             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE               FILED
                           JUNE 1999 SESSION
                                                       September 20, 1999

                                                       Cecil Crowson, Jr.
DONALD WAYNE HOLT,                 )                  Appellate Court Clerk
                                   )   No. 01C01-9805-CC-00201
      Appellant,                   )
                                   )   Rutherford County
v.                                 )
                                   )   Hon. James K. Clayton, Jr., Judge
STATE OF TENNESSEE,                )
                                   )
      Appellee.                    )   (Post-Conviction)



For the Appellant:                     For the Appellee:

W.H. Stephenson II                     Paul G. Summers
311 White Bridge Road                  Attorney General and Reporter
Nashville, TN 37209                           and
                                       Marvin E. Clements, Jr.
                                       Assistant Attorney General
                                       Cordell Hull Building, 2nd Floor
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493

                                       William C. Whitesell, Jr.
                                       District Attorney General
                                       303 Rutherford Co. Judicial Bldg.
                                       Murfreesboro, TN 37130




OPINION FILED:



AFFIRMED



Joseph M. Tipton,
Judge
                                        OPINION



       The petitioner appeals as of right from the order of the Rutherford County Circuit

Court denying him post-conviction relief from his 1991 conviction for aggravated rape

and his resulting twenty-two year sentence. This court affirmed the conviction on direct

appeal. See State v. Donald Wayne Holt, No. 01C01-9503-CC-00053, Rutherford

County (Tenn. Crim. App. Sept. 27, 1995). The petitioner contends that the trial court

erred in determining that he received the effective assistance of counsel at his trial.

Upon a complete review of the record, we affirm the judgment of the trial court.



                                PROCEDURAL HISTORY

       A Rutherford County jury convicted the petitioner of aggravated rape. This court

set forth the following statement of the facts on direct appeal:

              On July 11, 1990, the victim became 21 years of age. After her
              date for the evening did not show up, she left home and
              consumed a considerable amount of liquor. Around midnight,
              the victim stopped at the Kroger parking lot in Smyrna,
              Tennessee to use the telephone. She planned to call her
              brother because she was too intoxicated to drive. The
              appellant and two of his acquaintances were at the parking lot.
              The appellant walked over and introduced himself to the victim.
              After conversing for about twenty minutes, the appellant
              persuaded the victim to allow him to drive her home.

              After leaving the parking lot, the victim passed out and awoke
              when the appellant was stopped by the police for speeding. At
              that point, they were in LaVergne, Tennessee. The appellant
              and the victim followed the police to the police station. When
              the appellant went into the station, the victim attempted to
              drive her vehicle away, but one of the [policemen] prevented
              her from doing so because of her intoxication. The victim
              passed out again and woke up when the appellant came back
              to the car. The victim again asked the appellant to carry her
              home, but, instead, the appellant drove to a secluded area.

              After stopping, the appellant removed the victim's pants, and
              forced her to have oral sex, vaginal sex, anal sex, and oral sex
              again. During this time, the victim screamed and attempted to
              push the appellant away, but she could not get up. After the
              appellant made the victim engage in oral sex the second time,
              she pretended she was vomiting and then acted as if she could
              not breathe. This alarmed the appellant, and, consequently,
              they left to seek medical treatment.


                                             2
                 The appellant and the victim stopped at a convenience store,
                 and the victim requested the attendant call an ambulance.1
                 The appellant then came into the store, and the victim began
                 kicking her feet and throwing her hands at him. He was told to
                 leave by the attendant. The victim told the attendant that she
                 had been raped. The attendant called 911 which called the
                 police and an ambulance.

                 Dr. Sharon Piper, a medical doctor specializing in obstetrics
                 and gynecology, testified as an expert witness. Dr. Piper
                 treated the victim at the Vanderbilt hospital and assisted in
                 surgery. The victim sustained painful injuries to her vagina,
                 rectum, and perineum. Over the objection of the appellant, Dr.
                 Piper gave the following testimony:

                 "Q. Doctor, again, do you have a medical opinion as to what
                 caused this type of injury?

                  A. Well, her external exam had revealed the possibility of
                 forced intercourse. We weren't quite sure about the internal
                 injury. The thought did cross my mind, was a blunt instrument
                 used.

                 Q. Could the injury that you observed, the laceration inside the
                 vagina based upon a reasonable degree of medical certainty,
                 could that have been caused by the fact that the vagina did not
                 expand and did not lubricate?

