### IN THE CO URT OF CRIMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs Ju ne 19 , 20 12

CAULEY McCIL TON CROSS v. ST ATE OF TE NNESSEE

Appeal f romthe Circ uit Court for Marshall County No. 2011-CR- 64RobertCrigler , Judge

No. M2012- 00020-CCA -R3-P C - F iled Janu ary 18, 2013

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

. The petitioner is curr ently serving an eff ective t en -y ear sentenc e in the Depa rtment of Correc tion following his convictions for two counts of ag g ravated sexualbatteryand three counts of exhibi tion of obsce ne materials to a minor. On appeal, he contends that the postconvic tion court err oneously denied his petition b ec au s e t he proof established that he was denied his right to the eff ective

a s s is tance of counsel. On appea l, he specific ally contends that trial counsel was ineffe ctive for fail in g to file a motion to dismiss the charg es ag ainst the petitionerbase d upon a constitutionalchalleng e to Tenne ssee Code Annotated section 39-13504. Following revie w of the rec ord, we aff irm the denial of re lief.

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

J O H N E V E R E T T W I L L I A M S ,J .,delivere d the opinion of the Court,in which J O S E P H M.T I P T O N , PJ ., and T H O M A S T. W O O D A L L , J ., joined.

David J. McKenzie, L ewisburg , Tenne ssee, f or the a ppellant, Cauley

McCilton C ross.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; Mere dith Deva ult, Senior Counsel; Char les Fr ank Crawf

ord, District Attorney Gene ral; and Weakley E. Ba rnar d, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP INION

P roce dural Hi story and F actual Background

The c harg es ag ainst the petitioner arose fr om his actions involving his nine-year -old

-1stepson, the boy victim, and a twelve -year -old g irl, the g irl victim, who lived nex t door. The 1 petitioner, his wife, the boy victim, and his twelve-year old brother ha d lived in this hom e for approximately

one year . The g irl victim was a fr equent visitor to the home as she and the petitioner’s two stepsons ofte n played tog ether . On Marc h 29, 2008, the g irl victim visi ted the petitioner’s home f

or most of the day , which wa s spent playing outside, w atchingmovies with the family , and play

ing vide o g ames. Af

ter a late dinner , the petitioner a sked the thre e childre n if they would like to watch a

movie with him. All four proce eded into the livingroom and sat on the couc h, and the c hildren obser ved that a movie w as alre ady play ing. T he movie wa s titl ed “Z andale e” a

nd starre d Nicholas Cag e. The movie was a n uncut ver sion and included multiple g raphic sex scenes and nudity . The thre e childre n attempted to ave rt their eyes duringthese

scene s. Duringthe movie, the g irl victim felt the boy victim’s hand on her

left bre ast. She moved his hand awa

y sever al times, but “it just kept coming bac k.” The g irl victim observed the petitioner’s ha

nd manipulating the boy

victim’s hand in order

to touch her br east. The g irl victim said the movement wa s not acc idental on the petitioner’ s part and that her bre ast was touche d at least five times. The g irl victim eventually remove d herse lf from the c ouch, and no mor e incidents occ urre d.

After the mo v i e, t h e g irl victim’s mother called her daughter’s cellphone, which was
answe red by the petitioner. After the call, the petitioner informed the g irl victim that she would be spending the night at their house, and, beca use she wa s afr aid to g o home alone afte r dark, the g irl victim agree d. The next morning , the three children went next door and informed the g irl victim’s mother what had occur

red the previous evening

. During this conver sation, the petitioner enter ed the g irl victim’s family

home, without knocking , and stated that it was “just all a joke.”

