        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs June 4, 2013

                   STATE OF TENNESSEE v. TONY THOMAS

                   Appeal from the Criminal Court for Shelby County
                          No. 08-07876    Chris Craft, Judge




               No. W2012-00413-CCA-R3-CD - Filed September 6, 2013


The defendant, Tony Thomas, appeals his Shelby County Criminal Court jury conviction of
aggravated sexual battery, claiming that the evidence was insufficient to support his
conviction and that he was deprived of the effective assistance of counsel at trial. Discerning
no error, we affirm the judgment of the trial court.

             Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J EFFREY S. B IVINS, JJ., joined.

Paul K. Guibao (on appeal); James DeRossit and Katherine DeRossit (at motion for new
trial); and Claiborne Ferguson and Samuel Rodriquez (at trial), Memphis, Tennessee, for the
appellant, Tony Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Marianne Bell, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                On December 11, 2008, the Shelby County Grand Jury returned an indictment
charging the defendant with aggravated rape for his attack on the victim on April 16, 2008.
At trial, the victim testified that she had suffered from paralysis in her left leg since 1991 and
that, because of this paralysis, she needed to walk with a cane. On the evening of April 16,
2008, the victim walked to the Family Barbecue Restaurant in Memphis at approximately
9:00 p.m. Upon arriving at the restaurant, the victim purchased two cheeseburgers that she
ate while sitting on the tailgate of a truck. After the victim finished eating her cheeseburgers,
the defendant approached and asked if she wanted to purchase batteries, and the victim
responded that she was not interested. After asking others near the victim if they wanted to
purchase batteries, the defendant asked the victim if she wanted a ride home. The victim
declined the defendant’s offer of a ride, but he persisted. The victim testified that when she
continued to resist his efforts, the defendant grabbed her by the back of the neck, shoved her
inside his car, and told her to “get in the car, b****.”

               The defendant then got in the car, drove the victim to an empty house, and told
the victim to get out of the car. When the victim refused, the defendant grabbed her by the
hair and pulled her up the steps of the house, causing the victim to sustain scratches, bruises,
and cuts. The victim testified that the defendant pulled her into a room of the house where
a dirty mattress lay on the floor. The defendant then hit the victim in the head, face, legs, and
elbows with both his fists and with a “blue top vodka bottle.” The defendant threw the
victim onto the mattress, held her down on her stomach, and first penetrated her mouth, then
her rectum, and then her vagina with his penis. The assault continued for an hour to an hour
and a half.

               When the sexual part of the attack was over, the defendant told the victim to
get in the car so he could take her back to the Family Barbecue Restaurant. He pulled the
victim out of the house by the back of her neck, threw her on the ground outside, sat on top
of her, and began to choke her. When the defendant stopped choking the victim, he picked
up a concrete block. The victim begged the defendant not to throw the concrete block at her
head, and he instead threw the concrete block on the ground. The victim then got in the
defendant’s car, and he drove her back to the Family Barbecue Restaurant.

              Upon returning to the restaurant, the owner of the restaurant gave the victim
a beer and called 9-1-1. When the police arrived, the victim gave them the license tag
number of the vehicle the defendant was driving. Because one of the numbers was
inaccurate, the police were unable to locate the defendant on the night of the attack. The
defendant was arrested approximately three months later.

               Memphis Police Department (“MPD”) Officer Amanda Wakham testified that
she and her partner responded to the Family Barbecue Restaurant at 12:38 a.m. The victim
told Officer Wakham she had been raped, and the victim was “adamant that it was not a
service call so to speak.” Officer Wakham testified that the victim appeared very upset, and
she observed markings, scratches, and bruises on the victim’s neck and arms. She stated that
she and her partner tried to persuade the victim to go to the Rape Crisis Center at the time
of the initial call, but the victim refused medical care. Officer Wakham recalled that
although the victim had a slight odor that indicated that she had consumed alcohol, the victim
appeared to know what she was talking about and was not falling down. Officer Wakham

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testified that the victim told her that someone offered her a ride, that she accepted the ride,
and that he then drove her to a vacant house at an unknown location in the area where he
“forcibly raped and sodomized her.”

