           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                            DECEMBER 1999 SESSION
                                                              FILED
                                                              February 10, 2000
                                                          Cecil Crowson, Jr.
                                                         Appellate Court Clerk
JOHN MALCOLM JOHNSON,               *      C.C.A. No. W1999-00679-CCA-R3-PC

              Appellant,            *      TIPTON COUNTY

VS.                                 *      Joseph H. Walker, III, Judge
STATE OF TENNESSEE,                 *      (Post-Conviction Relief)

              Appellee.             *



FOR THE APPELLANT:                         FOR THE APPELLEE:

FRANK DESLAURIERS                          PAUL G. SUMMERS
P. O. Box 1156                             Attorney General & Reporter
Covington, TN 38019
                                           KIM R. HELPER
                                           Assistant Attorney General
                                           425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           ELIZABETH T. RICE
                                           District Attorney General

                                           DEBORAH ALSUP
                                           Assistant District Attorney
                                           P. O. Box 790
                                           Somerville, TN 38068-0790




OPINION FILED: _______________

       AFFIRMED
JOHN EVERETT WILLIAMS,
Judge



                                        OPINION


                                  INTRODUCTION


       The petitioner, John Malcolm Johnson, appeals from the trial court’s order,

entered after a hearing, denying his petition for post-conviction relief. The petitioner

was convicted of one count of rape of a child by a Tipton County jury. He was
sentenced as a Range I Offender to 15 years in the Department of Correction. On

direct appeal, his conviction was affirmed. At post-conviction, he now argues that

he received ineffective assistance of counsel at trial and therefore seeks a new trial.
After careful review, we AFFIRM the denial of the trial court.


                                      BACKGROUND


       For the purposes of this appeal, we set forth the facts as outlined by the
petitioner. On the morning of November 9, 1996, the petitioner’s wife saw her 11

year old daughter “straddling” her nude husband in the living room of their house.

She was “straddling” the petitioner’s feet and was not wearing underwear. The
petitioner’s penis was partially erect and, according to the wife, “looked like [it] had

slipped out of her.”



       Investigating the wife’s report, Officer Gamblin of the Covington Police

Department questioned the petitioner on November 11, 1996. The petitioner during

this questioning admitted to being with his daughter on the couch undressed but

denied any act of penetration.



       The petitioner’s wife and the victim gave statements to the police; their

statements were inconsistent with those of the petitioner. At trial, the daughter

testified that the petitioner’s penis was “a little bit” inside her vagina. On the basis
of her testimony, that of the wife, and certain admissions of the petitioner, the jury

convicted the petitioner of one count of rape of a child.



       In the instant appeal, the petitioner argues that at this trial, his counsel was

ineffective in failing to call a certain witness, Nurse Sandra Anderson of the

Memphis Sexual Assault Resource Center.             Anderson examined the victim

approximately two days after the incident. She found evidence of tears in the
victim’s hymenal lumen, consistent with some form of penetration. When taking the

daughter’s history, Anderson noted that according to the mother, the daughter had

stated that the petitioner digitally penetrated her and did not mention his penis.




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       Anderson, however, did not testify at trial.        Defense counsel failed to

subpoena her; instead, counsel was relying on the state’s subpoena of Anderson.

This reliance proved misplaced when the state released Anderson without having
called her. On this basis, the petitioner alleged ineffective assistance of counsel at

post-conviction.



       The post-conviction court conducted a hearing on this claim and heard the

testimony of Anderson, consistent with that described above, and the testimony of

the petitioner’s trial counsel, David Stockton. Counsel testified that Anderson’s
testimony would have been crucial in impeaching the testimony and credibility of the

daughter.



       After hearing this testimony, the trial court denied the petition, stating that the

proof was clear and convincing that “trial counsel properly investigated the case,

conferred with petitioner, adequately prepared for trial, and was competent through

all stages of the trial.” From this ruling, the petitioner now appeals.


                                          ANALYSIS


       The petitioner asserts that he received ineffective assistance at trial;

specifically, he alleges that trial counsel was ineffective in failing to subpoena and

call Nurse Anderson. This Court reviews a claim of ineffective assistance of
counsel under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). The petitioner has

the burden to prove that (1) the attorney’s performance was deficient, and (2) the
deficient performance resulted in prejudice to the petitioner so as to deprive him of

a fair trial. See Strickland at 687, 104 S.Ct. at 2064; Goad v. State, 938 S.W.2d

363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v.

State, 789 S.W.2d 898, 899 (Tenn. 1990).


       In Tennessee, the test for determining whether counsel provided effective

assistance is whether his performance was within the range of competence
demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. The

petitioner must overcome the presumption that counsel’s conduct falls within the


                                           -3-
wide range of acceptable professional assistance.        Strickland, 466 U.S. at 689,

104 S.Ct. at 2065; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998);

Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim. App. 1997). Therefore, in order
to prove a deficiency, a petitioner must show that counsel’s acts or omissions were

so serious as to fall below an objective standard of reasonableness under prevailing

professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; Henley v. State,

960 S.W.2d 572, 579 (Tenn. 1997); Goad, 938 S.W.2d at 369.



       In reviewing counsel’s conduct, a “fair assessment . . . requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

The fact that a particular strategy or tactic failed or hurt the defense does not,

standing alone, establish unreasonable representation. However, deference to

matters of strategy and tactical choices applies only if the choices are informed

ones based upon adequate preparation. See Goad, 938 S.W.2d at 369; Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982); Alley, 958 S.W.2d at 149; Cooper v. State,

847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).



       Assuming arguendo that trial counsel’s failure to subpoena a “crucial” witness
was ineffective, we review for prejudice. In this case, the petitioner’s theory is that

the testimony of Anderson, while consistent with reports of penetration and

consistent with the convicted offense,1” would nevertheless have proven powerful
in undermining the credibility of the victim and thus in casting doubt in the minds of

the jurors.” This Court acknowledges that the credibility of the victim is an essential

element of this case; however, we are unpersuaded by the petitioner’s argument
and find no prejudice sufficient for reversal.



       Read in any light, Anderson’s testimony is consistent with the state’s theory

of the case. She testified to evidence of penetration, and Anderson’s recorded
history reports that such penetration was caused by the petitioner. The fact that

digital, and not penile, penetration was reported in her notes is not cause for


       1
           See Tenn. Code A nn. § 39-13-522, -501(7).

                                               -4-
disbelieving the testimony of the victim. However, beyond this one discrepancy, the

petitioner can claim no value in Anderson’s testimony. In fact, Anderson’s notes do

reflect that the victim’s mother said that it looked like her husband was having sex
with the victim. Whatever the case, her testimony, taken as a whole, clearly

supports the state’s case. Whatever impeachment value the petitioner perceives

therein is, at best, minimal and certainly does not rise to the level contemplated by
Strickland and required for reversal.


                                  CONCLUSION


       Accordingly, we AFFIRM the trial court’s order denying the petition for post-
conviction relief.




                                          _______________________________
                                          JOHN EVERETT W ILLIAMS, Judge


CONCUR:




_______________________________
GARY R. WADE, Presiding Judge




_______________________________
NORMA McGEE OGLE, Judge




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