          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON              FILED
                           DECEMB ER SESSION, 1998        March 12, 1999

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

ROB ERT J. BUR TON , SR.,           )   C.C.A. NO. 02C01-9807-CC-00226
                                    )
            Appe llant,             )
                                    )   WEAKLEY COUNTY
V.                                  )
                                    )
                                    )   HON. WILLIAM B. ACREE, JUDGE
STATE OF TE NNE SSE E,              )
                                    )
            Appellee.               )   (POST -CON VICTIO N)



FOR THE APPELLANT:                      FOR THE APPELLEE:

KEN T F. GE ARIN                        JOHN KNOX WALKUP
317 South Lindell Street                Attorney General & Reporter
P.O. Box 169
Martin, TN 38237                        ELIZABE TH T. RY AN
                                        Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        THOMAS A. THOMAS
                                        District Attorney General

                                        JAMES T. CANNON
                                        Assistant District Attorney General
                                        414 South Fourth
                                        P.O. Box 218
                                        Union City, TN 37281




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

       The Petitioner, Robe rt J. Burton , Sr., appe als the ord er of the W eakley C ounty

Circu it Court dismissing his pe tition for p ost-co nviction relief.      In th is app eal,

Petitioner argues that his trial cou nsel was ineffec tive. After a careful review of the

record, w e affirm the judgm ent of the tria l court.



       On September 8, 1994, Petitioner was convicted of one count of rape and one

count of incest. Petitioner was sentenced as a Rang e I Stand ard Offe nder to

concurrent sentences of twelve (12) years for the rape conviction and six (6) years

for the incest conviction. Petitioner appealed the convictions and this Court affirmed

both the conv ictions an d the sen tences . See State v. Robe rt J. Burton, Sr., C.C.A.

No. 02C01-9507-CC-00193, Weakley County (Tenn. Crim. App., Jackson, June 10,

1996). Petitioner filed a pro se petition for post-conviction re lief and the trial court

subs eque ntly appointed counsel to represent him at the hearing. On May 18, 1998,

the trial court entered an order denying Petitioner’s petition for p ost-con viction relief,

finding that he did receive the effective assistanc e of co unse l. In this ap peal,

Petitioner again contends that he did not receive the effective assistance of counsel

in that his trial cou nsel fa iled to in vestiga te and prepa re his c ase. S pecifically, he

contends that his counsel failed to interview the victim, the school guidance

couns elor, the victim ’s schoo l friends, an d other p ossible a libi witnesse s.



       The pertine nt facts as set forth in this Court’s previous opinion are as follows:

              On the afternoon o f Friday, March 25 , 1994, [Petitioner]
              invited his thirteen-year-old daughter S.B. to accompany
              him to his workshop.           Once there, S.B. assisted
              [Petitioner] in the repair of an air con ditioner. After some

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              period of time, [Petitioner] approached S.B., pulled down
              her shorts and underwear, and pushed her back onto a
              couch. [Petition er] then unbu ttoned and u nzipp ed his
              pants, kneeled down o n top of S .B., and vagina lly
              penetrated her. Hav ing ejacu lated, [Pe titioner] return ed to
              his work o n the a ir cond itioner. After ten or fifteen
              minutes, [Petitioner] and S.B. left the workshop together
              and returned home.

              On the following Thursday, S.B. told Sherry Page, her
              school guidance counselor, about the incident. At the
              behest of Ms. Page, S.B. then told her mother. Ms. Page
              contacted the Department of Human Services and asked
              the agenc y to investiga te S.B.’s claim. The Department of
              Human Services interviewed S.B. on the following Monday
              and arranged for Dr. Susan Brewer, a pediatrician, to
              examine her for signs of sexual abuse. During the
              examination, S.B. again recounted the details of the
              incident. The p hysica l exam ination revea led tha t S.B.’s
              hymenal opening was enlarged for her age and that she
              had significant vaginal scarring, as a result of “tears” in the
              vaginal tissue. Dr. Brewer stated that these physical
              characteristics indicate vaginal penetration.


       In post-conviction proceedings, the petitioner has the burden of proving the

allegations of fact by clear and convincing evidence. Tenn. Code Ann. § 40-30-

210(f). Wh en rev iewing the dis miss al of a post-conviction petition, this Court must

affirm the judgment of the trial court unless the evidence in the record preponderates

against the judgm ent. Black v. S tate, 794 S.W .2d 752, 755 (Tenn. Crim . App. 1990 ).