               Elizabeth Thomas, a sexual assault nurse examiner at the Memphis Sexual
Assault Resource Center (“MSARC”), testified that she examined the victim when she was
brought to MSARC by the MPD. Ms. Thomas testified that the victim told her that an
unknown black male asked her to get in the car so he could drive her home and sped off in
the car to a darkened neighborhood. He then found a darkened drive, pulled the victim out
of the car by her hair, and threw her to the “ground” where he orally, anally, and vaginally
raped her. He also sat on her chest with his hands around her throat, choking her. When he
finished the sexual assault, he dragged the victim up six to eight concrete steps and finally
took the victim back to the Family Barbecue Restaurant.

               Ms. Thomas testified that she noted multiple abrasions, bruises, and scratches
on the victim’s face, arms, legs, trunk, and back during the victim’s physical examination.
Ms. Thomas stated that the deep dark red impressions that she noted on the victim’s neck
appeared to be thumb prints because they “had gone past the several layers of skin and the
bruising pattern itself was very consistent with thumbprints made when someone had been
grasped as if they were strangled.” Ms. Thomas testified that the victim’s extra-genital
injuries were recent because the injuries were very red and none of them had any scabbing.
Additionally, Ms. Thomas noted that the bruises were recent because they were very deep
red or purple. Ms. Thomas said that the injuries she noted on the victim’s back were
consistent with a push and fall onto concrete. She also stated that the injury on the victim’s
neck was consistent with being choked and that a bruise on her wrist was consistent with
being grabbed and either held down or moved. Ms. Thomas testified that abrasions on the
victim’s back formed a long scrape consistent with the victim’s being pulled on concrete.

               After the physical examination, Ms. Thomas conducted a forensic female
anogenital examination of the victim. Ms. Thomas stated that she saw recent injuries in the
anal area, including two fissures and a “dime-sized abrasion” in the perianal area. Ms.
Thomas testified that, in her opinion, the anal injuries could not have been caused by
anything other than a sexual assault. Additionally, the victim’s injuries were consistent with
the victim’s description of the attack. Ms. Thomas collected a sexual assault examination
kit from the victim, but she found no deoxyribonucleic acid (“DNA”) on the swabs from the
kit. She testified that if a patient had used the restroom several times and brushed her teeth
before the examination, as the victim had, then it would not be unusual for nothing to appear
on the swabs from the kit.

              During cross-examination, Ms. Thomas stated that the victim told her she got

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in the perpetrator’s car. She also stated that nothing appeared in her report about the
perpetrator’s dragging the victim into a house or about a dirty mattress. Ms. Thomas testified
that the victim’s scrapes and abrasions could have been consistent with being drunk and
falling down on concrete.

               Following the close of the State’s proof and while the jury was still present in
the courtroom, the defendant stood up and, in reference to the victim, said, “She’s been
convicted of prostitution.” The defendant was then escorted from the courtroom. Shortly
after his outburst, the defendant returned to the courtroom, and the trial court permitted the
defendant to make a statement on the record outside the presence of the jury:

              I would like for the record to say dismissal of this case on the
              ground that the State has violated my right (indiscernible) the
              background of the witness sexual craving or her permissive
              (indiscernible). The State has violated my Six Amendment
              Right by not letting me question the State’s witness. No motion
              filed on behalf of me. The [S]tate has violated my Fourteenth
              Amendment Right by not allowing to have—to have evidence
              on my behalf. No motion filed on my behalf . . . . The State has
              violated (indiscernible) the violation of not allowing me to have
              a Suppression Hearing.

