       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE            FILED
                         MARCH SESSION , 1997       November 4, 1997

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
MELVIN LEE BURKETT,              )    C.C.A. NO. 01C01-9605-CC-00202
                                 )
           Appe llant,           )
                                 )    HUMPHREYS COUNTY
                                 )
V.                               )
                                 )    HON . ALLEN W. W ALLAC E,
STATE OF TENNESSEE,              )    JUDGE
                                 )
           Appellee.             )    (POST-C ONVIC TION)




FOR THE APPELLANT:               FOR THE APPELLEE:

JANET S. KELLEY                  JOHN KNOX WALKUP
106 E ast Ma in                  Attorney General & Reporter
Waverly, TN 37185
                                 CLINTON J. MORGAN
                                 Assistant Attorney General
                                 2nd Floor, Cordell Hull Building
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

                                 C. PHILLIP BIVENS
                                 District Attorney General

                                 GEORGE C. SEXTON
                                 Assistant District Attorney General
                                 Humphreys County Courthouse
                                 Wa verly, TN 37185



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION

       The Petitioner, Melvin Bu rkett, appeals the trial court’s denial of his petition

for post-conviction relief. On February 21, 1991, Petitioner was convicted of two

counts of aggravated rape fo llowing a jury tria l in the Circuit Cou rt for Humph reys

County. He was sentenced to twenty (20) years on the first count and fifteen (15)

years on the seco nd cou nt, to be served consecutively. This court affirmed the

convictions and sentences following direct appea l by Petitione r. State v. Melvin

Burkett , C.C.A. No. 01C01-9110-CC-00303, Humphreys County (Tenn. Crim.

App., at Nashville, Oct. 8, 1992) (Rule 11 application denied , concurr ing in resu lts

only, Feb. 1 6, 199 3). Pe titioner tim ely filed a petition for post-conviction relief and

following an evidentiary hearing, the trial cou rt dism issed the Pe tition. In th is

appe al, Petition er argu es tha t he wa s den ied the Sixth Amendment right to the

effective assista nce o f coun sel. In addition, Petitioner asserts that the judgment

is void as the indictment failed to contain the proper mens rea for the offense of

aggrava ted rape . We affirm the ju dgme nt of the trial co urt.



       “In post-conviction relief proceedings the petitioner has the burden of

proving the allegations in his petition by a prepon deranc e of the ev idence .”

McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the

factual findings of the trial court in hearings “are conclusive on appeal unless the

evidence preponderates against the judgme nt.” State v. Buford , 666 S.W.2d 473,

475 (Tenn. Crim. App. 1983). The trial judge found that there was “no basis” for

Petition er’s claims of ineffective assistance by his trial counsel and that

Petitioner’s case w as “well-tried.”



                                            -2-
                         INEFFECTIVE ASSISTANCE OF COUNSEL



       In reviewing the Petitioner’s claim of ineffective assistance of cou nsel, th is

court must determine whether the advice given or services rendered by the

attorney are within the range of competence demanded of attorneys in criminal

cases. Baxter v. Rose, 523 S .W .2d 93 0, 936 (Ten n. 197 5). To preva il on a cla im

of ineffec tive cou nsel, a petition er “mu st sho w that c ouns el’s rep resen tation fe ll

below an objective standard of reasonableness” and that this performance

prejudiced the defense. There must be a reasonable probability that but for

coun sel’s error the result of the proceedings would ha ve been different.

Strickland v. Washington, 466 U.S . 668, 687 -88 (198 4); Best v. Sta te, 708

S.W .2d 421, 422 (Tenn. Crim . App. 1985 ).



       At the post-conviction hearing, Petitioner testified that trial counsel failed

to keep h im inform ed and did not do any inves tigation of the case. He alleged

that counsel failed to return his telephone calls and directed her secretary to

inform Petitioner th at she did not nee d to spea k with him. Petitioner also claimed

that counsel failed to offer into evidence certain medical records which Petitioner

believed to be exc ulpatory e vidence , as well as failed to ob ject to hearsay

testimony at trial.     Petitioner claimed that his consecutive sentence was

excessive.     Other grounds raised by the Petitioner in his pleadings w ere

dismissed by Petitioner at the evidentiary hearing.



       Trial couns el also testified at the hea ring, and she state d that in

preparation for Pe titioner’s trial she file d a mo tion for disco very from the State

and received all discove rable inform ation. After ta lking with Petitioner, she was

                                            -3-
prepared to assert an alibi defense, therefore she interviewed and subpoenaed

all witnes ses th at she was m ade a ware o f prior to tr ial. Reg arding Petition er’s

claim for failure to confer with him, counsel had problems getting Petition er to

meet with her. While counsel did not want to get her client in trouble, Petitioner

was not cooperating with her and she approached the trial court regarding this

issue. A show cause motion was issued and Petitioner w as brough t into court

shortly before trial. Petitioner was instructed b y the trial court to coope rate with

counsel in preparation of his defense. Following that instruction, counsel was

able to mee t with Pe titioner o n three (3) or fo ur (4) o ccas ions p rior to tria l.



       Trial counsel testified that she considered the medical report, which

Petitioner claimed to be exculpatory evidence, to be at best “ne gative evid ence.”

