        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs September 15, 2015

             DOUGLAS L. LYLE, SR. v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Knox County
                     No. 103472    Jon Kerry Blackwood, Judge


               No. E2015-00105-CCA-R3-PC – Filed December 4, 2015



The petitioner, Douglas L. Lyle, Sr., appeals the post-conviction court‟s denial of his
petition for relief from his aggravated sexual battery conviction, asserting that he
received ineffective assistance of counsel. After review, we affirm the judgment of the
post-conviction court denying relief.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and D. KELLY THOMAS, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Douglas L. Lyle, Sr.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Charme P. Allen, District Attorney General; and Kit Rodgers, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

       The petitioner was convicted by a Knox County Criminal Court jury of two counts
of aggravated sexual battery involving his granddaughter and was sentenced to
concurrent terms of twelve years. The petitioner appealed, and, on direct appeal, this
court reversed one of the convictions following a determination that the State‟s election
of offenses was inadequate as to one of the counts. The petitioner later filed an
application for permission to appeal to the Tennessee Supreme Court, which the court
denied.
      The underlying facts of the case were recited by this court on direct appeal as
follows:

              [The victim] testified that she was eleven years old at the time of
      trial in July 2011. Her birth date was June 4, 2000, and she had just
      finished the fifth grade. She lived with her mother, her stepfather, and her
      brother, who was twelve years old. She also had three sisters who lived
      with her father.

              As [the victim] was growing up, she visited her father‟s parents, the
      [petitioner] and his wife, Delilah (“Grandmother”). Sometimes she would
      spend the night with them. She testified that she loved her grandfather, the
      [petitioner], whom she called “papaw.” She also stated that he had made
      her uncomfortable by touching her “wrongly.” When asked where he
      touched her, she testified, “[m]y private.”

              The prosecutor then showed [the victim] a drawing of a girl. As the
      prosecutor pointed to different areas of the drawing‟s body, [the victim]
      identified them with her own words, including “chest,” “butt,” and
      “private.” She stated that she knew what the word “vagina” meant,
      explaining that it referred to “[a] girl‟s part.” She agreed that she meant the
      same by the word “private.”

             The prosecutor next showed [the victim] a drawing of a man. When
      asked what she called “the front private part where a man goes pee out of,”
      she responded, “[p]rivate.” She confirmed that she had heard the word
      “penis” and stated that it was a “boy‟s front part.” She agreed that her word
      “private” and the word “penis” referred to the same thing.

              When asked where the [petitioner] had touched her, [the victim]
      stated, “[m]y chest, my private, and my butt.” She added that it had
      happened more than once but not every time she visited. It started when
      she was in kindergarten and ended when she was ten years old. She added
      that the last time it happened, she was between the fourth and fifth grade.

              [The victim] testified that the touchings occurred in her
      grandparents‟ living room.        She remembered it happening in the
      [petitioner]‟s brown leather recliner chair. It also happened on a couch in
      the living room and in the [petitioner]‟s bedroom. She explained that, on
      one particular occasion, she was sitting next to the [petitioner] in his
      recliner while they watched television. He touched her “private” with his
                                            2
hand, and the touching was both over and under her underwear. While his
hand was under her underwear, he rubbed, which felt “bad.” He also put
his finger inside of her, which felt “scratchy.” She also described the
sensation as “feel[ing] kind of weird.” She stated that he put his finger
inside of her more than once. She also stated that he would touch her
“private part” without putting his finger inside.

       [The victim] testified that the [petitioner] also rubbed her “private
part” through her clothing, without putting his hand inside her clothing,
while they were sitting on the chair.

       When asked what happened on the couch, [the victim] testified that
the [petitioner] touched her chest with his hand. She stated that this did not
occur “that much.” This touching occurred over her clothing. He also
touched her chest while she was sitting on his bed in his bedroom. She was
not sure if he ever touched her “private” in the bedroom. He did not touch
her “private” on the couch.

       When asked if the [petitioner] said anything while touching her, [the
victim] testified that he told her, “Don‟t tell or we‟ll both get in trouble.”
Nevertheless, she told her mother in October 2009 about the touching. She
explained that she had not told anyone before because she was “scared and
embarrassed.” She added that she was scared that no one would believe
her. When her mother first came to her and inquired, she told her mother
“no” because she was “too scared.” She also testified that no one else had
touched her like that.

