                                                                                         01/10/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 5, 2017

                JOHN VALENTINE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 11-02890       Carolyn W. Blackett, Judge
                     ___________________________________

                           No. W2017-00161-CCA-R3-PC
                       ___________________________________

The petitioner, John Valentine, appeals the denial of his post-conviction petition, arguing
the post-conviction court erred in finding he received effective assistance of counsel at
trial. After our review of the record, briefs, and applicable law, we affirm the judgment
of the post-conviction court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ALAN E. GLENN, JJ., joined.

John Scott, Memphis, Tennessee, for the appellant, John Valentine.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                              Facts and Procedural History

   A.     Trial Proceedings and Direct Appeal

        In 2013, a Shelby County Criminal Court jury convicted the petitioner of rape of a
child and aggravated sexual battery for which he received an effective sentence of thirty-
three years. On appeal, this Court affirmed the petitioner’s convictions. State v. John
Valentine, No. W2013-01002-CCA-R3-CD, 2014 WL 4792801, at *1 (Tenn. Crim. App.
Sept. 25, 2014), perm. app. denied (Tenn. Jan. 20, 2015). The Court summarized the
facts, as follows:
        This case arose from the [petitioner’s] convictions for rape of a child
and aggravated sexual battery. According to the proof at trial, the
[petitioner] penetrated the victim with his penis and forced the victim to
masturbate him.

       Audrean Bond-Jones was the principal at Bethel Grove Elementary
School in November of 2010, where the victim was a first-grade student.
On November 17, 2010, the victim was brought to Ms. Bond-Jones’ office
for inappropriate behavior towards another student. While in line in the
cafeteria, the victim was “hunching” on another student. The victim placed
the front part of her body against the back of another student and “would
just do a little front back motion.” Ms. Bond-Jones testified that the victim
“shared quite a bit of information about some things” that occurred in her
home. When the victim spoke about certain sex acts, Ms. Bond-Jones
asked her where she learned about the acts, and the victim “began to
demonstrate . . . what her experiences were with her father.” In response to
the victim’s statements, Ms. Bond-Jones called the Department of
Children’s Services (“DCS”), and law enforcement officers came to the
school.

       Marion Woods had been the victim’s foster mother since the end of
November 2010. Ms. Woods was a teacher and testified that the victim’s
performance in school was somewhat deficient. She indicated that the
victim sometimes struggled with the concepts of dates and times, as the
victim might say that she was with her mother or sister the previous
evening when she actually was with Ms. Woods. Ms. Woods testified that
the victim’s accounts of her interactions with the [petitioner] remained
consistent.

        Angelique Roshea Horace was a foster care counselor with Youth
Villages and served as the victim’s foster care counselor. She worked with
the victim on developing “social skills[,]” such as communication, listening
skills, and “making friends.” Ms. Horace’s overall goal with counseling
was to assist the victim and Ms. Woods in achieving the victim’s
permanency goal of adoption. Ms. Horace testified that when the victim
was nervous, she would giggle, place her hands in front of her face, and
lower her head.

       The victim testified that she was currently ten years old and in the
third grade. She stated that her father’s name was “[t]ighten up” and that
she had seen him when she went to bed on the evening before she spoke
with Ms. Bond-Jones. The victim slept in the same room as her mother and
                                    -2-
the [petitioner]. On the evening of the incident, the victim was asleep in a
bed with her mother and the [petitioner], and she awoke to see the
[petitioner] “feeling on” her mother. The [petitioner] then touched the
victim’s front private part with his penis. He placed his penis inside her
front private part and moved “in a circle[,]” and the victim testified that it
“[h]urt.” The [petitioner] also placed his penis inside the victim’s bottom,
and the victim testified that “[i]t hurt when it [was] in me.” He touched her
breast private part, and the victim testified that “[w]hen he touched it, it
hurt me. He touched it and I feel [sic] uncomfortable.” The [petitioner]
told the victim to touch his penis with her hand, and he placed her hand on
his penis. The victim demonstrated for the jury how the touching occurred.
The victim “told [the [petitioner]] to stop, but he didn’t stop.” The victim
testified that she could feel “pee” come out of the [petitioner]’s penis. She
stated that the penetration only occurred one time and that it was on the
same night that she placed her hand on the [petitioner]’s penis. The victim
recalled telling Ms. Bond-Jones the next day that her “hand was smell [sic]
like pee[,]” and the victim believed it was because her hand was on the
[petitioner]’s penis.

