                                                                                         08/06/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                March 19, 2019 Session

       DARRELL DEAN HOCHHALTER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2012-B-1816 Steve R. Dozier, Judge
                     ___________________________________

                           No. M2018-00243-CCA-R3-PC
                       ___________________________________


The petitioner, Darrell Dean Hochhalter, appeals the denial of his post-conviction
petition, arguing the post-conviction court erred in finding he received effective
assistance of counsel at trial. Following our review, we affirm the denial of the petition.

 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 NORMA MCGEE OGLE and
ROBERT W. WEDEMEYER, J.J., joined.

Patrick T. McNally, Nashville, Tennessee, for the appellant, Darrell Dean Hochhalter.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Glenn Funk, District Attorney General; and Tammy Meade, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       A Davidson County jury convicted the petitioner of six counts of sexual battery by
an authority figure and one count of rape, for which he received an effective sentence of
twenty-two years. State v. Darrell Dean Hochhalter, No. M2014-01106-CCA-R3-CD,
2015 WL 4556917, at *1 (Tenn. Crim. App. July 29, 2015), perm. app. denied (October
15, 2015). On direct appeal, the petitioner challenged the trial court’s admission of the
forensic interview of the victim at trial, the sufficiency of the evidence supporting his
convictions, and his sentence. Id. This Court summarized the underlying facts leading to
the petitioner’s convictions, as follows:
        This case arises out of the [petitioner’s] numerous and various
sexual encounters with his daughter, the victim, which occurred between
April 22, 2008 and April 16, 2010. As a result, he was indicted for seven
counts of sexual battery by an authority figure, one of which was dismissed
before trial, as well as one count of rape. The [petitioner’s] wife was
charged with one count of facilitation of sexual battery by an authority
figure, but her case was severed from the [petitioner’s].

        At trial, the victim, who was nineteen years old at the time of trial,
testified that the [petitioner] was her father, and she had a sister who was
four years younger than she. During the time period in question, her
mother left for work around 8:30 a.m. and returned home around 5:00 or
6:00 p.m. The [petitioner] worked nights, leaving the home around 2:00
a.m. and returning around 9:00 a.m. Her grandmother also lived in the
home, but she primarily stayed in her room downstairs or in the living room
and kitchen on the main level. She rarely went to the upstairs level, where
the bedrooms were located.

        The victim said that she was homeschooled in the sixth grade by the
[petitioner], but she returned to school for seventh and most of eighth
grade. In April or May 2008, during her eighth grade year when she was
thirteen years old, the [petitioner] withdrew the victim from school because
the victim began cutting herself. The [petitioner] believed the victim’s
friends were a bad influence on her.

       The victim said that she and the [petitioner] had “a great
relationship” when she was little, but they grew apart as she became a
teenager and wanted to be with her friends. During the time the [petitioner]
homeschooled her after withdrawing her from the eighth grade, the victim’s
and [petitioner’s] relationship “was strained but [they] were really close.”
She elaborated that the [petitioner] “was just trying to relearn [her].”

        The victim recalled that, following her removal from school, the
[petitioner] would wait in the bathroom while she showered, so he could
check her legs afterwards to make sure she had not cut herself. The victim
denied that the [petitioner] ever got in the shower with her or touched her in
the shower. The victim acknowledged having previously told others that
the [petitioner] had taken showers with her in order to conserve water and
to make sure she was not cutting herself. She also acknowledged having
previously told others that the [petitioner] “would grab [her] boob or smack
[her] butt in the shower.” The victim denied that the [petitioner] ever got in
                                    -2-
the bathtub with her. However, she acknowledged previously stating on a
number of occasions, including under oath, that the [petitioner] had done
so.

        After completing her homeschooled eighth grade year, the victim
began attending Nashville School of the Arts (“NSA”), and the [petitioner]
visited her at school. Someone from the Department of Children’s Services
(“DCS”) spoke with the victim about concerns that had been raised at
school concerning her relationship with the [petitioner]. Rumors were
going around the school that she had been “making out” with the
[petitioner]. The victim told the DCS worker that nothing had happened
and that they were just “a very eccentric family.”                The victim
acknowledged that her mother told her to tell DCS that nothing happened in
order to protect their family. However, she explained that her mother was
referring to the [petitioner’s] grabbing her breasts and checking her hymen -
the only two things she admitted actually happened. After DCS became
involved, the victim’s parents blamed her for telling her friends about the
sexual abuse, and her parents discussed moving out of state to prevent the
[petitioner] from going to prison. The victim recalled that her parents
talked about how the victim’s “inability to stay quiet about things
happening” was going to have legal repercussions.

        The victim acknowledged previously stating that she made the
decision to disclose the abuse in 2011 because she was worried about her
younger sister. At the time of the disclosure, the victim’s sister was the
same age that the victim had been when the abuse started, and the victim’s
sister was also being homeschooled. At trial, however, the victim testified,
“It wasn’t really a concern about sexual abuse, it was just a convenient
thing that fit in with my story.”

       The victim agreed that she had been fearful her mother and sister
would blame her if the [petitioner] went to jail, and she was worried about
breaking up her family. However, she acknowledged that she had not
broken up her family because, at the time of trial, she was living with her
mother, her parents were still together, and she saw the [petitioner]
occasionally even though he was not supposed to be around her. However,
she denied that the [petitioner] came to her house when she was present.
Asked if she wanted to be reunited with the [petitioner] and the family, she
responded, “Maybe after a lot of counseling.”



                                    -3-
       The victim claimed that she told stories about the [petitioner’s]
molesting her in order to make friends at school. She told her friends that
she had taken showers and “naked naps” with her father. She elaborated
that she told her friends that her father groped her breasts and buttocks
during the showers and that he had erections during the naps. She also told
them that, on one occasion, the [petitioner] tried to digitally penetrate her
vagina. She explained that the [petitioner] “felt down there to see if [she]
was aroused” and asked if she “was wet.”

       The victim stated that, in the tenth grade, she got caught performing
oral sex on her boyfriend and was taken out of school. After that, she “used
the stories that [she] had been telling [about the [petitioner]] to get out of
the house because [she] wanted to be with [her] boyfriend at that time.”
She said that, after the incident with her boyfriend, the [petitioner]
developed “all of these rules” and “beat[ ] the crap out of [her] every
morning,” so she did not want to be at home and used the stories she had
told her friends over the years to get out of the house. She stated that she
told Jenny White, her former youth leader, about the alleged abuse because
she was afraid of not being able to see her boyfriend again. However, she
acknowledged that a few days before she disclosed the abuse to Ms. White,
her family had dinner with her boyfriend’s family and agreed that she
would be able to return to school.

       The victim testified that she kept a journal in which she recorded
some of the allegations that she told other people. However, she clarified
that she “had gone back and written those in.” She kept the journal from
the ages of thirteen to sixteen, or from the eighth to the tenth grade. She
elaborated that she had a “rough draft journal and a final draft journal.”
The rough draft journal had “all [her] sloppy writing and all of [her] little
side notes. And there were pages between them.” She later rewrote the
journal to look nice so she could give it to her children one day. She
claimed that her friends wanted to read her journal, so she “slipped in stuff
from [her] stories . . . so it would seem more believable.”

       The victim read a journal entry dated April 6, 2010, in which she
noted that one of her boyfriends “was confronting my dad about the
molestation thing. I tried to tell [him] that my dad is a good and honest
man; he’s confused. He’s just ignored me of course.” She then read
another entry that read: “The [D]epartment of Child Services showed up to
talk to me at school. Family isn’t in trouble but they will document their
visit with the family. We didn’t tell them any of the things they would
                                    -4-
consider indecent.” The victim then read another post, dated May 14, 2010,
that read:

               DCS is coming to see me at school again today.
       Apparently either “Jade” or Principal Bob are sending letters
       to them about dad so they have to interview us again . . . but
       they believe we are innocent. Mom’s getting pissed. She
       says it’s harassment so she’s going to try to sue Principal Bob
       for his job if this keeps happening.

