           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                      May 13, 2015 Session


                 TIMOTHY GUILFOY v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Davidson County
                       No. 2011-A-779    Monte Watkins, Judge




                  No. M2014-01619-CCA-R3-PC – Filed August 14, 2015
                           _____________________________

The Petitioner, Timothy Guilfoy, appeals from the denial of his petition for post-
conviction relief. On appeal, the Petitioner argues that he received ineffective assistance
of counsel. Upon review, we affirm the judgment of the post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

James O. Martin, III, and Patrick T. McNally, Nashville, Tennessee, for the Appellant,
Timothy Guilfoy.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Victor S. Johnson III, District Attorney General; and Roger Moore, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

                                                 Trial

        On direct appeal, this court summarized the procedural history of the case and the
facts at trial as follows:1

       1
          To assist in the resolution of this proceeding, we take judicial notice of the record from the
Petitioner‟s direct appeal. See Tenn. R. App. P. 13(c); State v. Lawson, 291 S.W.3d 864, 869 (Tenn.
2009); State ex rel Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964).
       In June 2009, [the Petitioner] was charged with three counts of
aggravated sexual battery against J.A.,2 a victim less than thirteen years old;
two counts of aggravated sexual battery against T.A., a victim less than
thirteen years old; four counts of aggravated sexual battery against A.A., a
victim less than thirteen years old; and four counts of rape of a child against
A.A. All of the aggravated sexual battery offenses were alleged to have
taken place “on a date between October 1, 2005 and September 20, 2008.”
All of the rape of a child offenses were alleged to have taken place “on a
date between July 1, 2007 and September 30, 2008.” On March 30, 2011,
the State entered a nolle prosequi as to these charges.

       On March 11, 2011, [the Petitioner] was charged with four counts of
aggravated sexual battery against J.A., a victim less than thirteen years old
(Counts One through Four); one count of aggravated sexual battery against
T. A., a victim less than thirteen years old (Count 5); and three counts of
rape of a child against T.A. (Counts Six through Eight). All of these
offenses but the one alleged in Count Eight were alleged to have taken
place “on a date between October 1, 2005 and September 30, 2008.” The
offense alleged in Count Eight was alleged to have occurred “on a date
between July 1, 2007 and September 30, 2008.”

      [The Petitioner] initially was tried before a jury in July 2011, and a
hung jury resulted. [The Petitioner] was retried before a jury in October
2011, during which the State nolled Count Five. At [the Petitioner]‟s
second jury trial, the following proof was adduced:

        Jennifer A., the victims‟ mother (“Mother”), testified that, when she
and her three daughters moved to Nashville from Indiana in 2005, they
began living at the Biltmore Apartments. Her father, Brian Schiff
(“Grandfather”), was living there at the time, and they moved in with him.
It was a two-bedroom apartment, and she described the living conditions as
“pretty crunched.” After several months, Grandfather purchased a nearby
house on Saturn Drive, and they all moved into the house. Mother stated
that, when they moved into the house on Saturn Drive, it had an unfinished
basement and an unfinished attic. She used the attic as her bedroom except
in the summertime. The girls slept on the main floor but did not have their
own separate bedroom. The girls‟ sleeping accommodations included a
bunk bed, a futon, and a couch that pulled out to a bed. Usually, J.A. slept
in the top bunk of the bunk bed.


2
    As is the policy of this court, minor victims are identified by their initials.
                                                -2-
       While they were still living in the apartment, Mother became
acquainted with [the Petitioner]. He and his roommate lived next door to
them. [The Petitioner] came to visit Mother and her family in Mother‟s
apartment. Mother and her family also visited [the Petitioner] in his
apartment. Mother described their relationship as “friends” and denied that
there was ever any romantic interest on either her or [the Petitioner]‟s part.
She added that [the Petitioner] was a “really good friend.”

       Not long after Mother and her family moved to the house on Saturn
Drive, [the Petitioner] moved out of his apartment to another location in
Nashville. [The Petitioner] visited them at their house on Saturn Drive. A
few months later, [the Petitioner] moved to Missouri. [The Petitioner]
continued to stay in touch through phone calls and visits.

       Mother explained that [the Petitioner] worked in marketing tours and
would come to Nashville to participate in events such as the “CMA
festival.” He usually would drive to town in a tour vehicle, and he would
stay with Mother and her family at the Saturn Drive house. In this way, he
was able to keep the per diem he was paid for hotels. Mother stated that
she and her daughters enjoyed having [the Petitioner] stay with them.

       Mother stated that it was not her intention that [the Petitioner] spend
the night sleeping in any of the girls‟ beds, but she knew that he did
because she would find him in one of their beds in the morning. She
remembered one particular occasion when she saw [the Petitioner] in bed
with J.A. in the top bunk of the bunk bed. At that time, the bunk bed was in
the dining room. She also recalled finding [the Petitioner] in bed with T.A.
on “[m]ultiple” occasions. She did not say anything to [the Petitioner]
about his presence in bed with her children.

       In May of 2008, Mother, the girls, and [the Petitioner] planned a
camping trip to celebrate J.A. and Mother‟s birthdays, which were close
together in time. Mother stated that they camped two nights, and everyone
had a good time.

      Mother decided that she wanted to leave Nashville and move to
Clarksville. [The Petitioner] had expressed an interest in real estate
investment, specifically, purchasing a house and renting it out. When
Mother told him she was interested in moving to Clarksville, he purchased
a house there, and she rented it from him. She stated that the rent was $700
a month. She also testified that [the Petitioner] told her that she “wouldn‟t
ever have to worry about just being kicked out of the house.” Mother
                                    -3-
testified that [the Petitioner] realized that she “might not always be able to
come up with seven hundred dollars.” She also stated that [the Petitioner]
was welcome to spend the night there. She added that it “was supposed to
be a permanent move.”

       One morning in Clarksville, after the girls had gotten on the bus to
go to school, Mother spoke with Grandfather over the phone. Grandfather
told her that J.A. had told him “what happened.” After her conversation
with Grandfather about what J.A. had told him, Mother retrieved her
daughters from school. Mother subsequently spoke with J.A. and T.A. and
then she called 911. Two deputies from the Montgomery County Sheriff‟s
Department responded and she relayed to them what J.A. and T.A. had told
her. Mother testified that she called the police regarding the instant
allegations on or about March 15th, 2009. [The Petitioner] had been there
three days previously.