        On cross-examination, [the victim] stated that the touchings usually
occurred in the mornings while Grandmother was still asleep. She also
stated that she had discussed the matter with her mother four times.

       The victim‟s mother (“Mother”), testified that she and the victim‟s
father (“Father”) had divorced about four years previously. She currently
was married to George Michael Ailey, and the victim and her brother lived
with her and Ailey. While she and Father were married, they lived with
Father‟s parents, the [petitioner] and Grandmother. Mother stated that her
in-laws “were just like a mom and dad to” her. After she and Father
divorced, “things seemed okay at first.” After she married Ailey, however,
“it seemed like things kind of went downhill from there.” She added that
she did not feel as if they “cared for [Ailey] a whole lot.” However, they

                                      3
attended her wedding to Ailey. After the divorce, her children continued to
spend time with the [petitioner] and Grandmother.

      Mother testified that the victim began wetting her pants in school
when she was in second or third grade. After [the victim] told her what had
happened, her accidents at school declined and then stopped.

       Mother testified that she had a “very vivid dream” one night in
which she “found a pair of panties.” Ailey and Ailey‟s father were in the
dream. She awoke from the dream “frantic” and became concerned about
her children. The next day, she sat both her son and the victim down and
asked them if anyone had ever touched them inappropriately. [The victim]
shook her head, but Mother noticed that her eyes were filled with tears.
Mother called the victim‟s school to speak with a guidance counselor for
advice. She was given the number for ChildHelp, and she called them.
The next day, she took the victim in to speak with a counselor.

       Later, Grandmother and “Aunt Mo”1 visited and spoke with the
victim outside of Mother‟s presence but with her permission.

       On cross-examination, Mother testified that she and Father married
in February 1997. They had two children, the victim and her older brother,
Nicholas. They divorced in May 2007. After she and Father split up, she
and the children moved in with the [petitioner] and Grandmother (“the
Lyles”) and lived with them for about one year. The Lyles helped with
child care and took care of the children when needed. There were often
other children there, as well. Mother dated while she lived with the Lyles,
sometimes staying out all night. When she began staying out all night
frequently, Grandmother told her that “she felt that [Mother] was
neglecting the kids.” Mother started spending more time with the kids.

       Mother sometimes took [the victim] with her on her nights out, and
they would stay with the man she dated before Ailey. [The victim] would
sleep on the floor next to the bed that Mother shared with her boyfriend.

      Eventually, she and the children moved into a house with Ailey.
Sometimes when the children were at Father‟s on the weekend, she and
Ailey would have a party with other people. These parties included


1
    Mother explained that “Aunt Mo” was Grandmother‟s sister.
                                           4
alcohol, and sometimes women would flash their breasts.

        Officer Mark Amos Taylor of the Knoxville Police Department
(“KPD”) testified that he was an investigator in the family crimes unit. He
spoke with the [petitioner] at the [petitioner]‟s home about [the victim]‟s
allegations. The [petitioner] denied the allegations but acknowledged that
he and [the victim] would sit in his recliner together. According to Officer
Taylor, the [petitioner] explained [the victim]‟s actions that resulted in his
hand sometimes touching her as follows: “She crawled out of the chair –
well, she crawled. She just rolled over face first and would go out. She‟d
do that all the time, like, and I kept telling her because my hand hit – would
end up in the wrong place, and I kept telling her, „[the victim], you‟re
breaking my arm. I can‟t do that.‟ ” Officer Taylor returned to the
[petitioner]‟s house at a later date and spoke with both the [petitioner] and
Grandmother. Officer Taylor testified that, at that time, the [petitioner] told
him that he was impotent.

        Officer Taylor took a more “formal” statement from the [petitioner]
in February 2010 at the KPD. Investigator Lynn Everett also participated
in this interview, which was video-recorded. The video-recording was
admitted into evidence and played for the jury. During the interview, the
[petitioner] admitted to touching [the victim]‟s genital area with his hand
two or three times, and he also admitted that he did so because it excited
him. Toward the end of the interview, the [petitioner] voiced an apology to
the victim which Officer Taylor wrote down. The [petitioner] reviewed the
written apology after it was completed and signed it. The apology was
admitted into evidence and provides as follows:

              [The victim],

               I did not intend on hurting you when I rubbed you on
       your privates (vagina). I didn‟t intend on it to happen; but, it
       did and I am very sorry! I hope you can forgive me and get
       along with a “well-prosperous” life. You did nothing wrong
       – I did and I‟m sorry!