       In determining whether counsel provided effective assistance at trial, the court

must decide whether counsel’s performance was within the range of competence

demanded of attorney s in crimin al cases . Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). To succeed on a claim that his co unsel w as ineffec tive at trial, a

petitioner bears the bu rden o f show ing tha t his counsel made errors so serious that

he was not functioning as counsel as guaranteed under the Sixth Amendment and

that the de ficient re prese ntation preju diced the p etitioner res ulting in a failur e to


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produc e a reliable result. Strickland v. Washington, 466 U.S . 668, 693 , 104 S. C t.

2052, 80 L. Ed. 2d 674, reh’g denied, 467 U.S . 1267 (1 984); Coop er v. State , 849

S.W.2d 744, 747 (Tenn. 1993); Butler v. State, 789 S.W .2d 898, 899 (Tenn. 199 0).

To satisfy the second prong the petitioner must show a reason able pro bability that,

but for cou nsel’s unrea sona ble erro r, the fac t finder w ould h ave ha d reas onab le

doubt regarding p etitioner’s gu ilt. Strickland, 466 U.S. at 695. This reasonable

probab ility must be “sufficient to undermine con fidence in the ou tcome.” Harris v.

State, 875 S.W .2d 662 , 665 (T enn. 19 94) (citation omitted) .



       When reviewing trial coun sel’s ac tions, th is Cou rt shou ld not u se the bene fit

of hindsigh t to secon d-gues s trial strategy and criticize couns el’s tactics. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at

the time they were m ade in ligh t of all facts and circu mstan ces. Strickland, 466 U.S.

at 690; see Cooper, 849 S.W.2d at 746.



       In determining whether this Petitioner has satisfied these requirements, this

Court must g ive the findin gs of the tria l court the weight of a jury verdict, and the

judgment of the tria l court w ill not be reversed unless the evidence contained in the

record prepon derates against the findings o f fact mad e by the trial c ourt. State v.

Buford, 666 S.W .2d 473, 475 (Tenn. Crim . App. 1983 ).



       W e have reviewed Petitioner’s various claims and we find that Petitioner has

failed to present any evidence that shows that his attorney represented him in any

other manner than competently. We should note that Petitioner did not tes tify at his

post-conviction hearing . Petitioner first claims that counsel’s failure to interview the

victim prejudiced his case. H owev er, Pe titioner fa iled to p rovide any pro of at his

                                            -4-
hearing that the victim would h ave agre ed to be interviewe d or that a pre-trial

interview would have provided counsel with any additional information.



      Second ly, Petitioner claims that trial counsel failed to interview other witnesses

such as the school guidance counselor, the victim’s school friends, and the mother

and brother of Petitioner’s alibi witness. Petitioner claims that he was prejudiced by

trial counsel not interviewing these witnesses. However, none of these witnesses

were presented at the post-conviction hearing to state what they would have testified

to had the y been c alled at trial.    There is no evidence that these witnesses’

purported testimony would have in any way helped Petitioner’s case. In its Order

dismissing Petitioner’s petition, the trial court stated the following:

             What the petitioner means is that trial couns el failed to
             produce alibi witness es. At the trial, one alibi w itness
             testified. The petitioner now insists that the alibi witness’
             mother and perhaps his brother could have corroborated
             the alibi. These witnesses did not testif y at the po st-
             conviction hearing, and it would be conjecture to conclude
             that their testimony would have been of benefit to the
             petitioner.

W e agree with the trial court’s findings. Petitioner cannot expec t this Cou rt to

speculate on the question of whethe r further inve stigation o f a witness or failure to

call a witne ss wo uld have pro duced evidenc e favorab le to this cas e. See Black, 794

S.W.2d at 757. Petitioner is not entitled to relief from h is conviction unless he can

produce material witness who would have te stified fa vorab ly in sup port of h is

defens e. See id. at 758.



      In conclus ion, the evid ence c ontaine d in the record doe s not pre ponde rate

against the trial court’s finding that Petitioner received the effective assistance of

couns el.


                                           -5-
    Accordingly, the judgment of the trial court is affirmed.



                              ____________________________________
                              THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
JOHN EVERET T WILLIAMS, Judge




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