        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs August 24, 2010

               JAMES W. VANOVER v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Knox County
                      No. 91887    Mary Beth Leibowitz, Judge




                 No. E2010-00203-CCA-R3-PC - Filed August 19, 2011


Petitioner, James W. Vanover, was convicted following a jury trial, for one count of rape of
a child, a Class A felony, and two counts of aggravated sexual battery, a Class B felony. He
was given an effective sentence of 36 years. On appeal, this Court affirmed the convictions
but remanded for resentencing. State v. James Vanover, No. E2005-01192-CCA-R3-CD,
2006 WL 521496 (Tenn. Crim. App. March 2, 2006). Upon resentencing, he was again
sentenced to serve 36 years. On appeal, this Court held that the trial court properly ordered
consecutive sentencing at the second sentencing hearing. State v. James Vanover, No.
E2006-01342-CCA-R3-CD, 2007 WL 2323386 (Tenn. Crim. App. August 15, 2007) perm.
app. denied (Tenn. July 7, 2008). Petitioner timely filed a petition for post-conviction relief,
alleging that he received ineffective assistance of counsel. Following an evidentiary hearing,
the post-conviction court denied relief, and Petitioner appeals. After review, we affirm the
judgment of the post-conviction court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and A LAN E. G LENN, J., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, James W. Vanover.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Randall E. Nichols, District Attorney General, and Kevin Allen, Assistant
District Attorney General or the appellee, the State of Tennessee.
                                         OPINION

I. Background

      In Petitioner’s original appeal from his convictions, this Court summarized the facts
forming the basis of the convictions. These facts are set forth below, with initials used where
necessary to withhold the identity of the minor victim, and with Petitioner referred to as
“defendant” as he was in the original proceedings:

       This case relates to the defendant’s unlawful sexual conduct with the victim,
       a child under the age of thirteen at the time of the offenses. At the trial,
       [T.D.W.] testified that she was the victim’s aunt. She said that she lived on
       Deaderick Road and that most of her immediate family, including the victim,
       also lived on Deaderick Road. She said she knew the defendant because he
       had been dating her sister, the victim’s mother. She said the defendant often
       would stay with the victim and her mother. She said that she was very close
       to the victim and that she spent a lot of time with her.

       [T.D.W.] testified that in October 2001, she noticed a change in the victim’s
       behavior. She said the victim was not as happy, “and she would just hang her
       head down like she [was] worried about something.” She said that she asked
       the victim if anything was wrong and that the victim began crying. She said the
       victim told her what was wrong.

       [T.D.W.] said she was present the following day at the hospital. She said she
       stayed in the room with the victim while the doctor examined her vagina. She
       said the victim was very upset and scared.

       On cross-examination, [T.D.W.] acknowledged that she never thought the
       defendant was an appropriate boyfriend for her sister. She admitted asking the
       victim on one or two other occasions if “something funny wasn’t going on
       with her[.]” [T.D.W.] denied telling a representative of the Department of
       Children’s Services that she did not trust men around the victim.

       The victim testified that she was twelve years old. She said that she called the
       defendant “dad” when he lived with her but that most people called him
       “Bug.” The victim said the defendant began touching her “private parts” when
       she was six years old. She said he would normally rub her vagina. She said
       that on many occasions, the defendant would “either put his hand down there



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under my clothes or take my hand and put it under his clothes.” She said the
defendant made her touch his penis.

The victim testified that on one occasion, she was sitting on top of the
defendant in her nightclothes when he “unbuttoned his pants, and he put his
penis into my vagina halfway but not all the way, because I got off of him, and
I said I had to go use the bathroom....” She said that after her brother moved
away from home, the abuse got worse because she was left alone more often
with the defendant. She said that she did not know how many times the
defendant touched her but that it was quite a few times. She said she thought
she touched the defendant more times than he touched her.

The victim testified that on another occasion the defendant came into the
bathroom while she was taking a shower, pulled back the shower curtain, and
said, “Let me see you.” She said she could not remember if her mother was
home but thought she was in the living room. She said that later that night, the
defendant told her if she refused to get on top of him underneath the covers,
he would kill her mother. She said the defendant stuck his penis in her vagina,
but again only halfway. She said he stopped because her mother was coming
into the adjacent room. She said the defendant’s raping her hurt. She said she
did not tell her mother because she was afraid the defendant would kill her
mother. She said she told her aunt what happened a few weeks later because
she did not want it to happen again.