      On cross-examination, Officer Taylor admitted that there was no
physical evidence corroborating [the victim]‟s allegations.

      The [petitioner] testified that he was seventy-one years old. He had
been married to Grandmother for thirty-five or thirty-six years, and they
                                      5
had two sons. One of his sons, Father, had five children, one of whom is
[the victim]. Mother was the mother of [the victim] and Nicholas, and
Father‟s other three children were by Mother‟s sister, Ashley. He stated
that he was close to his grandchildren and loved them “to death.” Ashley‟s
children continued to visit him.

        According to the [petitioner], Father and Mother dated in high
school and eventually married. Father and Mother lived with the
[petitioner] and Grandmother for a time. Later, they moved out and started
their family. When Father and Mother divorced, Mother and the children
returned to the [petitioner]‟s house to live. The [petitioner] testified that he
had no ill feelings toward Mother about the divorce, and he told her that she
was the daughter he never had. Over time, however, he and Grandmother
became concerned about Mother‟s dating behavior, particularly when
Mother would take [the victim] with her on overnight dates. Eventually,
Mother moved out, taking [the victim] and Nicholas with her. At that time,
she was dating a man named Michael. The [petitioner] continued to see
[the victim] and Nicholas frequently at the [petitioner]‟s house.

       The [petitioner] stated that “all kids” were welcome at his house and
that he frequently had children other than his grandchildren visiting.
Grandmother‟s sister‟s children visited, and his own sister‟s children
visited. Lots of children visited during holiday celebrations.

       The [petitioner] stated that he played checkers and put together
puzzles with [the victim] and that they also baked brownies and funnel
cakes together. He never had a problem with [the victim]. When he sat in
his favorite chair, she would climb up into his lap. Sometimes she would
take a nap in his lap. He testified that nothing improper ever took place in
his chair, on the couch in the living room, or on his bed.

       The [petitioner] testified about [the victim]‟s movements when
getting out of his chair:

              Normally, she would just get out, but there was one
       particular time that she was sitting on my left leg, and I had
       my arm on the chair, the recliner, and she rolled over the back
       of my hand and rolled off, and I felt her pelvis bone on the
       back of my hand as she rolled off. When that first happened,
       you know, I didn‟t think much about it. But kids climb all
       over you, get on your back and everything. I didn‟t think a
                                       6
       whole lot about it the first time. The second time that it
       happened I said, “[The victim], don‟t do that. You‟re hurting
       my hand.” So she didn‟t say anything. She went on. A little
       while later she come [sic] back, she got back in my lap again,
       and she sat there a few minutes, and she rolled off again. I
       said, “[The victim], don‟t do that. You‟re breaking my
       hand.” She wasn‟t hurting me, but I just wanted her to stop,
       because I was real uncomfortable with her doing that to me.

               And I had – I had cut myself with a grinder that had a
       cut off blade in it on my finger, which I still got a scar from it,
       and it was in the bend of my finger which it healed kind of
       like a callous, a real – just not – didn‟t have a scab on it, more
       of a callous over it, and it was real rough. That third time she
       got off, she went to the bathroom where my wife was at, and
       my wife come [sic] in and jumped all over me, because she
       had a scratch.

        When asked where [the victim] had been scratched, the [petitioner]
testified, “I didn‟t know where at. It was in her private area, leg or thigh –
inner thigh. I don‟t know where it was at.” He also speculated that his
watch or one of his fingernails caused the scratch.

       The [petitioner] recalled Officer Taylor coming to his house and
speaking with him. He told Officer Taylor “seven, eight, nine times” about
[the victim] sliding off of the chair. He told Officer Taylor that
Grandmother could verify what had happened, and he asked Officer Taylor
to return to the house to speak with her. When Officer Taylor returned,
they both spoke with him together.

        After these interviews, Nicholas and [the victim] visited only once or
twice more, and he did not speak with [the victim] on either occasion. The
[petitioner] was very unhappy and upset about the separation from his
grandchildren. He determined “to find out what it was that was affecting
[his] granddaughter that she would make these allegations against [him].”
Accordingly, he set up the meeting with Officer Taylor in February.