        The victim testified that after she was caught performing oral sex on
her boyfriend at school, she and her boyfriend were taken to the principal’s
office and given three days suspension each. She recalled that the
[petitioner] was “incredibly pissed off.” Although the victim was only
suspended for three days, the [petitioner] kept her out of school for five
days. During that time, the victim had to stay in her room, and “every
morning . . . [the [petitioner] would . . . beat the crap out of [her].” He
made her hold onto a bedpost while he beat her with a belt. He told her that
he would smack her hand if she let go of the bedpost. He called her “white
trash” and said that she “would never amount to anything.” The victim
sustained bruises from her mid-back to her knees from the beating. After
the beatings, the victim went into the bathroom while the [petitioner]
showered, and they talked. She recalled that the [petitioner] talked about
“how he was going to kill [her boyfriend] and [her boyfriend]’s dad, and
the usual, just he was pissed.” When the victim was hungry and asked for
food, the [petitioner] gave her bread, peanut butter and water, which was
the only food she had for several days. As a chore, for punishment, she had
to carry cinderblocks or logs back and forth across the yard. She
understood that she was being punished because she “had given [her]
boyfriend a blow job and that is not what Christian girls do.”

        After the five days had passed, the [petitioner] allowed the victim to
return to school, as well as to church and see her youth leader, Jenny White.
The victim told Ms. White that her father had locked her in her room for
five days and beaten her every day. She also told Ms. White the same
things that she had told her friends about the [petitioner’s] molesting her
when she was being homeschooled in the eighth grade. The victim
admitted that she detailed to Ms. White that the [petitioner] had taken
showers with her, touched her private areas, and pressed his penis against
her body. She admitted that she additionally told Ms. White that the
[petitioner] had made her sleep naked with him and touched her on several
                                    -5-
occasions when that happened. After the victim talked to Ms. White, Ms.
White told her that she was legally obligated to report the [petitioner’s]
conduct. The victim admitted that she never recanted her story to Ms.
White.

       Following the disclosure to Ms. White, the victim spoke with a
detective and told him the same things she had told Ms. White. She agreed
to make a controlled phone call to the [petitioner] because the detective told
her that “[i]t would help with the case and with removing [her] from the
house.” The victim recalled that she later participated in a forensic
interview, which was audio and video recorded. She also testified in
juvenile court on July 11, 2011, and February 21, 2012.

       The victim then read a journal entry from April 12, 2011, in which
she said:

               [The petitioner] just burst in my room and said I can
       never kiss him again or even come within an arm’s reach of
       him. And he said that if [my boyfriend] comes anywhere
       near me or comes anywhere near he will castrate him and
       shove [my boyfriend]’s nuts down his dad’s father’s throat. It
       just [sic] me off because he threatened [my boyfriend] and
       [his father]. I have a lot of respect for [my boyfriend]’s
       family so it’s like he threatened my own family when he said
       that.

               Then [the petitioner] went on a rant about different
       ways to kill [my boyfriend]. One of them was [he] could
       drive a sword through his stomach, pull upwards to his chest
       and then let go of the sword. [My boyfriend] would take a
       sharp last breath and the pulling of air into his lungs would
       pull the sword deeper into his body. [He] would watch the
       life leave his eyes and pull the sword back out of his chest.

       The victim read another excerpt from her journal, dated April 26,
2011, in which she noted that the [petitioner] had become more protective
of her since “he pulled [her] out of eight[h] grade for cutting” but that “he
did a lot of things that tour [sic] us apart.” The excerpt further noted that
she realized her mother and father “blame[d] it on [her], but if they had just
let [her] get through the phase on [her] own or if [the petitioner] had not
molested [her] then [she] would be normal.”
                                    -6-
      Another journal excerpt from April 26, 2011, read:

             So today when I was in the car with Jenny [White] she
      asked me how things are at home. A voice in the back of my
      head just started to shout that I needed to tell her everything.
      I was pretty calm about it, that comes with having told the
      story ten times I guess. After I finished telling her
      everything; she pulled up to the youth group parking lot and
      told me that she was legally obligated to call DCS.

             She asked to talk to Pastor Todd about it first and find
      out what’s going to happen. She will talk to me before she
      does anything because I have questions and requests. I don’t
      know whenever someone says abuse, I always think broken
      bones and rape, not this stuff. I wouldn’t have told her, but I
      don’t want [my sister] to go through the same stuff.

             I can deal [with] two more years of it, but I don’t want
      her to experience it. She will hate me for taking mom and
      dad away, but I hope when she’s older that she will forgive
      me.

             Mom always said that my first concern should be to
      protect the family. I tried to keep us together. I have lied to
      government officials and I hid secrets for four years.

At trial, the victim claimed that the events of which she told Ms. White did
not occur.

        The victim testified that after her allegations came out, she was
placed in the home of an acquaintance from church. She also saw a sex
therapist, Shana Frank, at the Nashville Children’s Alliance for about a
year. During the course of her therapy, the victim never told Ms. Frank that
the abuse did not happen. The victim talked to Ms. Frank about the fact
that her mother continued to allow the [petitioner] to have contact with her
after learning that he was sexually molesting her in the eighth grade. She
said that her mother had “good intentions for everything” that happened
after the incident between the victim and her boyfriend, explaining that her
mother said the [petitioner] “was blowing off steam” during the time he
beat her and kept her in her room. However, the victim told Ms. Frank that
                                   -7-
she wanted to resume a relationship with her mother. The victim stated that
she felt extremely guilty about her parents being in court and acknowledged
that both of her parents had told her that the problems in their family were
her fault.

       The victim testified that shortly after she turned eighteen, she
returned to live with her mother. The victim admitted that she met with the
prosecutor and said that she was concerned about her mother, but she knew
that her father had to have some accountability for what he did.

        The victim acknowledged having previously told a forensic
examiner and testifying at juvenile court on two occasions that the
[petitioner] had committed sexual acts on her, starting at the age of twelve
or thirteen. Among those actions, the victim had said that the [petitioner]
got in the shower with her about every other day “to conserve water and to
rebuild the tender bond that [they] had from when [she] w[as] a young
child.” She acknowledged previously stating that when the [petitioner] got
in the shower with her, he would grab her breasts, “feel her up,” and have
erections. She acknowledged stating that the [petitioner] would hug her
and that she would feel his erection against her. She said that on one
occasion, the [petitioner] had pre-ejaculate on his penis, which he said
never happened with the victim’s mother. She acknowledged previously
stating that, after the showers, she would take “naked naps” with the
[petitioner]. She said that they would “spoon” during those naps, which the
[petitioner] called “making love notes by intertwining [their] legs together”
and that he would usually fall asleep with his hand on her breast. However,
the victim denied that any of those statements were true.

        The victim further acknowledged having previously stated, but now
said that it was untrue, that the [petitioner] often got erections during their
naps together. She also admitted previously stating, but that it was untrue,
that, during one naked nap, the [petitioner] woke up with an erection, got
on top of her, touched her private area to see “if it was wet and said . . .
you’re horny too.” She had also said that during that same incident, the
[petitioner] moved his hand around and made grunting noises, for which he
apologized, but that was also untrue. Another statement the victim
admitted previously making but now said was untrue was that on a couple
of occasions, the [petitioner] filled the bathtub with water and had her lay
on top of him, after which he started thrusting or “humping” his penis
against her body.

                                     -8-
        The victim testified that it was true that the [petitioner] checked her
hymen on one occasion during her eighth grade year when she was being
homeschooled. She elaborated that she had to have a kidney removed
when she was three years old, and she and the [petitioner] were concerned
that the surgery had taken her virginity. She explained:

              One of the surgeries they couldn’t [get] all of the
       surgical tools up my vagina so they had to make a little
       incision in my hymen to fit everything in there. And that’s
       always been something that’s kind of been a concern. I never
       knew it happened until dad mentioned it one day.

              And so I was always really worried about it because
       virginity is a really big deal in our house. And so we looked.
       We decided to figure out what was going on because I can’t
       see with a mirror. I didn’t know what I was looking for.

