                                                                                         02/25/2020
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                        October 1, 2019 Session

                           ED LOYDE v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                       No. 12-00603      J. Robert Carter, Jr., Judge1
                          ___________________________________

                                 No. W2018-01740-CCA-R3-PC
                             ___________________________________

The Petitioner, Ed Loyde, appeals the Shelby County Criminal Court’s denial of his
petition for post-conviction relief from his convictions of rape of a child and aggravated
sexual battery and resulting effective sentence of thirty-five years in confinement. On
appeal, the Petitioner contends that the post-conviction court erred by denying his
petition because he received the ineffective assistance of counsel at trial. Based upon the
oral arguments, the record, and the parties’ briefs, we affirm the judgment of the post-
conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT W. WEDEMEYER, JJ., joined.

Josie S. Holland (on appeal) and Daniel Lenager (at hearing), Memphis, Tennessee, for
the appellant, Ed Loyde.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                                 OPINION

                                         I. Factual Background

       The Petitioner was a friend of the victim’s mother. State v. Ed Loyde, No.
W2014-01055-CCA-R3-CD, 2015 WL 1598121, at *1 (Tenn. Crim. App. at Jackson,
Apr. 6, 2015). In September 2010, he was evicted from his residence and went to live

       1
           Judge Carter did not preside over the Petitioner’s trial.
with the eight-year-old victim and her family in her grandmother’s home for about six
months. Id. In February 2012, the Shelby County Grand Jury indicted him for rape of a
child and aggravated sexual battery.

       The Petitioner was tried in February 2014. During his four-day trial, the victim,
her brother, her grandmother, two police officers, a forensic interviewer, and a
pediatrician testified for the State. The Petitioner did not present any proof, and the jury
convicted him as charged in the indictment. On direct appeal of his convictions, this
court gave the following factual account of some of the testimony presented at trial:

       [The victim] said that the abuse occurred in [her grandmother’s] living
       room where the defendant touched her breast and penetrated her vagina
       with his penis. The victim was in her home with her two brothers and the
       defendant. Her grandmother was also at the home and was asleep in her
       room. The defendant instructed the victim’s brothers to go outside and
       play, and he locked the door once they exited the house. When the victim
       asked if she could go outside as well, the defendant told her she could not.
       The defendant removed the cushions from the couch, placed them on the
       floor, and asked the victim to help him to clean the couch. He then placed
       his hand under her shirt and bra and touched her breast for “two or three
       minutes.” The defendant put the victim on her stomach on the pillows, and
       he told her to pull down her pants. The victim heard “a buckle of a belt”
       and “a zipper,” and she felt the defendant on top of her and something
       “hard” between her legs. The defendant penetrated her vagina with his
       penis, and his body “was going up and down.” She felt his penis inside of
       her vagina. The victim estimated that the defendant was on top of her for
       “for fifteen to twenty minutes.”

              The defendant stopped penetrating the victim when he heard the
       victim’s stepfather at the door. The defendant started “trying to sweep out
       the stuff on the couch,” and the victim went to her bedroom. When she
       later went to the bathroom, she felt a “wetness” between her legs that had
       not been there before the defendant penetrated her. She testified that she
       was not bleeding after the incident.

               The victim could not recall the exact date of the incident, but she
       testified that it occurred in April, several weeks before her April 21st
       birthday. She told her older brother about the abuse, but she did not make a
       disclosure to anyone else until after the defendant had moved out of the
       residence. Her brother testified that the defendant continued to live with

                                           -2-
       the family for a month after the victim revealed the abuse, but he agreed
       that it could have been as long as nine weeks.

               On cross-examination, the victim testified that she did not tell police
       officers that the defendant touched her vagina with his hand or that the
       incident took place on her bedroom floor and lasted for three or four
       minutes. She recalled telling [a forensic interviewer] that the incident
       occurred on the couch instead of on the floor. She remembered telling
       police officers and the forensic interviewer that the defendant told her to
       take off all of her clothes, and she agreed that she testified at trial that the
       defendant told her only to pull her pants down and that she did not take off
       all of her clothes.

