         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     June 20, 2006 Session

                    STATE OF TENNESSEE v. LEROY SEXTON

                 Direct Appeal from the Criminal Court for Fentress County
                             No. 7977    Shayne Sexton, Judge



                    No. M2004-03076-CCA-R3-CD - Filed January 12, 2007


Following a jury trial, Defendant, Leroy Sexton, was convicted of rape of a child and was sentenced
to serve twenty-five years confinement in the Department of Correction. Defendant subsequently
filed a motion for new trial which was denied by the trial court. He now appeals arguing that he is
entitled to a new trial because (1) he received ineffective assistance of counsel at trial, and (2) the
trial court committed reversible error by allowing the prosecutor to make improper statements during
closing argument. After a thorough review of the record, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and NORMA
MCGEE OGLE, JJ., joined.

Mark E. Blakely, Huntsville, Tennessee; (on appeal), John E. Appman, Jamestown, Tennessee, (at
trial), for the appellant, Leroy Sexton.

Robert E. Cooper, Jr., Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General,
William Paul Phillips, District Attorney General; and John W. Galloway, Jr., Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                             OPINION

I. Background

         The minor victim, T.C., will be referred to by his initials. Gerthie Faye and Willard Crabtree
lived with their son, Timmy Crabtree, and their grandson, T.C. Ms. Crabtree testified that T.C. was
born on May 15, 1995, and was five years old at the time of the incident. Ms. Crabtree said that
Defendant and her daughter, Christy Sexton, visited the family on June 28, 2000. During the
afternoon, Defendant, with T.C. as an observer, engaged in shooting a pellet gun at a tree while the
rest of the family sat on the front porch. T.C. returned to the front porch at some point and asked
Willard Crabtree for a knife so that Defendant could pick out some of the pellets that were stuck in
the tree. Ms. Crabtree said that she next heard her son, Timmy, yelling, and Williard Crabtree and
Ms. Sexton went to investigate. Ms. Crabtree said that she later accompanied T.C. and Timmy
Crabtree to the Fentress County Sheriff’s Department. Ms. Crabtree said that T.C. told her that
Defendant had put his “pee-pee” in T.C.’s mouth. Ms. Crabtree said that Timmy Crabtree had been
home all day and that to her knowledge, he was not under the influence of drugs or alcohol on the
afternoon of the incident.

        Timmy Crabtree testified that he looked towards the backyard during the afternoon of June
28, 2000, and saw Defendant standing by an outbuilding with his back turned toward Mr. Crabtree.
Mr. Crabtree walked around the side of the building and saw Defendant standing in front of T.C.
with his penis in T.C.’s mouth. Defendant had his hand on T.C.’s left shoulder. Mr. Crabtree said
that he and Defendant had an altercation as a result of the incident. Mr. Crabtree acknowledged that
he was on probation at the time of the trial, and that he had various prior convictions for forgery,
driving under the influence, public drunkenness and drug-related charges. Mr. Crabtree denied that
he had drunk any alcohol or smoked any marijuana the afternoon of the incident.

         On cross-examination, Mr. Crabtree acknowledged that he pulled out a knife during his
altercation with Defendant. Mr. Crabtree said that when he saw what was happening, he yelled, and
Defendant jumped back. Defendant’s penis slid out of T.C.’s mouth, and Defendant zipped up his
pants before the others arrived. Mr. Crabtree said he had previously lived with Defendant and
Christy Sexton for awhile, and that he gave Defendant’s address to the Social Security
Administration in order to receive his disability checks. Mr. Crabtree said that he recorded $300.00
as his rental expense on his application for disability, but he acknowledged that he only paid $100.00
in rent to the Sextons. Mr. Crabtree acknowledged that Defendant and Ms. Sexton reported the
discrepancy to the social security office in Cookeville. Mr. Crabtree said that he “got aggravated
[with Defendant and Ms. Sexton,] but not that bad.”