      In conjunction with the ensuing investigation, Mother made several
recorded phone calls to [the Petitioner]. She made these calls in March
2009. Mother and her family remained in [the Petitioner]‟s house for about
one more month. [The Petitioner] did not serve her with an eviction notice.

       On cross-examination, Mother admitted that she and [the Petitioner]
had a formal lease agreement regarding the house. She did not mail rent
payments to [the Petitioner] but deposited them twice a month into a bank
account [the Petitioner] had established. She also admitted that, whenever
[the Petitioner] came to visit, her daughters “rushed to the door and hugged
him.” She did not see either J.A. or T.A. acting frightened around [the
Petitioner]. She acknowledged that, when J.A. was six and seven years old,
she was wetting the bed and wore pull-ups.

       Mother testified that, when [the Petitioner] was staying with them,
she usually fell asleep before he did. She did not tell him where to sleep.
While they were living on Saturn Drive, the girls would fight over who got
to sleep with [the Petitioner]. She did not intervene in these discussions.

       Mother acknowledged that she and her daughters moved to
Clarksville in September 2008. She already had been attending a junior
college in Clarksville during the summer months. She was not able to pay
September‟s rent, so [the Petitioner] told her that she could pay it later by
increasing the rent due in subsequent months. In October, she dropped out
of school. She paid part of her rent for the months of October and
November. She got a job in December and was able to pay December and
                                    -4-
January rent. She was fired in February. She earlier had told [the
Petitioner] that she would file her federal income tax return early in order to
get her refund and pay him some of the money she owed him. She,
however, did not get a refund. Mother remained in the house through at
least a portion of May.

       Mother admitted that, in early March 2009, [the Petitioner] told her
that he was having a hard time making the mortgage payments on the
house. She denied that he told her that, if she could not pay the rent, he
would have to get a tenant who could.

         J.A., born on May 22, 2000, and eleven years old at the time of trial,
testified that she had two older sisters, T.A. and A.A. She began living in
Nashville “quite a few years ago” in an apartment. She lived with her
sisters, Mother, and Grandfather. [The Petitioner], whom J.A. identified at
trial, lived in the apartment next door.

        J.A. and her family later moved into a nearby house. The house had
a basement, attic, and main floor. Sometimes, Mother used the attic as her
bedroom. Grandfather used the basement as his living area. Sometimes the
girls used the dining room as their bedroom. They used a regular bed and a
bunk bed. J.A. usually slept in the upper bunk bed.

       Sometimes [the Petitioner] would spend the night at the house. On
some of these occasions, [the Petitioner] would sleep in J.A.‟s bunk bed
with her. J.A. testified that, on one of these occasions, [the Petitioner]
touched her “private” with his hand. She stated that he touched her skin by
putting his hand down the front of her pants. She also stated that his hand
moved and that she got up and went to the bathroom. She then went to
sleep with one of her sisters. J.A. testified that [the Petitioner] touched her
in this manner on more than one occasion. J.A. stated that, when [the
Petitioner] touched her while in bed with her, she was not sure if [the
Petitioner] was awake at the time the touchings occurred.

       J.A. also testified that, at another time, she was sitting on [the
Petitioner]‟s lap on the couch. [The Petitioner] put his hand down the back
of her pants and then slid his hand under her legs. He touched her “private”
on her skin. When shown a drawing of a girl‟s body, J.A. identified the
genital region as the area she referred to as her “private.”



                                     -5-
        J.A. went camping with her family and [the Petitioner] for J.A.‟s
eighth birthday. This trip occurred after the touchings about which J.A.
testified. [The Petitioner] did not touch her inappropriately on this trip.

       After a while, J.A. decided to tell Grandfather what had happened.
This was some time after she and her family left the house on Saturn Drive
and moved into a house in Clarksville that [the Petitioner] owned.
Grandfather remained in the house on Saturn Drive. When she told
Grandfather what [the Petitioner] had done, he told her to tell Mother. She
did not do so, however, because she did not think Mother would believe
her. Some time later, Grandfather told Mother what J.A. had told him but
did not identify [the Petitioner]. J.A. then told Mother what had happened.
According to J.A., Mother then told her boyfriend. J.A. and T.A. went to
school, but Mother came and got them out of school a little later. She took
them home and “called the cops.” J.A. subsequently was interviewed by a
woman named Anne. The interview was videotaped. J.A. also visited a
doctor, who examined her. She did not remember what she told the doctor
but testified that she would have told the truth.

       On cross-examination, J.A. stated that the touching on the couch
occurred while she was in second grade. At the time, her sisters were in the
room with her. Also home at the time were Grandfather, her grandmother,
Mother, and Mother's boyfriend, “Bob-o.” J.A. acknowledged that [the
Petitioner]‟s visits were sometimes short, and he did not spend the night.
She and her sisters were glad to see [the Petitioner] during his visits. She
did not remember [the Petitioner‟s] taking her anywhere by herself. He
never said anything to her that made her uncomfortable.

       J.A. admitted that, at the time the touchings occurred, she wore a
“pull-up” because she had a problem with bed-wetting. She stated that she
did not know if she was wearing a pull-up when [the Petitioner] touched
her on the occasions she testified about. She also stated that [the Petitioner]
had been lying behind her and she was facing away from him. She did not
know if he was awake or asleep when the touching occurred. She stated
that she had watched the videotape of her interview twice.

       On redirect examination, J.A. stated that the only thing about [the
Petitioner] she did not like was the touchings. She never got mad at him or
fought with him. She never saw her sisters or Mother be mad at him.
When asked how many times [the Petitioner] touched her inappropriately,
she responded, “Maybe three or four times.”

                                     -6-
         T.A., born on February 26, 1999, and twelve years old at the time of
trial, testified that she currently lived in Florida with her two sisters, her
brother, her father, and her stepmother. She previously had lived in
Nashville with her two sisters, Mother, and Grandfather. She was the
middle of three daughters.

       T.A. identified [the Petitioner] and stated that he lived next door to
them while they lived in an apartment in Nashville. T.A. and her family
later moved to a house on Saturn Drive. She stated that, while the family
lived there, they frequently changed the furniture arrangements because the
house was small. At one point, the family room was set up with a bunk bed
and a futon. Another time, the bunk bed and a queen-size bed were in the
dining room. Usually, T.A. and J.A. slept in the bunk bed, with T.A. on the
bottom bunk. T.A.‟s older sister, A.A., usually slept in the queen-size bed.
Sometimes, T.A. would sleep on the futon in the family room to “get away
from [her] sisters.”