                 A. Yes, sir. . .

                 Q. Now, back to the question I started to ask, do you have an
                 opinion based upon a reasonable medical certainty, based
                 upon the injuries that you observed as to whether this
                 intercourse was forced or not forced intercourse?

                 A. Due to the extent of her injuries, I do not feel that this can
                 be voluntary."

                 The appellant’s defense was that the victim consented to sex.

                 The appellant testified that he saw the victim at the Kroger
                 parking lot at approximately midnight. He found her attractive
                 and engaged her in conversation. After talking for about
                 twenty minutes, the victim gave the appellant the keys to her
                 car. The victim told him it was her birthday, and she wanted to
                 party. They went to LaVergne because a convenience store
                 there sold beer until 3:00 a.m. He was stopped by police for
                 speeding but gave the officers his brother's name because he
                 did not have a license. After leaving the police station, the
                 victim said she wanted to go home, but then said she did not
                 because she would get into trouble. While driving down the
                 road, the victim grabbed the appellant by the neck, kissed him,
                 and told him he was cute. The appellant suggested they go


        1
          A reading of the original trial transcript shows that petitioner, not the victim, requested that the
clerk call for help.

                                                        3
                parking and have sex to which the victim agreed. According to
                [petitioner], the victim willingly engaged in the sexual activities
                which she had earlier described, and she enjoyed the sexual
                acts. After the victim became ill, they left to seek medical
                treatment.

                The appellant attempted to corroborate his claim of consent by
                testimony that he was struck by lightning a few days before the
                incident, and this injury incapacitated him to a degree that he
                could not physically force the victim to have sex.

Donald Wayne Holt, slip. op. at 2-5. Additional information was included in footnotes

one and two of the opinion:

                1. The victim is five foot two inches tall and weighs 88 pounds.
                She testified that she had not previously engaged in sex, and
                her testimony was corroborated by Dr. Sharon Piper. The
                victim had a number of medical conditions including a common
                variable hypogammaglobulinenia, a blood disorder, severe
                bronchiectasis, a condition of the lungs, and a nutritional
                condition which required a porta-cath (a permanent IV) in her
                chest.

                2. Dr. Piper testified to these specific injuries. There was a
                one centimeter tear on the right lateral aspect of the urinary
                opening. There were multiple abrasions on the labia. There
                was a one centimeter perennial tear. The entire perennial area
                was undergoing the initial stages of severe bruising. The victim
                had partial rectal prolapse. Her rectum was actually coming
                outside of her body. The anal area was very swollen and the
                muscle tone was gone. The victim had a five centimeter
                laceration in her vagina. These injuries necessitated extensive
                surgery and the victim was hospitalized at Vanderbilt from July
                12, 1990 to July 21, 1990. The total medical bills were in
                excess of $ 19,000.00.

Id. at 3.



         In his direct appeal, the petitioner challenged the sufficiency of the evidence, the

admission of Dr. Sharon Piper’s testimony that the victim’s injuries were caused by

force, the exclusion of David Meador’s testimony regarding the victim’s prior

inconsistent statement, and the sentence. This court affirmed the judgment of the trial

court.




                                                4
                                    CONTENTIONS OF THE PETITIONER

       The petition for post-conviction relief alleges ineffective assistance of counsel

and cites the following errors by trial counsel:2

                  1.      failure to investigate the case sufficiently;

                  2.      failure to present a defense within the required
                          range of competence;

                  3.      failure to cross-examine the state’s witnesses
                          properly;
                  4.      failure to prepare adequately for trial;

                  5.       failure to review the petitioner’s preliminary
                           hearing before trial;

                  6.       failure to advise and prepare the petitioner
                           sufficiently regarding his testimony;

                  7.       failure to advise the petitioner properly of the
                           evidence against him;

                  8.       failure to contest a fatally defective indictment;

                  9.       failure to advise the petitioner of medical
                           evidence to be presented by the state until
                           immediately before trial, denying him the
                           opportunity to prepare for this testimony;

                  10.      failure to cross-examine the victim properly in
                           order to present testimony by David Meador of
                           the victim’s prior inconsistent statement;

                  11.      failure to make an offer of proof to preserve
                           David Meador’s testimony for the appellate
                           process;

                  12.      failure to object to damaging testimony by state’s
                           witness Dr. Elizabeth LaRoche; and

                  13.      failure to present evidence concerning scientific
                           laboratory results.



