              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE


DANIEL J. HARMON,
                               AT NASHVILLE

                                              )
                                                                    FILED
                                              )
                                                                   April 27, 1998
       Appellant,                             )   C.C.A. NO. 01C01-9708-CR-00378
                                              )   (No. 93C-1083 Below)
                                                                 Cecil W. Crowson
VS.                                           )
                                                                Appellate Court Clerk
                                              )   DAVIDSON COUNTY
STATE OF TENNESSEE,                           )
                                              )   The Hon. Cheryl Blackburn
       Appellee.                              )
                                              )   (Denial of Post-Conviction Relief)
                                              )   AFFIRMED PURSUANT TO RULE 20

                                        ORDER

              This matter is before the Court upon the state’s motion requesting that the

judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of

Criminal Appeals Rules. Finding that the trial court properly denied post-conviction relief,

we grant the state’s motion to affirm the judgment pursuant to Rule 20.



              The petitioner was charged with one count of assault, two counts of

aggravated kidnapping, one count of aggravated rape, and one count of harassment. A

jury convicted him of rape, assault, and aggravated kidnapping. The judgment was

affirmed by this Court. State v. Daniel Joseph Harmon, No. 01C01-9412-CR-00412 (Tenn.

Crim. App., at Nashville, Oct. 25, 1995). In this appeal from the denial of post-conviction

relief, the petitioner contends that trial counsel was ineffective by failing to offer the

substantial defense of alibi to the aggravated kidnapping charges.          Specifically, the

petitioner argues that trial counsel should have called Gerald Mire as a witness in support

of an alibi defense to the kidnapping charges.



              In denying relief, the trial court made the following findings on this issue:



       The Court finds from the testimony of [trial counsel], Gerald Mire and Daniel
       Harmon that the decisions not to cross examine and to rely upon the consent
       theory were tactical decisions. The Court finds the testimony of [trial
       counsel] to be much more credible on this issue than the testimony of Gerald
       Mire or the petitioner.



              In seeking post-conviction relief on the basis of ineffective assistance of

counsel, a petitioner must first establish that the services rendered or the advice given was

below "the range of competence demanded of attorneys in criminal cases." Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, the petitioner must show that the

deficiencies "actually had an adverse effect on the defense." Strickland v. Washington,

466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984).



              On appeal, the findings of fact made by the post-conviction court are

conclusive and will not be disturbed unless the evidence contained in the record

preponderates against them. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App.

1991). The burden is on the petitioner to show that the evidence preponderates against

those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978), cert. denied,

441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed.2d 1050 (1979).



              Having reviewed the record in this case, the petitioner’s brief, and the state’s

motion, we find that the petitioner has failed to show that the evidence preponderates

against the trial court’s findings. Trial counsel’s decision to present a consent defense

rather than an alibi defense and to not call Gerald Mire as an alibi witness were clearly

informed strategic decisions which should not be second-guessed by this Court.



              IT IS, THEREFORE, ORDERED that the judgment of the trial court is

affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. The petitioner

being indigent, costs are taxed to the state.



              ENTER, this the ____ day of April, 1998.



                                           _____________________________
                                           THOMAS T. WOODALL, JUDGE


CONCUR:


_____________________________
JOHN H. PEAY, JUDGE


_____________________________
DAVID H. WELLES, JUDGE




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