        The victim stated that she lay on the bed, held “everything open,”
and the [petitioner] “checked real quick.” The [petitioner] determined that
“it was still intact.” The [petitioner] told her that “[t]here was just like a
little V cut [out] of it or something, and that it would hurt whenever I lost
my virginity.” The victim recalled that the incident was “really awkward
and uncomfortable.” The [petitioner] also later told her that she “had a lot
of vagina” and asked whether she was a hermaphrodite. The victim denied
that the [petitioner] touched her vagina and moved his hand around until
she told him that it was uncomfortable. She explained that, instead, she
spread her genitals apart for the [petitioner] to look. The victim admitted
that the [petitioner] told her not to tell her mother or other people about his
playfully grabbing her breasts or checking her hymen because people
would think it was sexual abuse. The victim acknowledged that the
[petitioner’s] action of checking her hymen was inappropriate and “really
weird,” but she claimed “there was nothing sexual about it.”

        The victim admitted that the [petitioner] discussed his and her
mother’s sex life and told her about her mother’s fetishes. The [petitioner]
told the victim that she “stressed him out,” which caused his blood pressure
to rise such that he had to be on medication. According to the victim, one
of the [petitioner’s] medications caused him to easily get erections.
However, the victim stated that the [petitioner] told her that his erections
with her caused him to have problems getting erections with her mother.

                                     -9-
She acknowledged that the [petitioner] said that he did not have sex with
his wife because of her. The victim elaborated:

              [W]hat I know is that I was stressing dad out and he
       had blood pressure problems. And he got on Cialis and he
       was still having problems having sex with mom. But when
       he was around the house just hanging out and I was at the
       house, it would happen.
        The victim denied ever seeing the [petitioner] with an
       erection despite having previously said that she had.

       The victim testified that the [petitioner] came to school to have lunch
with her once or twice a week and people started spreading rumors about
them. One rumor was that she “was making out with [her] dad on the back
of a motorcycle.” Thereafter, the [petitioner] stopping (sic) visiting her for
lunch so often.

        The victim acknowledged telling prosecutors on the morning of the
trial that the [petitioner] had touched her inappropriately. She discussed
with the prosecutors how the [petitioner] had showered with her and
touched her breasts and buttocks in the shower. She also discussed that the
[petitioner] got erections. She referred to the [petitioner’s] having pre-
ejaculate on his penis and stated that she had asked him about it. The
[petitioner] told her that he did not know what it was because he had never
experienced it with the victim’s mother. The victim told prosecutors that
the [petitioner] masturbated in the shower when she was in the room. One
time, the [petitioner] filled the bathtub with water and made the victim lie
on top of him while he had an erection. The victim discussed taking
“naked naps” with the [petitioner] and his touching her breasts and
buttocks. She explained that the [petitioner] “spooned” her in bed, that his
penis came in contact with her, and that he sometimes got erections. The
victim discussed with the prosecutor a particularly upsetting incident when
she woke up and the [petitioner] had an erection. She elaborated that
“things got out of hand,” and the [petitioner] got on top of her and “started
feeling [her] up.” He asked her “if [she] was wet,” and she rolled out from
underneath him, told him to stop, and left the room. She told the
prosecutors that she and the [petitioner] later talked about it, and he
apologized.

      The victim acknowledged that, during her conversation with the
prosecutor right before the trial, she asked the prosecutor how long of a
                                    - 10 -
sentence the [petitioner] faced. Asked why she did not recant then, the
victim responded, “Because everybody has an agenda. And . . . I’m just . . .
tired of having a bunch of attorneys tell me what to do[.]” She stated that
she did not want the guilt of having her father “go to jail when he didn’t do
most of the stuff.” However, she stated that “[t]here is some stuff he did do
that was really wrong, but I’m not going to keep making lies.” She
acknowledged that the prosecutor did not ask her to embellish the truth.

         The victim testified that, even though she told several people about
numerous allegations of molestation, even as recently as the morning of
trial, the stories were all fabricated. The victim admitted that, in sum, she
had told the guidance counsel at NSA, a DCS worker, a forensic
interviewer, and an attorney from the district attorney’s office that the
[petitioner] molested her. She explained that her testimony was different
now because she was an adult and understood that there were consequences
for lying under oath. The victim admitted that she was having trouble
testifying, explaining, “Like I’m trying to split out which parts actually
happened and which parts didn’t.”

       Robert Wilson, former principal of NSA, testified that the victim
began attending the school in the ninth grade. Prior to attending NSA, the
victim attended Two Rivers Middle School, but there was a one-year gap
between her attendance at the two schools and nothing in her record to
indicate that she was being homeschooled that year. However, the victim
passed the tests to be admitted to NSA.

        Mr. Wilson testified that sometime during the 2009-2010 school
year, he observed some behavior between the victim and the [petitioner]
that concerned him. On one occasion, he observed the [petitioner] and the
victim leaning against a door together and walking hand-in-hand to the
cafeteria. Mr. Wilson followed them and saw them sit in two chairs at the
far end of the cafeteria. The victim had her bare feet in the [petitioner’s]
lap, and he was playing with her toes. Mr. Wilson noted that he had never
seen a parent and child interact in such a manner. Mr. Wilson also noted
that the [petitioner] was wearing a tank top, which was not proper school
attire for students. Therefore, he spoke with the [petitioner] and asked him
not to wear tank tops to the school.

       Mr. Wilson testified that the [petitioner] called and left him a
message stating that he was concerned about what some students were
saying about his relationship with the victim. The [petitioner] asked if Mr.
                                   - 11 -
Wilson could provide a private place where he and the victim could have
lunch together. Mr. Wilson returned the [petitioner’s] call and told him that
he could not provide a private lunch spot and that if he was concerned
about the rumors, “he probably shouldn’t come around so much.” Within
weeks of that conversation, Mr. Wilson observed the [petitioner] and the
victim having lunch in the teacher’s lounge. He informed them that they
did not have permission to be in the teacher’s lounge and that they needed
to leave. Mr. Wilson stated that, as an educator, he had mandatory
reporting obligations regarding suspected child abuse, and he made a
referral regarding the victim in April 2011. Mr. Wilson acknowledged that
he never saw any acts of molestation or sexual abuse of the victim by the
[petitioner].

       Jenny White testified that, in the spring of 2011, she was a youth
pastor at Friendship Community Church. The victim’s family attended
church there, and the victim and her sister attended the mid-week youth
group meetings. At some point, Ms. White began giving the victim a ride
to church because they lived in the same neighborhood.

       Prior to April 2011, the victim shared with Ms. White some
“questionable” things about her family that caused Ms. White to inform the
victim that she might have to disclose that information to others if the
victim continued to share information. This included the [petitioner’s]
having seen the victim in the shower. Additionally, Ms. White had
observed “a lot of physical touching between a father and daughter, a lot.
Back rubs, a lot of hugging, kissing on the mouth, that sort of thing that is
strange just enough that it would put up a red flag[.]” Then, in April 2011,
the victim disclosed to her some information, and Ms. White told her that
she would have to disclose that information if they kept talking. The victim
was okay with Ms. White disclosing the information and continued to talk
to her. Ms. White got the impression from the victim that she did not want
to be in the home and “didn’t want her sister there either for protection
purposes[.]” With the victim’s permission, Ms. White called the victim’s
school and spoke to the principal and guidance counselor. The three of
them decided that they needed to make a referral to DCS.

        After the referral, Ms. White continued to pick up the victim for
youth group meetings. Ms. White assisted law enforcement and DCS in
facilitating a meeting with the victim before they spoke to her family. Ms.
White picked up the victim for youth group, and officers and DCS spoke to
her at church. During that meeting, the victim made a phone call to the
                                   - 12 -
[petitioner]. Thereafter, officers asked Ms. White to drive the victim home
but had an officer meet them at the house. Ms. White recalled that the
victim “was super nervous and was crying.” The victim went to stay with
another family in the neighborhood. Ms. White continued to take the
victim to youth group until the victim eventually began going to another
church. The victim never recanted her story to Ms. White.