                                    POST-CONVICTION HEARING

                  The post-conviction court heard testimony from the petitioner, the

petitioner’s trial attorney, and David Meador, an ambulance attendant.




       2
           W e have consolidated duplicate claims set out by the petitioner.

                                                       5
                               A. Testimony of Petitioner

       The petitioner testified at the post-conviction evidentiary hearing that when he

first met his trial attorney, who was an assistant public defender, in early August 1990,

he suffered from a disability to his right arm, the result of a lightning strike he received

in July just before the alleged rape. The medication that the petitioner took for the

disability affected his reaction time and his strength, but he was unsure whether

counsel was aware of this fact.



       The petitioner testified that his attorney neither showed him the indictment nor

apprised him of the elements and culpable mental state for aggravated rape. He also

said that she never reviewed the preliminary hearing transcript or any discovery

materials with him. The petitioner said he was unaware of the victim’s rape kit results

and the extent of her injuries until trial. He said his attorney never reviewed the victim’s

medical records with him. He said she did interview three witnesses named by the

petitioner, as well as Officer Ruch and the petitioner’s physician. However, the

petitioner stated she did not share the substance of those conversations with him.



       The petitioner did not recall being told of any plea offer from the state, although

he acknowledged that because he maintained his innocence, no real discussion about

a plea occurred. He also acknowledged a desire to tell the jury “[his] side of the story.”

The initial decision for the petitioner to testify at trial was made about one week before

the trial. The attorney conducted a practice session in which she briefly questioned the

petitioner. Nevertheless, petitioner stated that he was not prepared for the district

attorney’s cross-examination which resulted in damaging testimony.



       In spite of the above, the petitioner said he was not surprised by the evidence at

trial and expected a not guilty verdict. He said his attorney told him they had a “pretty

good case,” and he said he thought he would be acquitted. The petitioner claimed that



                                              6
when the victim said “don’t stop,” he took that to mean she did not want him to stop,

and so he continued. He maintained his innocence and claimed that the intercourse

began consensually, that he did not mean to hurt the victim, and that he just made a

mistake.



                             B. Testimony of David Meador

       David Meador testified at the post-conviction evidentiary hearing that on the night

of the aggravated rape, he worked for Rutherford County Emergency Medical Services.

Meador said he assisted the victim, who gave a statement about what happened.

Meador read the following pertinent portion of his report into the record:

              “. . . during intercourse she became afraid he was going to hurt
              her ---afraid he was going to hurt her because he kept putting
              his hand over her mouth and telling her to shut up. He was
              also telling her to shut up prior to the intercourse.”

Meador did not remember the victim either expressing that she felt fear prior to the start

of intercourse or saying anything about rape, nor did she say that the intercourse was

consensual. Meador said he met with the petitioner’s attorney before the trial.

Although unable to remember exactly what he told her at that time, he speculated that

they reviewed and discussed the contents of his report.



                             C. Testimony of Trial Attorney

       The petitioner’s attorney conducted an initial interview with the petitioner which

lasted thirty minutes to one hour. She said she heard the petitioner’s version of the

events and discussed the charges against him. She said the petitioner cooperated in

the preparation of his case, although he was arrested several times between her

appointment and the start of trial.



       The attorney said she spoke with the convenience store clerk within four days of

her original appointment. She said she participated in the preliminary hearing on

August 10, 1990. She stated that she later received information about another possible


                                             7
witness and tried to get information from the petitioner’s doctor regarding the

petitioner’s injury and his inability to force someone to have sex with him.



       The attorney testified that in the course of her pre-trial investigation, she secured

a preliminary hearing transcript to use in preparing for her cross-examination of the

victim. She said she also went to the scene of the crime. Her case log reflects that the

petitioner appeared at his arraignment, which confirmed to her that he knew the

charges against him. She said that a copy of the indictment would have been made

available to the petitioner at that time.



       The attorney said she interviewed LaVergne police officers Spicer and Ruch

about their involvement with the petitioner on the night of the rape. She said she also

contacted several people mentioned by the petitioner as witnesses to the lightning

strike and injury he suffered just days before the rape.



