         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                Assigned on Briefs June 9, 2004

          CHRISTOPHER TODD BROWN v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 97-C-1832     Steve R. Dozier, Judge



                      No. M2003-01993-CCA-R3-PC - Filed June 18, 2004


The petitioner appeals the denial of post-conviction relief relating to his convictions for attempted
first degree murder and attempted second degree murder. On appeal, the petitioner contends: (1)
he received ineffective assistance of counsel at trial and on appeal; and (2) the trial court erroneously
instructed the jury on the definition of the “knowing” mens rea for attempted second degree murder.
We affirm the judgment of the post-conviction court.

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

JOE G. RILEY , J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E. GLENN ,
JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Christopher Todd Brown.

Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Stephen Douglas Thurman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The petitioner was convicted of attempted first degree murder and attempted second degree
murder for shooting the victims, Jerry Anthony and Robert Wray, on March 7, 1997. The petitioner
received an effective thirty-three-year sentence. A panel of this court upheld the petitioner’s
convictions and sentences on direct appeal. See State v. Christopher Todd Brown, No. M1999-
00691-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Mar. 9, 2000), perm.
to app. denied (Tenn. 2001).

        We incorporate the following facts of the underlying offenses from this court’s opinion on
direct appeal:

                        On March 7, 1997, a verbal altercation arose between the
                [petitioner] and the victims during a “dice game” at the Urban Manor
                Apartments. The [petitioner] left the area, but returned approximately
               fifteen minutes later. As the [petitioner] rounded the corner of the
               building, he yelled “I got you now, die MF die.” [Petitioner]
               proceeded to open fire on Jerry Anthony. Anthony was shot in the
               arm, hip and chest. The [petitioner] continued to shoot even after
               Anthony had fallen to the sidewalk. Robert Wray positioned himself
               on top of Anthony to protect him from the continuing barrage of
               shots. Wray was shot twice in the leg.

Id. at *2.

                         I. POST-CONVICTION RELIEF HEARING

         At the post-conviction relief hearing, trial counsel testified he met with the petitioner on
several occasions during which they discussed the case at length, including any possible defenses.
Trial counsel stated the petitioner informed him that he did not commit the offenses, and the
petitioner wished to pursue a defense relating to identity. Trial counsel explained that in preparing
for trial, he researched issues relating to identity, met with the petitioner’s family on two occasions,
interviewed witnesses, and surveyed the crime scene. Trial counsel stated he also reviewed a tape
recording of the preliminary hearing. He stated that when he reviewed the jury instructions at trial,
he was “okay” with them. Trial counsel voiced no objection to the following portion of the jury
charge on attempted second degree murder:

                       A person acts “knowingly” with respect to the conduct or to
               circumstances surrounding the conduct when the person is aware of
               the nature of the conduct or that the circumstances exist. A person
               acts knowingly with respect to a result of the person’s conduct when
               the person is aware that the conduct is reasonably certain to cause the
               result.

         Different counsel represented the petitioner on his direct appeal. Appellate counsel testified
he raised issues relating to lesser-included offenses and consecutive sentencing. Although appellate
counsel was not questioned at the hearing about failing to challenge the jury charge on “knowingly,”
it is apparent from the record that this issue was not raised on appeal.

        In denying relief, the post-conviction court found the petitioner failed to demonstrate that
trial counsel was deficient in failing to raise all possible defenses at trial. The court noted trial
counsel and the petitioner met on several occasions during which they discussed possible defenses,
and the petitioner maintained he did not commit the offenses. The post-conviction court found the
petitioner waived the issue relating to the trial court’s jury instruction on “knowingly” by failing to
raise the issue on direct appeal. The post-conviction court further found the trial court’s jury
instruction regarding the definition of “knowingly” was harmless error because mens rea was not
raised as an issue at trial. The post-conviction court noted the petitioner’s defense at trial was that
he was not the shooter.