       The victim’s former boyfriend testified that he was a graduate of
NSA and had dated the victim from his sophomore to his senior year. He
described that their relationship “started out a little iffy and then [they] got
to become better friends and then towards the end it got a little untrusted[.]”
With the exception of the times at the beginning and the end of their
relationship, he and the victim were close, “[b]est friends pretty much. We
would talk about anything.”

       The victim’s former boyfriend said that, during their sophomore
year, he and the victim got into trouble at school and were suspended. At
the time of their suspension, he and the victim were very close. They
communicated with each other through Facebook messages during the
suspension. The victim told him that the [petitioner] had beaten her. He
could tell that the victim appeared to be sad and upset. He was out of
school for three days, and the victim returned to school the following week.
The victim told him that she wanted to return to school to get away from
the house for a while. Just prior to the victim’s returning to school, he and
his parents had dinner with the victim and her parents.

        Prior to the suspension, the victim had indicated to her boyfriend
that the [petitioner] had sexually abused her. He was aware that the victim
kept journals. A couple of weeks prior to the suspension, the victim asked
him to keep one of her journals. Around the time of the suspension, the
victim asked him to keep a second journal. He later gave the journals to the
police.

       Officer Edmond Strickling with the Metro Nashville Police
Department’s Sex Crimes Unit testified that, in April 2011, he received a
referral from DCS and began investigating the alleged sexual abuse of the
victim by the [petitioner]. Officer Strickling met with the victim at a
church and conducted a detailed interview with her. During the interview,
the victim made a controlled phone call to the [petitioner] which was
recorded.

                                     - 13 -
        During the call, the victim referred to a Bible verse and asked the
[petitioner] if they were going to go to hell because they were “sinful
people from the stuff [they] did.” She stated, “Because I mean we saw each
other naked just like it says in the verse[.]” The [petitioner] responded, “I
changed your diapers. I saw you naked when you were two. True, things
changed, furniture moved, things developed, and it’s true that, uh, we did
take some liberties that might have been questionable.” The [petitioner]
then noted that privacy in their household had never been “all that great.”
The [petitioner] looked up the Bible verse to which the victim had referred
and stated that it was talking about brothers and sisters committing incest.
The victim asked about taking showers together and “naked naps.” The
[petitioner] then questioned whether the victim was alone, and she
responded affirmatively. The [petitioner] answered, “[W]e didn’t have
sex.. . . I didn’t do anything with the intent of sexual gratification.” The
victim again asked whether they would go to hell because of the naked naps
and the showers, and the [petitioner] stated that he had asked for her
forgiveness and “[i]f there was a sin there, it was [his] not [hers].” He then
said that he had repented and asked for God’s forgiveness, and again that he
had asked for her forgiveness “for the times it may have gone a bit far.”

        The [petitioner] stated that “there were a lot of reasons that seemed
to make sense . . . at the time . . . when it was done.” He continued, “I
backed away from you . . . as you began to develop because I didn’t know
what to do with it.. . . And I was a little bit panicked about it.” He then told
the victim, “[Y]ou were starting to throw off pheromones that were making
my body respond in ways that were extremely embarrassing to me.” He
stated that he went to a therapist but stopped going because the therapist
suggested that his actions were sexual abuse. He noted that “from a certain
point of view, [the therapist] may have had a point.” The [petitioner] stated
that, as the victim got older, he needed to reestablish the bond that he had
with her as a child. He stated, “I felt the strongest bond to you as a child
was when I’d lay on the couch and lay you on my chest and you’d sleep on
my chest.. . . That was skin to skin.” The [petitioner] claimed that the
“naked naps” were to try to bond with the victim again. The [petitioner]
said that he was “trying so hard to control what was happening down there”
when he was around the victim that he was experiencing trouble having sex
with his wife.

      The victim referred to the [petitioner’s] touching her, and he
responded, “I guess, I did.” He elaborated, “I examined your hymen twice
because I was trying to learn about it and trying to figure out what to do
                                     - 14 -
        about yours. Um, but I never touched your clitoris. I never tried to arouse
        you. Did I?” The victim responded that he did, and the [petitioner]
        apologized. The victim told the [petitioner], “There was one time when
        you woke up from the nap, and you had [an erection] and you - it got scary,
        and that’s when I jumped out of the bed, and you came out ten minutes later
        and apologized.” The [petitioner] said he remembered that incident and
        “that was what [he] was asking for forgiveness for. That was . . . off the
        charts, and that was wrong.” He explained that he was waking up and
        “trying to deal with [her] pheromones, and [he] really didn’t have a handle
        on it at the time, and . . . it went too far.”

                The [petitioner] said that he thought he needed to educate the victim
        about sex. He noted that “privacy was already . . . lost in this house
        anyway” and he “always kind of had a slight nudist vent anyway,” but
        “[t]he biggest problem was that [he] kept getting [erections] anytime [he]
        was around [her].” Toward the end of the conversation, the [petitioner]
        stated that “there w[as] at least one occasion where it went entirely too far.
        Um, I did examine your hymen.” He elaborated that he thought the doctor
        who performed surgery on her when she was toddler had “took her
        virginity.”

               After the call, Officer Strickling went to the [petitioner’s] home and
        confronted him about the allegations of sexual abuse. Officer Strickling
        audio-recorded his conversation with the [petitioner]. The [petitioner]
        denied the allegations of sexual abuse. Officer Strickling later spoke to [the
        victim’s former boyfriend] and his parents. [The victim’s former
        boyfriend] provided Officer Strickling with the victim’s journals that he
        had in his possession.

Darrell Dean Hochhalter, 2015 WL 4556917, at *1-9. Upon our review, this Court
upheld the petitioner’s convictions and the rulings of the trial court.

       The petitioner filed a timely petition for post-conviction relief on October 4, 2016.
In the petition, the petitioner alleged numerous reasons as to why he received ineffective
assistance of counsel at trial where he was represented by local counsel and counsel from
out of state.1 Primarily, the petitioner alleged trial counsel were ineffective in their
handling of the admission of evidence concerning the victim’s prior inconsistent
statements, including her forensic interview, her journals, and her testimony during two

        1
       We will refer to the petitioner’s trial counsel from Tennessee as “local counsel” and his counsel
from New York as “lead counsel.”
                                                - 15 -
juvenile neglect proceedings. The petitioner also challenged trial counsel’s handling of
the jury instructions applicable to the same. Further, the petitioner argued trial counsel
failed to: “object to testimony of Jenny White concerning hearsay statements attributed to
[the victim];” file a “comprehensive motion for a bill of particulars and to pursue an
adequate response by the State;” “examine the State’s evidence prior to trial;”
“effectively interview and consult with [the petitioner];” “verify trial date and resulting
loss of the jury consultant;” and “object at sentencing to the absence of [a] sexual
evaluation as part of the presentence report as required under Tenn[essee] Code
Ann[otated] § 39-13-705(a) before the trial court rendered its sentence.” Finally, the
petitioner alleged “[t]he cumulative effect of the errors by trial counsel denied the
[p]etitioner his constitutional rights to effective assistance of counsel, due process, the
right to present a defense, and the right to confrontation of his accuser as guaranteed by
the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and
Article I, § 9 of the Tennessee Constitution.”

       At the post-conviction hearing, lead counsel stated a jury consultant referred the
petitioner’s case to him and he accepted the same. At the time, lead counsel practiced in
New York but met with the petitioner prior to trial both in person and over the phone.
Lead counsel acknowledged the original trial date was changed and as a result, the jury
consultant hired by the petitioner was no longer available to attend trial.