        T.A. testified that [the Petitioner] spent the night at the house on
Saturn Drive “maybe three times.” On these occasions, [the Petitioner]
slept in the family room or the dining room. On one particular occasion,
[the Petitioner] slept in T.A.‟s bed. She testified: “I was about to go to bed.
It was either on the futon or the bunk bed. I‟m not too sure. He had
climbed in the bed, and I was already laying down. And he rolled me over
and put his hand down my pants.” [The Petitioner] touched her “private
part” with his finger, on her skin. She added that [the Petitioner]‟s finger
“went inside [her] private part.” She left her bed and got in bed with her
big sister. She added that she was “not too sure” if [the Petitioner] was
awake when this occurred.

        T.A. testified that, on another occasion, she was laying on her bunk
bed when [the Petitioner] came in and started touching her. She tried to get
up, but he held her down. He touched her private part with his finger again,
and she “just started crying.” She got up, telling him that she had to go to
the bathroom. She left and stayed away. T.A. stated that [the Petitioner]
had touched her on “[t]he inside.” She also stated that this episode caused
her to “want to puke.”

       T.A. testified that, in response to [the Petitioner]‟s actions, she
started wearing khaki pants to bed because they did not have an elastic
waistband. She stated that [the Petitioner] touched her another time while
she was wearing her khaki pants and that he unzipped and unbuttoned

                                     -7-
them. This happened on her bunk bed. She testified, “[h]e touched me
with his finger on [her] private part on [her] skin on the inside.”

       T.A. testified that the Defendant touched her more than three times.
The touchings were similar to one another. When asked to indicate on a
drawing the parts of the body that the Defendant touched, T.A. indicated
the female genitalia. When asked what she meant by “inside,” she
indicated, as reported by the prosecutor for the record, “the outer labia of
the female genitalia.”

        T.A. stated that the touchings occurred before the family camping
trip that they took for J.A.‟s eighth birthday. She stated that she never told
anyone about the touchings. She recalled J.A. telling Grandfather,
however, and she remembered when Mother spoke with them while they
were waiting for the school bus. T.A. testified that J.A. told Mother what
had happened and that Mother began to cry. Both the girls began to cry,
too. Nevertheless, the girls got on the bus and went to school.

       Mother picked them up from school early that day, and they went to
the District Attorney‟s office. There, T.A. spoke with Anne Fisher. T.A.
since had watched the videotape of her interview with Fisher. After the
interview, T.A. was examined by a doctor.

      T.A. testified that she liked [the Petitioner] other than his touching
her. She testified that her mother and [the Petitioner] were good friends.

        On cross-examination, T.A. acknowledged that, in July 2011, she
testified that [the Petitioner] had not touched her in the same place that a
tampon would go. Rather, she had earlier testified that he touched her
“[l]ike on top of it,” “[l]ike not literally on the outside, but like on the
outside of it, yes, but like inside,” and “[b]ut on the top, like where
something else—like I don‟t know. Yeah. It wasn‟t like literally inside,
inside, but it practically was. Yes.” On cross-examination at trial, she
testified that [the Petitioner] touched her inside, where a tampon goes.

       T.A. admitted that [the Petitioner] never had threatened her, never
had told her that they had a secret, and never had promised her anything for
her silence. He did not speak with her about sex or boyfriends, and he
never said anything that made her uncomfortable. He never pressed his
body against hers, never made her touch his “private part,” and never
showed his “private part” to her.

                                    -8-
       On redirect examination, T.A. explained that [the Petitioner] had
visited them in the house on Saturn Drive more than four times, but that he
would not stay more than three days per visit.

        Chris Gilmore testified that he was a school resource officer with the
Cheatham County Sheriff‟s Department but previously had been employed
as a police officer with the Clarksville Police Department. On March 18,
2009, he responded to Mother‟s address on an allegation of child rape.
From Mother, he gathered basic information. He did not speak to any
children. He notified the appropriate persons within the police department
for follow-up.

        Detective Ginger Fleischer of the Clarksville City Police Department
testified that she was assigned to investigate the matter reported by Mother.
Because the alleged criminal conduct had taken place in Nashville, she
contacted the appropriate Nashville authorities. Detective Fleischer and
Detective Fleming of the Davidson County Police Department determined
that a “controlled phone call” between Mother and [the Petitioner] would be
helpful to the investigation. She explained to Mother that the phone call
would be monitored and recorded. The phone call was scheduled to take
place on March 24, 2009, the day after the forensic interview of the
children. On that day, Mother made three phone calls to [the Petitioner],
and all three phone calls were recorded and transcribed. The recordings
were admitted into evidence and played for the jury. A fourth recorded
phone call was made by Mother to [the Petitioner] on the next day. This
recording also was admitted into evidence and played for the jury.
Additionally, the transcripts of all the recorded phone calls were admitted.

       Hollye Gallion, a pediatric nurse practitioner with the Our Kids
Center in Nashville, testified that she performed medical examinations on
J.A. and T.A. on April 21, 2009. In conjunction with performing the
exams, she reviewed the medical history reports given by the children to a
social worker. J.A. reported that “a guy named Tim” had touched the
outside of her butt and the outside of her “tootie” with his hands, explaining
that she “pee[d]” out of her “tootie.” J.A. reported that the touching had
occurred more than once. Asked if she remembered the first time, J.A.
reported, “It was in our old house in Nashville; I was around six or seven
years old.”

        Gallion testified that J.A.‟s physical examination was “normal.” She
did not find “any injuries or concerns of infection.” She also stated that the
results of the physical examination were consistent with the medical history
                                       -9-
       that J.A. reported. Gallion added, “Touching typically doesn‟t leave any
       sort of evidence or injury.”

              Gallion testified that, in giving her medical history to the social
       worker, T.A. reported that [the Petitioner] had touched the outside of her
       “too-too” with his hand, explaining that she “pee[d]” from her “too-too.”
       T.A. reported that the touching had occurred more than once and that she
       was “around five or six” the first time. On conducting a physical exam,
       Gallion concluded that T.A.‟s genital area and her “bottom” “looked
       completely healthy and normal.” Gallion added that T.A.‟s “physical exam
       was very consistent with what her history was.”

              Anne Fisher Post, a forensic interviewer employed by the
       Montgomery County Child Advocacy Center, testified that she conducted
       forensic interviews of J.A. and T.A. These interviews were recorded and,
       without any contemporaneous objection from [the Petitioner], the
       recordings were admitted into evidence but were not played for the jury in
       open court.