       Willard Crabtree testified that he told Timmy Crabtree that Defendant and T.C. were in the
backyard picking pellets out of a tree on the afternoon of the incident. Willard Crabtree said that
Timmy Crabtree then walked into the yard. Willard Crabtree said that he heard “cussing,” and he and
Ms. Sexton went to investigate. Willard Crabtree asked T.C. to tell him what happened, and T.C.
told Willard Crabtree that Defendant put his penis in T.C.’s mouth.

        T.C. was shown a diagram of a nude male figure during his testimony. T.C. identified the
figure’s penis and said that he called it a “wee-wee.” T.C. testified that Defendant’s “wee-wee” went
inside T.C.’s mouth.

        Wendall Reagan, who was chief deputy with the Fentress County Sheriff’s Department at the
time of the incident, testified that Gerthie Crabtree, Timmy Crabtree, and T.C. came to his office on
June 28, 2000. Deputy Reagan said that Timmy Crabtree was angry and very upset, but he did not
appear to be under the influence of drugs or alcohol. Deputy Reagan secured a warrant for
Defendant’s arrest based on the information provided by Timmy Crabtree and T.C. Defendant was
not home, and Ms. Sexton told Deputy Reagan that Defendant had gone to Knoxville to check on


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a job. Deputy Reagan said he later found Defendant in Judy Ecret’s backyard in Jamestown and
arrested him.

        The State rested its case-in-chief. Christy Sexton testified that she and Defendant arrived at
her parents’ house between 4:00 p.m. and 4:30 p.m. on June 28, 2000. Ms. Sexton said she heard
a commotion by an outbuilding on her parents’ property. Ms. Sexton said she grabbed Timmy
Crabtree by the shirt and asked what was going on. Ms. Sexton said that Timmy Crabtree told T.C.
to say that Defendant had put his penis in T.C.’s mouth. Ms. Sexton said that she asked T.C. if
Defendant had done anything to him, and T.C. told her “no.” Ms. Sexton said that T.C. told her that
Defendant had been urinating, and Ms. Sexton said that she observed that the side of the outbuilding
was wet. Ms. Sexton said that she saw Timmy Crabtree smoking marijuana in his vehicle before her
parents arrived.

        Ms. Sexton questioned T.C. about the incident a second time a few days later when T.C. was
visiting her apartment. T.C. again told her that nothing had happened and Defendant did not touch
him. Ms. Sexton said that Ledena Durham was present during both of these conversations.

        On cross-examination, Ms. Sexton acknowledged that she brought T.C. to her apartment a
few days after the incident in order to record her conversation with the child. Ms. Sexton denied
telling her mother that she would give Timmy Crabtree a Ford Bronco and $200.00 if he would
change his story about what he witnessed. Ms. Sexton said that T.C. had visited her and Defendant
when they lived in Knoxville.

       Ledena Durham said she was present in Ms. Sexton’s apartment when Ms. Sexton recorded
her conversation with T.C. Ms. Durham said that T.C. told Ms. Sexton twice that Defendant had not
engaged in any inappropriate behavior with him. On cross-examination Ms. Durham denied that
recording T.C.’s conversations was Defendant’s idea.

       The State recalled Willard Crabtree as a rebuttal witness. Mr. Crabtree stated that “they” said
Defendant had urinated on the outbuilding. Mr. Crabtree said that he went down to check the
outbuilding a few minutes after the family left for the sheriff’s department and the side of the
outbuilding was not wet.

        Gerthie Crabtree, testifying as a rebuttal witness, said that Ms. Sexton told Ms. Crabtree that
she was taking T.C. to her apartment to swim. Ms. Sexton did not tell Ms. Crabtree that she planned
to record Ms. Sexton’s conversation with T.C. Ms. Crabtree said that T.C. never told her that
Defendant did not put his penis in T.C.’s mouth. Ms. Crabtree said that Ms. Sexton told her that she
would give Timmy Crabtree $200.00 and the Sextons’ Bronco if he would change his story. Ms.
Crabtree said that Timmy Crabtree refused to change his story.




