           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                         DECEMBER 1998 SESSION
                                                         April 20, 1999

                                                     Cecil W. Crowson
DAVID A. SCOTT, III,              *     C.C.A. NO. 01C01-9709-CR-00400
                                                   Appellate Court Clerk
      APPELLANT,                  *     DAVIDSON COUNTY

VS.                               *     Hon. Thomas H. Shriver, Judge

STATE OF TENNESSEE,               *     (Post-Conviction)

      APPELLEE.                   *




For Appellant:                    For Appellee:

Robert J. Mendes                  John Knox Walkup
Stanton & Mendes, PLLC            Attorney General and Reporter
Cummins Station, Suite 507        425 Fifth Avenue North
209 Tenth Avenue South            Nashville, TN 37243-0493
Nashville, TN 37203
                                  Timothy Behan
                                  Assistant Attorney General
                                  Criminal Justice Division
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  Mary Hausman
                                  Assistant District Attorney General
                                  Washington Square, Suite 500
                                  222 2nd Avenue North
                                  Nashville, TN 37201-1649


OPINION FILED: ____________________


AFFIRMED


NORMA MCGEE OGLE, JUDGE
                                              OPINION


                The petitioner in this case, David A. Scott, III, appeals the dismissal of

his Petition for Post-Conviction Relief by the Criminal Court for Davidson County.

On July 19, 1991, the petitioner was convicted in the Davidson County Criminal

Court of aggravated rape and sentenced to sixteen years incarceration in the

Tennessee Department of Correction. On February 11, 1993, this court affirmed the

petitioner’s conviction. State v. Scott, No. 01C01-9202-CR-00053, 1993 WL 31990

(Tenn. Crim. App. at Nashville), perm. to appeal denied, (Tenn. 1993). On February

12, 1996, the petitioner filed the instant Petition for Post-Conviction Relief.1

Amended petitions were filed on August 5, 1996, and March 24, 1997. The trial

court conducted a hearing on September 3, 1997, and, following the presentation of

the petitioner’s proof, dismissed the petition.



                The petitioner appeals the trial court’s dismissal of his petition and

raises the following issues for our consideration:

        1.      Whether or not the indictment in his case was fatally defective due to

                the omission of the requisite mental state for aggravated rape, thereby

                violating the petitioner’s rights pursuant to the Sixth and Fourteenth

                Amendments to the United States Constitution and Article 1, Section 9

                of the Tennessee Constitution.

        2.      Whether or not the jury instruction in his case was unconstitutional due

                to the omission of the requisite mental state, violating the petitioner’s

                rights pursuant to the Sixth and Fourteenth Amendments to the United

                States Constitution and Article 1, Sections 6 and 8 of the Tennessee

1
 The petitioner simultaneously filed in the Criminal Court for Davidson County a Petition for the Writ of
Error Coram Nobis pursuant to Tenn. Code Ann. § 40-26-105 (1997). However, this petition was not
addressed by either the petitioner or the court at the post-conviction hearing on September 3, 1997,
nor d oes the p etition er ad dres s this petitio n in this appe al.



                                                   2
                 Constitution.

        3.       Whether or not the jury instruction concerning reasonable doubt

                 violated the petitioner’s rights pursuant to the Sixth and Fourteenth

                 Amendments to the United States Constitution and Article 1, Sections

                 6 and 8 of the Tennessee Constitution.

        4.       Whether or not the petitioner received ineffective assistance of

                 counsel both at trial and on appeal in violation of his rights under the

                 Sixth and Fourteenth Amendments to the United States Constitution

                 and Article 1, Section 9 of the Tennessee Constitution.



                 Following a thorough review of the record and the parties’ briefs, we

affirm the judgment of the trial court.2



                                        I. Factual Background

                 The petitioner was convicted of aggravated rape, and, on direct

appeal, this court summarized the evidence as follows:

                 The victim at the time of the rape was a sixteen-year-old
                 female. Both the victim and the appellant testified at trial.
                 ... The victim testified that she had known the appellant
                 before she came to his house in April 1990. She says
                 that she was not romantically interested in the appellant.
                 Appellant and the victim were drinking alcohol while
                 sitting on the appellant’s couch. When the victim turned
                 her back, the appellant grabbed her and began removing
                 her clothes. She testified that the appellant pushed her
                 to the floor and penetrated her vaginally.