State v. Timothy P. Guilfoy, M2012-00600-CCA-R3-CD, 2013 WL 1965996, *1-8
(Tenn. Crim. App. May 13, 2013). At the close of its case-in-chief, the State delivered an
election of offenses which corresponded with details from each victim‟s testimony. Id. at
*8-9.

       On direct appeal, this court merged two of the Petitioner‟s convictions for
aggravated sexual battery against J.A. and two of the Petitioner‟s convictions for rape of
a child against T.A. Id. at *18, *21. Additionally, this court concluded that challenges to
the testimonies of Hollye Gallion and Anne Fisher Post, as well as the admission of the
recorded phone calls and forensic interviews, were waived by trial counsel‟s failure to
contemporaneously object and that the Petitioner was not entitled to plain error relief. Id.
at *12-14.

                              Post-Conviction Proceedings

        The Petitioner filed a petition for post-conviction relief alleging ineffective
assistance of counsel. At the post-conviction hearing, trial counsel testified that he did
not object to the introduction of the recorded forensic interviews as substantive evidence
at trial and that he did not request that a limiting instruction be given to the jury. Trial
counsel recalled that he went through the forensic interviews and redacted any reference
to incidents that happened outside of Davidson County or incidents that involved a third
victim, A.A. He identified the portions of the interview that needed to be redacted by
looking for references to A.A., to “things that „happened at the new house,‟” or to “things
                                           - 10 -
that „happened where we live now.‟” Trial counsel recalled that he redacted statements
from T.A. regarding incidents that happened in Montgomery County. However, trial
counsel admitted that the redacted version of the video included the following statement:

       Interviewer: Okay. So, you‟ve told me about a time he put his hand in
       your pants and touched your private part and nothing went inside. And you
       told me about a couple of times when he touched your private part and his
       finger went inside.

Trial counsel confirmed that at least two of the three events included in the interviewer‟s
summary occurred in Montgomery County.

       Trial counsel explained that he did not object to the admission of the video-
recorded forensic interview because he believed that, when a victim was impeached, the
victim‟s prior consistent statements were admissible as to the subject of the victim‟s
credibility. He expected the trial court to give a limiting instruction to the jury and failed
to notice that no limiting instruction was given.

       Trial counsel also recalled that controlled phone calls between the Petitioner and
the victims‟ mother were introduced into evidence. Trial counsel did not file any pretrial
motions to suppress the introduction of the phone calls, but he did redact the phone calls
because they contained references to incidents that happened in Montgomery County. In
a portion of the recorded phone calls, the Petitioner stated, “[H]ad said it was me?” In
the redacted version, a portion of what the victims‟ mother said to the Petitioner
immediately before he made that statement was removed. Trial counsel agreed that,
taken out of context, the Petitioner‟s statement could have been characterized as having a
guilty mind. Trial counsel stated that his failure to redact that portion of the recorded
phone call must have been an oversight.

       Trial counsel also admitted that the unredacted phone calls included a statement
from the Petitioner where he admits that he woke up one time to find T.A. on top of him.
When he attempted to push her off of him, his fingers went inside her underwear. This
incident occurred in Montgomery County. In the redacted version, the location of the
incident was taken out, but the details of the incident remained.

       Trial counsel explained that his theory of defense during the second trial was to
demonstrate “the implausibility of the allegations” against the Petitioner. Trial counsel
recalled that, during the first trial, he extensively cross-examined the victims‟ mother
about the particular dates the incidents were alleged to have occurred. Trial counsel used
a large poster board to create a diagram of the alleged dates and then, through other
witnesses, demonstrated that the Petitioner was not in Nashville on the dates in question.

                                            - 11 -
However, trial counsel did not use the same technique during the second trial. He
explained:

       My thinking was, the lack of specificity, with regard to dates, was a
       weakness in the State‟s case for the first trial. And in the second trial,
       obviously, they would fix that, they would be prepared for what I was
       doing. So, my thinking was, the second trial we would present our case
       differently, because if we tried the same case twice the State would be able
       to anticipate everything we did.

Trial counsel also recalled that the State‟s direct examination of the victims‟ mother was
essentially the same in each trial. Trial counsel agreed that he could have addressed in
the second trial the issue of dates in order to demonstrate the implausibility of the
allegations against the Petitioner.

       Trial counsel also confirmed that he did not object to the respective testimony of
Ms. Gallion and Ms. Post. He agreed that their respective testimony could have bolstered
the victims‟ testimony.

       On cross-examination, trial counsel stated that he was one of about six attorneys
who regularly represented clients charged with child sex abuse. He stated that it was
common for there to be no unbiased adult eyewitnesses in such cases. Often, such cases
turned on the victim‟s credibility. Trial counsel recalled that the State‟s general practice
in such cases would be to have the nurse practitioner qualified as an expert witness, but
he did not know whether the forensic interviewer was qualified as an expert. He also
recalled that he met with the prosecutor about redacting statements from the recorded
phone calls, and the prosecutor agreed to “redact everything we wanted redacted.”

        Kathleen Byers, the Petitioner‟s sister, testified that she was present at both trials.
After the jury was released to deliberate in the second trial, Ms. Byers asked trial counsel
if she had time to get lunch before the jury returned. Trial counsel told her that she likely
did because the jurors had requested that a TV and viewing equipment be brought into
the jury room so they could “watch the video.”

       The post-conviction court denied relief, noting that trial counsel admitted that his
failure to object to improperly admitted evidence was not meant to further a defensive
strategy and that “several other instances of alleged deficient performance” were due to
oversights on the part of trial counsel. However, the post-conviction court held that, even
if the Petitioner‟s allegations were true, trial counsel‟s deficiencies did not result in
prejudice. This timely appeal followed.



                                            - 12 -
                                          Analysis

       On appeal, the Petitioner contends that trial counsel was ineffective for failing to:
(1) properly redact the video of T.A.‟s forensic interview; (2) object to the admission of
the forensic interviews as substantive evidence; (3) properly redact the recordings of the
controlled phone calls; (4) present an alibi defense; (5) object to Ms. Gallion‟s testimony
regarding the results of T.A.‟s medical exam; and (6) object to Ms. Post‟s testimony that
victims could not realistically be expected to remember details of events.