The petitioner was subsequently indicted by a Marsha ll County g rand jury for two counts of ag g rava ted sexual battery and three counts of exhibi tion of o b s ce n e materia l to a minor. The petitioner was convicted as charg ed and sentenc ed to an eff ective term of ten year s in the Depa rtment of C orre ction. Following the denial of hi s motion for new trial, t he petiti oner file d a direct appea l with this court, in which he argued: (1) that the evidenc e was insufficient to support his ag g ravated sexual battery convictions; (2) that his sentenc es for ag g ravated sexual battery wer e excessive; and (3) that t h e aggra

vated sexual battery convictions should merg e. Statev.Cauley McCliton Cross ,No.M2009-01179-CCA-R3-CD (Tenn. Crim. Ap p

. , at Nashville, May 25, 2011). After revie w, this court af

firmed the c onvictions and sentenc es as imposed. Id

.
On J une 23, 2011, the pe titioner filed a pr o se petition for post-c onviction relief

asser ting a my riad of grounds for ine ffe ctive assistanc e of c ounsel. Amongthose grounds wer e that trial counsel wa s ineffe ctive for : (1) fa iling to obtain, re sear ch re cords, a nd crosse x amine witnesses with reg ard to a simil ar c laim of abuse ma de by the g irl victim in Tex as; (2) fa i l i n g to file a motion to dismiss beca use the fac ts of the case did not support the

1 In an ef

fort t o pr ote ctth e i den ti ty of the m ino r vic ti m s i nvolved i n this ca se, th is cou rthas cho sen to re fe r t o t hem by

“t he b oy v ic ti m ” a nd “ the girl vict im” rat herth an b y nam e orin it ia ls

. -2statutory

require ments and elements of ag g ravated sexual battery beca use there was no direc t contac t betwee n the petitioner and the g irl victim; (3) failing to file a motion to dismiss on g rounds that the aggravated sexual battery statute was unconstitutionally vague and ambiguous; and (4) faili n g t o elicit proof that the petitioner’s wife was chea ting on him. A post-conviction hearing was subsequently

held at which the petitioner and tria l counsel off ere d testimony

.
The petitioner beg an by noting that he and trial counsel d i d n o t s ee “eye to eye” on evidentiar y materia ls. He indicated that trial counsel visited him only three times in the eight months he was incar cer ated pending trial. The petitioner faulted trial counsel for failing to call cer tain alibi witnesses to testify at trial and to introduce phone rec ords to further this defe nse. Howeve r, he acknow ledg ed that the wit nesses would only be able to testify to his presence throug hout the day , not at the time of the i n ci d en t

. Howeve r, he felt this would damag e the cre dibilit y of the other witnesses who testified that he was prese nt at the home all day

. Wit h reg ard to the witnesses that did testify at t rial, t he petiti oner felt that trial counsel did not ef fec tively cross-e x amine them, i.e. , ask the questions the petitioner wanted him to ask. He also claimed tr i al co u n sel waived his preliminary

hearing withouthis consent, ref used to let him take a lie detec tor test, failed to secur e an independe nt medical examination, and failed to introduce into evidenc e a rec eipt which established that the petitioner’s wife was the one who actua lly obtained the movi e which was shown to the children.

The petitioner was very upset that trial counsel failed to secur e rec ords from Texas reg arding a prior f alse a lleg ation made by

the g irl victim ag ainst her f ather

. The petiti oner state d that he had lear ned of the prior events from the girl victim’s father when he confronted hi m. He was told that the alleg ations wer e proven to be false and that they had been made to g et attention. The petitioner indicated that he made trial counsel awa re of these events, but he was informed that it was hear say and could not be use d.

The petitioner testified that he asked trial counsel to file a moti o n t o d i s miss the charg es ag ainst him. The only g round to support the motion advanc ed by the petitioner during his testimony at the hea ringwas that he was innoce nt of the cha rg es.

Trial counsel testified that he was appointed to the case and beg an his r epre sentation at the circ uit level. He indicated that he visited with the petitioner on at least six occa sions prior to trial and revie wed discovery materia ls with him. Trial counsel testified that, in his opinion, it would not have been benef

icial to call witnesses to establish an alibi for earlier in the day beca use the petitioner had admitted th at he was there at t he ti me of the crime. Wit h reg ard to a li e detector test, trial counsel did not rec all the petitioner asking to take one. Howeve r, he testified that if the petitioner had done so, he would not have allowed it beca use they are inadmissible in court and he did not trust their results. When qu es t i o n ed about a motion to dismiss beca use the petitioner was innocent of the charg es ag ainst him, trial counsel responde d that there was “no such animal” be cause that was the purpose of

a jury trial- to deter

mine if a de fenda

nt is innocent of the cha

rg es ag ainst him.