The report conta ined the findings of a physician who examined the victim and

found that there was n o indication of any trauma to the vagina. While counsel

admitted that this portion of the ph ysician’s report was not de trimenta l to

Petitioner’s case, she also realized that the rep ort wou ld not h elp the Petitioner

as it would “have given the jury one more doctor to say that this is what [the

victim] told me and it would have given the State one more doctor saying this is

what I found.” After interviewing the physic ian by te lepho ne an d read ing his

findings, coun sel be lieved th e phys ician w ould a lso ha ve testifie d that th e victim ’s

hymen was not intact.         Trial counsel expla ined that the issue of the social

worke r’s hears ay testim ony, w hich sh e obje cted to at trial, ha s bee n prev iously

determined on appeal by a pane l of this co urt whic h affirm ed the trial cou rt’s

decision to admit the testimony as evidence.




                                             -4-
         The trial court stated in his findings of fact that the petition had no

substance, and he did not know “much else that [trial counsel] could have done

that she did not do” regarding investigation of Petitioner’s case. Specifically, the

trial court recalled that he had to adm onish P etitioner in or der to get him to meet

with trial couns el. After review of the cou rt file and listen ing to the evidence, the

trial court found that there was no exculpa tory eviden ce. The remaining issues

were found to be previously de termined by a panel of this court on direct appeal

from the conviction s.



         After a thorough re view of the record a nd briefs in this ma tter, this court

finds that the eviden ce do es no t prepo ndera te aga inst the trial court’s findings.

From the record , it is appa rent tha t trial cou nsel d id all tha t she c ould in light of

Petition er’s failure to cooperate and participate in his own defense. As far as

coun sel’s defense strate gies, this court should not second-guess trial cou nsel’s

tactical and strategic choices unless those choices were uninformed because of

inadeq uate prepara tion.      Hellard v. S tate, 629 S.W .2d 4, 9 (Ten n. 1982).

Counsel should not be deemed to have been ineffective merely because a

different procedure or strategy might have pro duced a different re sult. Williams

v. State, 599 S.W .2d 276 , 280 (T enn. C rim. App . 1980).



         The trial court found that all other matters raise d by Petitioner we re

previo usly determined, and he prop erly dism issed su ch claim s. See Caruthers

v. State, 814 S.W.2d 64, 69-70 (Tenn. Crim. App. 1991). This issue has no

merit.



                             INSUFFICIENCY OF INDICTMENT

                                            -5-
       Petitioner argues the judgment against him is void due to the failure to

allege a particular mens rea for the offe nse o f aggra vated rape in his indictm ent.

He bases his argum ent on a recent ca se of this co urt, State v. Roge r Dale Hill,

C.C.A. No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App., at

Nashville, June 2 0, 1996 ), perm. to appe al granted (Tenn. 1996). In the Hill

case, the defendant was indicted for aggravated rape and convicted of

aggravated sexua l battery , but the indictm ent co ntaine d no a llegation of a

requisite mens rea as he was charged with “unlawfu l sexual pe netration of a

victim.”



       In the case sub judice, the Petitioner was indicted and convicted of

aggravated rape, and the indictment read as follows:

       Melvin Burkett . . . d id unla wfully se xually penetra te . . . a fem ale
       child less than thirteen (13) years of age, in violation of T.C.A. §
       39-13-502, all of which is against the peace and dignity of the State
       of Tennessee.

Petitioner alleges that the failure of the indictment to state that Petitioner acted

“intentionally, knowingly or reck lessly” is fatally defic ient, an d Petitio ner’s

conviction shou ld be re verse d and dism issed . The a ggrav ated ra pe sta tute in

force at the time the Petitioner was indicted provided, in pertinent part, as follows:

       Aggravated rape is unlaw ful sexual penetration of a victim by the
       defendant . . . [where] the victim is less than thirteen (13) years of
       age.

Tenn. C ode Ann . § 39-13-502 (a)(4)(1991 R epl.).



This court ha s held tha t nothing in our crim inal code requires an indictm ent to

allege the mens rea of an offense unless the statute specifically states the mens

rea as an ele ment o f the offens e. See State v. James Dison, C.C.A. No. 03C01-



                                          -6-
9602-CC-00051, slip op. at 17, S evier Co unty (Te nn. Crim . App., Knoxville, Jan.

31, 1997) (Rule 11 application filed March 14, 1997). A defendant must be

provided notice of the elements of the offense which “sufficiently apprise[ ] the

accused of the o ffense he is called upon to d efend.” State v. Tate, 912 S.W.2d

785, 789 (Tenn. Crim. App. 1995). Therefore, the allegation of criminal conduct

in an ind ictme nt is constitutionally adequate as a form of notice to the defendant

and mens rea is not a n esse ntial elem ent of the o ffense. State v. James Julian,

II, C.C.A . No. 0 3C0 1-951 1-CV -0037 1, slip op. at 42, Loudon County (Tenn. Crim.

App., Knoxville, July 29, 19 97); citing Dison, slip op. at 17 ; State v. Phillip Griffis

and Melissa Ro gers, C.C.A. N o. 01C 01-950 6-CC -00201 , slip op. at 16, Maury

County (Tenn. Crim. App., Nashville, Apr. 30, 1997). Upon review, we find the

indictment for aggravated rape as charged in the indictment in Petitioner’s case

was co nstitutiona lly sufficient an d valid. Th is issue is w ithout me rit.



       We affirm the ju dgme nt of the trial co urt.




                                           -7-
                         ____________________________________
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
 JOE G. RILEY, Judge




                              -8-