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). As such, we review a trial
court‟s findings of fact under a de novo standard with a presumption that those findings
are correct unless otherwise proven by a preponderance of the evidence. Id. (citing Tenn.
R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). The trial court‟s
conclusions of law are reviewed “under a purely de novo standard, with no presumption
of correctness . . . .” Id.

       When reviewing the trial court‟s findings of fact, this court does not reweigh the
evidence or “substitute [its] own inferences for those drawn by the trial court.” Id. at
456. Additionally, “questions concerning the credibility of the witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge.” Id. (citing Henley, 960 S.W.2d at 579).

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove two factors: (1) that counsel‟s performance was deficient; and (2)
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that
the same standard for ineffective assistance of counsel applies in both federal and
Tennessee cases). Both factors must be proven in order for the court to grant post-
conviction relief. Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State,
938 S.W.2d 363, 370 (Tenn. 1996). Additionally, review of counsel‟s performance
“requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel‟s challenged conduct, and to evaluate the
conduct from counsel‟s perspective at the time.” Strickland, 466 U.S. at 689; see also
Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial strategy, and we
will not grant relief based on a sound, yet ultimately unsuccessful, tactical decision.
Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

                                            - 13 -
        As to the first prong of the Strickland analysis, “counsel‟s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that the counsel‟s acts or
omissions were so serious as to fall below an objective standard of reasonableness under
prevailing professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at
688); see also Baxter, 523 S.W.2d at 936.

        Even if counsel‟s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, 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. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

                  Failure to Properly Redact T.A.’s Forensic Interview

       The Petitioner argues that he was prejudiced by trial counsel‟s failure to properly
redact T.A.‟s forensic interview because it violated his right to a unanimous jury verdict.
He claims that it allowed the jury to find the Defendant guilty for the counts involving
T.A. based on the interviewer‟s summary of T.A.‟s statements during the forensic
interview, which included references to incidents alleged to have occurred in
Montgomery County.

       In the unredacted copy of her forensic interview, T.A. described several incidents
where the Petitioner touched her “private part.” She described two incidents that
happened in Montgomery County, including one incident where the Petitioner‟s finger
“went inside [her] private part.” T.A. also described an incident that took place in
Davidson County which did not involve penetration. The details of both incidents from
Montgomery County were redacted from the forensic interview before the interview was
presented to the jury. However, trial counsel failed to redact the interviewer‟s comment
where she said:

       Okay. So you‟ve told me about a time that [the Petitioner] put his hand in
       your pants and touched your private part and nothing went inside. And you
       told me about a couple of times when he touched your private part and his
       finger went inside.

      At trial, T.A. gave detailed descriptions of three instances that occurred in
Davidson County where the Petitioner‟s finger went inside her “private part.” After
                                           - 14 -
resting its case-in-chief, the State delivered an election of offenses for each count of rape
of a child against T.A. The details of each elected offense corresponded with two of the
events T.A. described during her testimony at trial.3 At the same time, the State
dismissed the single count of aggravated sexual battery against T.A.

       Trial courts may admit evidence of other sexual crimes when an indictment
charges a number of sexual offenses but does not allege the specific date such offenses
occurred. State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994). However, in such cases,
the state is required “to elect the particular offenses for which convictions are sought.”
State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993); State v. Burlison, 501 S.W.2d 801,
803 (Tenn. 1973). Requiring the state to make an election serves three purposes:

        First, to enable the defendant to prepare for and make his defense to the
        specific charge; second, to protect him from double jeopardy by
        individualization of the issue, and third, so that the jury‟s verdict may not
        be a matter of choice between offenses, some jurors convicting on one
        offense and others, another.

Burlison, 501 S.W.2d at 803. In short, such practice allows the State latitude when
prosecuting criminal acts against young children while simultaneously preserving a
criminal defendant‟s right to a unanimous jury verdict. Rickman, 876 S.W.2d at 828; see
also Shelton, 851 S.W.2d at 137 (stating, “A defendant‟s right to a unanimous jury before
conviction requires the trial court to take precautions to ensure that the jury deliberates
over the particular charged offense, instead of creating a „patchwork verdict‟ based on
different offenses in evidence” (citing State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim.
App. 1991)).

        In this case, T.A. testified at trial about three different instances where the
Petitioner penetrated her “private part” with his finger. After the close of its case-in-
chief, the State delivered an election of offenses to the jury, which contained facts that
clearly corresponded to T.A.‟s trial testimony. The Petitioner‟s right to a unanimous
verdict was protected when the State satisfied the election requirement.

        Further, the Petitioner has failed to prove that he was prejudiced by trial counsel‟s
failure to redact the forensic interviewer‟s statement from the video. As noted above, the
State‟s election of offenses protected the Petitioner‟s right to a unanimous jury verdict.
In the redacted copy of the forensic interview, T.A. described only one incident of
        3
           On direct appeal, this court merged two of the Petitioner‟s convictions for rape of a child against
T.A. because the State elected the same incident for those two counts. Timothy P. Guilfoy¸ 2013 WL
1965996, at *20. However, this court noted that T.A.‟s testimony described three separate instances and
that the record failed to reveal why the State did not elect the third incident as the basis for the third count
of rape of a child. Id. at *20 n.8.
                                                    - 15 -
misconduct happening in Davidson County, and it did not include penetration. At trial,
she described three instances that occurred in Davidson County, all three of which
included penetration. Accordingly, we do not believe that, had trial counsel redacted the
interviewer‟s comment, there was a reasonable probability that the outcome of the trial
would have been different. See Strickland, 466 U.S. at 694. The Petitioner is not entitled
to relief.

             Admission of Forensic Interview Videos as Substantive Evidence

        The Petitioner argues that trial counsel was deficient when he failed to object to
the introduction of the videos of the victims‟ forensic interviews as substantive evidence
or request that a limiting instruction be given to the jury. The Petitioner claims that the
videos could have only been introduced as prior consistent statements and, consequently,
their introduction as substantive evidence was unlawful. The Petitioner contends that he
was prejudiced because the admission of the videos as substantive evidence violated his
right to a unanimous jury verdict and his protection against double jeopardy.
Specifically, the Petitioner argues that the jury‟s verdicts were based on the forensic
interviewer‟s summary comment in T.A.‟s interview as opposed to the evidence
presented at trial.

       As a preliminary matter, we note that the Petitioner has not identified any
prejudice he suffered as a result of the admission of J.A.‟s forensic interview. As such,
we will limit our analysis to the admission of T.A.‟s forensic interview, which included
the forensic interviewer‟s summary statement of events that happened in both Davidson
and Montgomery Counties. See Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)
(“Failure to establish either prong [of the Strickland test] provides a sufficient basis to
deny relief.”)