                 At the time the rape was occurring, the telephone rang


2
 Tenn . Code A nn. § 40- 30-211 (1997) p rovides th at, upon th e final dispo sition of eve ry post-
con viction petitio n, the cour t sha ll set fo rth in its orde r or a w ritten m em oran dum of the cas e all
grounds presented and shall state the findings of fact and conclusions of law with regard to each such
ground . W e note tha t the trial court in th is case f ailed to fully com ply with this statu tory provision .
Nevertheless, we conclude that the record, including the rulings of the court at the conclusion of the
post-co nviction he aring, is su fficient to effe ctuate m eaningf ul appellate review. Rickm an v. State , 972
S.W .2d 687, 6 92 (Te nn. Crim . App.), perm. to appeal denied, (Tenn . 1997); Polk v. S tate, No. 01C01-
9709-CC-00 391, 1998 W L 321930, at *1 (Tenn. Crim . App. at Nashville, June 19, 1998).



                                                      3
                 and the appellant answered. The victim took the telephone
                 away from the appellant to obtain help from whoever was on the line.
                 The caller was William Peck, and the victim told Peck that she was
                 being raped. The appellant took the phone away from her at that time.

                 After the telephone call from Peck, the appellant raped
                 the victim anally. After the second rape, as testified by
                 the victim, the appellant allowed her to dress and leave
                 his home.

                 The appellant testified in his own behalf. He basically
                 stated that the [vaginal] sex was consensual. [He denied
                 engaging in anal intercourse with the victim]. He also
                 testified that [he and the victim] had engaged in sexual
                 contact before the incident in question.

Scott, No. 01C01-9202-CR-00053, 1993 WL 31990, at *1.



                                               II. Analysis

A. The Indictment

                 Initially, the petitioner’s argument concerning the adequacy of the

indictment in his case is without merit. The petitioner argues that the indictment was

defective due to the omission from the indictment of the requisite mental state.3 The

indictment underlying the petitioner’s conviction reads as follows:

                 David A. Scott, III on the 10th day of April, 1990, in
                 Davidson County, Tennessee and before the finding of
                 this indictment, did engage in unlawful sexual penetration
                 of [the victim,] and David A. Scott, III caused bodily injury
                 to [the victim] in violation of Tennessee Code Ann § 39-
                 13-502, and against the peace and dignity of the State of
                 Tennessee.4




3
  The p etitioner raise d this argu men t for the first tim e in his petition f or post-c onviction re lief.
Howe ver, the failure of an indictm ent to state a crim inal offens e can b e raised a t any time. Ruff v.
State , 978 S.W .2d 95, 96 (Tenn . 1998); State v. W alls, No. 01C01-9708-CC-00381, 1998 WL 644943,
at *2 (Tenn. Crim. App. At Na shville, September 22, 1998).
4
  The original indictment in this case charged the petitioner in Counts 1 and 3 with aggravated rape
and in Co unts 2 and 4 with rape . On J une 3, 19 91, p rior to the p etition er’s tr ial and upon the S tate’s
motion, the trial court dismissed Counts 2 and 4, leaving two counts of aggravated rape, which the trial
court ren umb ered as Coun ts 1 and 2 . Both cou nts of ag gravate d rape c ontained identical lang uage.
However, as the court explained to the jury, Count 1 referred to the State’s allegation of vaginal rape
and Count 2 referred to the allegation of anal rape. At the conclusion of the trial, the jury deadlocked
on Count 1 and convicted the appellant of Count 2.



                                                      4
              The statute setting forth the offense of aggravated rape does not

expressly require a culpable mental state, nor does the statute plainly dispense with

that element. Tenn. Code Ann. § 39-13-502 (1989). Thus, pursuant to Tenn. Code

Ann. § 39-11-301(c) (1989), proof of intent, knowledge or recklessness will sustain

a conviction for aggravated rape. See State v. Jones, 889 S.W.2d 225, 229 (Tenn.

Crim. App. 1994). For offenses such as aggravated rape which neither expressly

require nor plainly dispense with a culpable mental state, our supreme court has

articulated a three part test by which to evaluate the sufficiency of an indictment

which fails to allege a mental state:

              (1) the language of the indictment must provide
              constitutionally adequate notice to the accused of the
              charge against which the accused must defend and must
              provide an adequate basis for entry of a proper judgment
              and protection from double jeopardy;

              (2) the form of the indictment must meet the
              requirements of Tenn. Code Ann. § 40-13-202; and

              (3) the mental state must be inferable from the conduct
              alleged in the indictment.