       Mary Daley, a pediatric nurse practitioner, performed a sexual
assault examination on the victim. Ms. Daley acknowledged that there was
some confusion in her report as to the date of the assault. The victim told
Ms. Daley that the assault occurred the night before the exam, but the
victim’s mother said that the assault occurred the week before the exam.
Ms. Daley also wrote on her report that the victim stated that “Daddy stuck
his stuff up my booty last night, then he peed on my hands.” The victim
told Ms. Daley that she got into trouble at school when she “[a]ccidentally
freaked” another student. The victim demonstrated to Ms. Daley that
“freaking” meant forward pelvic thrusts against another person.

       When Ms. Daley examined the victim, she noticed that the victim
had “two very, very red deep scratched areas around the perihymeneal
area.” The tissue around the hymen was very bright red and “extremely
tender” during the exam. She stated that there were no tears or abrasions on
the hymen itself. She noticed “fairly deep” scratch marks on the victim’s
external genitalia area. Ms. Daley also observed a bruised area between the
victim’s “front private and her back private.” Several photographs of these
injuries were shown to the jury.

      The first photograph depicted the victim’s external genital area. Ms.
Daley identified five scratches on the genital area that she noted as
abnormal during the exam. She testified that the scratches were “fairly
                                  -3-
deep” and had grooves that were deeper than a normal scratch of the skin
would be. The second photograph showed the victim’s internal genitalia
and illustrated a “deep[,] dark grooved area” on the perihymenal band. The
third photograph was of the victim’s annular hymen, where a darkened area
was visible on the right side. The fourth photograph showed several
scratches, redness, and part of the hymen wall. The fifth photograph
depicted the scratch marks and the deep red coloration on either side of the
hymen and illustrated a small area of bruising. The sixth photograph again
showed the redness around the hymen and showed a darker area. Ms.
Daley opined that the area was darkened due to a bruise. The seventh
photograph showed scratch areas with a “deep bloody looking groove,”
irritation, and a darkened area. The eighth photograph showed the victim’s
anal opening, and Ms. Daley testified that it appeared “normal[,]” as there
were no tears or fissures. The eighth photograph also depicted the area
earlier described as bruised and the perineal area. The ninth photograph
showed the victim’s anal opening. Ms. Daley testified that the darkened
area was visible, and there appeared to be bruising between her front
private and back private.

       Ms. Daley classified the victim’s injuries as “indeterminate,” as
“[i]ndeterminate physical examination findings may support the patient’s
disclosure of abuse.” She testified that “indeterminate” was used to
categorize something “not normally seen on a regular, normal, physical
exam.” Ms. Daley stated that the scratches and bruises on the victim’s
perihymeneal area, the small external bruise area, and the small, bruised
area directly behind the vaginal area were not normally present during an
exam. She testified that her findings were consistent with the victim’s
statement that “Daddy put his stuff up my booty,” as children do not always
understand the concept of a vaginal opening. She testified that nothing in
the victim’s physical history indicated that there had ever been any kind of
injury in the genital area that would have left the marks that she observed.
She agreed that whether the time frame of the abuse was a day or a week
before the exam, her findings were still consistent with the victim’s
disclosure of abuse.

        Letitia Cole was a forensic interviewer with the Memphis Child
Advocacy Center who conducted a forensic interview with the victim. She
testified that during the interview, the victim made an “active disclosure” of
abuse using both anatomical drawings and anatomical dolls. She stated that
an “active disclosure” was a full disclosure made by a victim during a


                                    -4-
        forensic interview. A video recording of the victim’s interview was then
        played in open court.