After making this statement, the defendant moved for a judgment of acquittal, which the trial
court denied. Following a Momon colloquy, see State v. Momon, 18 S.W.3d 152, 161-62
(Tenn. 1999), the defendant elected not to testify. The defendant then asked the trial court
to remove his trial counsel and permit the defendant to represent himself for the remainder
of the trial. The trial court cautioned the defendant against representing himself, and the
defendant eventually abandoned the request. The defendant presented no proof, and the jury
convicted him of the lesser included offense of aggravated sexual battery.

               The trial court imposed a Range III sentence of 20 years to be served at 100
percent by operation of law. Following the sentencing hearing, trial counsel filed a timely
motion for new trial. Trial counsel also moved to withdraw, citing the defendant’s desire to
raise a claim of ineffective assistance of counsel in his motion for new trial as grounds. The
trial court granted the motion to withdraw and appointed substitute counsel to represent the
defendant. Eight months later, the petitioner filed a pro se amended motion for new trial,
claiming, among other things, that he had been deprived of the effective assistance of counsel
at trial. On that same day, substitute counsel filed an amended motion for new trial adding
a claim that trial counsel performed deficiently by failing to file a motion pursuant to
Tennessee Rule of Evidence 412 and by failing to call certain witnesses at trial.

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              The trial court held a hearing on the motion for new trial on three different
dates. In the course of that hearing, MPD Lieutenant Marlon Tabor testified that he
interviewed the victim at Methodist Hospital and that she told him that “she was approached
by a male black selling batteries. The male black offered her a ride home. She accepted a
ride. He took her to a location off of Chelsea where he raped her and then he brought her
back to that location.” Lieutenant Tabor said that he did not “recall her saying she was
forced or anything of that nature.” He stated that he was not subpoenaed as a witness at the
defendant’s trial, that he was not interviewed by trial counsel or co-counsel, and that he was
not interviewed by anyone associated with those attorneys.

               During cross-examination, Lieutenant Tabor acknowledged that he could not
ascertain whether the victim was intoxicated and that he did not examine her body for
injuries. He also conceded that he spent less than five minutes talking with the victim and
that he did not take notes of their conversation. He admitted that he could not recall whether
the victim said that she had gotten into the defendant’s car voluntarily.

               MPD Officer Roger Pike testified that he responded to the initial 9-1-1 call
about the victim’s rape. He recalled that the victim “alleged that she had gotten a ride with
someone, a guy that was later identified to us as Battery Man, that’s how we knew him. . .
. Then she alleged that he took her to another place, not to where she wanted to go to be
driven but took her to another place and that he raped and sodomized her.” Officer Pike
acknowledged that he had noted in a report that there were inconsistencies between the
account the victim provided to him and that she provided to other officers but said that he
could not recall the nature of the inconsistencies. Officer Pike said that the victim always
maintained that she had been raped and sodomized by the defendant.

               The defendant testified that trial counsel was appointed to represent him after
his indictment. The defendant said that he had always maintained his innocence and that he
had shared ideas with how to handle the case with trial counsel. The defendant recalled that
he met two or three times with counsel prior to trial and only once with co-counsel. The
defendant testified that he asked trial counsel to subpoena Officer Pike to testify about the
inconsistencies between the victim’s pretrial statements. The defendant said that he told trial
counsel that the victim had worked as a prostitute and that she had been arrested for
prostitution in the past. He recalled that he and trial counsel discussed utilizing the victim’s
history in his defense and that trial counsel mentioned the evidence at the beginning of trial
but did not pursue it. The defendant said that it was his understanding that trial counsel had
filed a motion seeking to use the evidence but did not ask that the motion be heard. The
defendant said that trial counsel’s failure to utilize evidence of the victim’s sexual history
deprived him of a fair trial.



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               Trial counsel testified that his strategy was to establish that the encounter
between the defendant and the victim was consensual but that the severity of the victim’s
injuries weakened this strategy. Trial counsel testified that he moved the court to permit
admission of the victim’s sexual history pursuant to evidence Rule 412 but admitted that the
motion was untimely. He said that he knew of the victim’s history of prostitution and that
that history supported the theory of the defense.