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II. Analysis

A. Ineffective Assistance of Counsel
        Trial counsel was relieved of representing Defendant following the trial and sentencing
hearing. Defendant filed a motion for new trial and was appointed new counsel. Defendant’s new
counsel filed an amended motion for new trial and presented and argued the amended motion to the
trial court. This appeal followed.

       In his first issue, Defendant contends that he received ineffective assistance of counsel
because (1) counsel allowed the victim to testify about prior bad acts and sex crimes committed by
Defendant during counsel’s cross-examination of the victim, and (2) counsel failed to object to the
prosecutor’s improper statements during closing arguments.

        Defendant included his claim for ineffective assistance of counsel in his motion for new trial.
This Court has consistently “warned defendants and their counsel of the dangers of raising the issue
of ineffective assistance of trial counsel on direct appeal because of the significant amount of
development and fact finding such an issue entails.” Kendricks v. State, 13 S.W.3d 401, 405 (Tenn.
Crim. App. 1999). Raising the issue of ineffective assistance of counsel on direct appeal is “a
practice fraught with peril.” State v. Thompson, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997).
This peril is two-fold. First, ineffective assistance can rarely be established without an evidentiary
hearing. See Strickland v. Washington, 466 U.S. 668, 689-90, 694, 104 S. Ct. 2052, 2065, 2067, 80
L. Ed.2d 674 (1984). Post-conviction procedures afford an evidentiary hearing to a Defendant with
colorable claims. See T.C.A. §§ 40-30-109(a), - 110 (2006). Second, raising the issue in the direct
appeal could result not only in losing on appeal, but also in barring the claimant from raising the
issue later in the post-conviction arena. T.C.A. §§ 40-30-106(f) & (h) (2006). A post-conviction
claim for ineffective assistance of counsel will be dismissed where that claim has previously been
determined by another court. T.C.A. § 40-30-106(f). “A ground for relief is previously determined
if a court of competent jurisdiction has ruled on the merits after a full and fair hearing. A full and
fair hearing has occurred where the petitioner is afforded the opportunity to call witnesses and
otherwise present evidence, regardless of whether the petitioner actually introduced any evidence.”
T.C.A. § 40-30-106(h).

        Defendant made detailed allegations of ineffective assistance of counsel in his motion for
new trial, although not all of those allegations are argued on appeal. His trial counsel, who
Defendant alleges rendered ineffective assistance of counsel, testified at the hearing on the motion
for new trial. Defendant also testified. Accordingly, Defendant had and executed the opportunity
to call witnesses and present other evidence on the issue of ineffective assistance of counsel.
Defendant has presented the issue of ineffective counsel in this appeal, and this Court will therefore
address the issue on the merits.

        Under Tennessee Code Annotated section 40-30-110(f) (2003), a defendant seeking post-
conviction relief on the basis of ineffective assistance of counsel is required to prove his or her
allegations “by clear and convincing evidence.” This same standard should apply even when the


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claim of ineffective assistance of counsel is raised on direct appeal. State v. Burns, 6 S.W.3d 453,
461 n.5 (Tenn. 1999) (citing State v. Anderson, 835 S.W.2d 600, 607 (Tenn. Crim. App. 1992)).

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the defendant to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, a
showing that counsel’s performance falls below a reasonable standard is not enough; rather, the
defendant must also show that but for the substandard performance, “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The Strickland
standard has been applied 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).

       A defendant will only prevail on a claim of ineffective assistance of counsel after satisfying
both prongs of the Strickland test. See Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). The
performance prong requires a defendant raising a claim of ineffectiveness to show that the counsel’s
representation fell below an objective standard of reasonableness or “outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. The prejudice
prong requires a defendant to demonstrate that “there is a reasonable probability that, but for
counsel’s professional errors, the result of the proceeding would have been different.” Id. at 694,
104 S. Ct. at 2068. “A reasonable probability means a probability sufficient to undermine
confidence in the outcome.” Id. Failure to satisfy either prong results in the denial of relief. Id. at
697, 104 S.Ct. at 2069.

