        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 7, 2011

           TIMOTHY GARVIN ODOM v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Hardeman County
                    No. 07-01-0494     J. Weber McCraw, Judge


              No. W2011-00448-CCA-R3-PC - Filed November 21, 2011


The petitioner, Timothy Garvin Odom, appeals the denial of his petition for post-conviction
relief from his conviction for rape of a child. On appeal, he argues that the trial court erred
in denying his petition because he received the ineffective assistance of counsel. After
review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J EFFREY S. B IVINS, JJ., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Gary F. Antrican, District Public
Defender; and Shana Johnson, Assistant Public Defender (at trial and of counsel on appeal),
for the appellant, Timothy Garvin Odom.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Joe L. VanDyke, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       The petitioner was convicted of rape of a child by a Hardeman County Circuit Court
jury and was sentenced to eighteen years in the Department of Correction. On direct appeal,
this court affirmed his conviction and sentence, and the Tennessee Supreme Court denied
his application for permission to appeal. See State v. Timothy Garvin Odom, No. W2008-
00795-CCA-R3-CD, 2009 WL 2998923 (Tenn. Crim. App. Sept. 21, 2009), perm. to appeal
denied (Tenn. Mar. 15, 2010). The underlying facts of the case were recited by this court
on direct appeal as follows:

               Investigator Mike Kennamore, with the Hardeman County Sheriff’s
       Department, testified that he was contacted by the Department of Children’s
       Services on April 26, 2007, concerning a complaint made by the victim, E.D.,
       who was eleven years old. (The minor victim will be referred to by her
       initials). E.D. was interviewed at the Carl Perkins Center, and Investigator
       Kennamore watched the interview in a separate room via a closed circuit
       television. Investigator Kennamore said that the victim ran “through a range
       of emotions” during the interview. Initially, E.D. was “closed up,” looking
       down, and then she began to open up as the interviewer continued to talk.
       Investigator Kennamore said that E.D. at that point became upset and was
       embarrassed. During the interview, the victim eventually said that [the
       petitioner] had penetrated her vaginally with his penis. A warrant for [the
       petitioner]’s arrest was issued, and it was discovered that [the petitioner] had
       left Hardeman County.

               Investigator Kennamore received information that [the petitioner] was
       residing in Forrest, Mississippi. On June 20, 2007, [the petitioner] was
       arrested in Mississippi and transported back to Tennessee. Investigator
       Kennamore stated that he interviewed [the petitioner] at the Hardeman County
       Sheriff’s Department on June 21, 2007. [The petitioner] was read his Miranda
       rights, indicated he understood his right not to continue with the interview,
       and executed a written waiver of those rights. Investigator Kennamore said
       that he and [the petitioner] conversed for awhile, and then [the petitioner]
       gave a written statement concerning E.D.’s allegations. The statement was
       introduced as an exhibit at trial and read to the jury. In his statement, [the
       petitioner] acknowledged that he knew the victim and that he had had sexual
       contact with her. In his statement, [the petitioner] said that the victim had
       been flirting with the boys in the neighborhood. [The petitioner] explained:

              I said I was going to tell on her to her mother, and she said,
              “No, don’t do that.” I think I said yes because [the victim’s
              mother] needs to know how she had been conducting herself
              with them boys and all. She kind of got whiney, saying “don’t
              tell.” I was pretty well wasted that day. She shoved me down
              on the bed. If I remember correctly, she was unbuttoning her
              pants. She pulled my shorts down-when I say shorts, I mean
              boxers. She got on top of me and she started rubbing, bumping,
              grinding or whatever you want to call it. I finally pushed her

                                             -2-
       off of me. I stood up and put my shorts on. I told myself, “I
       need to get out of this mess,” and I left.

        When asked whether his penis had penetrated the victim’s vagina, [the
petitioner] responded, “It felt real warm but it never did go in.” [The
petitioner] said that he had drunk one and one-half forty-ounce bottles of beer.
[The petitioner] stated that the incident occurred in his bedroom, and he said
that the victim was twelve years old.