        At trial, T.A. was asked to identify a copy of her forensic interview. Then, during
the testimony of Ms. Post, the forensic interviewer, the State introduced a copy of T.A.‟s
forensic interview into evidence without any argument as to its admissibility or
explanation as to why it was admitted. Trial counsel made no objection, and the trial
court provided no contemporaneous limiting instruction. During the jury charge, the trial
court instructed the jury that prior inconsistent statements could be used only to
determine a witness‟s credibility. However, the trial court did not provide a similar
instruction for prior consistent statements.

        On direct appeal, this court stated, “Although the record clearly demonstrates that
the trial court erred in admitting the recordings of the interviews into evidence, the record
does not demonstrate that the jury ever watched the interviews.” Timothy P. Guilfoy,
2013 WL 1965996, at *14 (emphasis in original). As such, this court concluded that the

                                           - 16 -
Petitioner had failed to satisfy the first requirement of plain error review—that the record
clearly established what happened at trial. Id. at *14.4

        It is not clear from the record why T.A.‟s forensic interview was introduced into
evidence. Nevertheless, this court has previously determined that the trial court erred in
admitting the recording. Id. While the State argues in this appeal that the interview was
properly admitted as a prior consistent statement, the State concedes that the trial court
did not issue a proper limiting instruction. See State v. Braggs, 604 S.W.2d 883, 885
(Tenn. Crim. App. 1980) (when prior consistent statements are admitted to rehabilitate a
witness, the trial court should instruct the jury that the statement cannot be considered for
the truth of the matter asserted).

       However, despite trial counsel‟s failure to object to the introduction of the video or
request a limiting instruction, the Petitioner has failed to demonstrate that he was
prejudiced by its introduction as substantive evidence. As discussed above, the forensic
interviewer‟s summary statement did not violate the Petitioner‟s right to a unanimous
jury verdict because the State provided an election of offenses. The details of each
elected offense corresponded to incidents both J.A. and T.A. described in their trial
testimony. The Petitioner has failed to prove that there was a reasonable probability that
the outcome of the trial would have been different had the forensic interview not been
introduced as substantive evidence. Accordingly, the Petitioner is not entitled to relief.

             Failure to Properly Redact Recordings of Controlled Phone Calls

       The Petitioner claims that trial counsel was ineffective for failing to properly
redact two statements from the controlled phone calls—one where the Petitioner
described an incident which occurred in Montgomery County and one where the
Petitioner asked the victims‟ mother, “Had said it was me?” We will address each in
turn.

                               a. Incident in Montgomery County

        The Petitioner claims trial counsel was ineffective for failing to redact a portion of
the controlled phone calls where the Petitioner described an incident that happened in
Montgomery County when he woke up to find T.A. asleep on top of him. Trial counsel
filed a pretrial motion to have this portion of the recorded telephone call redacted, which
the trial court granted. However, instead of redacting the entire incident, trial counsel
only redacted some details where the Petitioner stated he may have placed his hand under

       4
        The Petitioner attempted to correct this gap in the record through the post-conviction testimony
of Ms. Byers that trial counsel told her she had time to get lunch because the jury had requested
equipment to view the video.
                                                - 17 -
T.A.‟s underwear when he pushed her off him. Trial counsel also redacted the
Petitioner‟s statement establishing that this incident happened in Montgomery County.
Consequently, the following redacted version of the phone call was submitted at trial:

      [Mother]: Look, I asked you to call me back to call me and be truthful.

      [The Petitioner]: I know, I‟m trying to be truthful.

      [Mother]: (Inaudible)

      [The Petitioner]: Okay, okay, okay, okay, this is the one thing, the only
      f***ing thing, the only time, and what I‟m scared about, I‟m scared that
      you‟re going to take something one time and go to sleep tonight and wake
      up tomorrow and say, oh well, if it‟s one time, it must have been every
      time, because I—I swear, I‟m not lying to you about the fact that I don‟t
      remember doing anything except one time, that‟s it, and—and the reason I
      didn‟t want to bring it up is because it sounds like I‟m blaming someone
      else.

      [Mother]: Right.

      [The Petitioner]: But it happened.

      [Mother]: If it was once, go ahead, go ahead.

      [The Petitioner]: It happened, and I‟m not going to say it‟s not my fault,
      it‟s just, I woke up—I woke up and I was—I was in my—I was in my
      shorts, whatever, I just sleep in my shorts all the time, and [T.A.] was on
      top of me.

      [Mother]: Okay.

      [The Petitioner]: And I kind of pushed her off, not violently, kind of like
      understanding, pushed her off,

      [The Petitioner]: And, and, and I pushed her off as soon as I figured out
      what was going on, I did. I‟m not—I mean, I was just f***ing terrified.
      And you know what, I did go back to sleep, I went back to sleep so I
      wouldn‟t have to f***ing deal with it, and I—the next morning I was going
      to say something to you, but you weren‟t there and I would have had to call
      you and—

       [The Petitioner]: I tried to, I tried—I tried to talk to [T.A.] about it.
                                            - 18 -
       Trial counsel generally addressed the controlled phone calls during closing
argument, contending that they were designed to elicit an admission from the Petitioner
but that the Petitioner did not admit to any sexual contact. During rebuttal argument, the
State argued, “[The Petitioner] had the time. He had the opportunity. He had the place.
That corroborates [the victim‟s] version of what happened. [The Petitioner] himself
provides a great deal of corroboration.” Later, the State referenced the Petitioner‟s
statement that “there was this one time that [T.A.] was on me” in order to illustrate the
Petitioner was attempting to shift the blame to someone else.

      The Petitioner argues that trial counsel was deficient for failing to redact the entire
exchange about the Petitioner waking up with T.A. on top of him. Further, the Petitioner
contends that he was prejudiced “in the same way the Defendant was prejudiced in State
v. Danny Ray Smith.” However, we find no support in the case for the Petitioner‟s
argument in that case.

