy victim, and his twelve-year old brother had lived in this home for

approximately one year. The girl victim was a frequent visitor to the home as she and the

petitioner’s two stepsons often played together. On March 29, 2008, the girl victim visited the

petitioner’s home for most of the day, which was spent playing outside, watching movies with

the family, and playing video games. After a late dinner, the petitioner asked the three children if

they would like to watch a movie with him. All four proceeded into the living room and sat on

the couch, and the children observed that a movie was already playing. The movie was titled

“Zandalee” and starred Nicholas Cage. The movie was an uncut version and included multiple

graphic sex scenes and nudity. The three children attempted to avert their eyes during these

scenes. During the movie, the girl victim felt the boy victim’s hand on her left breast. She moved

his hand away several times, but “it just kept coming back.” The girl victim observed the

petitioner’s hand manipulating the boy victim’s hand in order to touch her breast. The girl victim

said the movement was not accidental on the petitioner’s part and that her breast was touched at

least five times. The girl victim eventually removed herself from the couch, and no more

incidents occurred.

After the movie, the girl victim’s mother called her daughter’s cellphone, which was

answered by the petitioner. After the call, the petitioner informed the girl victim that she would be

spending the night at their house, and, because she was afraid to go home alone after dark, the girl

victim agreed. The next morning, the three children went next door and informed the girl victim’s

mother what had occurred the previous evening. During this conversation, the petitioner entered the

girl victim’s family home, without knocking, and stated that it was “just all a joke.”

The petitioner was subsequently indicted by a Marshall County grand jury for two counts of

aggravated sexual battery and three counts of exhibition of obscene material to a minor. The

petitioner was convicted as charged and sentenced to an effective term of ten years in the Department

of Correction. Following the denial of his motion for new trial, the petitioner filed a direct appeal

with this court, in which he argued: (1) that the evidence was insufficient to support his aggravated

sexual battery convictions; (2) that his sentences for aggravated sexual battery were excessive; and

(3) that the aggravated sexual battery convictions should merge. Statev.Cauley McCliton

Cross,No.M2009-01179-CCA-R3-CD (Tenn. Crim. App., at Nashville, May 25, 2011). After

review, this court affirmed the convictions and sentences as imposed. Id.

On June 23, 2011, the petitioner filed a pro se petition for post-conviction relief 

asserting a myriad of grounds for ineffective assistance of counsel. Among those grounds were

that trial counsel was ineffective for: (1) failing to obtain, research records, and crossexamine

witnesses with regard to a similar claim of abuse made by the girl victim in Texas;

(2) failing to file a motion to dismiss because the facts of the case did not support the

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In an effort to protect the identity of the minor victims involved in this case, this court has chosen

to refer to them by “the boy victim” and “the girl victim” rather than by name or initials. 

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statutoryrequirements and elements of aggravated sexual batterybecause there was no direct contact

between the petitioner and the girl victim; (3) failing to file a motion to dismiss on grounds that the

aggravated sexual battery statute was unconstitutionally vague and ambiguous; and (4) failing to

elicit proof that the petitioner’s wife was cheating on him. A post-conviction hearing was

subsequently held at which the petitioner and trial counsel offered testimony.

The petitioner began by noting that he and trial counsel did not see “eye to eye” on

evidentiarymaterials. He indicated that trial counsel visited him only three times in the eight months

he was incarcerated pending trial. The petitioner faulted trial counsel for failing to call certain alibi

witnesses to testify at trial and to introduce phone records to further this defense. However, he

acknowledged that the witnesses would only be able to testify to his presence throughout the day,

not at the time of the incident. However, he felt this would damage the credibility of the other

witnesses who testified that he was present at the home all day. With regard to the witnesses that did

testify at trial, the petitioner felt that trial counsel did not effectively cross-examine them, i.e., ask

the questions the petitioner wanted him to ask. He also claimed trial counsel waived his

preliminaryhearing withouthis consent, refused to let him take a lie detector test, failed to secure an

independent medical examination, and failed to introduce into evidence a receipt which established

that the petitioner’s wife was the one who actually obtained the movie which was shown to the

children.

The petitioner was very upset that trial counsel failed to secure records from Texas regarding

a prior false allegation made by the girl victim against her father. The petitioner stated that he had

learned of the prior events from the girl victim’s father when he confronted him. He was told that

the allegations were proven to be false and that they had been made to get attention. The petitioner

indicated that he made trial counsel aware of these events, but he was informed that it was hearsay

and could not be used.

The petitioner testified that he asked trial counsel to file a motion to dismiss the charges

against him. The only ground to support the motion advanced by the petitioner during his testimony

at the hearing was that he was innocent of the charges.

