                                                     FILED
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE
                                                       March 24, 1999
                         JANUARY 1999 SESSION
                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

MICKEY CRESONG, SR.                 )
                                    )
            Appellant,              )      C.C.A. No. 03C01-9801-CR-00003
                                    )
vs.                                 )      Sullivan County
                                    )
STATE OF TENNESSEE,                 )      Hon. Arden L. Hill, Judge
                                    )
            Appellee.               )      (Post-Conviction)



FOR THE APPELLANT:                         FOR THE APPELLEE:

RAYMOND C. CONKIN, JR.                     JOHN KNOX WALKUP
Attorney at Law                            Attorney General & Reporter
320 Cherokee Street, Suite B
Kingsport, TN 37660                        ELIZABETH B. MARNEY
                                           Assistant Attorney General
                                           425 Fifth Ave. N., 2d Floor
                                           Nashville, TN 37243-0493

                                           H. GREELEY WELLS, JR.
                                           District Attorney General

                                           BARRY STAUBUS and
                                           TERESA MURRAY SMITH
                                           Assistant District Attorneys
                                           Second Judicial District
                                           P.O. Box 526
                                           Blountville, TN 37617



OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE




                                 OPINION
              The petitioner, Mickey Cresong, Sr., appeals from the Sullivan County

Criminal Court’s order dismissing his petition for post-conviction relief. A jury

convicted the petitioner of aggravated rape, a Class A felony, and the trial court

imposed a $30,000 fine and a sentence of confinement for 25 years in the

Department of Correction. He appealed his conviction, and this court affirmed on

April 25, 1995. State v. Mickey Cresong, Sr., No. 03C01-9406-CR-00230 (Tenn.

Crim. App., Knoxville, Apr. 25, 1995). On April 15, 1996, he filed a pro se petition

for post-conviction relief.    The trial court held a hearing on the petition on

December 18, 1997. The petitioner alleges ineffective assistance of counsel in the:

(1) failure to subpoena material witnesses for the defense, (2) failure to question the

DNA expert witness regarding the possibility that the perpetrator was a person of

Hispanic descent, (3) failure to challenge the conviction on the ground that the jury

instruction on reasonable doubt was defective, and (4) failure to object to a

defective indictment. Following a review of the record and the briefs of the parties,

we affirm the trial court’s dismissal of the petition.



              The standard for determining effective assistance of counsel is

“whether the advice given, or the services rendered by the attorney, are within the

range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975).           The complaining party must show that

counsel’s performance was deficient and that the deficiency prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 686 (1984). There must be a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 693. The reasonableness of the

attorney’s actions or inactions must be assessed as of the time of the conduct. Id.

at 690.



              First, the petitioner contends that counsel was ineffective because he

                                           2
did not subpoena certain witnesses to testify for the defense at trial. Trial counsel

orally moved for a continuance on the first day of the trial in order to investigate the

possibility of witnesses. The trial court denied the continuance based on the finding

that the defendant had not been diligent in notifying his attorney about material

witnesses and based on the finding that the purported witnesses could not establish

when or how the defendant received injuries to his face. On direct appeal, this court

held that the trial court did not abuse its discretion in denying the continuance.

State v. Mickey L. Cresong, Sr., No. 03C01-9406-CR-00230, slip op. at 6-7 (Tenn.

Crim. App., Knoxville, Apr. 25, 1995).



              The state contends that this issue, “including the role of petitioner’s

trial counsel” was raised on direct appeal. The post-conviction court held that,

although the issue of the continuance was previously determined, the issue of

ineffective assistance of counsel was not determined. On the issue of assistance

of counsel, the post-conviction court held that “[counsel] acted within the guidelines,

and was effective.” We have reviewed our opinion in State v. Mickey L. Cresong,

Sr., No. 03C01-9406-CR-00230 (Tenn. Crim. App., Knoxville, Apr. 25, 1995), and

find that the issue of ineffective assistance of counsel was neither raised nor

determined on direct appeal. This court evaluated counsel’s actions only in the

context of reviewing the denial of the continuance.



               On appeal, we are bound by the trial court’s findings in the post-

conviction hearing, unless we conclude that the evidence preponderates against

those findings. Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The post-

conviction court held that counsel was effective. The petitioner did not present any

witnesses to testify at his post-conviction hearing. Therefore, except for petitioner’s

testimony, we do not know what the purported witnesses would have said. “It is

elementary that neither a trial judge nor an appellate court can speculate or guess

                                           3
on the question of . . . what a witness’s testimony might have been if introduced by

defense counsel.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

By failing to present these witnesses at the post-conviction hearing, the petitioner

failed to prove that he suffered prejudice from trial counsel’s failure to subpoena

certain witnesses. This issue lacks merit.



              Second, the petitioner contends that counsel was ineffective because

he failed to question the DNA expert witness regarding the possibility that the

perpetrator was a person of Hispanic descent. The defense at trial was consensual

sex. The defendant admitted having sex with the victim on the night in question.

Declining to question the DNA expert witness regarding the race of the perpetrator

was reasonable under these circumstances. We defer to counsel’s trial strategy or

tactical choices if counsel made informed decisions based upon adequate

preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Accordingly, we agree

with the post-conviction court that defense counsel was not ineffective in this regard.



              Third, the petitioner contends that trial counsel was ineffective for

failing to challenge the jury instruction on reasonable doubt at trial. The petitioner

contends that the jury held the state to a lower standard of proof than beyond a

reasonable doubt by finding him guilty via “moral certainty, not beyond a reasonable

doubt.” The post-conviction court upheld the jury instruction. The trial court

instructed the jury as follows:

              Reasonable doubt is that doubt engendered by an
              investigation of all the proof in the case and an inability,
              after such investigation, to let the mind rest easy as to
              the certainty of guilt. Reasonable doubt does not mean
              a captious, possible or imaginary doubt. Absolute
              certainty of guilt is not demanded by the law to convict
              of any criminal charge, but proof beyond a reasonable
              doubt is required as to every evidentiary fact necessary
              to constitute the offense.