The victim testified that she specifically remembered touching the defendant’s
penis while in his camper, which was parked outside their house. She said she
specifically remembered the defendant touching her vagina in his camper just
before her mother walked in with some pillows. The victim said she never told
anyone about the defendant’s touching or raping her because she was afraid he
would hurt her or her family. The victim said she was not mad at the
defendant for any other reason.

On cross-examination, the victim acknowledged that every time she went to
her aunt’s house, her aunt would ask her about the defendant and if anything
was wrong. The victim maintained that the defendant inserted his penis into
her vagina on two separate occasions. The victim admitted telling a worker
from the Department of Children’s Services that the defendant had on one
occasion tried to put his penis inside her. She explained, however, that the
discrepancy between that statement and her trial testimony was based upon her



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understanding things better as she got older. The victim admitted that she did
not bleed when the defendant put his penis inside her vagina.

Dr. Jerrod Michael Connors, a pediatric emergency physician at East
Tennessee Children’s Hospital, testified that he examined the victim. He said
that during his examination, the victim told him that her stepdad had touched
her in her private area. He read the following statement of the victim to the
jury:

       I was seven, lived in Deaderick, and [the defendant] made me
       look at his penis. When we lived on Asbury, he tried to make
       me look at his thing, did lots of times. Did not touch me; I did
       not touch him.

       Since we were at this house, we were on the way to the store and
       we went back roads. Pulled private out and asked me to see it,
       and I wouldn’t, so put it back in his pants.

       A couple of days later, I was in bedroom and listening to music.
       I think mom was asleep. He came in there and asked if he could
       see my private. I wouldn’t let him.

       A few days later he tried to hold me down. He put his private ...
       put halfway in my vagina, put in halfway and took it out. And
       then left and went downstairs. Keeps asking me to see his
       privates.

Dr. Connors said he found the victim’s hymen to be abnormal due to an
opening in the hymen. He said, however, that subsequent medical literature
suggested that the opening was not necessarily indicative that a penis or a
tampon had pierced the hymen. Dr. Connors testified that he could not be
certain whether the victim’s hymen had been pierced. On cross-examination,
Dr. Connors admitted that it was very hard to prove that a sexual penetration
did not occur. He said that when a sexual penetration would occur, the results
of a medical exam would normally be inconclusive.

The defendant testified that when he first met the victim, she was a baby. He
said he thought of the victim as a daughter based upon his relationship with the
victim’s mother. He said that he never touched the victim inappropriately, that
he never asked the victim to touch him inappropriately, and that he never raped

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       her. The defendant said he did not know why the victim was making false
       allegations against him and denied ever threatening the victim or her family.

State v. James Vanover, 2006 WL 521496, at *1-3.

II. Post-Conviction Hearing

        Petitioner testified that he was held in jail in lieu of bond between his arrest and trial.
Prior to trial, counsel came to meet with him two or three times for about an hour at each
meeting. Petitioner testified that his defense at trial was that he was innocent of the alleged
crimes. He did not recall whether trial counsel filed any pretrial motions, or whether counsel
informed him that no physical, scientific, or forensic evidence existed showing his guilt.
Petitioner could not recall exactly what trial counsel had discussed with him. Petitioner
reiterated what he had maintained at trial: that the victim’s aunt had “put [the victim] up to”
testifying against Petitioner. Petitioner advised his trial counsel of this defense, and
Petitioner believed trial counsel understood this defense. However, Petitioner testified that
trial counsel’s cross-examination of the victim and her aunt was not “good.” Petitioner did
not testify as to any specific shortcomings of trial counsel’s cross-examinations.

       Petitioner testified that trial counsel “failed to rep – represent me right,” but when
asked “why,” Petitioner testified “I don’t know.” Petitioner did clarify that while trial
counsel failed to properly cross-examine the victim and her aunt, trial counsel did prepare
Petitioner for his testimony at trial.

        On cross-examination, Petitioner agreed he maintains that trial counsel failed to cross-
examine the aunt regarding the aunt’s coercion of the victim to testify falsely and that trial
counsel failed to adequately cross-examine the victim about being coerced by the aunt to
testify falsely. Petitioner further admitted that trial counsel was appointed to represent
Petitioner only two months before trial and that even though trial counsel said he needed a
continuance of the trial to better prepare, Petitioner refused to agree to a continuance and
insisted on going to trial as scheduled. Petitioner also acknowledged that he rejected a
negotiated plea agreement offer from the State to receive an effective sentence of twelve
years. He rejected the plea offer because he maintained then and continued to maintain that
he was innocent.