               Dr. Karen Lakin testified as an expert in pediatrics and child sexual
       assault. She testified that a sexual assault exam was performed on the
       victim. During the examination, the victim stated that the defendant “raped
       [her].” She said that the defendant “stuck his lower part in [her] private
       part” and touched her breast. Dr. Lakin testified that there were no
       abnormalities or evidence of injuries . . . found during the examination.
       She testified that in “ninety-five to ninety-eight percent” of pediatric sexual
       assault cases, there were no physical findings of assault. She explained that
       there were not often physical findings because children often did not
       disclose the assault immediately after it occurred. Dr. Lakin stated that an
       increased passage of time between the assault and the examination made it
       less likely that the examination would produce physical findings consistent
       with sexual assault. She testified that in cases where the examination
       occurred more than seventy-two hours after the assault, there was not an
       attempt to collect DNA evidence because the procedure would be
       ineffective. She also testified that the vaginal area was able to heal very
       quickly, meaning that there would be no evidence of an assault if the area
       were examined several weeks after the assault.

Id. at *2.

       After a sentencing hearing, the trial court sentenced the Petitioner to consecutive
sentences of twenty-five years for rape of a child, a Class A felony, and ten years for
aggravated sexual battery, a Class B felony. On direct appeal of his convictions, the
Petitioner argued that the evidence was insufficient to support the convictions because the
State provided no forensic proof of the rape and because the victim’s account of the
crimes was “‘sketchy.’” Id. at *3. This court found the evidence sufficient. Id. at *4.

                                            -3-
       After our supreme court denied the Petitioner’s application for permission to
appeal, he filed a timely pro se petition for post-conviction relief, claiming that he
received the ineffective assistance of counsel. The post-conviction court appointed
counsel, and post-conviction counsel filed an amended petition. Relevant to this appeal,
the Petitioner alleged in the amended petition that trial counsel was ineffective because
he “failed to make numerous objections to improper testimony elicited by the State.” The
Petitioner then specified that trial counsel should have objected to (1) leading and
compound questions, (2) questions that were outside the scope of cross-examination, and
(3) questions that called for speculation by witnesses. The Petitioner did not quote any
specific examples of improper testimony in the trial transcript but cited to pages 267, 309,
and 331, respectively. Finally, the Petitioner alleged in the amended petition that trial
counsel was “particularly ineffective” during Dr. Lakin’s testimony because he allowed
her to answer questions that were outside her area of expertise as a pediatrician.

        Trial counsel was deceased at the time of the evidentiary hearing. The Petitioner
testified that trial counsel was appointed to represent him and that they met only twice
per month. They “mostly” talked about the Petitioner’s accepting an eight-year plea offer
from the State, and trial counsel was “really worried” the Petitioner “would get old and
die in prison” if he did not accept the State’s offer. The Petitioner asked trial counsel for
discovery but never received it. The Petitioner also was supposed to watch a video of the
victim’s forensic interview but never did so.

       The Petitioner testified that he wanted his brother and a man named Andrew
Alexander to testify at trial. The Petitioner was in the hospital when the crimes allegedly
occurred, and the Petitioner asked trial counsel to obtain his medical records from Delta
Medical to prove his alibi. However, trial counsel did not get the records. Trial counsel
told the Petitioner that he investigated the Petitioner’s case, but trial counsel never
mentioned that the State was planning to have an expert testify at trial. The Petitioner
said he did not know if trial counsel knew about the State’s expert.

       The Petitioner testified that he and trial counsel were “in cahoots with one
another” and that trial counsel did not want to represent him. At some point, the
Petitioner told the trial court that trial counsel was not representing him as an attorney
should represent a client and that trial counsel kept telling him that he was going to get
old and die in prison. The trial court told the Petitioner, “[M]aybe so, listen to your
attorney.”

      On cross-examination, the Petitioner testified that he had an alibi for the crimes
because he was in the hospital “around April 16th” and stayed in the hospital about
seventeen days due to his “mental capacity.” In 2013, the trial court sent the Petitioner to
a mental health hospital in Nashville because the Petitioner and trial counsel “had words
                                            -4-
with one another.” Although trial counsel told the Petitioner to consider the State’s eight-
year offer, the Petitioner rejected the offer because he did not commit the crimes.

       The Petitioner testified that trial counsel said he tried to find Mr. Alexander. Trial
counsel told the Petitioner that Mr. Alexander was deceased and showed the Petitioner a
newspaper clipping of Mr. Alexander’s obituary. The Petitioner acknowledged that trial
counsel had the Petitioner’s brother come to trial but that trial counsel did not call the
Petitioner’s brother as a witness.

