           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                        DECEMBER SESSION, 1996


WILLIE D. LOCUST,           )      C.C.A. NO. 02C01-9512-CC-00356
                            )
      Appellant,            )
                            )
                            )      DYER COUNTY
                                                               FILED
VS.                         )                                    July 23, 1997
                            )      HON. JOE G. RILEY
STATE OF TENNESSEE,         )      JUDGE                       Cecil Crowson, Jr.
                            )                                  Appellate C ourt Clerk
      Appellee.             )      (Post-Conviction Relief)




FOR THE APPELLANT:                 FOR THE APPELLEE:

LANCE E. WEBB                      CHARLES W. BURSON
P. O. Box 26                       Attorney General and Reporter
Union City, TN 38061
                                   ROBIN L. HARRIS
                                   Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   PHILLIP BIVENS
                                   District Attorney General

                                   KAREN WINCHESTER
                                   Assistant District Attorney
                                   P. O. Box E
                                   Dyersburg, TN 38024




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                      OPINION


         Appellant Willie D. Locust appeals from the dismissal of his petition for post-

conviction relief. On September 28, 1993, a jury found Appellant guilty of one count

of aggravated rape and one count of aggravated burglary. As a Range I standard

offender, Appellant received concurrent sentences of twenty years imprisonment for

aggravated rape and four years imprisonment for aggravated burglary. On October

5, 1994, this Court affirmed the convictions and the sentences of the trial court. See

State v. Locust, No. 02-C-01-9404-CC-00075, 1994 WL 536187, at *2 (Tenn. Crim.

App. Oct. 5, 1994), perm. app. denied, (Tenn. Jan 3, 1995). On March 14, 1995,

Appellant filed a pro se petition for post-conviction relief, alleging ineffective

assistance of counsel and prosecutorial misconduct. After appointment of counsel

and an evidentiary hearing, the trial judge dismissed the petition. In this appeal of

that decision, Appellant alleges that his pre-trial counsel and his trial counsel were

ineffective and that the indictment against him was defective.



         For the reasons stated below, we affirm the decision of the post-conviction

court.



                                  Factual Background

         On April 30, 1993, Bobbie Evans and several friends went to a bar to have

some drinks. She and her friends were given a ride home by a man named William

Birmingham. Mr. Birmingham accompanied Ms. Evans back to her apartment and

stayed until approximately 4:45 a.m. After Mr. Birmingham left, Ms. Evans fell

asleep on her couch but was awakened by Appellant. He was naked and standing

over her holding a knife. Appellant threatened to kill her if she resisted. He then

raped her once on the couch and once in the bedroom. Ms. Evans received several



                                            -2-
cuts and bruises in the process. After these attacks, Appellant ordered her to make

him a sandwich and then gave her his name and phone number before he left.

Thirty minutes later, Ms. Evans went to a neighbor’s house and reported the

incident.



       Appellant admitted to having sex with Ms. Evans but claimed that it was

consensual. He testified that she called to him from her balcony when he was

outside her apartment. According to Appellant’s version of the events, Ms. Evans

asked him to find some marijuana for her and in return she would sleep with him.



                       I. Ineffective Assistance of Counsel

       Appellant alleges that pre-trial counsel’s representation was deficient

because he joined the staff of the district attorney general. Appellant further alleges

that trial counsel’s representation was deficient because counsel failed: (1) to raise

and preserve for appellate review the allegation that Mr. Birmingham had sexual

relations with the victim prior to Appellant’s attack; (2) to adequately cross-examine

the victim; (3) to raise important issues on appeal and to explain to Appellant his pro

se briefing rights; (4) to object to inflammatory statements made by the prosecutor

during closing; and (5) to secure a deoxyribonucleic acid (DNA) comparison of the

semen found in the victim with a blood sample from Appellant.



       When an appeal challenges the Sixth Amendment right to effective

assistance of counsel, the appellant has the burden of establishing that the advice

given or services rendered by the attorney fell below the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930 (Tenn.

1975). Under Strickland v. Washington, 466 U.S. 668, 687 (1984), there is a two-

prong test which places the burden on the appellant to show that (1) the

representation was deficient, requiring a showing that counsel made errors so

                                          -3-
serious that he or she was not functioning as “counsel” as guaranteed a defendant

by the Sixth Amendment, and (2) the deficient representation prejudiced the

defense to the point of depriving the appellant of a fair trial with a reliable result.

Prejudice is shown by demonstrating a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id. at

694. Under the Strickland test, a reviewing court’s scrutiny “must be highly

deferential. It is all too tempting for a defendant to second-guess counsel’s

assistance after conviction or adverse sentence . . . .” Id. at 689. In fact, a

petitioner challenging his counsel’s representation faces a “strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance .

. . .” Id. at 689.



         Before addressing the substance of Appellant’s claim of ineffective

assistance of counsel, we recognize that our scope of review is limited. In a petition

for post-conviction relief, the petitioner must establish his or her allegations by a

preponderance of the evidence. McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim.

App. 1983) (citing Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978)).