       The attorney testified that the petitioner visited her office regularly. Although not

every meeting was an interview, she said she did advise him about the aggravated rape

charge. Before the preliminary hearing, she said she explained the charge, and she

testified that she would have explained the elements of the crime. She said that she

explained the defense of consent and that the petitioner seemed to understand their

discussions.



       The attorney said she discussed the option of a plea agreement with the

petitioner, but the petitioner resisted and maintained that he did not rape the victim.

Although her case log reflected an offer to allow the petitioner to plead guilty to simple

rape, she said she did not recall receiving or discussing any specific plea offer with the

petitioner. However, she stated that the office policy was to convey any and all




                                             8
settlement offers and that there was no reason to believe that the policy was not

followed in this case.



       The attorney testified that she reviewed the victim’s medical records prior to trial.

Because she understood them, she said she felt no need to consult a medical expert or

medical library for clarification of their import. She said the records revealed substantial

injuries to the victim. The attorney did not remember reviewing the medical records

with the petitioner but did advise him of the serious nature of the victim’s injuries.



       The attorney testified that the state did comply with the court’s discovery order,

although it was still providing discovery four days before trial. The attorney said she

reviewed the state’s file pursuant to its open-file policy. She said the state informed her

shortly before trial that Dr. Sharon Piper would be a witness. She said she interviewed

Dr. Piper the next day, and Dr. Piper expressed her medical opinion that the victim’s

injuries were not the result of consensual sex. The attorney said she did not seek

another medical professional to assess the opinion, nor did she pursue other possible

causes of the victim’s injuries.



       The attorney also recalled that Officer Ruch testified favorably for the petitioner

at trial. She said he testified that the victim told him that the petitioner did not force her

into the kissing and oral intercourse. She said this corroborated the petitioner’s version

that the sexual intercourse was consensual.



       The attorney said that Dr. Piper testified that in her medical opinion, the victim’s

injuries could only have been caused by force. The attorney said she did not cross-

examine Dr. Piper regarding this aspect of her testimony because the petitioner did not

contest the existence of the victim’s injuries. She said that Dr. Elizabeth LaRoche

testified in rebuttal for the state that a speculum could not cause the injuries suffered by



                                              9
the victim. The attorney said she did not object to the testimony and chose not to

cross-examine Dr. LaRoche. She said that she did not want to risk Dr. LaRoche

testifying that the petitioner could have caused the injuries.



       The attorney said that she and the petitioner discussed his decision to take the

stand at trial. She said that in preparation, they rehearsed his testimony with her

playing the role of prosecutor. She also related that a week before trial, the District

Public Defender, Gerald Melton, put the petitioner through a “grueling” cross-

examination.



       The attorney testified that the petitioner made the final decision to testify during

the trial. She said that the victim’s testimony was very sympathetic and effective and

that she felt the jury wanted to hear from the petitioner. She said the petitioner had

done well in rehearsal, and she hoped he would come across well to the jury. She said

she did not discourage the petitioner from testifying, but the choice ultimately remained

the petitioner’s to make.



       According to the attorney, the petitioner had three defenses available to him:

alibi, consent, and mistake. She said that alibi was not an option under the facts of this

case. Although she said she felt that mistake can be a legitimate defense, she said she

was unaware of any case in which it was used successfully. She said she decided not

to assert it and did not request a jury instruction. Instead, she said she asserted the

defense of consent.



       Based on her pre-trial meeting with David Meador, the attorney believed that

Meador felt the intercourse between the petitioner and the victim was consensual. She

said the district attorney successfully objected to Meador’s testimony about the victim’s

statement based upon the requirement that a witness first be given an opportunity to



                                             10
explain a prior inconsistent statement. She said she made a conscious decision not to

cross-examine the victim regarding her alleged statement to Meador that the

intercourse was consensual. She said the state rule regarding impeachment by use of

a prior inconsistent statement was in question, and the federal rule would have required

the state to recall the victim to explain her statement. She admitted that she did not

make an offer of proof.



       Nevertheless, the attorney said she was prepared for trial. She said she

presented the defense of consent as planned. She also felt that the petitioner was

prepared to go to trial and to assist in his defense. She said there were no real

surprises regarding the evidence presented other than the judge’s evidentiary ruling

against her with regard to Meador’s testimony. The attorney felt that, overall, she

effectively represented the petitioner.