State v. Hill, 954 S.W.2d 725, 726-727 (Tenn. 1997). In Hill, 954 S.W.2d at 729, the

court held that an indictment for aggravated rape, similar to the indictment in this

case, sufficiently charged the offense of aggravated rape despite the omission of the

requisite mental state of intent, knowledge, or recklessness.     Applying Hill, we

conclude that the indictment in the petitioner’s case adequately charged the offense

of aggravated rape.



B. Jury Instruction on Aggravated Rape

              The petitioner additionally challenges the trial court’s instruction to the

jury on aggravated rape, arguing that the trial court erroneously omitted the requisite

mental state of intent, knowledge, or recklessness from its instruction. The State



                                            5
responds that the petitioner has waived this issue by failing to raise it on direct

appeal and cannot raise this issue in the guise of an allegation of ineffective

assistance of counsel. Moreover, in addressing the merits of the petitioner’s

argument, the State simply relies upon State v. Hill, 954 S.W.2d at 725.



i. Waiver

              Post-conviction relief is generally not available to litigate issues that

have been waived. Tenn. Code Ann. § 40-30-206(f) (1997). A ground for relief is

waived if the petitioner personally or through an attorney failed to present it for

determination in any proceeding before a court of competent jurisdiction in which the

ground could have been presented. Id. at (g). There is a rebuttable presumption

that a ground for relief not raised in any such proceeding is waived. This

presumption is not overcome by an allegation that the petitioner did not personally

(i.e., knowingly and understandingly) waive a ground for relief. House v. State, 911

S.W. 2d 705, 714 (Tenn. 1995). Waiver is determined by an objective standard

under which a petitioner is bound by the action or inaction of his attorney. Id.



              Initially, the petitioner failed to object to the jury instructions at the time

of trial. It is well established in Tennessee that, generally, a failure to object to the

omission of a jury instruction waives that issue for appellate review. State v. Reece,

637 S.W.2d 858, 861 (Tenn. 1982). See also State v. Haynes, 720 S.W.2d 76, 85

(Tenn. Crim. App. 1986); State v. Stigall, No. 02C01-9610-CR-00371, 1998 WL

3340, at *1 (Tenn. Crim. App. at Jackson, January 7, 1998). Moreover, Tenn. R.

App. P. 36(a) provides: “Nothing in this rule shall be construed as requiring relief to

be granted to a party responsible for an error or who failed to take whatever action

was reasonably available to prevent or nullify the harmful effect of an error.” The

jury instruction issue is waived as an independent ground for relief.


                                             6
ii. Ineffective Assistance of Counsel

                   However, the petitioner also contends that his trial and appellate

counsel were ineffective in failing to challenge the jury instruction on aggravated

rape. The petitioner cannot raise the ineffective assistance of his trial counsel in

these post-conviction proceedings. Just as post-conviction relief is not available to

litigate issues that have been waived, it is similarly unavailable to litigate issues that

have been previously determined. Tenn. Code Ann. § 40-30-206(f). Following his

trial, the petitioner retained new counsel to argue his motion for new trial. At the

hearing on the motion for new trial, the petitioner raised the claim of ineffective

assistance of counsel and presented evidence in support thereof. The trial court

denied the petitioner’s motion.5 The petitioner did not raise this issue again until the

filing of the instant petition.

                   We conclude that the issue of ineffective assistance of counsel at trial

was previously determined by the trial court.6 Additionally, the petitioner waived his

right to appeal the trial court’s determination by failing to raise this issue on direct

appeal. We acknowledge that this court has frequently remarked that the practice of

raising ineffective assistance of counsel claims on direct appeal is a practice

“fraught with peril.” See, e.g., State v. Frantz, No. 03C01-9509-CC-00269, 1998 WL

46432, at *9 (Tenn. Crim. App. at Knoxville, February 6, 1998), perm. to appeal

denied, (Tenn. 1998); State v. Brewer, No. 02C01-9701-CC-00400, 1998 WL

749417, at *2 (Tenn. Crim. App. at Jackson, October 28, 1998); State v. Beard, No.