                                           4
                Most challenges to jury instructions on reasonable doubt attack the

use of the phrase “moral certainty.” The jury instruction in this case did not contain

the phrase “moral certainty.” The Tennessee Supreme Court and this court have

consistently upheld the constitutionality of similar jury instructions, even when the

jury instructions contained the phrase “moral certainty.” See, e.g., State v. Bush,

942 S.W.2d 489, 520-521 (Tenn. 1997) (appendix), cert. denied, --- U.S. ---, 118

S.Ct. 376 (1997); State v. Nichols, 877 S.W.2d 722, 734 (Tenn. 1994), cert. denied,

513 U.S. 1114 (1995); Jerome Williams v. State, No. 01C01-9709-CR-00441 (Tenn.

Crim. App., Nashville, Oct. 23, 1998); State v. Sexton, 917 S.W.2d 263, 266 (Tenn.

Crim. App. 1995). Additionally, the United States Court of Appeals for the Sixth

Circuit upheld the constitutionality of a similar reasonable doubt jury instruction

which included the phrase “moral certainty.” See Austin v. Bell, 126 F.3d 843, 846-

47 (6th Cir. 1997), cert. denied, --- U.S. ---, 118 S.Ct. 1526, 1547 (1998).



                To determine whether a jury instruction is deficient, the reviewing court

must examine the charge as a whole and consider how reasonable jurors could

have understood the charge as correctly conveying the concept of reasonable

doubt. Victor v. Nebraska, 511 U.S. 1, 6 (1994).          This particular jury charge is

similar to Tennessee Pattern Jury Instruction 2.03.1 See T.P.I.-Crim. 2.03 (4th ed.

1995). In fact, the main difference between the charge in this case and the pattern


       1
           The pattern jury instruction reads:

                Reasonable doubt is that doubt engendered by an
                investigation of all the proof in the case and an
                inability, after such investigation, to let the mind rest
                easily as to the certainty of guilt. Reasonable doubt
                does not mean a captious, possible or imaginary
                doubt. Absolute certainty of guilt is not demanded by
                the law to convict of any criminal charge, but moral
                certainty is required, and this certainty is required as
                to every proposition of proof requisite to constitute the
                offense.

T.P.I.-Crim. 2.03 (4th ed. 1995) (emphasis added).

                                            5
charge is that the pattern charge contains the phrase “moral certainty.” Viewing the

charge as a whole, we conclude that the jury instruction on reasonable doubt was

constitutional. Counsel was not ineffective because he did not object to a

constitutionally appropriate definition of reasonable doubt.



              Finally, the petitioner contends that trial counsel was ineffective for

failing to object to a defective indictment. Specifically, the petitioner contends that

the indictment failed to allege “that the Appellant acted intentionally, knowingly or

recklessly.” The state contends that the indictment sufficiently alleged a mental

state according to State v. Hill, 954 S.W.2d 725 (Tenn. 1997). Likewise, the post-

conviction court stated that Hill resolved this issue in favor of the state. On appeal,

the petitioner has waived this issue by failing to place a copy of the indictment in the

record. Tenn. R. App. P. 24.



              However, even if this issue were properly preserved for review, it is

without merit. According to the petitioner’s brief, the indictment alleged that the

petitioner “did unlawfully, feloniously and by force sexually penetrate Shirley Jones.”

The jury convicted the petitioner of aggravated rape. In State v. Hill, 954 S.W.2d

725 (Tenn. 1997), the Tennessee Supreme Court decided the issue of whether an

indictment charging aggravated rape was sufficient without alleging a culpable

mental state. The indictment in Hill stated that the defendant “did unlawfully

sexually penetrate” the victim. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).

The court stated:

              This statute does not specify a mental state. Thus,
              pursuant to Tenn.Code Ann. § 39-11-301(c), the mental
              element is satisfied if the indictment alleges that the
              defendant committed the proscribed act with intent,
              knowledge, or recklessness. Obviously the act for
              which the defendant is indicted, “unlawfully sexual
              penetrat[ing]”. . . is committable only if the principal
              actor’s mens rea is intentional, knowing, or reckless.
              Thus, the required mental state may be inferred from

                                           6
              the nature of the criminal conduct alleged. Clearly, the
              language of the indictment provides adequate notice to
              both the defendant and the trial court of the offense
              alleged . . . .

Id. at 729 (footnote omitted) (emphasis in original). The Tennessee Supreme Court

followed Hill in Ruff v. State, 978 S.W.2d 95 (Tenn. 1998). In Ruff, the indictment

alleged that Billy Joe Smith “did unlawfully sexually penetrate [the victim], by

forc[e].” Id. at 99. The court upheld the indictments and stated that “the culpable

mental state is even more easily inferable from the present indictments because of

the references to force and use of a deadly weapon.” Id. at 100.



              Clearly, Hill and Ruff resolve this issue against the petitioner. The

indictment against the petitioner was sufficient.    Counsel was not ineffective

because he did not object to a constitutionally sufficient indictment against the

petitioner.



              In consideration of the foregoing and the record as a whole, the

judgment of the trial court is affirmed.




                                           ________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE



CONCUR:



_______________________________
GARY R. WADE, PRESIDING JUDGE



_______________________________
JOHN K. BYERS, SPECIAL JUDGE




                                           7