        About a year previously, the [petitioner] testified, he had been to
visit his doctor and had been prescribed Xanax. Occasionally, he would
take one-half of a tablet at night to help him sleep. On the morning of his
meeting with Officer Taylor at the police station, he was very nervous. He
                                       7
took a whole Xanax and, when he remained nervous, took two of his
wife‟s. He stated that he had never taken Xanax during the day before and
“had no idea how they would affect [him] during the day.” He took them
because he thought they would “just . . . relax [him] to where [he] wouldn‟t
be nervous.”

       He arrived at the police station on time. He first spoke with Officer
Everett. By the time Officer Taylor joined them, the [petitioner] was
feeling “[p]retty much out of it.” When asked what he remembered about
his conversation with Officer Taylor, the [petitioner] testified,

               I remember him coming in. I remember the statement
       coming up about her sliding off my hand, and I remember
       Taylor telling me that I was lying about that, and that upset
       me real bad, and I told him that I‟m not no child molester, and
       that‟s pretty much all I remember about the whole thing.

        Asked how he felt when he left the police department that day, the
[petitioner] testified,

              I – I don‟t remember. I know I was in a room, and I
       don‟t remember leaving that room, but I remember walking
       through a door to the lobby. When I seen [sic] my wife, my
       wife and I walked outside. I remember I felt like a – I guess
       if you was [sic] a zombie, that‟s what I felt like. I was just –
       my whole body was just numb.

       He realized later that his statement had not “gone well” for him.

       On cross-examination, the [petitioner] testified that his relationship
with [the victim] had been special, that she was his first granddaughter. He
remembered when [the victim] complained that he had hurt her and put a
mark on her skin near her “privates” because his wife spoke to him about it,
and she was upset. He heard his wife tell [the victim] to never let anyone
touch her private area. The [petitioner] showed the jury the scar on his
hand where the callous had been. He reiterated that [the victim] had rolled
off the recliner arm over his hand three times on that day. He did not hear
[the victim] say anything to indicate that she was in pain. When his wife
confronted him, he told her what happened. [The victim] was standing
there, and when Grandmother asked her, “Is that what happened?”, [the

                                      8
victim] said, “yes.”

        The [petitioner] stated that he did not remember telling Officer
Taylor that he had touched [the victim]‟s vagina several times. He also did
not remember telling Officer Taylor that [the victim] liked to be rubbed
down there. He did not remember Officer Everett asking him about any
medications he had taken that morning. He did not remember telling
Officer Everett that he had not taken any medications other than his insulin
and blood pressure medication. He did not remember telling Officer Taylor
that [the victim] had grabbed his hand one time and put it on her breast, but
he did recall [the victim] grabbing his hand one time and putting it on her
chest with both of her hands.

       Dr. David T. Stafford testified that he is a toxicologist. Asked about
the effects of Xanax, Dr. Stafford explained that it can cause a drop in
blood pressure, an increase in heart rate, and “a degree of confusion and
some short-term memory loss.” He emphasized that it does not affect
everyone in the same way. He reviewed the [petitioner]‟s videotaped
statement and opined that there were “some slight indications” that he was
under the influence of Xanax. Dr. Stafford explained: “At some times he
was hesitant about answering questions and – as if he maybe didn‟t quite
understand, but he eventually answered every question, I think, that was
asked him, and he was, at times, a little – perhaps a little confused. He was
hesitant.” He agreed that the [petitioner]‟s failure to remember the
interview could be an effect of Xanax. He also testified that, if a person
was accustomed to taking one-half milligram of Xanax and then took three
milligrams, the possibility of greater confusion would be increased.

       Kenneth Wayne Maples testified that he had known the [petitioner]
all his life. He worked with one of the [petitioner]‟s sons and knew
Mother. He attended parties at Mother‟s house. The children, [the victim]
and Nicholas, were present at these parties. He described the parties as
involving alcohol and “flashing.” He stated that the parties “got wild a lot”
and were “free-spirited.” He added that he had seen “a lot of touching
between people, kissing, crotch grabbing, stuff like that.” According to
Maples, [the victim] saw some of these activities.