        In reviewing counsel’s performance, the distortions of hindsight must be avoided, and this
Court will not second-guess counsel’s decisions regarding trial strategies and tactics. See Hellard
v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The reviewing court, therefore, should not conclude that a
particular act or omission by counsel is unreasonable merely because the strategy was unsuccessful.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Rather, counsel’s alleged errors should be judged
from counsel’s perspective at the point of time they were made in light of all the facts and
circumstances at that time. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

        In the present case, the focus of Defendant’s argument on appeal is that trial counsel was
ineffective as a result of his deficient performance during cross-examination of the victim. He
argues that counsel’s performance fell below the required standard when he elicited responses from
the victim which indicated that Defendant engaged in sexual acts with the victim prior to those acts
for which he was on trial. Defendant cites the following portion of the trial transcript in support of
his argument:

       [Trial Counsel:]        He just touched you with his penis or pee wee as you call it;
                               is that right?

       [T.C.:]                 Yes.



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       [Trial Counsel:]        And that’s the first time that he had ever done anything like
                               that?

       [T.C.:]                 No.

       [Trial Counsel:]        No? When did it happen before?

       [T.C.:]                 Over in Knoxville.

       [Trial Counsel:]        Who told you that?

       [T.C.:]                 Huh?

       [Trial Counsel:]        Who told you that?

       [T.C.:]                 My pa.

       [Trial Counsel:]        Your pa. Is that Jonathan, your dad?

       [T.C.:]                 No.

       [Trial Counsel:]        Who, your - - Willard?

       [T.C.:]                 Yes.

       [Trial Counsel:]        He’s the one that told you that happened in Knoxville; is that
                               right?

       [T.C.:]                 Yes.

       [Trial Counsel:]        And other people have told you what has happened, what
                               happened out there on the time that we’ve been talking about,
                               isn’t that true?

       [T.C.:]                 Yes.

         We cannot conclude on the record before us that counsel was ineffective in asking the above
referenced questions. No evidence was introduced at the hearing on the motion for new trial which
demonstrates that Defendant was prejudiced by counsel’s actions. Despite the fact that trial counsel
testified at the motion for new trial hearing, there was no testimony or other evidence elicited from
trial counsel indicating whether the questions were part of his trial strategy or whether the testimony
was mistakenly introduced into evidence. It is possible, as the State suggests, that the questions were
counsel’s attempt to show that the victim was merely parroting what his family members had told


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him and not reporting actual events. Without further proof however, we cannot speculate as to trial
counsel’s intentions and therefore we cannot determine that his performance was deficient in this
regard. As stated above, this Court may not second-guess a reasonably based trial strategy or
criticize a sound, but unsuccessful, tactical decision made after adequate preparation for the case.
Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); Cooper v. State, 847 S.W.2d 521,
528 (Tenn. Crim. App. 1992).

         With respect to Defendant’s claim that counsel was ineffective for failing to make
contemporaneous objections during the prosecutor’s closing argument, we likewise cannot conclude
that Defendant was prejudiced by counsel’s performance. Defendant cites twelve statements made
by the prosecutor during closing argument which he contends constitute prosecutorial misconduct.
Our review reveals that trial counsel objected to one of these twelve statements. There is no proof
in the record indicating why counsel chose not to object to the other statements. Without testimony
from trial counsel or some evidence indicating that his decision was not a tactical one, we cannot
determine that trial counsel provided anything other than effective assistance of counsel.

B. Prosecutorial Misconduct

        In his next argument, Defendant asserts that the prosecutor made improper statements during
his closing argument. These “improper statements,” which Defendant alleges constitute
prosecutorial misconduct, are the same statements cited in his earlier argument in which he asserted
that counsel rendered ineffective assistance of counsel by failing to object. Specifically, Defendant
argues that the prosecutor asserted his personal belief as to Defendant’s guilt, referred to matters not
in evidence or previously ruled inadmissible by the trial court, and submitted an improper “golden
rule argument” to the jury. The State counters that “eleven of the twelve remarks at issue were not
even arguably improper, and none of the statements were so prejudicial as to affect the verdict.” The
State further argues that Defendant has forfeited consideration of eleven of the twelve statements on
appeal because he failed to contemporaneously object to the statements at trial.