               Lieutenant Carl J. Ray was a sergeant in the Memphis Police
        Department’s juvenile squad for sex crimes and child abuse cases at the
        time of the incident. He interviewed the [petitioner], who voluntarily gave a
        statement after waiving his Miranda rights. The [petitioner] told police that
        his favorite saying was “tighten up.” He stated that the victim’s mother
        placed the victim in bed with her and the [petitioner]. As the [petitioner]
        and the victim’s mother “got intimate,” he asked her, “Why not put [the
        victim] on a pallet or something[,]” and she replied that the victim would
        “be alright.” He stated that the victim awoke while he and the victim’s
        mother were “making love” and that the victim’s mother was shocked when
        the victim awoke. He said that he briefly had sex with the victim’s mother
        but that “she was not into it” because she had cancer and sexual intercourse
        “burn[ed]” for her.

                Once the victim’s mother told the [petitioner] to stop, he “turned
        over and lay [sic] behind [the victim’s mother] for a little while.” The
        victim then awoke, “stretched her arms out backwards where [the
        [petitioner]] was at,” felt his penis, and “started playing with it.” The
        [petitioner] stated that the victim was “jacking [him] off” while lying in bed
        with him and her mother. He said he ejaculated after about “five minutes”
        and that some of the ejaculate landed on him. He was not sure if any
        landed on the victim. The [petitioner] stated that he had never done
        anything like that before and that it was the only time he permitted the
        victim to masturbate him. He did not tell the victim to stop.

              The jury found the [petitioner] guilty of rape of a child and
        aggravated sexual battery. The trial judge sentenced him to an effective
        term of thirty-three years. The [petitioner] filed a timely notice of appeal,
        and we proceed to consider his claims.

Id. at *1-4.

   B.      Post-Conviction Proceedings

       At the outset of the post-conviction hearing, the petitioner was voir dired by post-
conviction counsel. During questioning, the petitioner informed the post-conviction court
that he was proceeding with only two of his claims, (1) counsel was ineffective for failing
to conduct an independent investigation and (2) counsel was ineffective for failing to

                                            -5-
have the petitioner evaluated. The petitioner also informed the post-conviction court that
he would not be testifying and his only witness would be trial counsel.

        Trial counsel, the only witness called during the hearing, testified he represented
the petitioner between 2011-2013, taking the petitioner’s case from general sessions court
and through trial. According to trial counsel, he met with the petitioner several times and
reviewed discovery and the State’s theory of the case with the petitioner. Furthermore,
trial counsel stated that he regularly met with the assistant district attorney (ADA) to
discuss the petitioner’s case and would then share those discussions with the petitioner.
Trial counsel also had two meetings with members of the petitioner’s family. When
questioned about why he did not seek funds to and hire an investigator, trial counsel
explained that, based on his review of the State’s case including his meetings with the
ADA, he did not think an investigator “would get anywhere” or produce any further
information concerning the petitioner’s case. Trial counsel was also questioned as to why
he did not hire an expert to challenge the testimony of Ms. Daley, the nurse practitioner
who examined the victim. In response, trial counsel stated that he did not see the need
for an expert and believed he could cover what he needed during his cross-examination of
Ms. Daley.

        On cross-examination, trial counsel also explained that he did not have a mental
evaluation performed on the petitioner because competency was never an issue. Finally,
trial counsel testified he had been practicing criminal law for twelve years and one-
hundred percent of his cases were criminal defense in either state or federal court.


       After taking the petitioner’s claims under advisement, the post-conviction court
found the petitioner failed to prove ineffective assistance of counsel and denied relief.
This timely appeal followed.

                                         Analysis

        On appeal, the petitioner asserts the trial court erred in denying his petition for
post-conviction relief, alleging trial counsel failed to conduct an independent
investigation and, therefore, did not locate “a potentially exonerating witness;” failed to
hire an expert to rebut the State’s medical proof; and failed “to have [the petitioner]
examined to ensure that he was competent to stand trial.” The State asserts the petitioner
failed to present clear and convincing evidence demonstrating trial counsel was deficient
or how his alleged deficiency prejudiced his trial. Upon our review, we agree with the
State.