       In State v. Danny Ray Smith, No. E2012-02587-CCA-R3-CD, 2014 WL 3940134
(Tenn. Crim. App. Aug. 13, 2014), no. perm. app. filed, the defendant proceeded to trial
on one count of rape of a child. Danny Ray Smith, 2014 WL 3940134, at *10. The trial
court allowed the State to admit evidence of other sexual offenses under the “special rule
admitting evidence of other sexual crimes when an indictment charges a number of
sexual offenses, but alleges no specific date upon which they occurred.” Id. at *10, *12
(citing Rickman, 876 S.W.2d at 828). Consequently, the victim‟s testimony detailed
instances where the defendant penetrated her vagina and her “bottom” with his finger,
penetrated her vagina with “his mouth,” and one instance where the defendant placed his
“private part” on the victim‟s “private part” and “stuff” came out of the defendant‟s
private part and “went onto [the victim‟s] private part.” Id. at *2. The State also
introduced the defendant‟s statement wherein he admitted to several instances of sexual
abuse—one where he “rubbed” the victim‟s vagina while she “rubbed” his penis, one
where he penetrated the victim‟s vagina with the tip of his little finger, one where he
performed oral sex on the victim and penetrated her vagina with his tongue, and one
where he ejaculated onto the victim‟s abdomen. Id. at *3.

       This court held that it was reversible error to admit evidence of other sexual acts
because the State knew in advance the offense for which it sought a conviction. Id. at
*13. Because evidence of other sexual acts was inadmissible under Rickman, the
defendant‟s statement to investigators should have been redacted to exclude acts other
than the act for which the State sought a conviction—his penetrating the victim‟s vagina
with his pinky finger. Id.

       In this case, unlike the defendant in Danny Ray Smith, the Petitioner does not
contest the State‟s admission of other instances of sexual misconduct under Rickman. He
simply contests the introduction of any reference to instances that occurred in
                                            - 19 -
Montgomery County. We note that trial counsel failed to redact a portion of the incident
that happened in Montgomery County from the phone calls. However, we do not believe
trial counsel‟s failure resulted in prejudice. The portion of the recorded phone call that
the Petitioner claims should have been redacted does not contain any reference to
sexually illicit conduct. Instead, the Petitioner simply states that he woke up one night to
find T.A. on top of him and he pushed her off gently. Additionally, T.A. did not testify to
a similar incident at trial. Therefore, the recorded phone call was not used to corroborate
her testimony. As to the State‟s argument during closing that “[the Petitioner] himself
provides a great deal of corroboration,” it is clear from the transcript that the State was
not referencing the incident described during the phone call. Instead, the State was
highlighting the fact that the Petitioner did not deny that he had time and opportunity to
commit the acts.

        We note that the State did reference the incident during its closing argument to
illustrate that the Petitioner was trying to shift the blame to someone else. However, we
do not believe that the reference makes the redacted statement prejudicial, especially
when it is considered in the greater context of the recorded phone calls. As we noted on
direct appeal, the recorded phone calls “are replete with the [Petitioner‟s] repeated
denials that he remembered ever touching the victims inappropriately.” Timothy P.
Guilfoy, 2013 WL 1965996, at *14. Both the State and the Petitioner made the same
observation during closing arguments. Accordingly, the Petitioner has failed to prove
that there was a reasonable probability that the outcome of the trial would have been
different had trial counsel redacted the entire description of the incident from
Montgomery County. The Petitioner is not entitled to relief.

                                 b. “Had said it was me?” Statement

       The Petitioner claims counsel was ineffective for failing to properly redact the
following portion of the controlled phone call:5

        [Mother]: Well, I needed to talk to you about something kind of serious.

        [The Petitioner]: Yeah?

        [Mother]: Yeah. I um—I got a phone call today from [J.A.‟s] guidance
        counselor?

        [The Petitioner]: Oh yeah?



        5
            Portions in italics were redacted from the phone calls before the recordings were presented to
the jury.
                                                   - 20 -
      [Mother]: And she kind of insinuated to her that—that somebody was
      touching her in the wrong ways.

      [The Petitioner]: Really?

      [Mother]: Yeah.

      [The Petitioner]: Oh man.

      [Mother]: And uh, I mean obviously I went and picked them up.

      [The Petitioner]: Sure, sure . . . man, that‟s, that‟s, man, that‟s . . . f***ing
      puke.

      [Mother]: Yeah. Well uh . . . they didn‟t really [say] anything about who it
      was, and I‟m trying to figure out y‟know . . .

      [The Petitioner]: Yeah. I, I mean anybody . . .

      [Mother]: Well, yeah, and well when I talked to [T.A.] and [A.A.] about it
      cause apparently they said it was her sisters too, they were, they were
      um . . . [A.A.] said it was you.

      [The Petitioner]: Had said it was me?

       The Petitioner argues that this “confusing edit” allowed the State to argue in its
closing that the Petition had a guilty mind. To support his argument, the Petitioner
points to a section of the State‟s closing where the prosecutor argued:

      I am not going to go through [the phone calls] line by line, but I just want
      you to think about the way he answered the phone. The fact that [Mother]
      said to him, pretty much right off, “The girls are saying someone touched
      them.” [] Does he say who? No, because he knows.

        First, we note that trial counsel testified at the post-conviction hearing that he
redacted anything in the phone calls which referenced A.A., a third, unindicted victim.
The portion that was redacted clearly shows that A.A. identified the Petitioner as the
suspect. As such, we cannot say that trial counsel was deficient in redacting this portion
of the recorded phone calls.

       Additionally, we are unable to determine that the Petitioner was prejudiced by trial
counsel‟s failure to redact the comment, “Had said it was me?” It appears that the
Petitioner was confirming that someone had accused him of the alleged conduct, a fact

                                           - 21 -
the jury would clearly know since the victims‟ mother made the police controlled calls to
the Petitioner and the Petitioner is on trial for the offenses. Moreover, the prosecutor‟s
comment is not referring to this lone statement or question—it is referring to the
Petitioner‟s failure to ask the mother who the girls said touched them. Further, as noted
above, the remainder of the phone calls is “replete with the [Petitioner‟s] repeated denials
that he remembered ever touching the victims inappropriately.” See Timothy P. Guilfoy,
2013 WL 1965996, at *14. Therefore, the Petitioner has failed to show that he was
prejudiced by the way this particular portion of the controlled phone calls was redacted.
The Petitioner is not entitled to relief.