03C01-9502-CR-00044, 1996 WL 563893, at *2 (Tenn. Crim. App. at Knoxville,



5
  In ac cord anc e with this c ourt’s orde r of M ay 8, 1 998 , we h ave ta ken judic ial not ice of the re cord in
the d irect a ppe al as d eem ed ne ces sary, in clud ing th e tran scrip t of the hear ing on the p etition er’s
mo tion fo r new trial.
6
  Our co nclusion applies to a ny and all fac tual allegation s of ineffe ctive ass istance o f couns el.
Ineffec tive assista nce of c ounse l is a single gro und for re lief. Thom pson v. S tate, 958 S.W.2d 156,
161 (T enn. Cr im. Ap p. 1997) ; Cone v. State, 927 S.W .2d 579, 582 (Tenn. Crim . App. 1995).



                                                          7
September 26, 1996); State v. Sluder, No. 1236, 1990 WL 26552, at *7 (Tenn. Crim.

App. at Knoxville, March 14, 1990). However, in contrast to the cases cited above,

the petitioner in this case raised the issue of ineffective assistance of counsel in his

motion for new trial, and the trial court conducted an evidentiary hearing in order to

address the merits of the issue. See, e.g., State v. Tolbert, No. 03C01-9707-CR-

00325, 1998 WL 694931 (Tenn. Crim. App. at Knoxville, October 7, 1998). Thus,

the issue was ripe for determination on direct appeal.



                   The petitioner also challenges the effectiveness of his appellate

counsel, who represented him both at the motion for new trial hearing and on direct

appeal, for failing to challenge the trial court’s instruction on aggravated rape. His

challenge concerning his appellate counsel remains viable. 7 In this context, we

must determine whether appellate counsel’s failure to raise this issue was below the

range of competence demanded of attorneys in criminal cases, Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975), and whether this failure was prejudicial. Strickland

v. Washington, 466 U.S. 668, 687-697, 104 S.Ct. 2052, 2064-2069 (1984). See

also Powers v. State, 942 S.W.2d 551, 557 (Tenn. Crim. App. 1996). Because the

petitioner must establish both ineffective performance and prejudice in order to

prevail on a claim of ineffective assistance of counsel, a court need not evaluate

counsel’s performance if the petitioner does not establish prejudice. Henly v. State,

960 S.W.2d 572, 580 (Tenn. 1997), cert. denied, __ U.S. __, 119 S.Ct. 82 (1998).

In order to ascertain if appellate counsel’s performance was prejudicial, we must

address the merits of the issues neglected by appellate counsel on appeal, including




7
  The petitioner also challenges the effectiveness of his appellate counsel in failing to challenge the
petitio ner’s indict me nt; in fa iling to c hallen ge th e trial c ourt’s reas ona ble do ubt in struc tion; a nd in
failing to challenge the effectiveness of trial counsel in neglecting to request a jury instruction on
con sen t. W e hav e alre ady co nclu ded that th e indic tme nt wa s su fficie nt in th is cas e. La ter in th is
opinion, we address the additional grounds for relief alleged by the petitioner.



                                                           8
whether or not the aggravated rape jury instruction was erroneous. 8



iii. The Merits

                    The trial court’s instruction to the jury on aggravated rape in fact

omitted the requisite mens rea or mental element of intent, knowledge, or

recklessness. Instead, the trial court instructed the jury as follows:

                                 I shall now explain to you what in law it
                    takes to constitute the offense of aggravated rape as
                    charged in Counts One and Two of the indictment in this
                    case.

                                  Section 39-13-502 of the Tennessee Code
                    Annotated provides as follows:
                                  “(a) Aggravated rape is unlawful sexual
                    penetration of a victim by the defendant or the defendant
                    by a victim accompanied by ... the following
                    circumstances
                                  (2)The defendant causes bodily injury to
                           the victim.”

                                  Any person who commits the offense of
                    aggravated rape is guilty of a felony.
                                  For you to find the defendant guilty of this
                    offense, the state must prove beyond a reasonable doubt
                    the existence of the following essential elements:
                                  (1) that the defendant had unlawful sexual
                    penetration of the alleged victim.9
                                  (2) that:
                                          (a) the defendant caused bodily
                                  injury to the alleged victim ... .


(Footnote added).