-3Trial counsel did acknow ledg e that the petitioner had informed him of a prior false claim of

sexual contac t made by the g irl victim ag ainst her fathe r. He stated that his investiga tor went to their home, but no one there would speak with him. Absent the information as to the fac ts or at least the location, trial counsel had no way to further investigate the prior instance. Moreove r, he testified that

even if he had known wh er e i n Texas to beg an his search, the Depa rtment of Children Service s usually would not speak a

bout prior fa lse claims. Reg ardle ss, trial counsel testified that he did not believe the information would have swayed the jury , as the petitioner’s two stepchil d r e n w e r e p rese nt duringthis crime and c onfirmed the g irl victim’s story

.
After hearing the evidenc e pre sented, the tria l court denie d the petition. This tim ely appea l followed.

Analysis

On appea l, the petitioner contends that the post-conviction court err ed in denying his petition beca use he was denied his right to the eff ective assistance of couns el

. In order to obtain post-conviction relief

, a petitioner must prove that his or her conviction or sentenc e is void or voidable beca

use of the abridg ement of a right guara nteed by the United States Constitution or the Tenne ssee Constitution. T.C.A.§ 40-30-103 (2010); Howellv.Sta te ,151 S.W .3d 450, 460 (Tenn. 2004). A post-conviction pet itioner must prove alleg ations of fac t by clea r and convincing evidenc e. 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). “Evidenc e is clea r and convincing when there is no serious or substantial doubt about the corr ectne ss of the conclusions drawn from the evidenc e.” Grindstaff v. State , 297 S.W .3d 208, 216 (Tenn. 2009) (quoting Hicks v. State , 983 S.W .2d 240, 245 (Tenn. Cri m

. Ap p

. 1 9 9 8 )). In an appea l of a court’s decision resolving a petition for post-conviction relief , the court’s finding s of fac t “will not be disturbed unless th e ev i d en ce contained in the rec ord preponde rate s ag ainst them.” Frazier v. State , 303 S.W .3d 674, 679 (Tenn. 2010)

.
A cr iminal defenda

nt has a right to “rea sonablyeff ective” assistance of counse l under

both the Six th Amendment to the United States Constitut ion and Article I , Section 9, of the Tenne ssee Constitution. State v. Burns , 6 S.W .3d 453, 461 (Tenn. 1999) . The right to effe ctive assistance of counse l is inherent in these provisions. Strickland v. W ashington , 466 U.S. 668, 685-86 (1984) ; Dellinger , 279 S.W .3d at 293. To prove ineffe ctive assistanc e of c ounsel, a petitioner must prove both def icient per formanc e and pr ejudice to the de fense

. Strickland, 466 U.S. at 687-88. F ailure to satisfy either pr ongresults in the denial of r elief. Id . at 697.

For defic ientperf

ormanc e,the pe titionermustshow that“counsel’sr epre sentation fell below an objec tive standard of

rea sonablene ss” under

preva iling prof

essionalnorms,despite a

“strong presumption that counsel’s c onduct fa lls withi n the wide r ang e of r easona ble profe ssional assistance .” Id . at 687-89. “ In other wor ds, the servic es re ndere d or the a dvice g iven must have been be low ‘the ra

ng e of c ompetence demande d of attorne y s in criminal case s.’” Grindstaff , 297