        Lead counsel asserted he “fully discussed the case with [the petitioner].” Though
he could not remember how many trips he made to Tennessee, lead counsel appeared in
court for the petitioner and reviewed discovery with the petitioner prior to trial. Lead
counsel and the petitioner discussed “all of the circumstances of the case,” and lead
counsel “got full explanations of everything.” He “spoke to [the petitioner] in the
presence of [the petitioner’s] wife, and [lead counsel] went over the case in detail.” He
answered the petitioner’s questions and believed the petitioner understood the issues and
evidence in the case. Lead counsel also discussed a plea bargain with the petitioner and
stated, “I would never try a case where the [petitioner] wasn’t completely involved in it.”

        Lead counsel then addressed specific issues that emerged during trial after the
victim recanted her allegations of abuse. Before trial began, lead counsel was aware the
victim “made prior statements,” and he discussed the same with the petitioner and local
counsel. He “remember[ed] discussing specifically the fact that [the victim] . . . was
going to deny that [the petitioner] did anything.” He explained his resulting trial strategy,
as follows:

              I put forth in front of the jury the fact that there were circumstances
       that lead (sic) [the victim] to say the things that she said. And obviously
       that argument didn’t work, but I believe that there was a motive on the
                                           - 16 -
       [victim’s] part at that time to say those things.          And there were
       circumstances that I was able to argue to the jury.

Lead counsel considered the victim’s prior statements to be recent fabrications rather than
inconsistent statements, and he deferred to the record regarding his cross-examination of
the victim about the same. Additionally, lead counsel explained he “let . . . local counsel
object on all of the issues in the case,” which included objecting to the victim’s prior
statements.

       Regarding the victim’s journals, lead counsel believed he “had” them prior to trial
but he was not sure. He remembered local counsel objecting to the admissibility of the
victim’s journals, noting “You know, I think [local counsel] objected to it. And I went
along with it, but the judge ruled the other way. And I personally I -- on reflection, I can
see why he did.” Regarding the admission of the victim’s forensic interview at trial, lead
counsel again stated he “didn’t do the objection.” After discussing the issue with local
counsel, however, they agreed on a strategy wherein “it was better for the [victim] to
come in and deny that it happened. And I think there were many motives that were
brought out before the jury why she did that.” Lead counsel did not recall the evidentiary
issues surrounding the admissibility of the victim’s testimony from a juvenile neglect
hearing.

        During cross-examination, lead counsel stated he appeared on behalf of the
petitioner at least once prior to trial though he did not remember if he attended a May 3,
2013 hearing on a motion to continue the petitioner’s trial, and he did not remember
sending a letter about a conflict in his schedule regarding the same. Lead counsel
confirmed he cross-examined all witnesses during trial but deferred to local counsel
regarding all evidentiary objections though he did “look[] over the Tennessee rules” prior
to trial. Lead counsel did not remember when the forensic interview or juvenile neglect
hearings occurred. He did not recall objecting to the entry of the victim’s journals or
going to the property room to review them before trial but acknowledged the record
reflected that he had not reviewed all of the journal entries prior to trial. Lead counsel
did not remember the dates of the journal entries, the substance of the journal entries read
into the record at trial, and only “[v]aguely remember[ed]” the victim’s boyfriend had
possession of the journals before turning them over to the State. He again stated local
counsel handled the objections concerning the entry of the journal entries as substantive
evidence at trial.

       Lead counsel classified the particular facts of the case, wherein the victim recanted
the accusations against the petitioner, “as a little rare” and also acknowledged it was
“unusual” for the State to use prior inconsistent statements to impeach the victim during
trial. Lead counsel did not file any pre-trial motions to exclude the victim’s prior
                                           - 17 -
statements, and he did not recall whether he considered filing a pre-trial motion to
exclude the journal entries.

       Local counsel testified he was retained by the petitioner prior to trial. However,
after he urged the petitioner to take a plea deal, the petitioner hired lead counsel who took
over the case. Prior to lead counsel’s hiring, local counsel represented the petitioner
during “a full dependant/neglect trial.” As such, local counsel “was well aware of all of
the facts and had pretty much prepared the trial except for the last minute stuff you do
before [lead counsel] came in.”

        Local and lead counsel maintained a “cordial” relationship as they prepared for
trial. The two “had telephone conferences” and had “an in-depth conversation” wherein
they discussed “the evidence, the problems in this case, what the theory would be,” and
“whether or not the victim was going to testify.” Prior to trial, local counsel “didn’t have
a real clear certainty in my mind at that point whether [the victim] was going to deny or
not” whereas lead counsel “felt [the victim] was going to deny” her allegations during her
testimony.

       During trial, local counsel handled all objections, but pre-trial motions and
strategy ultimately fell to lead counsel. Local counsel stated no pre-trial motions were
filed to challenge the State’s evidence, including the victim’s journals, the victim’s
forensic interview, the victim’s testimony from the neglect hearing, Mr. Wilson’s
testimony, or Ms. White’s testimony. He did not recall the testimony of Mr. Wilson or
Ms. White or his objection, or lack thereof, to the same during trial. Local counsel
admitted he did not object to the introduction of the victim’s testimony from the neglect
hearing into evidence.

       Regarding the victim’s journals and counsel’s review of the same, local counsel
stated he had “at least what [he] believed was probably the most damaging portions” of
the journal entries prior to trial. He disagreed with lead counsel’s testimony on this issue,
stating “I don’t remember what we didn’t get, if anything, before trial or by trial.”
However, local counsel also did not “have a memory of going down and looking at [the
journals], so if I said I did not, then I did not.” He acknowledged the record reflected that
lead counsel made a motion during trial to exclude the victim’s journals. Regarding the
“crucial” nature of the victim’s journals, local counsel stated “I can’t give a simple yes or
no answer to that because it depends on what -- how you are defining crucial. Could they
have won the case without them, yes.. . . It did strengthen their case.”

      Local counsel filed a motion for new trial on behalf of the petitioner, a copy of
which was entered into evidence. Within the motion, local counsel did not address lead
counsel’s motion to exclude the victim’s journals as a discovery violation during trial. In
                                           - 18 -
reviewing this Court’s opinion on direct appeal as to local counsel’s objection to the
admissibility of the victim’s forensic interview during trial, local counsel acknowledged
this Court stated he should have objected to the introduction of the evidence as
cumulative rather than as a violation of the confrontation clause. Local counsel,
however, maintained his objection was “legitimate.”

      During cross-examination, local counsel stated he met with the petitioner
numerous times, noting the petitioner “was one of those clients that was more active than
most. He would call routinely, he would stop into the office. We had a lot of
communication.” Local counsel was comfortable with the petitioner’s understanding of
the case, but “was not comfortable with [the petitioner’s] understanding of [how]
damaging certain pieces of evidence were and we had in my view little to no chan[c]e to
win.” Despite local counsel’s advice, the petitioner chose to go to trial.

       Local counsel again clarified he “was barred as lead counsel well before the trial.”
As such, he did not prepare any pre-trial motions regarding the possible recantation of the
victim because he was unsure if the victim would recant at all. Rather, when the victim
recanted at trial, local counsel began considering how to combat the prior inconsistent
statements and strategically chose to avoid repeating the victim’s prior statements by not
repeatedly objecting or requesting limiting instructions regarding the same. According to
local counsel, “it just wasn’t going to change the landscape. It was not going to change
the fact that the jury heard these statements. It was just going to draw more attention to
them.”

       However, local counsel did object to the introduction of the victim’s forensic
interview. When the trial court ruled against the objection, he and lead counsel decided
the best course of action would be to play the entire interview, rather than only playing
portions of it. Local counsel explained their strategy, as follows:

             Because we -- and I can’t refer to the specific statements five years
      later because I haven’t reviewed the entire case, I haven’t reviewed the
      forensic interview. But I do have a clear memory of just talking over with
      [lead counsel] and making the clear decision in my mind that if the State
      was pulling out the damaging parts of the forensic interview. We felt that
      there were parts of the forensic interview that were -- if not outright helpful,
      just put somethings (sic) in more context. Because again, five years later
      and without having looked at the forensic interview, I don’t recall if it was
      her demeanor and attitude that she had against her father or whether she
      made specific statements to -- that mitigated or made it -- I don’t recall
      what it was. But I certainly felt that it was better for the defense to have --

                                           - 19 -
       if the bad parts of the interview were coming in, that the rest needed to
       come in because it -- I felt that was going to help us.