       Maples testified that Ailey disciplined the children by speaking
“very, very loud” to them and that he was very stern, frequently sending
them to their bedrooms, where he would lock them in. [The victim] and
Nicholas “really didn‟t care for it.” He also testified that, when [the victim]
                                      9
would greet him, she would “run and jump and hug [him] . . . with her
arms, and then wrap her legs around [him] at the same time.” This made
him uncomfortable so he would pull her away and put her on the floor. He
also saw [the victim] run and jump on the [petitioner] while he was sitting
on the couch, straddling him. He described the [petitioner]‟s response to
[the victim]‟s conduct as “uncomfortable,” and he heard the [petitioner]
telling her to quit “multiple times.”

       Doug Lyle, Jr., testified that he is the [petitioner]‟s son. He and his
son, who was fifteen, lived with the [petitioner]. Many children continued
to visit frequently, and the [petitioner] behaved “like any grandfather
should.” He described the [petitioner] as “the most honest man I know.”

       Whitney Hardy testified that the [petitioner] is her uncle. She is the
daughter of Grandmother‟s sister. She had known the [petitioner] her
whole life and described the [petitioner] as “like a dad to me.” As she was
growing up, she spent the night at the [petitioner]‟s house “[a] lot.” He
never gave her a reason to be afraid. She has three children, two girls and a
boy, and they continue to spend time with the [petitioner]. She had seen
[the victim] with the [petitioner], and [the victim] never showed any fear or
concern about being with the [petitioner].

       Hardy knew Mother and Ailey, and she lived next door to them for
about a year. She did not like Ailey and stated that he “wasn‟t very nice” to
[the victim] and Nicholas. She added, “He didn‟t really ever talk to them
except for to tell them to go away.” He also yelled at them “a lot.”

        On cross-examination, Hardy stated that she had watched the video-
recording of the [petitioner]‟s interview with Officer Taylor. She also
stated that she continued to visit the [petitioner] with her children.

       Jody Monroe testified that the [petitioner] was her uncle. She grew
up around the [petitioner] and spent “97 percent” of her time at his house.
She described the [petitioner] as “[m]ore like a father for me.” She was
“[v]ery comfortable” spending time alone with him, and he never touched
her improperly.

       Monroe has three children, and she was very comfortable with them
all spending time with the [petitioner]. She preferred that her eldest
daughter did not spend time alone with [the victim], however, because [the
victim] “was just a little faster than [her] daughter.” She explained that [the
                                      10
victim] was “[m]ore advanced” with respect to “[s]exual stuff.” She also
stated that she had seen interactions between [the victim] and Ailey and
saw Ailey yell at the children “[m]any times.”

        On cross-examination, Monroe acknowledged that she had watched
the videotaped interview of the [petitioner] and stated that some of the
things he said surprised her. She also stated that, during the interview, the
[petitioner] was “not the Doug that I‟m around all the time.” She explained
that her perceived discrepancy was based on “[t]he things that he was
saying, and the way they were coming out, I guess. He‟s usually more
straightforward, is the only way I know how to say it.”

        Nicole Bajoie testified that she was employed at ChildHelp and, on
October 13, 2009, interviewed [the victim]. The interview was video-
recorded, and a portion of the recording was played for the jury. The trial
court instructed the jury that it was to consider the recording only for the
issue of the witnesses‟ credibility. After the tape was played, Bajoie
testified that she recalled [the victim] telling her that the touching did not
happen anywhere other than the [petitioner]‟s chair.

       On cross-examination, Bajoie confirmed that [the victim] had told
her that the [petitioner] had touched her on the inside of her “private” with
his finger. [The victim] did not say that anyone else had touched her and
denied that anyone else had touched her.

       Father testified that he is the [petitioner]‟s son and [the victim]‟s
father. He continued to have a good relationship with [the victim] after her
accusations against the [petitioner] arose. He had been told not to speak
with her about the allegations, and he respected that instruction. Mother
spoke to him about her dream and told him that, in her dream, the person of
concern was Ailey.

        Father testified that the [petitioner] had a reputation for truthfulness
and stated that “[h]e‟s a very honest person.” He testified that the
[petitioner]‟s testimony should be believed. He also testified that, although
he loved [the victim] “very much,” he also believed that her reputation for
truthfulness was “[b]ad.”