                                           -6-
       To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden
of proving his allegations of fact by clear and convincing evidence. See Tenn. Code Ann.
§ 40-30-110(f). “‘Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.’”
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).

       Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State,
245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter
entrusted to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). When an evidentiary hearing is held in the
post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497,
500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate
court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to the
facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which
presents mixed questions of fact and law, is reviewed de novo, with a presumption of
correctness given only to the post-conviction court’s findings of fact. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and article I, section 9 of the Tennessee
Constitution both require that criminal defendants receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citation omitted).
When a petitioner claims he received ineffective assistance of counsel, he has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466
U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:

              First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
                                            -7-
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
With regard to the standard, our supreme court has held:

              [T]he assistance of counsel required under the Sixth Amendment is
       counsel reasonably likely to render and rendering reasonably effective
       assistance. It is a violation of this standard for defense counsel to deprive a
       criminal defendant of a substantial defense by his own ineffectiveness or
       incompetence . . . . Defense counsel must perform at least as well as a
       lawyer with ordinary training and skill in the criminal law and must
       conscientiously protect his client’s interest, undeflected by conflicting
       considerations.

Finch v. State, 226 S.W.3d 307, 315-16 (Tenn. 2007) (quoting Baxter, 523 S.W.2d at
934-35).

       When reviewing trial counsel’s performance, this Court “must make every effort
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s conduct, and to evaluate the conduct from the perspective of counsel at that
time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at
689). The fact that a trial strategy or tactic failed or was detrimental to the defense does
not, alone, support a claim for ineffective assistance of counsel. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992). Deference is given to sound tactical
decisions made after adequate preparation for the case. Id.

       To satisfy the prejudice prong of the test, the petitioner “must establish a
reasonable probability that but for counsel’s errors the result of the proceeding would
have been different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006) (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). In
order to prevail, the deficient performance must have been of such magnitude that the
petitioner was deprived of a fair trial and that the reliability of the outcome was called
into question. Finch, 226 S.W.3d at 316.
                                            -8-
       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       As found by the post-conviction court and argued by the State in its brief to this
Court, the petitioner failed to offer any proof in support of his claims. More specifically,
the petitioner failed to present a witness that could have offered testimony exonerating
him, failed to present an expert to refute the State’s medical proof, and failed to present
any proof in support of his claim that he was not competent to stand trial. When a
petitioner contends trial counsel failed to discover, interview, or present witnesses in
support of his defense, the petitioner must call those witnesses to testify at an evidentiary
hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). This is the only
way the petitioner can establish that:

              (a) a material witness existed and the witness could have been
       discovered but for counsel’s neglect in his investigation of the case, (b) a
       known witness was not interviewed, (c) the failure to discover or interview
       a witness inured to his prejudice, or (d) the failure to have a known witness
       present or call the witness to the stand resulted in the denial of critical
       evidence which inured to the prejudice of Petitioner.

Id. Even if a petitioner is able to show counsel was deficient in the investigation of the
facts or the calling of a known witness, the petitioner is not entitled to post-conviction
relief unless he produces a material witness at his post-conviction evidentiary hearing
who “could have been found by a reasonable investigation” and “would have testified
favorably in support of his defense if called.” Id. at 758. Without doing this, the
petitioner cannot establish the prejudice requirement of the two-prong Strickland test. Id.

        Here, the petitioner failed to offer any proof in support of his claim that counsel
was ineffective. Other than calling trial counsel and questioning him about the decisions
he made not to hire an investigator, not to hire an expert, and not to have the petitioner
evaluated, the petitioner failed to call a single witness, including himself, to contradict
trial counsel’s testimony. Thus, even if one were to conclude trial counsel was deficient,
the petitioner failed to present any witnesses or evidence showing he was prejudiced by
trial counsel’s actions, and we will not speculate as to what those witnesses would have
said if called to testify at trial. See Black, 794 S.W.2d at 757. Accordingly, the petitioner
has not established either deficiency or prejudice.

                                            -9-
                                 CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.



                                         ____________________________________
                                         J. ROSS DYER, JUDGE




                                       - 10 -