-4S.W .3d at 216 (quoting Baxter v . Rose , 523 S.W .2d 930, 936 (Tenn. 1975) ). The pe titioner must

prove that counsel made err ors so serious that counse l was not functioningas “c ounsel” guara nteed by the Six th Amendment. Strickland, 466 U.S. at 687. When review ing tr ial counsel’s perf ormanc e for

defic iency , this court has held that a “petitioner is not entitled to the bene fit of hindsight, may

not second-guess a r easona bly based tria l strategy

by his counsel, and c annot criticize a sound, but unsucc essful, tac tical dec ision made duringthe cour se of the pr ocee dings.” Adkins v. State , 911 S.W .2d 334, 347 (Tenn. Crim. App. 1994) . The re viewingcourt “ must make

ever y eff ort to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of counsel’s c onduct, and to eva luate the c onduct from the pe rspec tive of counse l at that time.” Howell v. State , 185 S.W .3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). Howeve r, “de fer ence to tactical c hoices only applies if the c hoices a

re infor med ones ba sed upon adequate pre paration.” Cooper v. State , 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

. Prejudi ce i n turn require s proof of “a rea sonable probability that, but for counsel’s unprofe ssional errors, the result of the proce eding would have been differ ent.” Strickland, 466 U.S. at 694. In Strickland, the Supreme Court noted that “[a]n err or by counsel, even if profe ssionally

unrea sonable, does not war rant setting aside the judgme nt of a criminal proce eding if the err or had

no eff ect on the judgme nt. ” Id

. at 691. The court clar ified that prejudice “re quires showing that counsel’s erro rs were so serious as to deprive the defe ndant of a fair trial, a trial whose result is reliable .” Id

. at 687. “The defe ndant must show that there is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent. A rea sonable probability

is a probability

sufficie nt to undermine conf idence in the outcome.” Id . at 694.

A claim of ine ffe ctive assistanc e of c ounsel raise s a mix ed question of law and fa ct. Burns , 6 S.W .3d at 461; Grindstaff , 297 S.W .3d at 216. Consequently , this court revie ws the trial court’s f actua l findings de novo with a pre sumption of corre ctness, unless the e vidence preponde rate s ag ainst the trial cour t’s fac tual finding s. Grindstaff , 297 S.W .3d at 216. B ut the trial court’ s conclusions of law on the claim ar e re viewed unde r a pur ely de novo standa

rd with no presumption of cor

rec tness . Fields v. State , 40 S.W .3d 450, 458 (Tenn. 2001)

.
As his sole alleg ation of ineffe ctive assistance of counsel, the petitioner has asser ted that trial counsel wa s deficie nt for fa iling to file a motion to dismiss the charg es ag ainst him on the gr ound that Tenne ssee Code Annotated 39-13-504 was unconstitutional. He further faults trial counsel for alleg edly not rec og nizi ng that a motion to dism iss even ex isted, i.e. , trial counsel’s testimony that “no such animal” exis ts. Wit h reg ard to the statute’s constitutionalit y , he contends that there was an unresolved a

mbiguity in the law with reg ard to this statute at the time of his convic tion. The basis for his e ntire asser

tion is a statement by

this court on direc t appea l: “In appar ently a matter of first impression, we hold that [the boy victim] was a victim beca use we interpre t the definition of sexual contac t to include touching the intimate parts of a third party by or through another victim.” Cross , No. M2009-01179-CCA-R3-CD. The petitioner parla y s that statement into the argument that “[i] f the underlying criminal matter was one of first impression, then axiom atically the interpre tation of the aforesa id penal statute cre ated by this Honora ble C ourt was n o t i n exis tence at t he ti me of the [petit ioner’s] criminal trial.” He asser ts that he “wa s convicted of a crime for whi ch h i s s p ecif ic

-5actions wer e not ‘plainly and unmistakably ’ proscr ibed at the time he was charg ed.” Ba sed upon

these contentions, he argues that a motion to dismiss upon constituti o n al i ty g rounds challeng ing vagueness a

nd violation of ex postfac to rig hts would have be en fa vorable

.