                    Our supreme court requires a review of the jury charge in its entirety in


8
  The State cites Overto n v. State , 874 S.W.2d 6, 12 (Tenn. 1994), for the proposition that “to allow
every error comm itted by the trial court to be recast in a post-conviction petition as an ineffective
assistance of counsel allegation would be to subvert the limited purposes of the post-conviction
procedure.” However, we read this observation as merely a reminder that every prejudicial error
com mitte d by a tr ial cou rt is no t attrib utab le to th e inef fectiv e ass istan ce of coun sel.
9
  The trial court further charged the jury that “[s]exual penetration means sexual intercourse,
cun nilingu s, fella tio, an al inte rcou rse, o r any o ther in trusio n, ho weve r, sligh t, of an y part o f a pe rson ’s
body or of any object into the genital or anal openings of the alleged victim’s, the defendant’s, or any
other pe rson’s b ody, but em ission of s eme n is not req uired.”



                                                              9
order to determine if instructions are erroneous. State v. Hodges, 944 S.W.2d 346,

352 (Tenn.), cert. denied, __ U.S. __, 118 S.Ct. 567 (1997). A charge is prejudicial

error if “it fails to fairly submit the legal issues or if it misleads the jury as to the

applicable law.” Id. A defendant has a constitutional right to a correct and complete

charge of the law. State v. Forbes, 793 S.W.2d 236, 249 (Tenn. 1990). In other

words, a defendant has a right to have every issue of fact raised by the evidence

and material to his or her defense submitted to the jury on proper instructions. State

v. Robinette, No. 03C01-9611-CR-00430, 1997 WL 671889, at * 3 (Tenn. Crim.

App. at Knoxville, October 29, 1997). Accordingly, our law requires that all of the

elements of each offense be described and defined in connection with that offense.

State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989). See also State v. Garrison,

No. 03C01-9702-CC-00047, 1998 WL 103318, at *19 (Tenn. Crim. App. at

Knoxville, February 27, 1998), perm. to appeal granted, (Tenn. 1998). Thus, in

1992, the drafters of the Tennessee Pattern Jury Instructions noted that, for the

charge of aggravated rape, the definitions of intent, knowledge, and recklessness

should all be charged to the jury. T.P.I. Crim. No. 10.01, Comments (3 rd Ed. 1992).

Moreover, in State v. Jones, 889 S.W.2d at 229, this court held that the statutory

language in Tenn. Code Ann. § 39-11-301 requires that the mental elements of

intent, knowledge, and recklessness should be charged to the jury in an aggravated

rape case.



               The State cites State v. Hill, 954 S.W.2d at 725, for the proposition

that the jury instruction on aggravated rape in this case was correct. However, the

supreme court in Hill addressed only the language necessary in an indictment to

inform the accused of the charge and specifically distinguished the requirements for

an indictment from the requirements for conviction. Id. at 728. Accordingly,

although the supreme court concluded that the required mental state for aggravated


                                              10
rape was not an “essential element” for purposes of an indictment, it took pains to

clarify that the essential elements of an indictment might not be identical to the

essential elements requisite in jury instructions. Thus, the supreme court noted,

“Any confusion may be due, at least in part, to the loose usage of the phrase

‘essential elements’, which can mean the elements necessary for conviction or the

elements necessary to inform the accused of the charge.” Id. at 728 n. 4.



                The trial court noted at the post-conviction hearing that the pattern jury

instructions available at the time of trial did not set forth the requisite mens rea for

the offense of aggravated rape. T.P.I. Crim. No. 25.01 (2nd Edition 1988). However,

the pattern instruction relied upon by the trial court was modeled upon a statute no

longer in effect at the time of the commission of the petitioner’s offense. Moreover,

the pattern instruction used by the trial court did require the use of force or coercion

to accomplish the act. Id. At least one court has noted that “ a finding by a jury

based upon the behavior of the defendant and the victim in a rape case that the

sexual encounter was against the will, or without the consent of, the victim of

necessity implies a finding of general intent without a separate instruction on that

issue.” Commonwealth v. Lefkowitz, 481 N.E.2d 227, 231 n.12 (Mass. Ct. App.