        On cross-examination, Investigator Kennamore acknowledged that [the
petitioner] cooperated with the investigation. Investigator Kennamore stated
that the victim did not give a specific date in March as to when the incident
occurred, and he acknowledge[d] that the offense could have been committed
in late February. Investigator Kennamore acknowledged that E.D. was not
examined by a physician, but he believed that a medical examination would
not have revealed any evidence pertinent to the case.

        E.D. testified that she lived in a three bedroom house with her mother,
Geneva Denney, and three brothers, Nathan, John-John, and Eric. E.D. said
that [the petitioner] also lived with the family at the time of the offense. E.D.
stated that Eric and John-John shared a bedroom, Nathan slept on the couch,
she shared a room with her mother, and [the petitioner] slept in the third
bedroom. On the night of the offense, E.D., one of her brothers, and [the
petitioner] were watching a movie in [the petitioner]’s bedroom from [the
petitioner]’s bed. E.D. said she was dressed in jeans and a shirt, and [the
petitioner] was wearing boxer shorts. At some point, E.D.’s brother left [the
petitioner]’s bedroom. E.D. stated that she fell asleep during the movie. E.D.
said that [the petitioner] then removed her clothes and penetrated her in her
“private part” with his “private part.” E.D. said that the incident lasted
between ten and twenty minutes. [The petitioner] told E.D., “Don’t tell your
mama or you’re not going to have nowhere else to live.” E.D. acknowledged
that [the petitioner] paid some of the family’s bills.

       E.D. said that she told her mother about the incident some time later.
Ms. Denney confronted [the petitioner] and told him that she was going to call
the sheriff’s department, and [the petitioner] “ran out the door.” E.D. stated
that she was eleven years old at the time of the offense.

       On cross-examination, E.D. said that her brothers asked her mother if
[the petitioner] could live with them, and Ms. Denney agreed. E.D. stated that

                                       -3-
her mother felt sorry for [the petitioner] because he had cancer. E.D. said that
the incident occurred at approximately 10:00 p.m. on a weekday night. E.D.’s
brother, Nathan, was supposed to stay with E.D. while her mother went to
pick up her other brothers from work, but Nathan went over to his uncle’s
house and left E.D. alone with [the petitioner].

      E.D. said that after the incident, [the petitioner]’s son and
daughter-in-law, Kevin and Alisha Odom, came to live with them. E.D. told
Ms. Odom about the incident after [the petitioner] complained to Ms. Denney
about E.D.’s failure to do her homework. Ms. Odom told Ms. Denney that
E.D. had something to tell her, and E.D. then told Ms. Denney.

       Ms. Denney testified that she met [the petitioner] while she was living
with her mother in Byhalia, Mississippi. Ms. Denney’s sons, John and
Nathan, became friends with [the petitioner] who lived two doors down from
the Denneys. Ms. Denney said that [the petitioner] was divorced and had
cancer at the time. When Ms. Denney decided to move to Tennessee, her sons
asked her if [the petitioner] could come with them. Ms. Denney said that she
did not have a job at the time, and [the petitioner]’s disability check would
cover the family’s bills, so she agreed. Ms. Denney said that she never had a
romantic relationship with [the petitioner].

       Ms. Denney said that Kevin and Alisha Odom arrived at the house.
Ms. Denney was in her bedroom when they rushed in and told her to listen to
what E.D. had to say. Ms. Denney immediately confronted [the petitioner]
about the incident. [The petitioner] responded, “Geneva, do you think I
would do something like that?” Ms. Denney told [the petitioner] she was
going to call 911 and the sheriff’s department. [The petitioner] ran out of the
house, jumped into his truck, and left. Ms. Denney said that Kevin Odom
actually reported the incident to the sheriff’s department. Ms. Denney
explained that her oldest daughter “was done the same way by a former
boyfriend’s friend.” Ms. Denney stated:

       I went all the way, and his daddy was the Sheriff. He ran. They
       never prosecuted or nothing. They just let it go. It just went
       through the system, and I figured it would do the same with
       [E.D.] so I didn’t push.