             Trial counsel testified that he did not call Lieutenant Tabor or Officer Pike
because he did not believe their testimony was necessary.

                During cross-examination, trial counsel acknowledged that the parties
discussed the Rule 412 motion prior to trial and that the trial court indicated that it would
grant a continuance of the trial to have the motion heard. Trial counsel said that he
eventually elected against pursuing the motion. Trial counsel stated that after he “did get a
good look at [the victim] and got an idea of what her situation was,” he came to believe that
pursuing evidence of her history as a prostitute would do more harm than good to the
defendant’s case. He said that even if it was true that the victim had previously acted as a
prostitute, presenting evidence of that history “was the wrong decision in front of a jury”
because the victim was “one of the most sympathetic, almost pathetic victims” he had seen
while practicing law. Trial counsel explained, “She was handicapped. . . . She walked with
a cane. . . . She . . . looked much older than she really was.” He said that the victim “wasn’t
the kind of person you’re going to be able to blame” and that, after seeing her, it was his
opinion that “a much softer sell” would be the more effective strategy. Trial counsel
reiterated that even if the trial court had granted the Rule 412 motion, he would not have used
evidence of the victim’s sexual history at trial. Trial counsel said that he utilized cross-
examination and closing argument to emphasize that the encounter between the defendant
and the victim was consensual. Trial counsel testified that he did not ask for a mistrial after
the defendant’s outburst because he believed that the trial was going well and that the
outburst did not prejudice the defendant’s case.

               At the conclusion of the hearing, the trial court denied the defendant’s motion,
finding that “none of those allegations as brought[] would get him a new trial.” The trial
court also found that trial counsel “did an excellent job during the trial.” In a written order
denying the motion for new trial, the trial court found trial counsel’s decision to forego any
evidence that might have been admissible under Rule 412 “to be a sound, tactical choice
under the circumstances.” The court accredited trial counsel’s testimony that the State
“presented a very pitiable victim who was handicapped at the time of the offense with a
paralysis in her leg, walking with a pronounced limp and cane, and appeared advanced in
age, having the look of a very weathered person who had lived a hard life on the street.” The
trial court also accredited counsel’s testimony that any “suggestion that any sexual act

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between the victim and defendant was consensual, as an act of prostitution, was extremely
problematic due to the extent of her injuries, which were documented by the numerous
photographs of her injuries and the testimony” of Ms. Thomas. The trial court noted that the
defendant failed to present any proof at the hearing on the motion for new trial “as to what
sexual conduct of the victim would have been offered if a Rule 412 hearing had been held,”
precluding any ruling on whether the evidence would have been deemed admissible prior to
trial.

               In this appeal, the defendant challenges the sufficiency of the convicting
evidence and reiterates his allegation of ineffective assistance of counsel. We consider each
claim in turn.

                                        I. Sufficiency

              The defendant claims that the evidence was insufficient to support his
conviction, arguing that “the issue of consent looms large” given inconsistencies in the
victim’s account of the offense. The State contends that the evidence clearly supports the
conviction of aggravated sexual battery. We agree with the State.

               We review the defendant’s challenge to the sufficiency of the evidence mindful
that our standard of review is whether, after considering the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443
U.S. 307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003).
“[D]irect and circumstantial evidence should be treated the same when weighing the
sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.

              Aggravated sexual battery, as relevant to this case, is the “unlawful sexual
contact with a victim by the defendant or the defendant by a victim [when] . . . [t]he
defendant causes bodily injury to the victim.” Id. § 39-13-504(a)(2). “Sexual contact” is
“the intentional touching of the victim’s, the defendant’s, or any other person’s intimate

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parts, . . . if that intentional touching can be reasonably construed as being for the purpose
of sexual arousal or gratification.” Id. § 39-13-501(6). Additionally, “‘[i]ntimate parts’
includes the primary genital area, groin, inner thigh, buttock or breast of a human being.”
Id. § 39-13-501(2).