1985). Yet, the trial court in this case omitted the language concerning force or

coercion from its instructions on aggravated rape.10 Moreover, as pointed out by the

petitioner, no instruction on the defense of consent was given to the jury. 11



                Accordingly, we conclude that the trial court’s omission constituted

error. We must next address the application of harmless error analysis in the


10
   The trial court’s instruction on the lesser included offense of rape did require the use of force or
coercion.
11
   Of course, with respect to the count of anal rape, of which the petitioner was convicted, the
petitioner did not rely on the defense of consent, but rather denied that he engaged in anal intercourse
with th e victim .



                                                  11
context of a trial court’s omission from the jury instructions of an essential element

of the charged offense. In State v. Teel, 793 S.W. 2d 236, 249 (Tenn.), cert.

denied, 498 U.S. 1007, 111 S. Ct. 571 (1990), our supreme court noted that the law

is unsettled as to whether harmless error analysis is available in this context. In that

case, the trial court instructed the jury on first degree premeditated murder and on

felony murder. Id. at 249-250. The jury returned a general verdict of “murder in the

first degree” and sentenced the defendant to death. Id. On appeal, the defendant

challenged the trial court’s instruction on first degree murder “because it included a

partial definition of felony murder, i.e., the instruction tracked the statutory language

… , but did not define for the jury the felony upon which the first degree murder

conviction could be based, here rape.” Id. at 249. The court concluded that it was

erroneous for the trial court to omit a definition of the felony alleged to support the

first degree murder. Id. Nevertheless, the court concluded:

              In the present case the jury returned a verdict that the
              Defendant was “guilty of murder in the first degree.” The
              jury was completely and correctly instructed as to the
              elements of first degree, common-law, premeditated
              murder, and the evidence is clearly sufficient to support
              a conviction of this charge. Also, at the sentencing
              phase, without the presentation of any evidence
              additional to that presented at the guilt phase, the same
              jury was fully instructed on the elements of rape in
              connection with aggravating circumstance (I) (7) and in
              its sentencing decision, only a short time after its
              decision as to guilt, expressly found beyond a reasonable
              doubt that the murder had been committed in the
              perpetration of rape. For these reasons, we are of the
              opinion that the omission of the definition of rape in the
              first degree murder charge, in the unique circumstances
              and total context of this case, is harmless error beyond a
              reasonable doubt.

Id. at 250. The court determined, in effect, that the jury’s verdicts at both the guilt and

sentencing phases of the defendant’s trial encompassed the omitted element so that the

defendant was not deprived of his right to a trial by jury.




                                           12
              More recently, in State v. James, No. 03C01-9408-CV-00276, 1995

WL 548788, at *3 (Tenn. Crim. App. At Knoxville, September 18, 1995), this court

also queried whether or not harmless error analysis is appropriate in the context of a

complete failure to instruct the jury on an aspect of an essential element of the

charged offense. In that case, the judge failed to instruct the jury that the essential

elements of robbery include the need for the property to be taken “from the person

of another.” Id. This court reversed the defendant’s conviction, citing Sullivan v.

Louisiana, 508 U.S. 275, 113 S.Ct. 2078 (1993).



              In Sullivan, the United States Supreme Court acknowledged that most

constitutional errors are amenable to harmless error analysis but also reiterated that

there exists a class of “structural” errors which render a trial fundamentally unfair

and require automatic reversal of a conviction. Id. at 280, 2082-2083 (citing Arizona

v. Fulminante, 499 U.S. 279, 306-309, 111 S.Ct. 1246, 1263-1265 (1991)). See

also Rose v. Clark, 478 U.S. 570, 577-578, 106 S.Ct. 3101, 3105-3106 (1986).

Thus, the Court held that a constitutionally deficient reasonable doubt instruction

cannot be harmless. Id. at 279, 2081-2082. Justice Scalia, writing for the Court in

Sullivan, explained, “[T]o hypothesize a guilty verdict that was never in fact rendered

– no matter how inescapable the findings to support that verdict might be – would

violate the appellant’s Sixth Amendment right to a jury trial.” Id. In other words,

when the jury has not been permitted to find an essential element of an offense

beyond a reasonable doubt, that error cannot be cured by an appellate court’s

determination that the record evidence unmistakably established guilt. Carella v.

California, 491 U.S. 263, 269, 109 S.Ct. 2419, 2422-2423 (1989).



