             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                         FEBRUARY SESSION, 1999       FILED
                                                      March 17, 1999

                                                 Cecil W. Crowson
TOM HARRIS,                  )
                                               Appellate Court Clerk
                             )    No. 01C01-9709-CR-00423
      Appellant              )
                             )    DAVIDSON COUNTY
vs.                          )
                             )    Hon. J. Randall Wyatt, Jr., Judge
STATE OF TENNESSEE,          )
                             )    (Post-Conviction)
      Appellee               )



For the Appellant:                For the Appellee:

Thomas F. Bloom                   John Knox Walkup
Attorney at Law                   Attorney General and Reporter
500 Church Street, 5th Fl
Nashville, TN 37219               Kim R. Helper
                                  Assistant Attorney General
(ON APPEAL)                       Criminal Justice Division
                                  425 Fifth Avenue North
                                  2d Floor, Cordell Hull Building
William C. Roberts, Jr.           Nashville, TN 37243-0493
Attorney at Law
Suite 2121, Parkway Towers
Nashville, TN 37219
                                  Victor S. (Torry) Johnson III
(AT TRIAL)                        District Attorney General

                                  Diane S. Lance
                                  Asst. District Attorney General
                                  Washington Square, STE 500
                                  222 2nd Avenue North
                                  Nashville, TN 37219



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                OPINION



        The appellant, Tom Harris, appeals the dismissal of his petition for post-

conviction relief by the Davidson County Criminal Court. The post-conviction court

dismissed the petition finding that the claims alleged were barred by the statute of

limitations, and, otherwise, without merit.



        After review, we affirm.



                                              Background

        In October 1986, the appellant was convicted of one count of aggravated

sexual battery and one count of aggravated rape.1 The appellant’s convictions and

sentences were affirmed by this court in June 1988. See State v. Harris, No. 86-

273-III (Tenn. Crim. App. at Nashville, Jan. 20, 1988), reh’g granted, (Tenn. Crim.

App. at Nashville, Mar. 11, 1988), aff’d as modified on reh’g, (Tenn. Crim. App. at

Nashville, June 23, 1988), perm. to appeal denied, (Tenn. Nov. 7, 1988). On March

20, 1996, the appellant filed a pro se petition 2 for post-conviction relief alleging that,

(1) in light of our supreme court’s decision in State v. Livingston, 907 S.W.2d 392

(Tenn. 1995), his conviction was improperly based upon inadmissible fresh

complaint hearsay, and (2) that the reasonable doubt instruction tendered to the jury

was unconstitutionally infirm under Rickman v. Dutton, 864 F. Supp. 686 (M.D.

Tenn. 1994). The trial court summarily dismissed the petition, holding that it was

barred by the applicable statute of limitations and that the issues raised in the

petition were without merit.



        1
         The appellant’s convictions arise from various incidents of sexual abuse against the
appellant’s three and one-half year old daughter. The appellant received an effective sentence of
twenty-five years for these convictions.

        2
          The re cord ref lects that the post-co nviction co urt appo inted cou nsel on J une 22 , 1996.
No amended post-conviction petition was filed, thus, only those issues as presented in the pro se
petition were considered by the court. Following the court’s dismissal of the petition, counsel was
subsequently held in contempt by this court and substitute counsel was appointed for purposes of
this a ppe al.

                                                   2
       There is no dispute that the appellant’s March 1996 petition was filed outside

the three year statute of limitations period applicable to the appellant’s 1986

conviction. See § 40-30-102 (repealed 1995). Nonetheless, the appellant asserts

that he is entitled to post-conviction relief under Tenn. Code Ann. § 40-30-202(b)(1)

(1996 Supp.). Tenn. Code Ann. §40-30-202(b)(1) provides that a petition for post-

conviction relief may be filed beyond the statute of limitations if the petition presents

grounds based on a constitutional right established by the courts after expiration of

the relevant limitations period and the newly established constitutional right requires

retroactive application. See also Burford v. State, 845 S.W.2d 204 (Tenn. 1992).

Notwithstanding this exception, any such petition falling under (b)(1) must be filed

within one year of the court ruling establishing the new constitutional right. See

Tenn. Code Ann. § 40-35-202(b)(1).



                                        Analysis

       Initially, we note that the appellant concedes that the Tennessee Supreme

Court has upheld the constitutionality of the “moral certainty” language contained in

the reasonable doubt instruction. See State v. Nichols, 877 S.W.2d 722, 734

(Tenn. 1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 909 (1995); see also Pettyjohn

v. State, 885 S.W .2d 364, 365-66 (Tenn. Crim. App. 1994). Although we recognize

the appellant’s interest in preserving his right to later assert such a claim in future

litigation, his challenge to the reasonable doubt jury instruction does not constitute

an exception under Tenn. Code Ann. § 40-30-202(b)(1), as neither Rickman v.

Dutton, 864 F. Supp. at 686, nor its predecessors created a new constitutional rule

of law that would justify the tolling of the statute of limitations. See Wright v. State,

No. 01C01-9506-CR-00211 (Tenn. Crim. App. at Nashville, Mar. 20, 1997), aff’d by,

No. 01S01-9709-CR-00196 (Tenn. Feb. 1, 1999). See, e.g., Gentry v. State, No.