                               TRIAL COURT’S FINDINGS

       The trial court found that the attorney rendered competent, effective

representation. In response to the petitioner’s claim that the case was insufficiently

investigated, the court found otherwise. The court found that the attorney and

members of the public defender’s office had numerous meetings with the petitioner

during which the case was discussed to everyone’s apparent satisfaction. It found that

the attorney reviewed the medical evidence against the petitioner and that she did a

good job cross-examining the state’s witnesses. The trial court noted that this case was

essentially a credibility contest between the petitioner and the victim. The jury chose to

believe the victim. The trial court concluded that the attorney presented a defense

within the required range of competence.




                                           11
                                STANDARD OF REVIEW

       In a post-conviction case, the burden is on the petitioner to prove his grounds for

relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). Under the

Sixth Amendment, when a claim of ineffective assistance of counsel is made, the

burden is upon the petitioner to show (1) that counsel's performance was deficient and

(2) that the deficiency was prejudicial in terms of rendering a reasonable probability that

the result of the trial was unreliable or the proceedings fundamentally unfair. Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v.

Fretwell, 506 U.S. 364, 369-72, 113 S. Ct. 838, 842-44 (1993). The Strickland standard

has been applied, as well, to the right to counsel under Article I, Section 9 of the

Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).



       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court

decided that attorneys should be held to the general standard of whether the services

rendered were within the range of competence demanded of attorneys in criminal

cases. Further, the court stated that the range of competence was to be measured by

the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.

1974) and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir. 1973). Also,

in reviewing counsel's conduct, a "fair assessment of attorney performance 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; see

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (counsel's conduct will not be measured

by "20-20 hindsight"). Thus, the fact that a particular strategy or tactic failed or even

hurt the defense does not, alone, support a claim of ineffective assistance. Deference

is made to trial strategy or tactical choices if they are informed ones based upon

adequate preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487 F.2d at 1201.




                                             12
      Also, we note that the approach to the issue of the ineffective assistance of

counsel does not have to start with an analysis of an attorney's conduct. If prejudice is

not shown, we need not seek to determine the validity of the allegations about deficient

performance. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.



      On appeal, we are bound by the trial court’s findings unless we conclude that the

evidence preponderates against those findings. In this respect, we may not reweigh or

reevaluate the evidence or substitute our inferences for those drawn by the trial court.

See Henley v. State, 960 S.W.2d 572, 578-79 (1997); Black, 794 S.W.2d at 755.

Questions concerning the credibility of witnesses and the weight and value to be given

to their testimony are resolved by the trial court. Henley, 960 S.W.2d at 579; Black, 794

S.W.2d at 755. The petitioner has the burden on appeal of illustrating how the

evidence preponderates against the judgment entered. Id.



                                        ANALYSIS

      1.     As for the alleged failure to investigate the case sufficiently, the trial court

found that the attorney adequately investigated the case. The evidence does not

preponderate against this finding. Furthermore, the petitioner has failed to establish

that further investigation would have benefited his defense. The petitioner has not

shown deficiency or prejudice.



      2.     As for the alleged failure to present a defense within the required range of

competence, the trial court specifically found that the defense was competent. The

record does not preponderate against this finding. The attorney’s failure to present the

defense of mistake was a tactical decision which this court may not second-guess. The

petitioner has not shown deficiency.




                                            13
       3.       As for the alleged failure to cross-examine the state’s witnesses properly,

the trial court specifically found that the attorney did a good job in her cross-

examination. The record does not preponderate against this finding. The petitioner has

not shown deficiency.



       4.       As for the alleged failure to prepare adequately for trial, the attorney’s

case log reflects ample preparation. The petitioner has demonstrated neither any

deficiency on her part nor that additional preparation would have resulted in a different

outcome. The petitioner has failed to show prejudice.



       5.       As for the alleged failure to review the petitioner’s preliminary hearing

testimony prior to trial, the attorney testified that she had a transcript made from which

to prepare for the victim’s cross-examination. The petitioner has failed to prove that his

attorney did not review the transcript, nor does the petitioner establish that this would

have affected the trial’s outcome. The petitioner has not made a showing of deficiency

or prejudice.



       6.       As for the alleged failure to advise and prepare the petitioner sufficiently

for his testimony at trial, the attorney testified that they discussed this issue. She

testified that they rehearsed the petitioner’s testimony and that the petitioner made the

final choice during the trial to testify. The petitioner has failed to show any deficiency by

counsel or prejudice.