       Trial counsel testified that his primary legal practice is in criminal defense, and he has
been practicing criminal law about 22 years. Trial counsel testified that he was appointed
to represent Petitioner less than two months prior to the scheduled trial date. Despite the fact
he told Petitioner that more time was needed to adequately prepare for trial and that they
should request a continuance, Petitioner refused to allow trial counsel to do so. In fact,

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Petitioner demanded to go to trial at the first opportunity. Trial counsel testified that there
was no forensic, DNA, or other physical evidence linking Petitioner to the commission of a
crime. Furthermore, before trial, counsel met with the physician who examined the victim
and testified at trial. Counsel knew from this interview that the physician “could not make
a statement to a medical certainty that [sexual abuse] had happened.”

       Trial counsel knew before the trial that an employee of the Tennessee Department of
Children’s Services had interviewed the victim. Counsel did not speak with the interviewer,
but did have the report. Trial counsel also admitted that he was probably aware prior to trial
that a prosecutor had interviewed the victim on two or three occasions. Trial counsel
indicated that he did not think it was necessary to file a pre-trial motion for a “chain hearing”
to determine if the victim’s testimony had been “shaped” by her aunt, the Department of
Children’s Services employee(s), or by a prosecutor. Trial counsel testified that he prepared
Petitioner for his testimony.

        Trial counsel agreed that the defense theory was that the aunt put the victim up to
testify falsely against Petitioner. Trial counsel acknowledged that he objected to the
physician’s testimony reciting from his examination report of details of the alleged abuse,
based upon the testimony being hearsay. The objection was overruled. Counsel confirmed
that Petitioner rejected the plea offer to serve twelve years because he maintained his
innocence. Counsel testified that he tried to get Petitioner to agree to a request for a
continuance in order to better prepare. Petitioner refused the request. Counsel pursued the
defense theory that Petitioner insisted was true: the aunt pushed the victim into making up
the allegations of criminal conduct by Petitioner.

III. Post-Conviction Court’s Ruling

        The post-conviction court took the matter under advisement after the evidentiary
hearing and subsequently filed an order denying post-conviction relief. In this order the post-
conviction court accurately summarized the testimony of the two witnesses at the hearing,
Petitioner and his trial counsel. The post-conviction court also stated on the record that the
entire transcript of the trial, a copy of which was made an exhibit at the hearing, would be
read and reviewed prior to ruling on the petition.

      The post-conviction court’s order contains the following factual findings and
conclusions of law:

              [Petitioner’s] claims regarding innocence have not been raised by any
       proof other that [sic] his statement. [Petitioner] further had counsel which met
       the obligations of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975) and Strickland

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       v. Washington, 466 U.S. 668 (1984), more than adequately, and who within
       two months mounted a defense to a case because [Petitioner] insisted on doing
       so and met with him on several occasions, as well as prepared with an
       investigator for trial. [Trial counsel] did effectively cross-examine the
       witnesses, including the child, as well as the aunt, [T.D.W.], and the case came
       down to the jury believing the child’s version of the story over that of
       [Petitioner], who cannot now recall that in fact the child was approximately
       nine years old when she testified.

               These allegations do not rise to the level of ineffective assistance of
       counsel and the constitutional rights of [Petitioner] had [sic] not been denied
       in this case. The petition is therefore respectfully denied.

IV. Analysis

        On appeal, Petitioner argues that he is entitled to post-conviction relief because he
received ineffective assistance of counsel at trial, and because he is actually innocent of the
criminal charges for which he was convicted. As to the “actual innocence” claim, Petitioner
concedes that this theory of relief is not cognizable pursuant to post-conviction relief in his
case because his claim is not based on scientific evidence. See Dellinger v. State, 279
S.W.3d 282, 291 n. 7 (Tenn. 2009) (claims of actual innocence which are not based upon
new scientific evidence may be brought by a petition for writ of error coram nobis, or,
pursuant to certain conditions in an application for executive clemency). Petitioner does not
further argue his claim of “actual innocence,” and we conclude he is not entitled to relief on
this claim.

        Regarding his claim of ineffective assistance of counsel at trial, Petitioner asserts in
his brief the following as examples of deficient performance by his trial counsel:

       (1) Counsel performed ineffective cross-examination of the victim and her
       aunt; and

       (2) Counsel should have filed a pre-trial motion “to attack the [victim’s] trial
       testimony as being not her own, but a product of undue suggestions and
       pressure” applied by the aunt, the State Department of Children’s Services
       employees, and the prosecutors.