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                                 II. STANDARD OF REVIEW

        The post-conviction judge’s findings of fact on post-conviction hearings are conclusive on
appeal unless the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). Those findings of fact are afforded the weight of a jury verdict, and this court is bound by
the findings unless the evidence in the record preponderates against those findings. Jaco v. State,
120 S.W.3d 828, 830 (Tenn. 2003). This court may not reweigh or reevaluate the evidence, nor
substitute its inferences for those drawn by the post-conviction court. State v. Honeycutt, 54 S.W.3d
762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are reviewed under
a purely de novo standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001). The petitioner bears the burden of proving the factual allegations that would entitle
him to relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).

                                          III. WAIVER

         We first note that the post-conviction court entered its order denying relief on March 20,
2003. However, the petitioner did not file his notice of appeal until August 5, 2003, well beyond
the thirty-day requirement. See Tenn. R. App. P. 4(a). The petitioner filed a motion with the post-
conviction court requesting a waiver of the thirty-day requirement, and the post-conviction court
granted the motion. Although a waiver of timely filing of the notice of appeal may be granted in
a criminal appeal, the rule provides that the “appropriate appellate court shall be the court that
determines whether such a waiver [of the thirty-day requirement] is in the interest of justice.” Tenn.
R. App. P. 4(a). Thus, the post-conviction court was without authority to grant the petitioner’s
motion. Nevertheless, we conclude waiver of the thirty-day requirement is appropriate; thus, we
elect to address the issues on their merits.

                      IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       The petitioner contends he received ineffective assistance of counsel at trial and on direct
appeal. We disagree.

        When a claim of ineffective assistance of counsel is made, the burden is upon the
complaining party to show (1) that counsel’s performance was deficient, and (2) the deficiency was
prejudicial in terms of rendering a reasonable probability that the result of the trial was unreliable
or the proceedings fundamentally unfair. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004).
In reviewing counsel’s conduct, we assess performance by eliminating the distorting effects of
hindsight and evaluate the conduct from counsel’s perspective at the time. Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). It is unnecessary for a court to address deficiency and prejudice in
any particular order, or even to address both if the petitioner makes an insufficient showing on
either. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

       It is counsel’s responsibility to determine the issues to present on appeal. State v. Matson,
729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (citing State v. Swanson, 680 S.W.2d 487, 491
(Tenn. Crim. App. 1984)). This responsibility addresses itself to the professional judgment and

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sound discretion of appellate counsel. Porterfield v. State, 897 S.W.2d 672, 678 (Tenn. 1995).
There is no constitutional requirement that every conceivable issue be raised on appeal. Carpenter,
126 S.W.3d at 887.

A. Failure to Investigate

        We are unable to ascertain from his brief whether the petitioner challenges the adequacy of
trial counsel’s investigation of the case as a basis for ineffective assistance of counsel in this appeal.
The petitioner merely cites to case law regarding trial counsel’s duty to investigate and does not
explain how trial counsel was deficient in investigating the case. Regardless, at the post-conviction
hearing, trial counsel testified he met with the petitioner on several occasions, conducted research,
met with the petitioner’s family, interviewed witnesses, surveyed the crime scene, and reviewed a
tape recording of the preliminary hearing. The petitioner did not testify at the hearing, and he did
not present any other witnesses to rebut trial counsel’s testimony concerning this issue. The post-
conviction court found no deficiency in this regard, and the evidence does not preponderate against
the findings of the post-conviction court. Accordingly, the petitioner is not entitled to relief on this
claim.

B. Jury Instruction

         The petitioner contends trial counsel was ineffective in failing to object to the trial court’s
instruction regarding the definition of “knowingly” as it related to attempted second degree murder.
The petitioner further contends appellate counsel was ineffective in failing to raise the issue in the
motion for new trial and on direct appeal. However, the petitioner did not present these issues as
claims of ineffective assistance of counsel in his original and amended post-conviction relief petitions
or during the hearing. Rather, the petitioner framed this issue as a free-standing claim, contending
the trial court’s instruction violated due process. Since an appellant cannot change theories from
the trial court to the appellate court, this issue is waived. State v. Alder, 71 S.W.3d 299, 303 (Tenn.
Crim. App. 2001); State v. Dooley, 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000). Regardless of
waiver, this issue is without merit.