        On redirect examination, the Petitioner testified that he was expecting his brother
to testify as an alibi witness and that trial counsel knew he wanted his brother to testify.
Trial counsel told the Petitioner that he did not call the Petitioner’s brother to the stand
because “it would cause some indiscrepancies as far as the, far as the trial is concerned.”
Trial counsel did not explain to the Petitioner what he meant by “indiscrepancies.”

       At the conclusion of the hearing, post-conviction counsel advised the post-
conviction court that he was going to subpoena the Petitioner’s medical records from
Delta Medical and requested to admit the records into evidence. The post-conviction
court agreed and scheduled another hearing in order for post-conviction counsel to
present additional proof. At the second hearing, post-conviction counsel informed the
post-conviction court that he did not receive any relevant information from Delta
Medical. Post-conviction counsel argued that trial counsel was ineffective, in pertinent
part, “by failing to make a number of necessary objections, which allowed improper
testimony to be admitted on the record” and resulted in prejudice to the Petitioner. Post-
conviction counsel then argued as follows:

               Specifically as to his failure to make objections, it was so blatant,
       Your Honor, that there was several times that the Court itself had to stop
       either questioning or testimony because the Court found that a question was
       improper or perhaps outside the scope of the expert’s testimony. I think it’s
       pretty apparent on its face if a judge is stopping a question in the middle of
       a trial that something has gone wrong, if the defense attorney doesn’t have
       the sense to make an objection. If it’s close enough for the judge to call it, I
       think it’s pretty blatant.

               Most of this -- some of the testimony came out was prejudicial in the
       form of the questioning that was inflammatory to the jury, that [trial
       counsel] stopped -- failed to object to. Some of it was simply the expert
       testifying outside her area of expertise, which was liable to confuse the jury
       or maybe make them believe something that wasn’t necessarily the case. In
       either case [trial counsel] should have been all over it and he was not.
                                            -5-
Subsequently, the post-conviction court filed a written order in which it denied the
petition for post-conviction relief.

                                       II. Analysis

       The Petitioner contends that the post-conviction court erred by denying his
petition because trial counsel was ineffective for failing to object to improper questions
asked by the State during its redirect examination of the victim. The Petitioner also
asserts that trial counsel was ineffective for failing to object to Dr. Lakin’s testimony.
The State argues that the Petitioner has waived these issues and that, in any event, he is
not entitled to relief. We conclude that the Petitioner is not entitled to relief.

        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
                                           -6-
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Further,

       [b]ecause a petitioner must establish both prongs of the test, a failure to
       prove either deficiency or prejudice provides a sufficient basis to deny
       relief on the ineffective assistance claim. Indeed, a court need not address
       the components in any particular order or even address both if the
       [petitioner] makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

        First, the Petitioner contends that trial counsel was ineffective during the State’s
redirect examination of the victim because trial counsel failed to object to the following
line of questioning on page 309 of the trial transcript:

       Q.     When [trial counsel was asking you on cross-examination] if you
       said “Stop” and how many times and how loud you got, did you ever think
       this would happen to you at eight years old?

       A.     No, ma’am.

       Q.     Did you even understand at all back then, when you were eight years
       old?

       A.     No, ma’am.

       Q.     When you went to church and listened to [the Petitioner] play
       keyboards were you thinking in your mind, one day this man is going to put
       his penis inside of me and I better be looking at a clock and screaming at
       the top of my lungs, so that I can tell people about it someday? Were you
       thinking like that back then?

       A.     No, ma’am.

       Q.     What I have asked you to do your best to be very sure about and
       which [you] seem to have been is that it happened in the month of April.
       And what I asked you is if it was before your birthday and you said it was
       before your birthday and still in the month of April; is that right?

       A.     Yes, ma’am.

                                           -7-
        The State argues that the Petitioner has waived this issue because he raises it for
the first time on appeal. However, the Petitioner alleged in his amended petition that trial
counsel should have objected to improper testimony elicited by the State. He also alleged
in the amended petition that trial counsel should have objected to redirect examination
testimony that was outside the scope of cross-examination and cited to the victim’s
redirect examination testimony on page 309. At the evidentiary hearing, post-conviction
counsel argued that trial counsel should have objected to questioning that was
inflammatory and prejudicial, and he makes that same argument to this court, stating that
the State’s questions on page 309 were “designed to inflame the jury’s passions.”
Therefore, we hold that the issue has not been waived.