Furthermore, the findings of fact made by a trial judge in post-conviction hearings

are conclusive on appeal unless the appellate court finds that the evidence

preponderates against the judgment. Butler v. State, 789 S.W.2d 898, 899 (Tenn.

1990).



       A. Pre-Trial Counsel’s Employment by the District Attorney General

         Appellant’s first attorney joined the staff of the district attorney general after

he had represented Appellant at the preliminary hearing. Of course it is firmly

established, “both in the Canons of Professional Ethics and by judicial opinions, that

attorneys cannot represent conflicting interests or undertake to discharge

inconsistent duties.” State v. Phillips, 672 S.W.2d 427, 430 (Tenn. Crim. App.

                                              -4-
1984). However, before leaving the public defender’s office, pre-trial counsel

informed Appellant that he would no longer be representing Appellant and that

someone else in the public defender’s office would be representing him. Upon

joining the district attorney general’s office, pre-trial counsel had absolutely no

involvement with Appellant’s case. In fact, Appellant does not even allege that any

confidential information was passed or that any other impropriety occurred. Under

the circumstances, Appellant has failed to demonstrate deficient performance or any

prejudice with respect to this ground.



                  B. Alleged Prior Sexual Relations of the Victim

       Appellant alleges that trial counsel’s performance was deficient because he

failed to raise the question of the victim’s alleged consensual sexual relations with

Mr. Birmingham the morning of the attack on the victim. Appellant seems to be

arguing that if the victim consented to having sexual relations with one man she

must have consented to sexual relations with Appellant. Appellant claims that this

evidence was admissible to prove consent pursuant to Tennessee Rule of Evidence

412(c)(4)(iii), which provides that evidence of specific instances of sexual conduct

with persons other than the accused are admissible if:

       the evidence is of a pattern of sexual behavior so distinctive
       and so closely resembling the accused’s version of the
       alleged encounter with the victim that it tends to prove that
       the victim consented to the act charged or behaved in such
       a manner as to lead the defendant to reasonably believe
       that the victim consented.


       The victim’s alleged sexual relations with Mr. Birmingham show absolutely no

resemblance to Appellant’s version of the encounter. The victim and Mr.

Birmingham had dated for years and were once engaged to be married. On the

night in question, they had discussed renewing their relationship. Appellant claims

the victim offered sex in exchange for drugs. Under the circumstances, any sexual

involvement with Mr. Birmingham was inadmissible at trial. Thus, Appellant has

                                           -5-
failed to demonstrate any deficient performance on the part of counsel or any

prejudice to his defense.



                         C. Cross-Examination of the Victim

       Appellant next alleges that trial counsel was ineffective in his cross-

examination of the victim. Appellant argues that trial counsel failed to question the

victim about certain inconsistencies between police reports and her trial testimony.

After the victim was raped, she went to her neighbor’s house to tell her what had

happened. Her neighbor called the police and reported the incident. In the police

report, the neighbor is quoted as saying that the victim was raped by an unknown

assailant. In the incident report, the victim stated that the assailant forced her to

have sex with him, ordered her to make him a sandwich, and then forced her to

have sex again. In her trial testimony, the victim claimed that her assailant forced

her to have sex twice and then ordered her to make a sandwich. The first

inconsistency to which Appellant points is a statement made by the victim’s neighbor

and not the victim herself. In addition, the victim testified at trial that she had never

seen or spoken to Appellant before the night of the rape. The second alleged

inconsistency carries no importance. Certainly, a variance in the order in which

Appellant ordered the victim to have sex and to fix a sandwich would not destroy her

testimony. Finally, from the record it appears that trial counsel conducted an

exacting cross-examination, asking the victim about several inconsistencies

between her trial testimony and her preliminary hearing testimony. Even assuming

that counsel’s cross-examination was deficient, Appellant has failed to show how the

result of the trial would have been different absent the alleged deficiency.



                                 D. Issues on Appeal

       Appellant further alleges that trial counsel failed to preserve and brief

important issues on appeal. Appellant also faults trial counsel for not informing him

                                           -6-
of his pro se briefing rights. The only issue not raised on direct appeal, that

Appellant claims should have been, concerns is the admissibility of the victim’s prior

sexual relations with Mr. Birmingham. We have already found that this evidence

was inadmissible; therefore, Appellant’s contention is without merit. As for

Appellant’s pro se briefing rights, it is well established that a criminal defendant

cannot be represented by counsel and simultaneously proceed pro se. See, State

v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976). Because Appellant was proceeding

with counsel on appeal he had no right to file a pro se brief. Appellant has thus

failed to demonstrate any prejudice with respect to this issue.



                          E. Prosecutor’s Closing Argument

       Appellant also alleges that trial counsel erred in failing to object to

inflammatory remarks made by the prosecution. During closing argument, the

prosecutor stated that rape cases were “not ever going to be as clear as you would

like, but that they’re as clear as they get in real life situations.” He further stated,

“And that’s what you have here. And you could well be involved in one of these

situations yourself. This lady didn’t invite this. Thank you.” The prosecutor also

made the following statement about Appellant: “But we’re not accusing him of being

smart. We’re accusing him of being dangerous.”