      Ashley Yoder testified that she is Mother‟s sister. She eventually
began dating Father, which caused a year-long rift in her relationship with
Mother, but they had since reconciled and had a “good” relationship.
                                      11
      Yoder and Father had three children together, and their children spent time
      with [the victim] and Nicholas. She stated that her relationship with [the
      victim] was “really good” and that [the victim]‟s accusations had not
      affected it.

             At one point after the accusations arose, [the victim] asked to go
      with Yoder to the [petitioner]‟s house. Yoder took her and told her that she
      could wait in the car while Yoder picked up her children, but [the victim]
      wanted to go inside. They stayed about thirty minutes. Nicholas continued
      to visit at the [petitioner]‟s house, and Mother would take him there to
      spend the night.

              Yoder described her relationship with Ailey as “neutral” and added
      that the children “don‟t seem to like him too much.”

             Yoder stated that the [petitioner] had a reputation for truthfulness
      and that his testimony should be believed. She also stated that [the
      victim]‟s reputation for truthfulness was “bad.”

             The State called Officer Lynn Everett of the KPD in rebuttal. He
      assisted Officer Taylor in interviewing the [petitioner] at the police station.
      At the beginning, he asked the [petitioner] if he had taken any medications.
      The [petitioner] told him that he had taken insulin and his blood pressure
      medication, but nothing else. Officer Everett also testified that, due to his
      experience as a patrol officer, he was familiar with the characteristics of
      persons under the influence of intoxicants and controlled substances. He
      stated that he did not observe such characteristics in the [petitioner] that
      morning.

              On cross-examination, Officer Everett stated that he met the
      [petitioner] at 9:00 a.m. that morning and stayed with him until 11:30 a.m.,
      when Officer Taylor joined them. During the two and one-half hours
      before Officer Taylor arrived, the [petitioner] denied having any improper
      contact with [the victim].

State v. Douglass Leon Lyle, No. E2012-00468-CCA-R3-CD, 2013 WL 1281857, at *1-9
(Tenn. Crim. App. Mar. 28, 2013), perm. app. denied (Tenn. Sept. 11, 2013).

       The petitioner filed a pro se petition for post-conviction relief on April 10, 2014,
and, following the appointment of counsel, two amended petitions were filed. In his
petitions, the petitioner raised various allegations of ineffective assistance of counsel,
                                            12
including the ground pursued on appeal – that counsel was ineffective for not calling his
wife (and the victim‟s grandmother) to testify on his behalf at trial.

        At the evidentiary hearing, the petitioner presented the testimony of his wife who
stated that she and the petitioner had been married for thirty-nine years and had lived
together the entire time. She said that the victim in this case is her granddaughter, with
whom she had a “very good” relationship. She recalled that, during the years from 2006
to 2009, the victim and her brother were at her and the petitioner‟s home often. During
that timeframe, the petitioner‟s wife usually slept on the couch in the living room, and the
petitioner slept in the master bedroom. The petitioner usually went to bed earlier than she
and awoke before her in the morning. When the victim spent the night at their house, the
victim would wake up at different times. The petitioner‟s wife elaborated, “Sometimes I
would wake up and she would still be asleep.”

       The petitioner‟s wife testified that the victim never appeared to be afraid of the
petitioner. In describing how the petitioner and victim interacted, the petitioner‟s wife
said: “She would roll all over that man. She played. She jumped on him. She run down
his back. She would comb his hair.” The petitioner‟s wife said that other children also
frequently visited their home, and none appeared to be apprehensive of the petitioner.
She never observed any inappropriate behavior between the petitioner and any of the
children who came into their home. There was nothing about the petitioner‟s behavior
that would indicate he was sexually attracted to the victim.

       The petitioner‟s wife testified that the petitioner spoke with investigators after the
allegations surfaced but before the petitioner was charged. She said that the
conversations occurred voluntarily, before they consulted with counsel. She recalled that,
prior to the interview at the police station, the petitioner was nervous and asked for
“something to calm his nerves.” The petitioner sometimes took “a half of a half of a
milligram” of Xanax, but she gave him a full milligram of the medication. The
petitioner‟s wife surmised that the petitioner had also probably taken his prescription
medications for blood pressure, cholesterol, and diabetes that day.

