        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                            MARCH SE SSION, 1998           FILED
                                                      December 30, 1998
STATE OF TENNESSEE,            )    C.C.A. NO. 02C01-9710-CC-00387
                               )                       Cecil Crowson, Jr.
                                                           Appe llate Court C lerk
      Appellee,                )
                               )
                               )    MADISON COUNTY
VS.                            )
                               )    HON. JOHN FRANKLIN MURCHISON
MARCELLOUS BOND,               )    JUDGE
                               )
      Appe llant.              )    (Post-Conviction - Sale and Delivery
                               )    of Cocaine)




FOR THE APPELLANT:                  FOR THE APPELLEE:

DANIEL J. TAYLOR                    JOHN KNOX WALKUP
Assistant Public Defender           Attorney General and Reporter
26th Judicial District
227 West Baltimore Street           GEORGIA BLYTHE FELNER
Jackson, Tn 38301                   Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243-0493

                                    CLINTON J. MORGAN
                                    Coun sel for the S tate
                                    425 Fifth Avenu e North
                                    Cordell Hull Building, Second Floor
                                    Nashville, TN 37243-0493

                                    JERRY WOO DALL
                                    District Attorney General

                                    NICK NICOLA
                                    Assistant District Attorney
                                    P. O. Box 2825
                                    Jackson, TN 38301




OPINION FILED ________________________
AFFIRMED

JERRY L. SMITH, JUDGE




                        -2-
                                   OPINION
      On January 13, 1993 a Madison Coun ty jury foun d Appe llant, Marcellous

Bond guilty of the sale and delive ry of co caine and fin ed him $5,000.00 on each

count. The trial court sentenced Appellant on February 9, 1993 to an agreed

sentence of 30 years as a Range III, persistent offender. Appellant filed a Petition

for Post-Conviction Relief on June 11, 1993, alleging ineffective assistance of

counsel and failure of couns el to file an appeal. The trial court denied the petition

on August 9, 1994. Appellant appealed and this Court remanded the case to the

trial court for a hearing with additional evidence on the issues of (1) ineffective

assistance of counsel, and (2) whether Appellant waived his right to appeal the

jury verdict. The trial court held a hearing on November 22, 1996 and December

13, 1996, and denied the petition for post-conviction relief on the grounds of

ineffective counsel at trial, but granted Appellant a delayed appeal. Appellant filed

a motion for a new trial on January 9, 1997, which was amended on September

10, 1997. The motion was overruled after a hearing on September 12, 1997.

Appellant appe als from that decision from the trial court as well as from the trial

court’s denial of relief on the allegation of ineffective counsel. This Court, in the

interest of judicial ec omon y, sua sp onte, consolidated Appellant’s appeals on

July 8, 1998.




                                      FACTS




      On July 10, 1990, Tennessee Bureau of Investigation agent, Eric Patto n

purchased an “eigh t-ball” (or an e ighth of an ounce ) of cocain e from A ppellant.


                                         -3-
Agent Patton worked with a confidential informant, Michael Burgess, who

introduced Patton as Burgess’ cousin from Milwaukee. Agent Patton and Mr.

Burgess flagge d dow n App ellant a nd inq uired a bout p urcha sing a n eigh t-ball.

Appellant replied that he didn’t have it with him. Appellant told the p air to w ait

while he we nt to his mother’s house. Appellant returned, saying that it was going

to take longer, because he was going to pick up some m ore cocaine. Later Agent

Patton and Mr. Burgess saw Appellant when they went to the store. Appellant

waved them down and asked them to follow him to his mother’s house. Upon

arriving at a house, Appellant went inside, stayed about ten minutes, and came

out, bringin g Age nt Patt on tw o sm all bags containing a white powder substance.

Agent Patton paid Appellant the $250.00 which Appe llant had told him the

cocaine would c ost.




      Agent Patton turned the bags into the Tennessee Bureau of Investigation

lab where it was tested and analyzed. The tests revealed that the substance was

cocaine.




                       I. SUFFICIENCY OF THE EVIDENCE




      Appellant initially contends that the evidence is insufficient to support the

jury’s verdict, challenging the credibility of Michael Burgess and Agent E ric

Patton. When an appellant ch allenges the su fficiency of the eviden ce, this Court

is obliged to review that challenge according to certain well-settled principles . A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony


                                         -4-
of the State’s witnesses and resolves all conflicts in the testim ony in favor of the

State. State v. Cazes, 875 S.W .2d 253 , 259 (Te nn. 199 4); State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a

presumption of inno cenc e, a jury verdic t remo ves th is presumption and replaces

it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficiency of the con victing evid ence. Id. On ap peal, “the [S ]tate is entitled to

the strong est leg itimate view of the evidence as well as all reasonable and

legitimate inferences that may be drawn therefrom.” Id. (citing State v. Cabbage,

571 S.W.2 d 832, 8 35 (Ten n. 1978)). Whe re the s ufficien cy of th e evid ence is

contested on appeal, the relevant ques tion for the reviewing court is whether any

rational trier of fact could have found the acc used guilty of eve ry element of the

offense beyond a re asona ble dou bt. Harris , 839 S.W .2d 54, 75 ; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. C rim. App . 1996); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences “for those

drawn by the trier of fact from circumstantial evide nce.” Id. at 779. Finally, the