       To sustain a petition for post-conviction relief, a petitioner must prove his or her
factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.
Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review,

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this Court will not reweigh or re-evaluate the evidence below; all questions concerning the
credibility of witnesses, the weight and value to be given their testimony, and the factual
issues raised by the evidence are to be resolved by the post-conviction judge, not the
appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997). The post-conviction judge’s findings of fact on a petition for post-conviction
relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960
S.W.2d at 578.

        The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936.

       A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is
comprised of two components: deficient performance by the defendant’s lawyer and actual
prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d
at 461. To demonstrate prejudice, a defendant must show “a reasonable probability that but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The defendant bears the burden of establishing both of these
components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6
S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice is a sufficient
basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6
S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).


       In evaluating a lawyer’s performance, the reviewing court uses an objective standard
of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing
court must be highly deferential to counsel’s choices “and should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should
not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be



                                               -8-
judged in light of all the facts and circumstances as of the time they were made, see
Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).

       A trial court’s determination of an ineffective assistance of counsel claim presents a
mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
This Court reviews the trial court’s findings of fact with regard to the effectiveness of
counsel under a de novo standard, accompanied with a presumption that those findings are
correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s
conclusions of law—such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial—are reviewed under a purely de novo standard, with no
presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).

       In support of his argument, Petitioner asserts that counsel knew the victim had been
interviewed by employees of the Department of Children’s Services and the District Attorney
General, and that the aunt had extensively questioned the victim, but trial counsel failed to
personally interview any employee of the Department of Children’s Services who
interviewed the victim.

        Petitioner submits that trial counsel could have honored Petitioner’s desire that the
trial not be postponed at all, and still file a pre-trial motion “to allow [ ] the court to rule [ ]
if the trial testimony of the child had been tainted by the child’s interviews with [the
Department of Children’s Services] and the prosecution[’s] office.” Petitioner further argues
that doing this would have “allowed counsel a greater and more in depth examination of the
State’s case, and the trial testimony of the victim and her aunt.”

        We are unable to conclude that Petitioner’s trial counsel rendered deficient
performance by failing to file the pre-trial motion Petitioner urges counsel should have filed.
However, even if we assumed, arguendo, that trial counsel’s inaction was deficient,
Petitioner failed to submit any proof of prejudice. It is well settled that when a post-
conviction petitioner claims ineffective assistance of counsel by trial counsel’s failure to call
witnesses at trial, those witnesses should testify at the post-conviction hearing. Pylant v.
State, 263 S.W.3d 854, 869 (Tenn. 2008). “‘As a general rule, this is the only way the
petitioner can establish that . . . the failure to have a known witness present or call the
witness to the stand resulted in the denial of critical evidence which inured to the prejudice
of the petitioner.’” Id. (quoting Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.
1990)). Petitioner did not present the proof at the post-conviction hearing that he claims his
trial counsel should have presented pre-trial. Thus, we would have to rely on pure
speculation as to what the purportedly critical proof would show.




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        In addition, the same problem exists for Petitioner on his claim that trial counsel
rendered ineffective assistance of counsel during the cross-examination of the victim and her
aunt. He did not offer significant proof at the evidentiary hearing of what additional
questions or subject matter should have been added to or deleted from the cross-examination
that was done. In his appellate brief, Petitioner limits his argument on this issue to the fact
that the cross-examination of T.D.W. included only “about five (5) questions” concerning
her interaction with the Department of Children’s Services, the physician’s appointment with
the victim, and T.D.W.’s disapproval of Petitioner dating T.D.W.’s sister. As to cross-
examination of the victim, Petitioner states that trial counsel only asked “about (5) five [sic]
questions” concerning her interviews with the employee of the Department of Children’s
Services and her conversations with the victim’s aunt. Petitioner goes on to assert that trial
counsel failed to ask the victim any questions about the medical examination, the physician’s
statements, or her interviews with the prosecutor. Significantly, Petitioner does not offer any
specific examples of questions that should have been asked or cite to the record where these
missing questions were mentioned at the post-conviction hearing.

      We have reviewed the transcript of the cross-examinations of the victim and her aunt.
We agree with the post-conviction court that trial counsel effectively cross-examined these
witnesses. Petitioner is not entitled to relief in this appeal.

                                       CONCLUSION

      After a review of the entire record and the briefs of the parties, we affirm the
judgment of the post-conviction court.

                                                     ________________________________
                                                     THOMAS T. WOODALL, JUDGE




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