Trial counsel testified that he was appointed to the case and began his representation at the

circuit level. He indicated that he visited with the petitioner on at least six occasions prior to trial and

reviewed discoverymaterials with him. Trial counsel testified that, in his opinion, it would not have

been beneficial to call witnesses to establish an alibi for earlier in the day because the petitioner had

admitted that he was there at the time of the crime. With regard to a lie detector test, trial counsel

did not recall the petitioner asking to take one. However, he testified that if the petitioner had done

so, he would not have allowed it because they are inadmissible in court and he did not trust their

results. When questioned about a motion to dismiss because the petitioner was innocent of the

charges against him, trial counsel responded that there was “no such animal” because that was the

purpose of a jury trial- to determine if a defendant is innocent of the charges against him.

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Trial counsel did acknowledge that the petitioner had informed him of a prior false claim of

sexual contact made by the girl victim against her father. He stated that his investigator went to their

home, but no one there would speak with him. Absent the information as to the facts or at least the

location, trial counsel had no wayto furtherinvestigate the prior instance. Moreover, he testified that

even if he had known where in Texas to began his search, the Department of Children Services

usually would not speak about prior false claims. Regardless, trial counsel testified that he did not

believe the information would have swayed the jury, as the petitioner’s two stepchildrenwere present

during this crime and confirmed the girl victim’s story.

After hearing the evidence presented, the trial court denied the petition. This timely

appeal followed.

Analysis

On appeal, the petitioner contends that the post-conviction court erred in denying his petition

because he was denied his right to the effective assistance of counsel. In order to obtain

post-conviction relief, a petitioner must prove that his or her conviction or sentence is void or

voidable because of the abridgement of a right guaranteed by the United States Constitution or the

Tennessee Constitution. T.C.A.§ 40-30-103 (2010); Howellv.State,151 S.W.3d 450, 460 (Tenn.

2004). A post-conviction petitionermust prove allegations of fact byclear and convincing evidence. 

T.C.A. § 40-30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94

(Tenn. 2009). “Evidence is clear and convincing when there is no serious or substantial doubt about

the correctness of the conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d 208,

216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an

appeal of a court’s decision resolving a petition for post-conviction relief, the court’s findings of fact

“will not be disturbed unless the evidence contained in the record preponderates against them.”

Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).

A criminal defendant has a right to “reasonablyeffective” assistance of counsel under 

both the Sixth Amendment to the United States Constitution and Article I, Section 9, of the

Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to effective

assistance of counsel is inherent in these provisions. Strickland v. Washington, 466 U.S. 668,

685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective assistance of counsel, a

petitioner must prove both deficient performance and prejudice to the defense. Strickland, 466

U.S. at 687-88. Failure to satisfy either prong results in the denial of relief. Id. at 697.

Fordeficientperformance,the petitionermustshow that“counsel’srepresentation fell below

an objective standard of reasonableness” under prevailing professionalnorms,despite a “strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 687-89. “In other words, the services rendered or the advice given must have

been below ‘the range of competence demanded of attorneys in criminal cases.’” Grindstaff, 297

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S.W.3d at 216 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The petitioner must

prove that counsel made errors so serious that counsel was not functioning as “counsel”

guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. When reviewing trial counsel’s

performance for deficiency, this court has held that a “petitioner is not entitled to the benefit of

hindsight, may not second-guess a reasonably based trial strategy by his counsel, and cannot

criticize a sound, but unsuccessful, tactical decision made during the course of the proceedings.”

Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). The reviewing court “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).

However, “deference to tactical choices only applies if the choices are informed ones based upon

adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Prejudice in turn requires proof of “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.

at 694. In Strickland, the Supreme Court noted that “[a]n error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had

no effect on the judgment.” Id. at 691. The court clarified that prejudice “requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.” Id. at 687. “The defendant must show that there is a reasonable probabilitythat, but for

counsel’s unprofessional errors, the result of the proceedingwould have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

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

Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court reviews the trial

court’s factual findings de novo with a presumption of correctness, unless the evidence

preponderates against the trial court’s factual findings. Grindstaff, 297 S.W.3d at 216. But the

trial court’s conclusions of law on the claim are reviewed under a purely de novo standard with

no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

As his sole allegation of ineffective assistance of counsel, the petitioner has asserted that trial

counsel was deficient for failing to file a motion to dismiss the charges against him on the ground

that Tennessee Code Annotated 39-13-504 was unconstitutional. He further faults trial counsel for

allegedly not recognizing that a motion to dismiss even existed, i.e., trial counsel’s testimony that