Initially , we must point out that the petiti o n er h as taken trial counsel’s statement that “no such animal” as a motion to dismiss exis ted wholly out of context. We agree with the petitioner that Tenn. R. Crim. P. 12(a) does delineate that such a motion does exist i n the cr iminal court context. However , t ri al counsel’s statement that no such motion exis ted was made in the context of the petitioner’s testimony reg arding a motion to dismiss beca use he was innocent of the charg es. Trial counsel responde d that a motion to dismiss was not the proper vehicle in that instance but rathe r that

was the purpose of a jury trial. We agree

. Trial counsel cannot be faulted for failing to file a motion to dismi ss on grounds of innocenc e prior to trial. Moreove r, as pointed out by the pos t-conviction court, the issue of prejudice was fore closed by this court’s holding that the evidenc e was sufficie nt to support the conviction.

Whil e we note that t he is sue of a motion to di smiss based upon the constitutionality of the statute was raised in the petitioner’s pro se petition for re lief, we must ag ree with the State thatthe

rec ord of the pos t-conviction hearing is devoid of any proof that the petit ioner’s desired motion to dismiss was based uponany thingother

than his se lf-proc laimed innocenc e. No proof was offe red to support a finding that such a motion to dismiss would have been succe ssful if it had been filed. The post-conviction court’s finding s of fac ts and conclusions of law are devoid of any ref ere nce to a motion to dismiss on constitutional g rounds. Other than a mere conclusory alleg ation in his petition,

we can find no mention of the issue. The petitioner may not now advanc e an argument t h at trial counsel was ineffe ctive for failing to file a motion to dismiss upon this g round when he failed to raise it bef

ore the post-conviction court. See State v. Adkisson , 899 S.W .2d 626, 635 (Tenn. Crim. App. 1994). The ref

ore, r elief is not war

rante d.

We make cle ar tha

t our rea ding of

the petitioner’s brief lea ds us to conclude that he is

asser ting only an inef fec tive assistance of counse l claim based upon the failure to file a motion to dismiss and not a c halleng e to the constitutionality of the statute itself. None theless, bec ause the question of constitutionality of a statute ma

y be ra ised at any

time, in the interest of fina lity and completene ss, we will briefly addre ss 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 challeng e. See State v. Schimpf , 782 S.W .2d 186 (Tenn. Crim. App. 1989) (super seded by statute on other g rounds). In light of that prec edent, we cannot conclude that a comment made by this court on direc t appea l reg arding first impression can support a vagueness challeng e at prese nt. That comment cannot support the petitioner’s claim that he was convicted of a crime which was not define d at the time of its commission. The crime was define d and in exis tence at the time the petitioner committed it. That this court noted for the first time that the petit ioner’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 unc onstitut ional.

-6L ikewise, the petitioner’s challeng e to the s tatute under the ex post facto provisions of t he

constitution is not well-take n. An ex post fac to violation under article I , section 11 of the Tenne ssee Constitution occur s whene ver a law (1) “provide s for the infliction of punishment upon a person for

an act done which, when it was committed, was innocent,” (2) “ag g ravates a crime or m akes it g reater than when it was committed,” (3) “cha ng es punishment or inflicts a g reater punishment than the law annexed to the crime when it was committed,” (4) “cha ng es th e ru l es o f evidenc e and

rec eives (sic) less or differ ent testimony than was require d at th e t i me of the commission of the offe nse in order to convict the offe nder,” an d (5 ) “in relation to the offe nse or its conseque nces, alters the situation of a person to his disadvantag e.” Miller v. State , 584 S.W .2d 7 5 8 , 7 6 1 (Tenn. 1979) (citing Calder v. Bull, 3 U.S. 386 (1798 ) ; State v. Rowe , 181 A. 706, 7 0 9 -1 0 (1 9 3 5 ))

. The statute under which the petitioner was convicted was in eff ect at the time he committed the acts for which he w as cha

rg ed. As noted a

bove, it withstands a vagueness c halleng e. Thus, bec ause

it was in exi stence

Ba sed upon and cle arly

define d, there is no ex post facto violation pre sent.

CONCLUSION

the fore g oing, the denial of post-c onviction relief is a ffirme d.

_________________________________ J OHN EV ERETT WI L L IAMS, J UDGE

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