        The general test to be applied to alleged prosecutorial misconduct during

final argument is “whether the improper conduct could have affected the verdict to

the prejudice of the defendant.” Harrington v. State, 385 S.W.2d 758, 759 (Tenn.

1965). In making that determination, we take into account the following factors:

                     1. The conduct complained of viewed in
              context and in light of the facts and
              circumstances of the case.
                     2. The curative measures undertaken
              by the court and the prosecution.
                     3. The intent of the prosecutor in
              making the improper statement.

                                       -7-
                      4. The cumulative effect of the
                improper conduct and any other errors in the
                record.
                      5. The relative strength or weakness of
                the case.


Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).



          There is no doubt that the comment made by the prosecutor during closing

argument that “you could well be involved in a situation like this yourself” was improper.

However, it seems that the prosecutor was trying to explain how difficult it is to prove

the absence of consent in many rape cases where the only witnesses are the victim

and the accused. The prosecutor’s comment in this case is very similar to that found in

State v. Ashburn, were the prosecutor stated that “I hope that none of you all are ever

in this situation.” 914 S.W.2d 108, 115 (Tenn. Crim. App. 1995). In Ashburn, this Court

found that although the prosecutor’s comment was improper, it was harmless.

Likewise, we find that the prosecutor’s comment, under the circumstances of this case,

was harmless. Thus, no prejudice has been demonstrated from counsel’s failure to

object.



          The prosecutor’s comment that the State was not accusing Appellant of being

smart but was accusing him of being dangerous was made in response to defense

counsel’s closing argument. In his closing, Appellant’s trial counsel argued that it was

very strange that Appellant had given his name and telephone number to the victim

before he left. He argued that a rapist would not have done such a thing. The

prosecutor’s comment during rebuttal was a fair response to the line of argument that

an intelligent individual would not have behaved as it was alleged Appellant behaved.



                                     F. DNA Testing




                                            -8-
       Finally, Appellant claims that trial counsel was ineffective in failing to obtain a

DNA analysis from the rape kit performed on the victim. At trial, Appellant admitted to

having sex with the victim but claimed that it was consensual. Appellant believes that

the DNA analysis would prove that Mr. Birmingham had sex with the victim hours before

the rape. As stated supra, any sexual involvement with Mr. Birmingham was

inadmissible at Appellant’s trial, thus a failure to obtain a DNA analysis could not have

prejudiced Appellant.



                            II. Sufficiency of the Indictment

       Appellant next contends that because the indictment fails to state the requisite

mens rea for the crime of aggravated rape, the instrument is fatally defective. He relies

upon State v. Hill, No. 01C01-9508-CC-00267, 1996 WL 346941, at *3 (Tenn. Crim.

App. June 20, 1996), perm. app. granted, (Tenn. Jan. 6, 1997). In Hill, this Court held

that the failure to allege the mens rea or culpable mental state in a prosecution for

aggravated rape rendered the indictment fatally defective.



       After Hill was decided, a panel of this Court held that if the statute under which a

defendant is prosecuted does not allege a specific mens rea, failure to allege a culpable

mental state in the indictment does not invalidate the indictment. State v. Dison, No.

03C01-9602-CC-00051, 1997 WL 36844 (Tenn. Crim. App. Jan. 31, 1997). As this

Court said in Dison,

              When the legislature neglects to include the requisite mental
              state in the definition of an offense, permitting the
              application of any one of three mental states set forth in
              Tenn. Code Ann. § 39-11-301(c), an allegation of criminal
              conduct will provide the accused constitutionally adequate
              notice of the facts constituting the offense.

Id. at *9.


       Both the Tennessee Constitution and the United States Constitution require fair

and reasonable notice of the charges against a defendant. See U.S. Const. amend. VI;

                                             -9-
Tenn. Const. art. I, § 9. In Tennessee, an indictment serves to (1) inform the defendant

of the precise charges, (2) enable the trial court upon conviction to enter an appropriate

judgment and sentence, and (3) protect the defendant against double jeopardy. State

v. Trusty, 919 S.W.2d 305, 309 (Tenn. 1996). The facts must be stated in ordinary and

concise language so that a person of “common understanding” will know what is

intended. Warden v. State, 381 S.W.2d 244, 245 (Tenn. 1964).



       In this case, the indictment alleged that Appellant unlawfully and with force or

coercion sexually penetrated the victim while armed with a weapon in violation of

Tennessee Code Annotated Section 39-13-502. The legislature has failed to provide

for any specific mens rea under Section 39-13-502. Therefore, under Dison, the

indictment is not fatally defective since it alleged criminal conduct sufficiently to give

Appellant notice of the charges against him. Moreover, the indictment informed

Appellant of the precise charge against him and used ordinary and concise language so

that a person of common understanding would know what was intended. The trial court

was able to enter the appropriate judgment and sentence, and the allegations protected

Appellant against any subsequent prosecution for the same offense. Appellant is not

entitled to relief on this issue.



       We conclude that Appellant was not denied effective assistance of counsel nor

was the indictment defective. The judgment of the post-conviction court is affirmed.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE



CONCUR:



___________________________________

                                             -10-
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




                                -11-