       In support of his contention that the State’s questions warranted an objection, the
Petitioner asserts that the trial court “chastised trial counsel for not objecting to this line
of questioning.” We disagree with the Petitioner. After the State concluded its redirect
examination of the victim, trial counsel attempted to ask her if she remembered how
many times the Petitioner’s penis “may have gone in and come back out.” The State
objected, and the trial court sustained the objection. In a bench conference, trial counsel
advised the trial court that he asked the question in response to the State’s “time issue” on
redirect, but the trial court disagreed with trial counsel, stating, “No, sir, she didn’t ask
about time. . . . We’ve now moved into how many times did he go in and out of you,
there was nothing questioned about that and I am not going to speculate as to how long it
takes to go in and out[.]” The trial court noted that trial counsel could have objected to
the State’s redirect-examination questions and that the trial court would have sustained
the objection. However, the trial court did not “chastise” trial counsel.

        Regardless, even if trial counsel was deficient for failing to object to the State’s
questions, the Petitioner has failed to demonstrate prejudice. The Petitioner contends that
trial counsel’s failure to object “allowed the State to reiterate over and over that the
incident happened in April . . . . In failing to object to the State’s questioning as it appears
on page 309, trial counsel failed to prevent the State from discounting the discrepancies
in [the victim’s] various disclosures.” Our review of the trial transcript, though, shows
that trial counsel attacked the victim’s credibility throughout the trial by pointing out
discrepancies between her trial testimony, her statements to the police, and her forensic
interview. Therefore, we conclude that the Petitioner has failed to show that trial
counsel’s failure to object changed the outcome of his case.

       Next, the Petitioner contends that trial counsel should have objected to Dr. Lakin’s
testimony. He claims that while Dr. Lakin was qualified to testify as an expert in
pediatrics, she was not qualified to testify as an expert in child maltreatment and child
sexual assault, was not qualified to testify about a child’s ability to recall information,
was not qualified to testify about a study involving thirty-six teenage girls, and was not
                                             -8-
qualified to testify about the victim’s sexual assault examination because she did not
conduct the examination herself. Again, the State argues that the Petitioner has waived
the issue because he failed to include it in his amended petition and failed to raise it at the
evidentiary hearing. This time, we agree with the State.

        At trial, Dr. Lakin testified that she was “Board Certified in child abuse pediatrics”
and that her specialty encompassed physical and sexual assault, emotional and
psychological abuse, and neglect. Trial counsel did not challenge her qualifications, and
the trial court allowed her to testify as an expert “in the field of pediatrics and child
maltreatment and sexual assault.” Dr. Lakin testified about the victim’s sexual assault
examination, the victim’s ability to recall when the sexual abuse occurred, and a study
that was conducted on thirty-six teenage girls.

        In the Petitioner’s amended petition for post-conviction relief, he alleged that trial
counsel should have objected to questions that called for speculation by Dr. Lakin and
that were outside her area of expertise as a pediatrician, noting that she was allowed to
testify about a child’s ability to remember past experiences. Likewise, he argued at the
evidentiary hearing that trial counsel should have objected to questions that were outside
the scope of her pediatric expertise. On appeal, the Petitioner argues that trial counsel
should have objected to Dr. Lakin’s testimony because she was not qualified to testify as
an expert in child maltreatment and child sexual assault pursuant to Tennessee Rule of
Evidence 702 and because she did not provide the foundational reliability for the study
conducted on teenage girls as required by Tennessee Rule of Evidence 703. “Issues not
included in a post-conviction petition may not be raised for the first time on appeal and
are waived.” Bobby J. Croom v. State, No. W2015-01000-CCA-R3-PC, 2016 WL
690689, at *8 (Tenn. Crim. App. at Jackson, Feb. 19, 2016) (citing Walsh v. State, 166
S.W.3d 641, 645 (Tenn. 2005); Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim.
App. 2004)). In any event, the Petitioner did not call Dr. Lakin as a witness at the
evidentiary hearing so that he could challenge her qualifications as an expert in child
maltreatment or sexual assault or challenge the foundational reliability of the study.
Therefore, we conclude that he is not entitled to relief.

                                      III. Conclusion

     Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the post-conviction court.


                                                   _________________________________
                                                   NORMA MCGEE OGLE, JUDGE

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