Tennessee Rules o f Appella te Procedure, Rule 13(e) provides, “findings of guilt

in crimin al actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact beyond a

reasonable doubt.” See also State v. Mathews, 805 S.W.2d at 780. Questions

concerning the credibility of witnesses and the weight to be given to testimony


                                          -5-
and evidence are questions which must be resolved by the jury as the trier of

fact. This Court will not second guess the jury’s d etermin ations. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Mr. Burgess testified that he led

Agent Patton to Appellant and watched the exchange of money for drugs. Agent

Patton identified A ppellant a s the man fro m whom he pu rchased the drugs.

Tennessee Bureau technician Lisa Mayes testified that the substance purchased

by Agent Patton from Appellant was cocaine. The evidence presented was more

than su fficient. This iss ue is witho ut merit.




                          II. POST-CONVICTION RELIEF




       Appellant further contends that the trial court erred in denying his petition

for post-conviction relief based upon the ineffective assistance of counsel at trial.

We disagree. In order for the petitioner to be granted relief on grounds of

ineffective counsel, he must establish that the advice given or the services

rendered were not within the range of competence dem ande d of atto rneys in

criminal cases and that, but for his counsel's deficient perfor man ce, the result of

the trial would h ave be en differen t. Baxter v. Rose, 523 S.W .2d 930 (Te nn.1975);

Strickland v. Washington, 466 U.S. 66 8, 104 S.C t. 2052, 80 L.Ed .2d 674 (198 4).




       The firs t com pone nt of the test es tablish ed in Strickland is as follows:




                                           -6-
      A convicte d defendant making a claim of ineffective
      assistance must ide ntify the acts or omissions of counsel
      that are alleged not to have been the res ult of rea sona ble
      professional judgment. The court must then determine
      whether, in light of all the circumstances, the identified
      acts or omis sions were outside the wide range of
      profes siona lly competent assistance.        In making that
      determination, the court should keep in mind that
      coun sel's function, as elaborated in prevailing professional
      norms, is to ma ke the adve rsarial te sting p roces s wor k in
      the particu lar case.


      Id., 466 U.S. at 690, 104 S.Ct. at 2066.




      To meet the second prong of the Strickland test, there must be a

reaso nable probab ility that, but for counsel's unprofessional errors, "the result of

the proceeding would have been different." Id., 466 U.S. at 694-95, 104 S.Ct. at

2068. The "different" result nee d not be an acq uittal. A reas onable probab ility

of being found guilty of the lesser charge, or shorter sentence, satisfies the

second prong in Strickland. Chambers v. Armontrout, 907 F.2 d 825, 8 32 (8th

Cir.1990).




      The ultimate standard is whether trial counsel's errors, if
      any, were so serious as to deprive the petitioner of a trial
      whose result is reliable. Unless each prong in Strickland
      is establish ed, it cann ot be said that the conviction
      resulted from a breakdown in the adversary process.


Proctor v . State, 868 S.W .2d 669, 673 (Tenn. Crim . App. 1992 ).




      Appellant failed to establish by a preponderance of the evidence that the

services provided by his counsel fell below the range of competence demanded


                                         -7-
of attorneys in criminal cases. He further failed to prove that but for his a ttorney ’s

performance the results of the trial would have been different. Appellant

complained that his counsel met with him only three times before trial, that

counsel failed to properly file pre-trial motions, and that co unse l failed to com ply

with Rule 37 of the Rules of Criminal Procedure in neglecting to appeal

Appe llant’s case. At the hearing on this matter, Appellant did not present any

evidence that three meetings with counsel was insufficient in a case of this sort.

Moreov er, defense counsel estimated the number of meetings to be subs tantially

higher. Evidence presented also showed that the trial court heard and denied the

two pre-trial motion s filed by defense counsel. The fact that such m otions were

not placed in the record did not prejudice Appellant. Appellant does not allege

what other motions should have been filed. Finally, Appellant has received

appellate review of his conviction in this appe al. In light of the overwhelming

evidence against Appellant, we cannot find that any of the potential omissions by

coun sel, ev en if Ap pellan t’s allega tions a re acc epted as pre sente d, cou ld have

prejudiced Appellant. Without a showing of prejudice, Appella nt is not en titled to

post-conviction relief. Procter v. State, 868 S.W.2d 669, 672 (Tenn. Crim. App.

1992). T his issue is without m erit.




       Accordingly, the judgment of the trial court is affirmed.




                                   ____________________________________
                                   JERRY L. SMITH, JUDGE




                                          -8-
CONCUR:




___________________________________
JOE B. JONES, PRESIDING JUDGE 1


___________________________________
GARY R. WADE, JUDGE




        1
         The H onorab le Joe B. J ones d ied May 1, 1998, a nd did no t participate in th is opinion. W e
acknowledge his faithful service to the Tennessee Court of Criminal Appeals, both as our colleague and
as our Presiding Judge.

                                                  -9-