01C01-9704-CR-00119 (Tenn. Crim. App. at Nashville, Feb. 23, 1998); Miller v.

State, No. 01C01-9606-CC-00239 (Tenn. Crim. App. at Nashville, Oct. 24, 1997),


                                          3
perm. to appeal denied, (Tenn. Apr. 20, 1998). Although a jury instruction similar to

the one given in the present case was found to be unconstitutional in Rickman v.

Dutton, 864 F. Supp. at 709-10 and again in Austin v. Bell, 938 F. Supp. 1308,

1318-19 (M.D. Tenn. 1996), aff’d in part, rev’d in part, 126 F.3d 843 (6th Cir. 1997), 3

this court is not bound by the decisions of the federal district court with regard to the

constitutionality of the reasonable doubt instruction. We are only required to follow

the applicable constitutional rulings of the United States Supreme Court. See State

v. McKay, 680 S.W.2d 447, 450 (Tenn. 1984), cert. denied, 470 U.S. 1034, 105

S.Ct. 1412 (1985); State v. Bowers, 673 S.W.2d 887, 889 (Tenn. Crim. App. 1984).

This claim is without merit.



         In his next assignment of error, the appellant asserts that State v. Livingston

created a new constitutional rule of law that requires retroactive application,

therefore, entitling him to review of his post-conviction petition. Specifically, the

appellant contends that the trial court admitted “substantial amounts of fresh

complaint testimony” in violation of State v. Livingston.



         A new rule of constitutional law exists “when it breaks new ground or imposes

a new obligation on the States or the Federal Government. . . . To put it differently,

a case announces a new rule if the result was not dictated by precedent existing at

the time the defendant’s conviction became final.” Teague v. Lane, 489 U.S. 288,

301, 109 S.Ct. 1060, 1070 (1989) (emphasis in original); Meadows v. State, 849

S.W.2d 748, 751 (Tenn. 1993).



         At the time of the appellant’s trial, the fresh complaint doctrine was viable.

Under this doctrine, Tennessee law permitted both the facts and details of the

complaint to be admitted during the State’s case-in-chief. See State v. Kendricks,



         3
         We note that in Aus tin v. B ell, the Sixth C ircuit revers ed the dis trict court’s h olding with
regard to the constitutionality of the reasonable doubt instruction.

                                                      4
891 S.W.2d 597, 603 (Tenn. 1994); Phillips v. State, 28 Tenn. (1 Hum.) 346 (1848).

Thus, statements made by child victims of sexual abuse were admissible as

confirmation of their credibility. See Clem v. State, No. 01C01-9612-CC-00519

(Tenn. Crim. App. at Nashville, Nov. 17, 1997), perm. to appeal denied, (Tenn. May

11, 1998) (citing State v. Brown, 871 S.W.2d 492, 493 (Tenn. Crim. App. 1993)). In

Kendricks, 891 S.W.2d at 603, our supreme court modified the principles governing

the use of fresh complaint evidence in cases where an adult is the victim of a sexual

crime. See Wilson v. State, No. 03C01-9611-CR-00409 (Tenn. Crim. App. at

Knoxville, Oct. 30, 1997). Indeed, after Kendricks, no longer would details of the

incident be permitted to be introduced at trial before the victim’s credibility was

attacked. Kendricks, 891 S.W.2d at 603. This holding, however, did not affect the

admissibility of the fact of the complaint. Id. One year after its decision in

Kendricks, the supreme court abolished the fresh complaint doctrine, in its entirety,

in cases involving child victims.4 See Livingston, 907 S.W.2d at 395.



       Prior panels of this court have held that neither Kendricks nor Livingston

established a new constitutional rule of law. See Watts v. State, No. 01C01-9711-

CC-00533 (Tenn. Crim. App. at Nashville, Dec. 9 ,1998) (Livingston does not create

new rule constitutional law); Wilson, No. 03C01-9611-CR-00409 (Kendricks does

not create new rule constitutional law). Rather, both Kendricks and Livingston

merely modify existing evidentiary principles governing fresh complaint testimony.

See Watts, No. 01C01-9711-CC-00533; Wilson, No. 03C01-9611-CR-00409. We

can find no logical reason to differ from the previous holdings of this court.

Accordingly, we conclude that State v. Livingston did not announce a new rule of

constitutional law which would entitle the appellant to post-conviction review of his

allegations.




       4
         The court recognized, however, that fresh complaint evidence may be admissible under
certain he arsay ex ceptions . Livingston, 907 S.W.2d at 395.

                                              5
       For the reasons set forth above, we conclude that the post-conviction court

properly dismissed the appellant’s petition for post-conviction relief as time-barred

as neither argument upon which the appellant relies establishes an exception to the

three year statute of limitations period. The judgment of the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:



____________________________________
JAMES CURWOOD WITT, JR., Judge



____________________________________
JOHN EVERETT W ILLIAMS, Judge




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