       7.       As for the alleged failure to advise petitioner adequately of the evidence

against him, the attorney testified that the petitioner was advised of, and understood,

the evidence against him. The petitioner has failed to prove otherwise or to show

deficiency or prejudice.




                                               14
       8.     As for the failure to contest the allegedly “fatally defective” indictment, the

petitioner makes no reference to the record and fails to cite any authority. This issue is

waived. T.R.A.P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). We also note that this issue

has been previously determined against the petitioner in a prior habeas corpus appeal.

See Donald Wayne Holt v. Howard Carlton & State, No. 03C01-9702-CR-00059,

Johnson County (Tenn. Crim. App. Dec. 23, 1997).



       9.     As for the alleged failure to advise the petitioner in a timely manner of

medical evidence to be presented at trial, trial counsel testified otherwise. Further, the

petitioner has failed to show that any benefit could have been derived from additional

preparation or that the outcome would have been different. The petitioner has failed to

show deficiency or prejudice.



       10.    As for the failure to cross-examine the victim concerning her alleged

statement to David Meador, we again see no deficiency. At the time of the trial, no

case law existed that interpreted whether Rule 613(b), Tenn. R. Evid., required that the

witness be given the opportunity to admit, explain or deny a prior inconsistent statement

as a prerequisite to proving the inconsistent statement by extrinsic evidence. We note

that the identical Rule 613(b), Fed. R. Evid., was contemplated to do away with the

traditional foundation requirement of confronting the impeached witness with the prior

inconsistent statement during cross-examination. See Notes of Advisory Committee on

Proposed Rules, Fed. R. Evid. 613. In fact, in 1996, this court concluded that it was

unnecessary to confront the witness with a statement before the statement was

declared admissible. See State v. Henry Lee Martin, No. 01C01-9411-CR-00397,

Davidson County (Tenn. Crim. App. May 24, 1996). However, the Tennessee Supreme

Court refused to adopt this court’s position, holding that extrinsic evidence of an

inconsistent statement is inadmissible until the witness either denies or equivocates as

to having made the prior inconsistent statement. State v. Martin, 964 S.W.2d 564, 567



                                             15
(Tenn. 1998). Defense counsel’s actions cannot be evaluated from hindsight but must

be evaluated from counsel’s perspective at the time of the conduct. Strickland, 466

U.S. at 689, 104 S. Ct. at 2065. The attorney’s reliance upon most federal courts’

interpretation of the same language as found in Rule 613(b), Tenn. R. Evid., was

reasonable under the circumstances. We conclude that the attorney’s performance

was not deficient.



       In any event, we note that Officer Ruch’s testimony regarding the victim’s

statements to him also impeached the victim’s testimony. Ironically, although the state

objected to Officer Ruch testifying about the victim’s statement because the defendant

had not cross-examined the victim about the statement, the trial court admitted the

evidence. Thus, the petitioner did get the benefit of impeaching evidence on the

consent issue.



       11.    As for the failure of counsel to make an offer of proof to preserve David

Meador’s testimony, the petitioner has not shown that the offer of proof would have

affected the outcome of the direct appeal. On direct appeal, this court decided this

issue on its merits and simply noted the lack of an offer of proof as an alternative basis.

See Donald Wayne Holt, slip. op. at 8.



       12.    The failure to object to the testimony of Dr. Elizabeth LaRoche was a

tactical decision. We may not second guess this decision. The petitioner has not

shown deficiency or prejudice.



       13.    As for the failure to present evidence concerning scientific laboratory

results, the petitioner makes no reference to the record and fails to cite any authority.

This issue is waived. T.R.A.P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). Furthermore,

the petitioner has failed to show prejudice.



                                               16
       The trial court’s findings of fact are conclusive unless the evidence

preponderates otherwise. The evidence does not preponderate against the findings of

the trial court. We, therefore, conclude that the petitioner has failed to establish the

ineffective assistance of counsel.



                                      CONCLUSION

       Based upon the foregoing and the record as a whole, we affirm the judgment of

the trial court.



                                                          __________________________
                                                          Joseph M. Tipton, Judge



CONCUR:


__________________________
Joe G. Riley, Judge


_________________________
Alan E. Glenn, Judge




                                            17