        Local counsel did not recall any discussions about requesting limiting jury
instructions as to the victim’s forensic interview, her testimony from the neglect hearings,
or her journals. He explained:

             And I think I probably in thinking about it, probably for half a
       minute thought about asking for a special instruction so that, you know,
       maybe if that would have not come in, we could have moved for a
       judgment of acquittal because if she recanted, and then there is no other
       evidence could we move for a judgment of acquittal.

              But you know, as has not been discussed here yet, when that
       controlled phone call was made with [the petitioner]. I mean, that was
       definitely coming in. And that was clearly enough for [the] State to
       overcome a judgment of acquittal, so I just didn’t see any upside to either
       objecting or asking for special instructions.

               Now, would it have been maybe better or perfect practice for one of
       us, [lead counsel] or myself, to file some pretrial motions to try to whittle
       these other statements down, probably. But given the total landscape with
       all of the evidence, I don’t think it would have made a difference in the
       verdict.

       Local counsel did not dispute the motion to continue but also could not provide
additional details surrounding the reason behind the same. He recalled having to “track
down [lead counsel]” during the motion hearing and noted the case was ultimately
continued. Finally, local counsel did not remember anything concerning the absence of a
sexual evaluation in the presentence report of the petitioner.

       During redirect examination, local counsel explained he had approximately “48
hours notice that [the victim] was probably going to recant. So I had that much time to
think about it at least.” Local counsel admitted he did not consider the prior inconsistent
statements’ inadmissibility under Tennessee Rules of Evidence Rule 613(b) as
cumulative, extrinsic evidence after the victim admitted to making the prior statements
during trial. Local counsel stated he did not

              have a specific memory of [the victim] testifying and saying, yes, I
       said this to this person or that to that person. I’m confident it happened just

                                           - 20 -
       from my general recollection about the case, but I don’t remember what she
       said as to each prior statement as far as admitting that she made that.

        The petitioner then testified, stating he hired a jury consultant after local counsel
expressed “he didn’t believe he could convince a jury” and encouraged the petitioner to
take a plea bargain. The petitioner then hired lead counsel on the recommendation of the
jury consultant and the strength of lead counsel’s online resume. Prior to lead counsel
joining the defense team, the petitioner and local counsel went over the charges, but the
petitioner stated they did not really discuss “the facts behind them.” Though the
petitioner no longer trusted local counsel prior to trial, he remained on the case with lead
counsel. The petitioner met with lead counsel twice, “[t]he day that we were supposed to
have a trial and didn’t, and then the day when the trial actually happened.” The petitioner
explained on the original trial date, he flew family in from Texas and Colorado, flew the
jury consultant in from California, and flew lead counsel in from New York. However,
the case did not go to trial that date, but the petitioner was “not entirely sure” why. As a
result, the jury consultant was not able to make the new trial date and the petitioner only
had his wife, lead counsel, and local counsel with him during the same.

       Before trial began, the petitioner learned the victim might recant her allegations
against him. According to the petitioner, the victim tried to approach him at church but
he did not engage with her. Instead, the victim got lead counsel’s telephone number from
the petitioner’s aunt and contacted lead counsel herself. The petitioner, however, did not
know when lead counsel learned the victim would likely recant at trial, noting the issue
“really wasn’t discussed with [him].” The petitioner and lead counsel discussed the
victim’s potential recantation “[n]ot in specific terms, only in generalities of if this
happened, if that happened, that is as far as that went.”

       The petitioner and lead counsel had “[n]umerous phone calls,” and the petitioner
provided lead counsel with “everything [he] had” in support of his defense. The two also
discussed whether the petitioner should testify or not at trial. The petitioner stated lead
counsel “said that [local counsel] recommended that I not [testify] and [lead counsel] was
going to stick with what [local counsel] said, and he said no.” The petitioner and lead
counsel did not discuss anything further in regards to his decision, and the petitioner
stated neither local nor lead counsel would discuss “what kind of questions to expect if he
did” testify or provide “instructions on how to testify.” The petitioner acknowledged his
participation in a colloquy during trial wherein he stated it was his decision not to testify.
The petitioner stated his trial testimony would have helped his case in that:

              I could have explained that phone call. There is a lot of back story
       behind that that nobody else really offered. I could have explained the
       relationship with my daughter and what was going on. I could have
                                            - 21 -
       explained the moral position of me and my wife as far as my daughter’s
       behavior. Everything that lead (sic) up to that, I could have -- I could have
       brought a lot to that.

       Regarding the victim’s journals, the petitioner understood the victim “admitted to
having fabricating them and even explained how.” To that end, the petitioner stated he
found “a stack of blank notebooks and a box of different colored pens” in the victim’s
room which the petitioner believed to be the materials used by the victim to fabricate her
journal entries. He gave local counsel the materials, but they were not presented at trial.
Regarding the journals in the State’s possession, the petitioner stated local counsel “had
maybe four or five pages that were photocopied out, but beyond that” local counsel did
not review the content of the journals further.

       Finally, the petitioner stated appellate counsel told him he could not amend the
motion for new trial because the notice of appeal had already been filed despite local
counsel ensuring it could be amended. The petitioner stated local counsel “told me three
times that issues that I wanted on that could be amended -- they could be added by the
next guy was his quote.” The petitioner listed the issues not presented in the motion for
new trial, including “[t]he admission of the forensic interview, the journals. I’m trying to
remember. There were four or five that I felt should have been added on and [local
counsel] just similarly would not add them. He said the next guy would amend it is the
word he used was amend.” After filing the motion for new trial, local counsel withdrew
from the petitioner’s case. Lead counsel withdrew prior to the filing of the motion for
new trial.

       During cross-examination, the petitioner stated he did not travel to New York to
meet with lead counsel. Instead, they met when lead counsel traveled to Nashville. The
petitioner did not consider the potential difficulty in meeting with an out-of-state attorney
prior to trial but noted he talked to lead counsel on the telephone “[n]umerous times.”
The petitioner told lead counsel “[a]s much as [he] knew” about the charges against him
despite not having “a list with details on it” as requested by lead counsel.

       The petitioner further addressed the evidence produced against him at trial. He
believed the substance of the juvenile court hearings were “general mostly” and, in his
opinion, “lies.” The petitioner acknowledged the recorded telephone call between him
and the victim was discussed during the juvenile neglect hearings which addressed the
victim’s accusations that the petitioner touched her breasts and buttocks, took naked naps
and showers with the victim, checked the victim’s virginity by touching her vagina, and
touched the victim’s vagina while having an erection. As such, the petitioner admitted he
was aware of the victim’s specific allegations of abuse but stated he “knew it wasn’t
true.” The petitioner sent lead counsel transcripts of the juvenile neglect hearings after
                                           - 22 -
which they had “lots” of discussions about the same, and the petitioner provided lead
counsel with his version of the story. The petitioner was comfortable lead counsel
understood his position regarding the allegations and the evidence in the case prior to
trial. “More important to [the petitioner] was that [lead counsel] believed [him].” The
petitioner stated he communicated with counsel during trial, heard the victim recant, and
chose not to testify.

       On the Friday before trial, the petitioner met with lead counsel at his hotel in
Nashville. The petitioner began “to have some doubts” about lead counsel because “[h]e
said he didn’t remember a lot of stuff, . . . and eventually he chased me out of the room.”
The petitioner relayed his insecurities about lead counsel to his wife, not local counsel.
The petitioner repeated, “I did not trust [local counsel] one bit by that time.” The
petitioner did not inform the trial court about his issues with counsel, explaining:

              Ma’am, I’m not a lawyer, I don’t know what I could have done at
       that point. The trial was here, I had [local counsel] I didn’t trust; I had
       [lead counsel] that I was beginning to have doubts about. What was I
       supposed to do? . . . They had already postponed this numerous times
       because I was trying to get counsel together. I really didn’t expect them to
       say well, okay, let’s go ahead and put this off another year.