“no such animal” exists. With regard to the statute’s constitutionality, he contends that there was an

unresolved ambiguity in the law with regard to this statute at the time of his conviction. The basis

for his entire assertion is a statement by this court on direct appeal: “In apparently a matter of first

impression, we hold that [the boy victim] was a victim because we interpret the definition of sexual

contact to include touching the intimate parts of a third party by or through another victim.” Cross,

No. M2009-01179-CCA-R3-CD. The petitioner parlays that statement into the argument that “[i]f

the underlying criminal matter was one of first impression, then axiomatically the interpretation of

the aforesaid penal statute created by this Honorable Court was not in existence at the time of the

[petitioner’s] criminal trial.” He asserts that he “was convicted of a crime for which his specific

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actions were not ‘plainly and unmistakably’ proscribed at the time he was charged.” Based upon

these contentions, he argues that a motion to dismiss upon constitutionality grounds challenging

vagueness and violation of ex post facto rights would have been favorable.

Initially, we must point out that the petitioner has taken trial counsel’s statement that “no

such animal” as a motion to dismiss existed wholly out of context. We agree with the petitioner that

Tenn. R. Crim. P. 12(a) does delineate that such a motion does exist in the criminal court context.

However, trial counsel’s statement that no such motion existed was made in the context of the

petitioner’s testimony regarding a motion to dismiss because he was innocent of the charges. Trial

counsel responded that a motion to dismiss was not the proper vehicle in that instance but rather that

was the purpose of a jury trial. We agree. Trial counsel cannot be faulted for failing to file a motion

to dismiss on grounds of innocence prior to trial. Moreover, as pointed out by the post-conviction

court, the issue of prejudice was foreclosed by this court’s holding that the evidence was sufficient

to support the conviction.

While we note that the issue of a motion to dismiss based upon the constitutionality of the

statute was raised in the petitioner’s pro se petition for relief, we must agree with the State thatthe

record of the post-conviction hearing is devoid of anyproof that the petitioner’s desired motion to

dismiss was based uponanythingotherthan his self-proclaimed innocence. No proof was offered to

support a finding that such a motion to dismiss would have been successful if it had been filed. The

post-conviction court’s findings of facts and conclusions of law are devoid of any reference to a

motion to dismiss on constitutional grounds. Other than a mere conclusory allegation in his petition,

we can find no mention of the issue. The petitioner may not now advance an argument that trial

counsel was ineffective for failing to file a motion to dismiss upon this ground when he failed to

raise it before the post-conviction court. See State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim.

App. 1994). Therefore, relief is not warranted.

We make clear that our reading of the petitioner’s brief leads us to conclude that he is

asserting only an ineffective assistance of counsel claim based upon the failure to file a motion to

dismiss and not a challenge to the constitutionality of the statute itself. Nonetheless, because the

question of constitutionality of a statute may be raised at any time, in the interest of finality and

completeness, we will briefly address the constitutionality of the statute in question. See State v.

Sowder, 826 S.W.2d 924 (Tenn. Crim. App. 1991).

As pointed out by the State, this statute has previously been upheld against a vagueness

challenge. See State v. Schimpf, 782 S.W.2d 186 (Tenn. Crim. App. 1989) (superseded by statute on

other grounds). In light of that precedent, we cannot conclude that a comment made by this court on

direct appeal regarding first impression can support a vagueness challenge at present. That comment

cannot support the petitioner’s claim that he was convicted of a crime which was not defined at the

time of its commission. The crime was defined and in existence at the time the petitioner committed

it. That this court noted for the first time that the petitioner’s specific conduct was included in the

statute based upon its plain meaning and definitions does not equate to the conclusion that the statute

was unconstitutional.

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Likewise, the petitioner’s challenge to the statute under the ex post facto provisions of the

constitution is not well-taken. An ex post facto violation under article I, section 11 of the Tennessee

Constitution occurs whenever a law (1) “provides for the infliction of punishment upon a person for

an act done which, when it was committed, was innocent,” (2) “aggravates a crime or makes it

greater than when it was committed,” (3) “changes punishment or inflicts a greater punishment than

the law annexed to the crime when it was committed,” (4) “changes the rules of evidence and

receives (sic) less or different testimony than was required at the time of the commission of the

offense in order to convict the offender,” and (5) “in relation to the offense or its consequences,

alters the situation of a person to his disadvantage.” Miller v. State, 584 S.W.2d 758, 761 (Tenn.

1979) (citing Calder v. Bull, 3 U.S. 386 (1798); State v. Rowe, 181 A. 706, 709-10 (1935)). The

statute under which the petitioner was convicted was in effect at the time he committed the acts for

which he was charged. As noted above, it withstands a vagueness challenge. Thus, because

it was in existence

Based upon

and clearly defined, there is no ex post facto violation present.

CONCLUSION

the foregoing, the denial of post-conviction relief is affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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