       The petitioner‟s wife testified that the petitioner was coherent and in his right
mind during their drive to the police station for the interview. She was not allowed to be
present during the interview. It lasted four and a half hours, during which she waited in
the lobby. When the petitioner returned from the interview, he was “incoherent” and
“shaky,” and he wanted to get something to eat. His condition improved after eating.
On cross-examination, the petitioner‟s wife admitted that Xanax did not cause her to say
something that was not true.



                                             13
       After the conclusion of the hearing, the post-conviction court entered a written
order denying relief. The court found that the petitioner‟s wife‟s testimony was “simply
corroborative” of other testimony at trial and that the petitioner did not prove that “the
decision to not call Petitioner‟s wife as a witness was no more than a tactical decision.”
The court concluded that the petitioner “failed to prove deficient performance of counsel
and prejudice to the defense, the two required elements of ineffective assistance of
counsel.”

                                         ANALYSIS

       On appeal, the petitioner argues that the post-conviction court erred in finding that
he did not receive ineffective assistance of counsel. He asserts that counsel performed
deficiently by failing to call his wife to testify on his behalf at trial and that such deficient
performance caused him prejudice. He claims that his wife would have been a more
effective witness to his behavior during the time period of the alleged incidents, as well
as his demeanor before and after his interview with the police, than the other witnesses
who testified.

       The post-conviction petitioner bears the burden of proving his allegations of fact
by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an
evidentiary hearing is held in the post-conviction setting, the findings of fact made by the
court are conclusive on appeal unless the evidence preponderates against them. See
Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves
purely factual issues, the appellate court should not reweigh or reevaluate the evidence.
See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial
court‟s application of the law to the facts of the case 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, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court‟s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel‟s performance was deficient and that counsel‟s
deficient performance prejudiced the outcome of the proceeding. 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 same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:



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       First, the defendant must show that counsel‟s performance was deficient.
       This requires showing that counsel made errors so serious that 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.

        The deficient performance prong of the test is satisfied by showing that “counsel‟s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
Moreover, the reviewing court must indulge a strong presumption that the conduct of
counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, and may not second-guess the tactical and strategic choices made by trial
counsel unless those choices were uninformed because of inadequate preparation. See
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is
satisfied by showing a reasonable probability, i.e., 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.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
Id. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       As noted above, the post-conviction court found that the petitioner‟s wife‟s
testimony “[a]t best . . . would have been cumulative.” The court noted that “there was
ample proof in the record from [the petitioner]‟s testimony about him taking Xanax, the
effect of it” and that “other witnesses were presented that also testified about his
relationship with other children.” The court concluded that the petitioner failed to show
that counsel‟s “tactical decision not to call [the petitioner‟s wife] as a witness was
ineffective and has also failed to show that the result of the outcome of this trial would
have been different as a result of her testimony.”

      After review, we conclude that the record supports the findings of the post-
conviction court. The petitioner claims that his wife could have testified that she never
observed any inappropriate contact between the petitioner and the victim. However, the
                                            15
victim testified at trial that the inappropriate contact occurred when her grandmother was
asleep. Douglass Leon Lyle, 2013 WL 1281857, at *2. In addition, even though the
petitioner‟s wife could have testified that she never saw the victim express fear of the
petitioner, four other witnesses testified similarly to that at trial. See id. at *7-8.

        The petitioner also claimed that his wife‟s testimony could have helped challenge
the credibility of his confession by testifying concerning his taking a Xanax pill before
his interview with police and that he appeared “shaky” and “incoherent” after the
interview. However, the petitioner himself testified at trial that he took three Xanax pills
prior to his interview and that he could not remember what happened in the interview
room after the officer entered. See id. at *5-6. Moreover, the petitioner‟s wife could not
testify concerning the petitioner‟s condition during the interview, and she testified at the
evidentiary hearing that she saw no difference in the petitioner‟s behavior before and
after taking the Xanax prior to his going in for the interview. In addition, counsel
retained an expert who testified at trial that Xanax “can cause a drop in blood pressure, an
increase in heart rate, and „a degree of confusion and some short-term memory loss.‟” Id.
at *6. As determined by the post-conviction court, the petitioner‟s wife‟s testimony
would have merely been cumulative to the evidence presented, and we cannot conclude
there was any reasonable probability that the result of the proceeding would have been
different had the petitioner‟s wife testified at trial.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court denying the petition for post-conviction relief.


                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE




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