The petitioner did not remember the terms of the plea offer but stated “I didn’t want to
plead guilty to something that I had not done.”

       During redirect examination, the petitioner stated lead counsel did not ask the
petitioner to come to New York to discuss the case prior to trial and lead counsel did not
review the juvenile neglect transcripts with him prior to trial. The petitioner believed he
provided counsel with all of the information he could about the evidence against him, but
he did not know counsel failed to review the entirety of the victim’s journals.
Throughout the trial, the petitioner became concerned that lead counsel was suffering
from “[m]emory loss.” After learning lead counsel’s father suffered from dementia, the
petitioner “finally went awe, I see. He’s having trouble with memory because it runs in
his family. I’m not a doctor, so I can’t back that up. That’s just a connection that I made
that kind of helped explain why he was as forgetful as he was.” The petitioner stated he
learned through his direct appeal that counsel made the incorrect objection regarding the
admissibility of the forensic interview at trial.

         Finally, at the request of the post-conviction court, the petitioner provided a
description as to how he would have explained his actions with the victim had he testified
at trial:

                                          - 23 -
[The post-conviction court]: And just so I can try to evaluate as the law
requires me to, you raised about wishing you had testified but they didn’t
prepare you and didn’t do anything, and I don’t know exactly what the
record says about all of that hearing at the time, but just so I can get a
general understanding of how that decision not to testify might compare to
what you would have told the jury. Because you said earlier that you
would have testified and explained a phone call and what your daughter had
said at juvenile, so my question is this: How would you have explained and
knowing that you would have been cross-examined by the State about all of
this? The phone call discusses your statement of, at times it went a bit too
far, you talk about naked naps. You talk about every time you were around
her, I’m using your words, hard-ons.

...

And you couldn’t help it. You checking her hymen multiple times and it
had a little nick in it. And that her vagina, using your words again, was a
little big, just generally -- and that’s just a few of the things, what would
you have told the jury about all of that?

[The petitioner]: First of all, she made two very disturbing accusations.

[The post-conviction court]: I’m talking about, these are your statements.

[The petitioner]: Right. Right. Hold on.

[The post-conviction court]: Okay.

[The petitioner]: And having made those accusations didn’t make any
sense, they were confusing. I didn’t understand what she was saying, so I
recounted the three most embarrassing events and all of the three
embarrassing events that could have possibly come to those kind of events
and none of them contained it. And I have talk to her previously about
these things. Nothing that I said to her wasn’t what I had said before. And
they were all fabricated to manipulate my daughter.

[The post-conviction court]: I’m not talking about any fabrication, I’m
talking about your statements.

[The petitioner]: Yes, sir. Yes, sir. Parents -- parents –

                                     - 24 -
[The post-conviction court]: You would have been asked by the State, what
did you mean, [], when you said on the phone conversation that you went a
little bit too far? And why did you, [], on the phone call say that you were
checking her hymen to see if she was still a virgin?

[The petitioner]: I will tell you what, we will go with the hymen one.

[The post-conviction court]: Okay.

[The petitioner]: Okay. Parents sometimes lie to their children.

[The post-conviction court]: About Santa Clause, yeah, I get that.

[The petitioner]: I had had a very rebellious child. She did not respect my
authority or my instruction. She was very flirty, she was -- she behaved in
a promiscuous matter.

[The post-conviction court]: The jury over there is already looking kind of
suspect on you.

[The petitioner]: Hold on.

[The post-conviction court]: Okay. Go ahead.

[The petitioner]: Anything that I could tell her that would give her that
doubt, that moment of hesitation in which she can make a decision not to
have sex would be in my opinion a good thing. Me and my wife, we have -
- we hold to the purity values. I’m trying to think of a good way to say this
that’s not -- my wife and I were both virgins when we got married. It’s
important to us. [The victim] was not getting it. So anything that I could
do to give her that hesitation, that moment of pause, anything that I could
get her to stop behaving in a way that would make other teenage boys
believe she was coming on to them, anything that I could do to prevent that.

[The post-conviction court]: And how does that have to do anything with
checking her vagina?

[The petitioner]: Sir, I walked into the room for about three seconds, I
looked, I said huh. I left the room, I told her it was thick and beefy and was
really going to hurt the first time she had sex. It was really going to hurt a
lot and it was going to bleed a lot.
                                     - 25 -
[The post-conviction court]: So –

[The petitioner]: If I was going to try to do that, why would I –

[The post-conviction court]: You checked it.

[The petitioner]: I looked and then I walked out of the room. I was fully
clothed I could --

[The post-conviction court]: And the naked naps and the I got an erection
every time; what is the jury going to think of that?

[The petitioner]: Well, there was only one. It was an accident, it was a
mistake. I work third shift at UPS. I had to get sleep sometimes, I did take
naps during the day. It was June, we had a hydration program. I drank a
lot of water and I had a problem with erectile disfunction (sic) and I was
took some medication that was given to me by a doctor. I didn’t expect to
wake up with one. It was embarrassing. I was ashamed. I had one.

[The post-conviction court]: So you would have had to acknowledge that
you took naked naps with your daughter?

[The petitioner]: I took a nap -- I was, she wasn’t. I was under the sheets,
she wasn’t. I did wake up with an erection. It was embarrassing. I didn’t
know what to do about it. She left the room, gave me some time to work
out what to do about it.

[The post-conviction court]: But then they would ask you about on page
three of the phone call what you meant by you agree you took liberties with
your daughter that were questionable.

[The petitioner]: When she was cutting -- when I found that she had been
cutting and I went into the bathroom and examined her after she got out of
shower, that’s the naked shower part. She was naked, I wasn’t. I saw her.

[The post-conviction court]: So that’s what you are talking about it was
your sin, not her’s (sic)?

[The petitioner]: Yeah, I was not comfortable with it. I didn’t feel good
about it. I was embarrassed about it. But yeah, I did it.
                                    - 26 -
       [The post-conviction court]: And you think that would have been a good
       thing to express from your perspective to [the] jury?

       [The petitioner]: It would have been better than not I’m saying.

       ...

       I almost wish you could have a Bible and I could put my hand up here and
       say I didn’t do that.

       After its review of the evidence presented, the post-conviction court denied the
petition, finding the petitioner failed to carry his burden of proof to show the ineffective
assistance of trial counsel. The petitioner timely appealed.

                                         Analysis

        On appeal, the petitioner asserts the outcome of his trial would have been different
absent the deficiencies of trial counsel. The petitioner bears the burden of proving his
post-conviction factual allegations by clear and convincing evidence. See Tenn. Code
Ann. § 40-30-110(f). The findings of fact established at a post-conviction evidentiary
hearing are conclusive on appeal unless the evidence preponderates against them. See
Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). This Court will not reweigh or
reevaluate evidence of purely factual issues. See Henley v. State, 960 S.W.2d 572, 578
(Tenn. 1997). However, appellate review of a trial court’s application of the law to the
facts 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 presents mixed questions
of fact and law. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court
reviews the petitioner’s post-conviction allegations de novo, affording a presumption of
correctness only to the post-conviction court’s findings of fact. See id.; Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. 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 standard for determining ineffective assistance of counsel applied in federal cases is
also applied 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
                                           - 27 -
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
       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. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.;
see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).

         I.   The Victim’s Prior Statements
       The petitioner argues trial counsel were deficient in their handling of the
admissibility of the victim’s prior statements, including her forensic interview and her
testimony from the neglect hearing, at trial. Specifically, the petitioner asserts trial
counsel failed to properly object to the introduction of the victim’s forensic interview and
testimony from the neglect hearing as cumulative evidence under Tennessee Rule of
Evidence 613(b). The petitioner also asserts trial counsel erred in conceding the
testimony from the neglect hearing was admissible as impeachment evidence. Finally,
the petitioner argues trial counsel were deficient by failing to file pretrial motions to limit
the introduction of the victim’s prior statements. The State contends trial counsel’s
strategy concerning the victim’s prior statements was “appropriate under the
circumstances.” Upon our review of the record, it is clear the petitioner cannot show


                                            - 28 -
prejudice resulting from trial counsel’s handling of the victim’s prior statements and he is
not entitled to relief.