               Here, the victim testified that after she rebuffed his offer of a ride, the
defendant forced her into his car and drove her to an abandoned house where he raped her
orally, anally, and vaginally. The victim suffered numerous bruises, abrasions, and
lacerations to not only her genital area but also her body as a whole. We decline, as we must,
the defendant’s invitation to reevaluate the victim’s credibility and conclude that the
evidence was sufficient to support the defendant’s conviction of aggravated sexual battery.

                            II. Ineffective Assistance of Counsel

                In his final claim on appeal, the defendant contends that he was denied the
effective assistance of counsel at trial. We note briefly the peril that generally accompanies
raising this issue on direct appeal. See State v. Mosley, 200 S.W.3d 624, 628-29 (Tenn.
Crim. App. 2005) (citing Kendricks v. State, 13 S.W.3d 401, 405 (Tenn. Crim. App. 1999),
and observing that “this court has consistently ‘warned defendants and their counsel of the
dangers of raising the issue of ineffective assistance of trial counsel on direct appeal because
of the significant . . . amount of development and factfinding such an issue entails”)). The
trial court, too, warned the defendant of the dangers of raising this issue and urged him to
preserve it for later review. See Mosley, 200 S.W.3d at 628 (“The better practice is to make
an ineffective assistance of counsel claim in a post-conviction proceeding.”). Despite these
warnings, the defendant pursued this issue.

                To establish entitlement to relief via a claim of ineffective assistance of
counsel, the post-conviction petitioner must affirmatively establish first that “the advice
given, or the services rendered by the attorney, are [not] within the range of competence
demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975), and second that his counsel’s deficient performance “actually had an adverse effect
on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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.” Id. at 694.
Should the petitioner fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn.1996). Indeed, “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

              When reviewing a claim of ineffective assistance of counsel, we will not grant

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the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of 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).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

               A claim of ineffective assistance of counsel is a mixed questions of law and
fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d 762,
766-67 (Tenn.2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). When reviewing the
application of law to the post-conviction court’s factual findings, our review is de novo, and
the post-conviction court’s conclusions of law are given no presumption of correctness.
Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               Here, the defendant complains that his trial counsel performed deficiently by
failing to pursue the admission of evidence of the victim’s history of working as a prostitute.
Trial counsel’s accredited testimony established that counsel moved, pursuant to evidence
Rule 412, to admit evidence of the victim’s previous convictions of prostitution. Counsel
exhibited to the motion two affidavits of complaint charging the victim with prostitution.
Notably, no certified copies of any convictions stemming from those charges appear in the
record, and the copy of the victim’s criminal case history exhibited to the defendant’s motion
shows no disposition for a May 23, 2008 charge of prostitution and a disposition of guilty of
a violation of Code section 55-8-139, which prohibits “stand[ing] in a roadway for the
purpose of soliciting a ride,” related to an April 3, 2004 charge of prostitution. Based on our
review of the record, we cannot agree with the defendant that the victim’s history of working
as a prostitute was “clear from the record.”

               More importantly, the record establishes that counsel’s tactical decision to
forego any proof that might have been available under Rule 412 qualifies as sound. Counsel
said, and the trial court accredited the testimony, that the victim was “pitiable” due to her
handicap and overall physical appearance and that, in light of her visage and demeanor, he
believed that attacking her using evidence of her sexual past would be detrimental to the
defendant. Counsel also noted that the victim’s sexual past would not have explained the
serious injuries inflicted on the victim by the defendant. Counsel’s strategy was successful
in securing a conviction of aggravated sexual battery when the defendant had been originally
charged with the much more serious offense of aggravated rape. Under these circumstances,
the defendant failed to establish that counsel performed deficiently.




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                                        Conclusion

              The evidence at trial was sufficient to support the defendant’s conviction, and
the defendant failed to establish that he was deprived of the effective assistance of counsel
at trial.

              Accordingly, the judgment of the trial court is affirmed.

                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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