             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE              FILED
                               OCTOBER 1998 SESSION
                                                             December 10, 1998

                                                             Cecil W. Crowson
RICKY EARL MELVIN,                      )                   Appellate Court Clerk
                                        )   NO. 01C01-9707-CR-00264
      Appellant,                        )
                                        )   Davidson County
v.                                      )
                                        )   Honorable Thomas H. Shriver,
STATE OF TENNESSEE,                     )   Judge
                                        )
      Appellee.                         )   (Post-Conviction)



For The Appellant:                          For The Appellee:

Marian C. Fordyce                           John Knox Walkup
(at trial)                                  Attorney General and Reporter
129 Second Ave., North
Nashville, TN 37201-1901                    Daryl J. Brand
                                            Cordell Hull Building, 2nd Floor
                                            425 Fifth Avenue North
Judson W. Phillips                          Nashville, TN 37243-0493
(on appeal)
315 Deaderick St., Ste. 2395                Victor S. Johnson III
Nashville, TN 37238                         District Attorney General

                                            Kymberly Haas
                                            Assistant District Attorney General
                                            Washington Sq., Ste. 500
                                            222-2nd Ave., North
                                            Nashville, TN 37201-1649




OPINION FILED:


AFFIRMED

Joseph M. Tipton
Judge
                                          OPINION


         The petitioner, Ricky Earl Melvin, appeals the dismissal of his petition for post-

conviction relief by the Davidson County Criminal Court. Having been convicted of

seven counts of aggravated rape and serving an effective sentence of sixty-five years in

the Department of Correction, the petitioner contends he received ineffective assistance

of counsel. After a careful review of the record, we affirm the judgment of the trial court.



                                   PROCEDURAL HISTORY

         After his first trial ended with a hung jury, the petitioner was convicted at his

second trial on seven counts of aggravated rape. The convictions were based upon

numerous incidents involving two females under thirteen years of age. He received an

effective sentence of eighty-five years. Upon appeal to this court, the sentence was

reduced to an effective term of sixty-five years. See State v. Melvin, 913 S.W.2d 195

(Tenn. Crim. App. 1995). Permission to appeal was denied by the Tennessee Supreme

Court.



         The petitioner timely filed a petition for post-conviction relief alleging ineffective

assistance of counsel. After an evidentiary hearing, the trial court dismissed the

petition.



                              CONTENTIONS OF PETITIONER

         The sole issue in this appeal is whether the petitioner was deprived of effective

assistance of counsel at his trial. The petitioner contends trial counsel was ineffective

in the following respects:

                1.     failing to challenge the testimony of the nurse practitioner;

                2.     failing to utilize the testimony of Dr. Irene Ratner;



                3.     failing to interview other possible suspects;


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              4.     failing to have a victim examined by an expert;

              5.     failure to seek funding for an investigator; and

              6.     failing to conduct an adequate investigation of the
                     facts and witnesses.



                              POST-CONVICTION HEARING

       The only witness to testify at the post-conviction hearing was the petitioner’s trial

counsel, Thomas T. Overton. A summary of pertinent portions of his testimony follows.



       At the trial a nurse practitioner testified as to a victim’s physical findings that

were consistent with sexual abuse. Overton interviewed the witness prior to trial.

Although he did not recall whether he filed a motion in limine to prohibit the testimony,

there was no legal basis to do so.



       The petitioner’s family retained the services of Dr. Irene Ratner for an evaluation.

Overton decided not to utilize Dr. Ratner at trial. Overton felt her testimony would likely

be inadmissible. Furthermore, he feared her testimony might be damaging because

she concluded the petitioner could not be excluded as a possible child sex abuser.



       Overton testified that he made efforts to contact other possible suspects but was

unsuccessful. Nevertheless, he argued to the jury that other family members could

have been responsible for the alleged crimes.



       Although Overton had the petitioner evaluated by Dr. Ratner, he did not ask for

funding for any other experts to evaluate one of the victims. Overton believed that

testimony on child sex abuse syndrome would have been inadmissible. Furthermore,

the alleged abuse had taken place years earlier. The victim had intercourse since that

time; therefore, an examination would not prove useful.