              Yet, more recently, in California v. Roy, 519 U.S. 2, __, 117 S.Ct. 337,

339 (1996)(per curiam), the United States Supreme Court suggested that jury


                                           13
instructions that incompletely set forth an element of an offense might not always

constitute structural errors that defy analysis by harmless error standards. In that

case, a California court convicted the defendant of robbery and first degree murder

on the theory that the defendant came to the aid of a confederate, who robbed and

killed the victim. Id. at __, 337. The trial court failed to instruct the jury that the

defendant must have had the “’intent or purpose of committing, encouraging, or

facilitating’ the confederate’s crime.” Id. at __, 338. Significantly, the majority

declined to join in Justice Scalia’s concurring opinion in which he opined that the

absence of a formal verdict on an essential element of a crime “can be harmless

only if the jury verdict on other points effectively embraces [the omitted element] or if

it is impossible, upon the evidence, to have found what the verdict did find without

finding [the omitted element] as well.” Id. at __, 339-340.



              In Johnson v. United States, 520 U.S.461, __, 117 S.Ct. 1544, 1548-

1550 ( 1997), a perjury case, the trial court failed to submit “materiality,” an essential

element of perjury, to the jury. Id. at __, 1547. The Court acknowledged that the

omission was error, but declined to review the error pursuant to the doctrine of plain

error. Id. at ___, 1549-1550. Crucial to the issue before our court was the Supreme

Court’s observation that it was “by no means clear” that the error fit within the limited

class of cases which defy harmless error analysis. Id.



              At least one state supreme court, in interpreting these Supreme Court

cases, has concluded that instructional errors removing an element of the charged

offense from the jury’s consideration are not, as a general matter, structural defects

in the trial mechanism that automatically require reversal under the federal

constitution. People v. Flood, 957 P.2d 869, 887 (Cal. 1998). See also Beets v.

Iowa Department of Corrections Services, 164 F.3d 1131, 1136 (8 th Cir. 1999)(the


                                             14
omission from jury instructions of an intent element essential under state law may

present a “trial error” to which harmless error analysis may be applied); United

States v. Perez, 116 F.3d 840, 847 (9 th Cir. 1997)(the omission of an essential

element of the charged offense from jury instructions is not presumptively

prejudicial; even if the essential element is not specifically mentioned in the jury

instructions it remains possible that a jury made the necessary findings).



               We conclude that, even applying the standard set forth by Justice

Scalia in California v. Roy, 519 U.S. at __, 117 S.Ct. at 339-340, it was impossible,

upon the evidence in this case, for the jury to have returned a verdict of guilt without

also finding that the petitioner intended to commit aggravated rape. At trial, the jury

was presented with two scenarios from which to choose. The petitioner claimed that

the victim consented to vaginal intercourse and denied that he and the victim

engaged in anal intercourse. The victim claimed, instead, that she was not

interested in the petitioner romantically, and that she visited the petitioner’s home on

the day of the offense only in order to ask that he stop calling her. She admitted

that both she and the petitioner drank alcohol during their encounter. However, she

further testified:

               [H]e came from behind me and grabbed me and took off
               my clothes. So I grabbed a pillow and tried to cover
               myself up. He grabbed me and threw me on the floor
               and got on top of me and he penetrated me vaginally.
               And I was screaming and I was yelling and I was telling
               him to stop … .

               So then, the phone rang and he got up to answer it. …
               And I grabbed the phone and ran into the bathroom … .

               And [the petitioner] pushed in the door … . I ran into the
               living room and put on my shorts and he ran back in after
               me and tore my shorts off and threw me back down on
               the carpet. And he penetrated me anally … .

               I tried to get away and I couldn’t. I bit him on the neck as
               hard as I could and it didn’t do anything.


                                           15
                          The jury, in returning a guilty verdict, at least partially accredited

the testimony of the victim. In accrediting the victim’s testimony, the jury necessarily

found that the petitioner acted with the requisite mental state. Accordingly, this is

not a case in which a jury verdict on the petitioner’s mental state was never

rendered. We conclude that any error in the jury instruction was harmless beyond a

reasonable doubt. Moreover, we conclude in this context that appellate counsel’s

failure to raise this issue on appeal did not affect the result of the proceedings in this

case.