        On July 14, 2000, our state supreme court filed its opinion in State v. Ducker, holding that
child abuse was not a result-of-conduct offense. 27 S.W.3d 889, 896 (Tenn. 2000). The court
further stated second degree murder was a result-of-conduct offense. Id. However, Ducker did not
discuss jury charges.

         In the unreported opinion of State v. Keith T. Dupree, W1999-01019-CCA-R3-CD, 2001
Tenn. Crim. App. LEXIS 65 (Tenn. Crim. App. Jan. 30, 2001), this court, facing an issue of first
impression, held the trial court erred by failing to charge the jury that the defendant must have acted
“knowingly” with regard to the result of his conduct to be found guilty of second degree murder.
Id. at **11-12. Unlike the jury charge at issue in the case at bar, the instruction in Keith T. Dupree
made no reference whatsoever to the result-of-conduct mens rea.

       On April 16, 2002, this court issued its opinion in State v. Page, 81 S.W.3d 781 (Tenn. Crim.
App. 2002), in which we held the trial court erred in instructing the jury that the defendant could be

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convicted of second degree murder if he acted knowingly with respect to the nature of his conduct
or the circumstances surrounding the conduct. Id. at 788. In Page, we noted that “[a] jury
instruction that allows a jury to convict on second degree murder based only upon awareness of the
nature of the conduct or circumstances surrounding the conduct improperly lessens the state’s
burden of proof.” Id. (citation omitted). This court has applied the analysis in Page to convictions
for attempted second degree murder. See State v. Theron Davis, No. W2002-00446-CCA-R3-CD,
2003 Tenn. Crim. App. LEXIS 506, at **27-30 (Tenn. Crim. App. May 28, 2003), perm. to app.
denied (Tenn. 2003).

        As previously stated, the trial court gave the following jury instruction regarding the
definition of “knowingly”:

                        A person acts “knowingly” with respect to the conduct or to
                circumstances surrounding the conduct when the person is aware of
                the nature of the conduct or that the circumstances exist. A person
                acts knowingly with respect to a result of the person’s conduct when
                the person is aware that the conduct is reasonably certain to cause the
                result.

       The petitioner was convicted on June 10, 1998, and sentenced on October 10, 1998.
Judgments were entered on October 30, 1998. The petitioner’s brief on the direct appeal was filed
on November 12, 1999. The appeal was submitted to this court on briefs on February 25, 2000.
This court entered its judgment and opinion affirming the petitioner’s convictions on March 9, 2000.

        The petitioner’s trial occurred two years before our state supreme court filed its opinion in
Ducker. Furthermore, this court issued its opinion affirming the petitioner’s conviction four months
before Ducker was filed, ten months before Dupree was filed, and two years before Page was filed.
Claims of ineffective assistance of counsel “should be limited to situations where the law or duty
is clear such that reasonable counsel should know enough to raise the issue.” Ernest B. Eady v.
State, No. E2002-03111-CCA-R3-PC, 2004 Tenn. Crim. App. LEXIS 284, at *22 (Tenn. Crim. App.
Mar. 25, 2004) (citation omitted), perm. to app. pending. Accordingly, we conclude trial counsel’s
performance was not deficient in failing to object to the trial court’s instruction and further conclude
appellate counsel’s performance was not deficient in failing to raise the issue on direct appeal. The
petitioner is not entitled to relief on this issue.

                                      V. JURY INSTRUCTION

        In a free-standing claim, the petitioner contends the trial court erred in instructing the jury
regarding the definition of “knowingly,” thus violating his due process rights. The Post-Conviction
Procedure Act prohibits consideration of any claim which could have been, but was not, presented
in an earlier proceeding, subject to certain exceptions. Tenn. Code Ann. § 40-30-106(g) (2003).
One of the exceptions is where the claim is based upon “a constitutional right not recognized as
existing at the time of trial” if retroactive application of that right is required. Id. at (g)(1). However,
we are unable to conclude that this claim is based upon a new constitutional right. The petitioner
failed to raise this issue on direct appeal; therefore, this issue is waived.

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We affirm the judgment of the post-conviction court.



                                             ____________________________________
                                             JOE G. RILEY, JUDGE




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