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       Overton testified that he spent over one hundred hours in preparation for the

petitioner’s trial. He investigated the facts himself and did not seek funding for an

investigator.



                               TRIAL COURT’S FINDINGS

       The trial court found that Overton rendered competent representation. It found

that Overton was thoroughly prepared for trial and had conducted a proper

investigation. The trial court found that the decision not to utilize Dr. Ratner was a

proper tactical decision. It further found the failure to secure an expert to perform an

examination on one of the victims was reasonable due to the lapse of time since the

alleged abuse. The trial court further found the testimony of the nurse practitioner was

properly admitted. In conclusion, the trial court found the petitioner had failed to

establish ineffective assistance of counsel.



                                STANDARD OF REVIEW

       This court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner has

the burden to prove that (1) the attorney’s performance was deficient, and (2) the

deficient performance resulted in prejudice to the defendant so as to deprive him of a

fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State,

938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994);

Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).



       The test in Tennessee in determining whether counsel provided effective

assistance is whether his performance was within the range of competence demanded

of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The petitioner must

overcome the presumption that counsel’s conduct falls within the wide range of



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acceptable professional assistance. Strickland v. Washington, 466 U.S. at 689, 104 S.

Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997); State v.

Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996). Therefore, in order to prove a

deficiency, a petitioner must show that counsel’s acts or omissions were so serious as

to fall below an objective standard of reasonableness under prevailing professional

norms. Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2065; Henley v. State,

960 S.W.2d at 579; Goad v. State, 938 S.W.2d at 369.



       In reviewing counsel's conduct, a "fair assessment . . . 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 v. Washington, 466 U.S. at 689, 104 S.

Ct. at 2065. The fact that a particular strategy or tactic failed or hurt the defense, does

not, standing alone, establish unreasonable representation. However, deference to

matters of strategy and tactical choices applies only if the choices are informed ones

based upon adequate preparation. Goad v. State, 938 S.W.2d at 369; Hellard v. State,

629 S.W.2d 4, 9 (Tenn. 1982); Alley v. State, 958 S.W.2d at 149; Cooper v. State, 847

S.W.2d 521, 528 (Tenn. Crim. App. 1992).



       The trial judge's findings of fact on post-conviction hearings are conclusive on

appeal unless the evidence preponderates otherwise. Butler v. State, 789 S.W.2d at

899; Adkins v. State, 911 S.W.2d 334, 341 (Tenn. Crim. App. 1995). The trial court’s

findings of fact are afforded the weight of a jury verdict, and this court is bound by the

trial court’s findings unless the evidence in the record preponderates against those

findings. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958

S.W.2d 138, 147 (Tenn. Crim. App. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn.

Crim. App. 1996). The burden of establishing that the evidence preponderates

otherwise is on the petitioner. Henley v. State, 960 S.W.2d at 579.



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                                         ANALYSIS

       As to the testimony of the nurse practitioner, the petitioner has not shown that

the testimony was inadmissible. This court reached the same conclusion on direct

appeal. State v. Melvin, 913 S.W.2d at 200. Accordingly, the petitioner has failed to

establish prejudice.



       The failure to utilize the testimony of Dr. Ratner was a tactical decision. We may

not second-guess this decision.



       As to the alleged failure to develop other possible suspects, the petitioner has

not shown any deficiency on the part of counsel. Furthermore, he has not established

what else trial counsel could have done nor what he would have discovered.



       As to the failure to have one of the victims examined by an expert, the petitioner

has failed to establish that an examination would have revealed any favorable

evidence. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). In short,

the petitioner has failed to establish prejudice.



       As to the alleged failure to secure the services of an investigator and properly

investigate the facts, the petitioner again falls short. The petitioner has failed to

establish that a further investigation would reveal favorable evidence. There is no

showing of prejudice.




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       The trial court’s findings of fact are conclusive unless the evidence

preponderates otherwise. The evidence does not preponderate against the findings of

the trial court. W e, therefore, conclude petitioner has failed to establish ineffective

assistance of counsel.



       Based upon the foregoing, we affirm the judgment of the trial court.



                                                  ______________________________
                                                  Joseph M. Tipton, Judge



CONCUR:



______________________________
Paul G. Summers, Judge



______________________________
Joe G. Riley, Judge




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