             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE                 FILED
                           JANUARY 1997 SESSION
                                                            October 1, 1997

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
ROBERT F. TURNER,              )
                               )
             Appellant,        )    No. 03C01-9603-CR-00098
                               )
                               )    Hamilton County
v.                             )
                               )    Honorable Stephen M. Bevil, Judge
                               )
STATE OF TENNESSEE,            )    (Post-Conviction)
                               )
             Appellee.         )


For the Appellant:                  For the Appellee:

Robert F. Turner, Pro Se            Charles W. Burson
# 167179                            Attorney General of Tennessee
Turney Center Annex                        and
Route One                           Eugene J. Honea
Only, TN 37140                      Assistant Attorney General of Tennessee
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    William H. Cox
                                    District Attorney General
                                    600 Market Street, Suite 310
                                    Chattanooga, TN 37402




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION


              The petitioner, Robert F. Turner, appeals as of right from the Hamilton

County Criminal Court’s dismissal of his second post-conviction petition without a

hearing. He contends that he is entitled to post-conviction relief because the use of the

term “moral certainty” in the reasonable doubt jury instruction given at his trial allowed

the jury to convict him based on a lower standard of proof than is constitutionally

required.



              In 1983, the petitioner was convicted of aggravated kidnapping and

robbery and received a sentence of forty years and five to ten years, respectively. This

court affirmed his conviction. State v. Earl Allen Bailey and Robert Turner, [no number

in original], Hamilton County (Tenn. Crim. App. Jan. 6, 1984). On January 10, 1996,

the petitioner filed the present petition, alleging that the reasonable doubt instruction

given at his trial is unconstitutional under Cage v. Louisiana, 498 U.S. 39, 111 S. Ct.

328 (1990). The trial court dismissed the petition because it concluded that the jury

was properly instructed on the state’s burden of proof at the petitioner’s trial. We agree.



              The following instruction was given at the petitioner’s trial:

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

This is a correct statement of the burden of proof for criminal trials in Tennessee. See

Nichols v. State, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263, 266

(Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364, 366 (Tenn. Crim. App.

1994).




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

the trial court is affirmed.




                                                        Joseph M. Tipton, Judge



CONCUR:




Gary R. Wade, Judge




William M. Barker, Judge




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