        At the post-conviction hearing, both lead and local counsel testified they engaged
in significant communication with the petitioner during which the petitioner provided
explanations for his behavior as alleged by the victim. Additionally, trial counsel and the
petitioner reviewed the victim’s prior statements made in the forensic interview, the
neglect hearings, and portions of her journals. After the discussions, trial counsel and the
petitioner pursued a trial strategy wherein they would demonstrate the victim’s motives in
alleging abuse against the petitioner. Though lead counsel and the petitioner suspected
the victim might recant her allegations of abuse during trial, local counsel was unsure of
the same. As a result, local counsel did not address the victim’s potential recantation
until it occurred during trial. When the victim recanted and the State introduced the
victim’s forensic interview into evidence, local counsel objected to the introduction of it.
The trial court, however, overruled the objection. The record shows local counsel then
made a strategic decision not to draw unnecessary attention to any of the victim’s prior
statements wherein she accused the petitioner of sexual abuse. To that end, local counsel
did not continue to object to or request jury instructions regarding the introduction of the
prior statements.       “The fact that a particular strategy or tactical decision
failed does not by itself establish deficiency.” Nesbit v. State, 452 S.W.3d 779, 796
(Tenn. 2014) (citing Goad, 938 S.W.2d at 369). Accordingly, the petitioner has failed to
demonstrate trial counsel’s defense strategy was unreasonable, fell below professional
norms, or that it prejudiced the outcome of his case. Goad, 938 S.W.2d at 369 (citing
Strickland, 466 U.S. at 687, 688; Baxter, 523 S.W.2d at 936).

        Additionally, the record makes clear the victim alleged sexual abuse against the
petitioner, and the petitioner confirmed portions of the same during a controlled
telephone call with the victim. At trial, the victim recanted some of her allegations but
did not deny making the prior allegations of abuse against the petitioner. The defense
attempted to highlight portions of the victim’s varying stories in an effort to demonstrate
their theory of the case, that the victim was motivated to allege abuse against the
petitioner in the past. The jury, however, ultimately rejected the defense theory and
nothing in the record suggests the outcome of the petitioner’s trial would have been
different had trial counsel pursued a different objection to or a limiting jury instruction on
the victim’s prior statements. Strickland, 466 U.S. at 694. The petitioner is not entitled
to relief.

        II.   Reviewing the Victim’s Journals
      The petitioner next argues trial counsel failed to fully investigate his case by not
reviewing all of the victim’s journals prior to trial. The State asserts trial counsel’s

                                            - 29 -
investigation into the victim’s journals “was satisfactory under the circumstances,” and
we agree. In reviewing this issue, the post-conviction court determined trial counsel were
not deficient in failing to review the entirety of the victim’s journals prior to trial because
“[u]ntil [the victim] recanted, neither the State nor the defense team expected those
journals to be a part of the proof against the [p]etitioner.” As such, the post-conviction
court found “it is within the range of competency for an attorney preparing for trial to not
invest a significant amount of his or her necessarily limited time and energy reviewing
voluminous journal entries that neither party expected to contain additional relevant
evidence or to be a portion of the State’s case against the [p]etitioner.” The post-
conviction court further held the petitioner failed to show he was prejudiced by trial
counsel’s failure to review the entirety of the journals because lead counsel “swiftly
incorporated many of the new journal entries as supportive of the defense’s theory of the
case that [the victim] had recently fabricated the allegations.”

        Upon our review of the issue, we agree with the post-conviction court. At the
evidentiary hearing, local counsel stated he reviewed “the most damaging portions” of
the victim’s journal entries prior to trial and lead counsel believed he did the same.
Though neither counsel remembered reviewing the entirety of the journal entries in the
property room prior to trial, the record indicates trial counsel were aware of the victim’s
prior statements and prepared the defense of the petitioner accordingly. As noted above,
both lead and local counsel testified they engaged in thorough communications with the
petitioner and learned his explanations for the allegations of abuse. After doing so, trial
counsel made the strategic decision to present a defense wherein they attempted to
identify the victim’s motives for making false allegations against the petitioner. Though
the jury did not agree with the defense theory, nothing in the record indicates trial counsel
were deficient by failing to review the entirety of the victim’s journals. Rather, the
record shows trial counsel were aware of the victim’s prior statements, including the ones
made in the journals, which they used to support their defense theory. Though the
petitioner argues a more thorough investigation into the victim’s journals would have
changed the outcome of his trial, we are not persuaded. The entire defense strategy relied
on the theory that the victim fabricated the allegations against the petitioner, and trial
counsel utilized the victim’s journals to that end. The petitioner is not entitled to relief.

        Similarly, the petitioner asserts trial counsel were ineffective for not putting forth
evidence of the blank journals the petitioner found in the victim’s room as corroborating
evidence of the victim’s “trial testimony of a scheme to fabricate journal entries.” As to
this issue, the post-conviction court stated: “There is absolutely nothing unusual about the
fact that a teenage girl, who regularly journaled, would have additional blank journals in
her room. Thus, the [c]ourt finds that the [p]etitioner was not prejudiced in this respect
by trial counsel’s failure to review all of the journals.” Again, we agree. Nothing in the
record demonstrates trial counsel’s strategy regarding the victim’s journals was not
                                            - 30 -
sound, and the petitioner has failed to show that trial counsel’s strategy regarding their
review of the journals amounted to deficient performance. Strickland, 466 U.S. at 689;
see Tenn. Code Ann. § 40-30-110 (f); Goad, 938 S.W.2d at 369. The petitioner is not
entitled to relief.

       III.   Right to Testify
       Finally, the petitioner argues trial counsel was ineffective for failing to adequately
consult with him regarding his right to testify, arguing “he had a lot to offer his defense
had he taken the witness stand during trial.” In reviewing this issue, the post-conviction
court found “the case was presented according to the [p]etitioner’s wishes and that he was
extensively involved in all such decisions.” Our review of the record reflects that of the
post-conviction court.

        As explained at the post-conviction hearing, after preparing the petitioner’s case
for trial, local counsel advised the petitioner not to testify. Lead counsel agreed and
advised the petitioner of the same. The petitioner stated he decided not to testify after
hearing the victim recant at trial and discussing the same with trial counsel. After doing
so, the petitioner engaged in a Momon colloquy and relinquished his right to testify.
Trial counsel explained, and it is evident in the record, the petitioner was very involved in
the preparation of his defense, and he communicated freely with trial counsel throughout
their representation. The post-conviction court accredited trial counsel’s testimony, and
nothing in the record preponderates against its factual findings. See Tidwell v. State, 922
S.W.2d 497, 500 (Tenn. 1996). Therefore, in reviewing the record as a whole, it is clear
the petitioner waived his right to testify after discussing his options with trial counsel.
Further, the record indicates the petitioner engaged in a Momon hearing during which he
affirmed he understood his options regarding his right to testify and waived the same.
Momon v. State, 18 S.W.3d 152, 163 (Tenn. 1999). The petitioner is not entitled to relief.

        At the post-conviction hearing, the petitioner offered his explanation of the
allegations against him which he would have testified to at trial. However, in doing so,
the petitioner admitted to touching the victim’s hymen, to taking “naked naps” with the
victim, and to having an erection during a nap with the victim. Though the petitioner
believes he could have justified his actions by explaining his “purity” beliefs to the jury,
we are not convinced. As noted by the post-conviction court, “the State’s case was very
strong” against the petitioner, and the petitioner’s proposed trial testimony would not
have overcome the overwhelming amount of evidence presented by the State which
included the petitioner’s own admissions to the abuse of the victim. The petitioner is not
entitled to relief as to this issue.



                                           - 31 -
                                    Conclusion

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




                                         ____________________________________
                                         J. ROSS DYER, JUDGE




                                       - 32 -