C. Additional Allegations of Ineffective Assistance of Appellate Counsel

                          The petitioner also challenges the effectiveness of appellate

counsel in neglecting to raise trial counsel’s failure to request a jury instruction on

consent. However, as noted earlier, with respect to the count of anal rape

underlying the petitioner’s conviction, the petitioner did not rely upon the defense of

consent. Rather, he denied engaging in anal intercourse with the victim.

Accordingly, we must conclude that an instruction on consent would not have

affected the outcome of these proceedings, and the petitioner’s argument is without

merit.



                 Moreover, we decline to find ineffective assistance of appellate

counsel in his failure to challenge the trial court’s jury instruction on reasonable

doubt either in the petitioner’s Motion for New Trial or on direct appeal. 12 The

reasonable doubt instruction in this case was correct. The petitioner argues that,



12
  The p etitioner also raises this issue se parately from the issue of ineffec tive assista nce of c ounse l.
Yet, as pointed out by the petitioner, he failed to raise this issue in his Motion for New Trial or on direct
appeal. Moreover, the petitioner failed to object to the instruction at trial. In any event, as we
subse quently con clude, the instruction did not co nstitute erro r, plain or othe rwise.



                                                     16
because the jurors were instructed that “moral certainty is required as to every

element of the offense,” the State’s burden of proof was diminished. The trial court

stated the following instruction on reasonable doubt to the jury:

              Reasonable doubt is doubt based upon reason and
              common sense. It is a doubt which would cause a
              reasonable person to hesitate to act in a matter of
              importance in his or her personal life. Proof beyond a
              reasonable doubt must, therefore, be proof of such a
              convincing character that a reasonable person would not
              hesitate to rely and act upon it in the most important of
              his own affairs. A reasonable doubt is not a caprice or a
              whim; it is not a speculation or suspicion. It is not an
              excuse to avoid the performance of an unpleasant duty.
              And it is not sympathy. Reasonable doubt is a high
              burden, but it does not mean proof to an absolute
              certainty. While absolute certainty of guilt is not
              demanded by the law to convict of any criminal charge,
              moral certainty is required as to every element of the
              offense. Your mind must rest easily as to the certainty of
              guilt.


              The petitioner cites Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328

(1990), and Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239 (1994), in support of his

argument. However, the Court in Cage v. Louisiana, 498 U.S. at 41, 111 S.Ct. at

329, was primarily concerned with the phrases “grave uncertainty” and “actual

substantial doubt,” neither of which was used in this case. Moreover, in Victor v.

Nebraska, 511 U.S. at 5-6, 114 S.Ct. at 1243, the Court confirmed that use of the

phrase “moral certainty” does not per se vitiate a reasonable doubt instruction.



              Moreover, as both the State and the trial court remarked, our supreme

court in State v. Nichols, 877 S.W.2d 722, 734 (Tenn. 1994), held that use of the

phrase “moral certainty” by itself is insufficient to invalidate an instruction on the

meaning of reasonable doubt. See also State v. Pettyjohn, 885 S.W.2d 364, 365-

366 (Tenn. Crim. App. 1994)(instruction including the “moral certainty” phrase

sufficiently described the degree of doubt necessary for acquittal and the degree of



                                            17
proof necessary for conviction). We are bound to follow the precedent of our state’s

supreme court, and not the federal district court rulings cited by the petitioner. King

v. State, No. 01C01-9710-CR-00487, 1998 WL 712345, at *4 n.7 (Tenn. Crim. App.

at Nashville, October 13, 1998). Moreover, the United States Sixth Circuit Court of

Appeals recently held that an instruction similar to the instruction at issue in this

case was constitutional. Austin v. Bell, 126 F.3d 843, 846-847 (6 th Cir. 1997), cert.

denied, __ U.S. __, 118 S.Ct. 1526 (1998), and cert. denied, __ U.S. __, 118 S.Ct.

1547 (1998). The court observed that the language of an “inability to let the mind

rest easily,” also used in the instant case, lent content to the phrase “moral

certainty,” increasing, if anything, the State’s burden of proof. Id. at 847. This issue

is without merit.

                                    III. Conclusion

              For the foregoing reasons, we affirm the judgment of the trial court

dismissing the petition for post-conviction relief.



                                                  ________________________
                                                  Norma McGee Ogle, Judge

CONCUR:


__________________________
John H. Peay, Judge


__________________________
Joseph M. Tipton, Judge




                                            18