       The State rested its case-in-chief, and [the petitioner] put on his

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defense. [The petitioner] testified that he was fifty-two years old, that his
cancer was in remission, and he suffered from depression. [The petitioner]
said that he had been receiving social security benefits for approximately five
years because he was unable to work. [The petitioner] stated that he paid
some of Ms. Denney’s bills in exchange for room and board. [The petitioner]
considered Ms. Denney a close friend. [The petitioner] described his
relationship with his son as “poor” because Kevin Odom had a drug problem.
[The petitioner] stated that he tried to be like a grandfather to Ms. Denney’s
children. [The petitioner] said, “I just love them to death, you know.” [The
petitioner] said that his heart was broken over E.D.’s allegations, but he “still
care[d] for them very deeply.”

        [The petitioner] said that in addition to Ms. Denney and her four
children, Kevin and Alisha Odom and their baby, and [the petitioner]’s four
grandchildren also lived in the house. [The petitioner] stated the incident
occurred on a Sunday between approximately 5:00 p.m. and 5:30 p.m. and that
everybody was at home. [The petitioner] said that E.D. was mad at him that
Sunday because he had admonished her when E.D. “flashed” the young man
across the street. [The petitioner] said that E.D. pushed [the petitioner] down
on his bed and began striking and kicking him. [The petitioner] pushed E.D.
off the bed on to the floor. [The petitioner] denied that there was any sexual
contact between him and E.D. [The petitioner] said that he was weak from his
chemotherapy, and E.D. was taller than [the petitioner] and weighed more.

       [The petitioner] said that his son came into the bedroom and then Ms.
Denney. Kevin Odom threatened to beat up [the petitioner], and [the
petitioner] told them he would go to his sister’s house in Mississippi until
“everybody cools down.” [The petitioner] said that he was scared of his son.
[The petitioner] did not recollect Ms. Denney asking him if he had touched
E.D. [The petitioner] said that he exchanged a few letters with Ms. Denney
while he was in Mississippi, and [the petitioner]’s sister talked to Ms. Denney
by telephone.

       [The petitioner] said that his statement to Investigator Kennamore
concerning his sexual contact with E.D. was untrue. [The petitioner] stated
that Investigator Kennamore “was pretty rough,” and “got in [his] face real
hard.” [The petitioner] denied that he initiated any sexual contact with E.D.

      On cross-examination, [the petitioner] acknowledged that he did not
say that E.D. slapped or struck him in his statement to Investigator

                                       -5-
       Kennamore. [The petitioner] denied that E.D. pulled down his boxers or that
       he had any type of sexual contact with her. [The petitioner] acknowledged
       that he knew he had been charged with rape of a child at the time that he gave
       his statement, but stated that he did not know the length of his potential
       sentence until later. [The petitioner] said that he last underwent chemotherapy
       approximately one year before the incident.

              The State called as a rebuttal witness Angela Anders, a correctional
       officer with the Hardeman County Sheriff’s Department. On June 21, 2007,
       Investigator Kennamore asked Officer Anders to step into the interview room
       and read [the petitioner]’s statement to him because [the petitioner] did not
       have his glasses with him. Officer Anders read the statement to [the
       petitioner], and then she signed the statement along with [the petitioner] and
       the investigating officers.

Id. at *1-4.

        On July 12, 2010, the petitioner filed a timely pro se petition for post-conviction
relief. Counsel was appointed, and no amended petition for post-conviction relief was filed.
In his petition, the petitioner raised a number of allegations of ineffective assistance of
counsel. The post-conviction court conducted an evidentiary hearing, at which the petitioner
testified that he retained counsel to represent him in his rape of a child case.1 He believed
that, at that time, his poor mental and physical states could have played a role in the defense
of his case. He explained that he was diagnosed with colon cancer in September 2002 and
had gone through three surgeries and a two-year regimen of radiation and chemotherapy.
One of the side effects of his colon cancer treatment was impotence. As a result of the
financial toll of cancer on their marriage and his impotence, his wife of thirty years left him
in April 2004. The petitioner’s grandchild also died, and the petitioner started self-
medicating with “alcohol and pills.”

        The petitioner testified that counsel visited him in jail in October 2007 and informed
him of a plea offer for ten years at 100%. Counsel advised the petitioner that it would be
in his best interest to accept the plea. Counsel also advised the petitioner that it would be
very difficult to prevail at trial given the nature of the charge.