                           Failure to Present an Alibi Defense

       The Petitioner argues that trial counsel was ineffective because he failed to present
an alibi defense similar to the defense that was presented in the Petitioner‟s first trial.
Through the victims‟ mother and other witnesses during the first trial, trial counsel was
able to demonstrate that the Petitioner was not at the victims‟ home on the dates their
mother alleged the abuse occurred. However, trial counsel did not employ a similar
technique during the second trial. During the second trial, the Petitioner‟s theory of
defense was to show the implausibility of the victims‟ allegations. At the post-conviction
hearing, trial counsel explained that he chose not to present the same defense because he
anticipated that the State would have solidified the dates on which the abuse was alleged
to have occurred. Additionally, trial counsel stated that he changed his defense strategy
because “if we tried the same case twice the State would be able to anticipate everything
we did.” We will not second-guess a reasoned, yet ultimately unsuccessful, trial strategy.
See Granderson, 197 S.W.3d at 790. Accordingly, the Petitioner is not entitled to relief.

                      Failure to Object to Ms. Gallion’s Testimony

        The Petitioner contends that trial counsel should have objected when Ms. Gallion
testified that T.A.‟s medical exam, which showed no injury, was consistent with both
penetration and no penetration. Specifically, the Petitioner claims trial counsel should
have objected to the following testimony:

       [The State]: Let me ask you this, put your expert hat on and ask you
       hypothetically: If [T.A.] [had] said to [the intake interviewer] that she was
       touched by an adult male‟s hand on the inside of her genitals, would there
       have been anything inconsistent about the medical exam, with that history
       given?




                                           - 22 -
       [Ms. Gallion]: No. Again, the majority of children we see actually
       describe some type of penetration. That‟s one of the reasons that we often
       see children. Penetration with a hand, a finger, penetration with a penis.
       Typically those children also have completely normal exams.

        The Petitioner contends that Ms. Gallion‟s comment did not “substantially assist
the trier of fact to understand the evidence or to determine a fact at issue. . . .” Tenn. R.
Evid. 702. Additionally, the Petitioner asserts that Ms. Gallion‟s comment was offered
simply to bolster T.A.‟s testimony and that its “extremely prejudicial” nature outweighed
its probative value.

       At trial, both parties stipulated to Ms. Gallion‟s qualification as an expert. As an
expert witness, she was allowed to offer her opinion. Tenn. R. Evid. 702. When an
expert‟s opinion is otherwise admissible, it “is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact.” Tenn. R. Evid. 704.

       Whether the Petitioner penetrated T.A. with his finger was a question of fact for
the jury to resolve. Ms. Gallion‟s testimony about the results of T.A.‟s medical
examination and whether those results were or were not consistent with penetration
substantially assisted the jury in evaluating T.A.‟s medical report, which showed no
injury to T.A. Additionally, we do not believe that Ms. Gallion‟s testimony was so
prejudicial as to outweigh its probative value. Accordingly, trial counsel was not
deficient for failing to object to this portion of Ms. Gallion‟s testimony. The Petitioner is
not entitled to relief.

                        Failure to Object to Ms. Post’s Testimony

       The Petitioner argues that trial counsel should have objected to the following
testimony:

       [The State]: What is your experience in the area of interviewing children
       who have perhaps been subjected to a number of instances of abuse over a
       fairly lengthy period of time, beginning when they are very young? Is it
       realistic to expect that you‟ll get every detail from every incident?

       [Ms. Post]: Certainly not. It depends, too, on the age of the child. Very
       little children, we expect to capture only very limited information about any
       event that happens in their lives. And there are lots of things that can
       disrupt a kid‟s memory of an abuse event. Trauma can disrupt memory, for
       example.



                                           - 23 -
The Petitioner contends that Ms. Post‟s testimony constitutes improper expert testimony
because Ms. Post was not offered as an expert witness. Additionally, the Petitioner
argues that the State offered this evidence to support the victims‟ credibility by
explaining why they could not provide any details of when the abuse occurred.

        The Tennessee Supreme Court addressed this issue in a similar case, State v.
Bolin, 922 S.W.2d 870 (Tenn. 1996). In that case, the social worker who performed the
forensic interview testified that children who had been abused over a long period of time
often had trouble remembering the details of when and how each event took place. Id. at
872-73. Our supreme court held that the social worker‟s testimony constituted expert
proof and that its admission through a non-expert witness was error. Id. at 874.
However, the court also found that any error was harmless. Id. Specifically, the court
stated:

        The testimony essentially consists of an explanation of a narrow issue—
        why K.N. could not assign reasonably specific time or dates to any of the
        alleged events of sexual abuse. Therefore, the testimony does not, unlike
        the testimony in Ballard, purport to completely vouch for the overall
        credibility of the victim, and thus it cannot be said to have “explained
        away” the inconsistencies and recantations—the heart of the defense
        theory. Hence, the damaging effect of the testimony is minimal. 6

Id.

       Similarly, the admission of Ms. Post‟s testimony was error. She did not testify as
an expert witness but offered testimony that was “specialized knowledge” she gathered
from her experience as a forensic interviewer. See id. Moreover, we note there is
nothing in the post-conviction record to indicate that trial counsel did not object for
strategic reasons. Even if this were deficient performance on the part of trial counsel, the
Petitioner has failed to establish any resulting prejudice. Like the social worker in Bolin,
Ms. Post‟s testimony addressed the narrow issue of why the victims could not provide
details of when the events occurred. It did not address inconsistencies in the victims‟
descriptions of what occurred during the abuse or address the “implausibility” of their
allegations, the core of the Petitioner‟s defense theory during the second trial.
Admittedly, there was no conclusive medical evidence that either victim had been
sexually abused, but the medical evidence did not rule out the possibility of abuse.

        6
          In State v. Ballard, 855 S.W.2d 557 (Tenn. 1993), the expert witness testified that the victims
exhibited “symptom constellations” consistent with being sexually abused. Ballard, 855 S.W.2d at 561.
The supreme court concluded that because the behavior profile was consistent with a number of
psychological stressors, including sexual abuse, the list of symptoms was too generic to be probative. Id.
at 562. Therefore, the admission of expert testimony was reversible error. Id. at 563.
                                                 - 24 -
Further, the victims told several people about the abuse—their grandfather, their mother,
Ms. Post, and Ms. Gallion—over a period of several weeks. Also, they testified about the
abuse during the first trial. Trial counsel specifically addressed the inconsistencies
between their testimonies at both trials during cross-examination. Accordingly, the
Petitioner has failed to demonstrate that he was prejudiced by trial counsel‟s failure to
object to Ms. Post‟s testimony and is not entitled to relief.

                                      Conclusion

      The judgment of the post-conviction court is affirmed.



                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE




                                         - 25 -