      The petitioner testified that he discussed his physical and mental issues with counsel,
and he believed that counsel obtained his medical records. However, he did not have a
psychosexual evaluation prior to trial. The petitioner believed that had counsel based his

       1
           We will limit the majority of our factual recitation to the testimony relevant in this appeal.

                                                      -6-
defense on the petitioner’s sexual inabilities, the outcome of his trial would have been
different. The petitioner did not recall ever discussing with counsel the possibility of using
his ex-wife as a potential witness. The petitioner and counsel never discussed the possibility
of having a medical expert testify to the effects of cancer and radiation on one’s sexual
abilities.

        On cross-examination, the petitioner acknowledged that he did not have knowledge
of all of counsel’s investigative activities prior to trial because he was incarcerated. He
admitted that it was brought before the jury that he was a cancer survivor and that one of the
reasons the victim’s family took him in was because he had had cancer. The petitioner
denied raping the victim. He could not recall whether he testified about his impotence at
trial and acknowledged that he could have told the jury whatever he wanted it to hear when
he testified. The petitioner said that his statement to the investigator was not correct or
voluntarily given.

        Trial counsel testified that he had practiced law for thirty-five years and exclusively
handled criminal cases. Counsel said that, over the course of his representation, he visited
the petitioner in jail five or six times in addition to the times they met in court. Counsel
found the petitioner to be a “personable, cooperative person.” Counsel obtained the
petitioner’s work and medical history and informed the State of the petitioner’s medical
problems with the hope the State would “take that into consideration.” Counsel noted that
everyone was aware that the petitioner had had cancer, undergone treatment, and was not
in the best of health. Although the petitioner “was having serious problems dealing with the
situation,” counsel believed that he understood everything they discussed and their
“communication was very easy.”

       Trial counsel testified that he knew about the petitioner’s alcoholism and drug use,
but he was not informed by the petitioner about his being impotent. Counsel said that he
“c[ould]n’t investigate what [he] d[id]n’t know about and . . . [the petitioner] never told
[him] that, never told the investigators . . ., never mentioned it in his testimony in the motion
to suppress, never mentioned it in his trial testimony.” He noted that he “would have
certainly made that of evidentiary use for what it was worth,” although he considered it to
be “an imperfect defense.”

       Trial counsel testified that the petitioner received a ten-year offer, and counsel
recommended that he take it. Counsel thought that the petitioner’s case was one that “didn’t
need to go to trial,” but the petitioner declined the State’s offer.

      On cross-examination, trial counsel reiterated that the petitioner’s medical condition
was never in controversy, therefore, there was no reason to admit his medical records at trial.

                                               -7-
Counsel said that the petitioner never discussed the possibility of using his ex-wife as a
witness to his impotence and, because counsel did not know about the petitioner’s
impotence, he would not have known “to call her to verify that fact.” Counsel stated that
none of the petitioner’s problems with anxiety over the situation rose “to the level of asking
for a medical or a mental examination.”

       Trial counsel testified that, because the victim was eleven years old at the time of the
offense, he felt that a motion for a hearing regarding her prior sexual history would have
been “frivolous” and not legally supportable “because she’s incapable of giving consent.”
Counsel said that he thought it was to the petitioner’s advantage that the victim did not
undergo a forensic examination. Counsel brought it out at trial that there was a delay
between when the offense occurred and when the victim told her mother. He believed that
the delay went against the victim’s credibility. Counsel said that he had extensive
negotiations with the State and managed to have the charge reduced from a Class A felony
to a Class B felony, but the petitioner did not want to accept the State’s offer.

        The post-conviction court filed a written order denying the petition on February 1,
2011. The court noted that the petitioner’s “major point of contention” was that trial
counsel’s failure to promote the defense of the petitioner’s impotency led to his conviction.
However, the court noted that the petitioner presented no proof, in the form of medical proof
or testimony of his ex-wife who was evidently aware of his condition, at the evidentiary
hearing. The court also accredited the testimony of trial counsel that the petitioner had not
told him that he was impotent.

                                        ANALYSIS

       On appeal, the petitioner argues that the post-conviction court erred in finding that
he received effective assistance of counsel. He asserts that his impotence was a defense to
the charge against him and, had trial counsel offered evidence of his impotence, the result
of the proceeding would have been different.

       Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee
or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the trial court’s findings as to the credibility of witnesses or the weight of their

                                              -8-
testimony. Id. However, review of a trial court’s application of the law to the facts of the
case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96
(Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed
questions of fact and law, is reviewed de novo, with a presumption of correctness given only
to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn.
Const. art. I, § 9. To establish a claim of ineffective assistance of counsel, the petitioner has
the burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington,
466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is
applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong
test:

       First, the [petitioner] must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
       Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and
may not second-guess the tactical and strategic choices made by trial counsel unless those
choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. The same principles apply in determining
the effectiveness of trial and appellate counsel. Campbell v. State, 904 S.W.2d 594, 596

                                               -9-
(Tenn. 1995).

       After review, we conclude that the petitioner has failed to prove that trial counsel
performed deficiently or that any deficiency caused him prejudice. The petitioner asserts in
his brief, “that he discussed his sexual problems resulting from the colon cancer . . . is
uncontroverted,” and his medical records were not offered into evidence. However, the
petitioner only testified that he discussed his “health” and “physical” problems with trial
counsel; he never specifically testified that he discussed his impotence with counsel. Also,
contrary to the petitioner’s assertion, trial counsel testified that the petitioner did not inform
him of the petitioner’s impotency, or counsel said he would have utilized such as a defense
to the best of his abilities. Trial counsel also testified that he did not introduce the
petitioner’s medical records because the petitioner’s medical condition was never in
controversy. The post-conviction court explicitly accredited the testimony of trial counsel.
Thus, the petitioner has failed to prove that trial counsel rendered deficient performance.

        The petitioner additionally asserts that his ex-wife would have been able to testify at
trial concerning his impotency; however, the petitioner testified at the evidentiary hearing
that he never discussed with trial counsel the possibility of using his ex-wife as a witness.
Likewise, counsel testified the petitioner never discussed the possibility of using his ex-wife
as a witness to his impotence and elaborated that, because counsel did not know about the
petitioner’s impotence, he would not have known “to call [the petitioner’s ex-wife] to verify
that fact.” Again, the petitioner has failed to prove that trial counsel rendered deficient
performance.

       Furthermore, the petitioner did not call his ex-wife at the evidentiary hearing or offer
his medical records into evidence. To satisfy the prejudice requirement of Strickland when
alleging that counsel was ineffective for failing to offer testimony from a favorable witness,
the post-conviction petitioner must “(1) produce the witness at his post-conviction hearing;
(2) show that through reasonable investigation, trial counsel could have located the witness;
and (3) elicit both favorable and material testimony from the witness.” Denton v. State, 945
S.W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing Black v. State, 794 S.W.2d 752, 757
(Tenn. Crim. App. 1990)). Without such, the post-conviction court was unable to evaluate
whether the failure to offer the same was prejudicial to the petitioner.

       In any event, the petitioner has also failed to prove that offering evidence of his
impotence would have changed the outcome of the case. The petitioner was convicted of
rape of a child, which is defined as the “unlawful sexual penetration of a victim by the
defendant or the defendant by a victim, if the victim is more than three (3) years of age but
less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-522(a) (2006). “Sexual
penetration” is “sexual intercourse, . . . or any other intrusion, however slight, of any part

                                              -10-
of a person’s body or of any object into the genital or anal openings of the victim’s . . . body,
but emission of semen is not required[.]” Id. § 39-13-501(7). Even if the petitioner is in fact
impotent, that does not mean that he cannot be guilty of rape of a child. See State v.
Goodwin, 909 S.W.2d 35, 44-45 (Tenn. Crim. App. 1995) (“[I]mpotence is not a defense
to attempted rape. The fact that the Defendant was not able to perform penile penetration
does not mean that he could not be guilty of attempted rape or even rape.”); see also State
v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001) (victim’s testimony that the defendant pressed
his penis against her vulva with his hand and was only prevented from full penetration by
his failure to achieve an erection was sufficient evidence of penetration to sustain conviction
for aggravated rape). Here, the jury was presented with the petitioner’s statement to an
investigator in which he denied achieving full penile penetration, and the jury still convicted
him of rape of a child. The petitioner has failed to prove that evidence of his impotence
would have changed the jury’s verdict against him.

                                       CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the petition.



                                                _________________________________
                                                ALAN E. GLENN, JUDGE




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