       We agree with the State. With one exception, the record reflects that there were no
contemporaneous objections to the prosecutor’s statements during closing argument. The single
statement objected to at trial is as follows:

       [Defense Counsel] still wants to have you believe that all this is just not probable that
       this is going to happen down there like that [sic]. Well, ladies and gentlemen, when
       you deal with people who would do these sort of things to little kids, they don’t care.
       They have these some [sic] kind of urges that they’ve got to do them, and they take
       their opportunities where they can find them. Now, they don’t pick on older kids that
       are vocal and aggressive and that sort of thing. They pick on little timid kids like
       [T.C.]. And when they get the urge, as he got the urge behind that building, they do
       it. And if it’s a long time or some kind of quickie they want, that’s what they do.
       And they pick on little kids that they don’t think that will tell, that can be twisted
       around later.


                                                  -7-
        Defense counsel objected to the statement on the ground that there was no evidence in the
record to support the prosecutor’s argument. The trial court sustained the objection on those grounds
and admonished the prosecutor to confine his arguments to facts in the record. There was no
objection to or assertion of prosecutorial misconduct at the time. Defendant did not request a
mistrial, nor did he request that the trial court instruct the jury to disregard the remarks. Defendant
cannot now argue on appeal that he is entitled to relief as a result of prosecutorial misconduct where
the grounds were not previously raised.

        Defendant has also forfeited his right to raise on appeal the other statements not objected to
during trial. An appellate court is not obligated to grant relief “to a party responsible for an error or
who failed to take whatever action was reasonably available to prevent or nullify the harmful effect
of an error.” See Tenn. R. App. P. 36(a); see also State v. Robinson, 146 S.W.3d 469, 511 (Tenn.
2004) (concluding that Defendant waived the issue of improper prosecutorial comments for failing
to make a contemporaneous objection). However, under Rule 52 of the Tennessee Rules of Criminal
Procedure, “[a]n error which has affected the substantial rights of an accused may be noticed at any
time, even though not raised in the motion for a new trial or assigned as error on appeal, in the
discretion of the appellate court where necessary to do substantial justice.” Tenn. R. Crim. P. 52(b).

         “[Rule 52] by its terms allows plain error review only where there is a failure to allege error
in the new trial motion or where the error is not raised before the appellate court. Nevertheless, the
rule has been interpreted by the appellate courts to allow appellate review under some circumstances
in the absence of a contemporaneous objection as well.” State v. Raymond Edward Peebles, No.
M2005-01130-CCA-R3-CD, 2006 WL 2682817, *5 (Tenn. Crim. App., at Nashville, Sept. 12, 2006)
(no Tenn. R. App. P. 11 application filed). In order to review an issue under the plain error doctrine,
five factors must be present: (1) the record must clearly establish what occurred in the trial court; (2)
a clear and unequivocal rule of law must have been breached; (3) a substantial right of the defendant
must have been adversely affected; (4) the accused did not waive the issue for tactical reasons; and
(5) consideration of the error is necessary to do substantial justice. State v. Smith, 24 S.W.3d 274,
282-83; State v. Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim. App. 1994); see also Tenn. R. Crim.
P. 52(b). “All five factors must be established by the record before” an appellate court may
“recognize the existence of plain error, and complete consideration of all the factors is not necessary
when it is clear from the record that at least one of the factors cannot be established.” Smith, 24
S.W.3d at 283.

        We conclude that the necessary elements for a finding of plain error are not satisfied in the
present case. A thorough review of the record and the prosecutor’s statements indicates that the
statements do not constitute prosecutorial misconduct. See State v. Goltz, 111 S.W.3d 1, 5 -6 (Tenn.
Crim. App. 2003) Any evidentiary issues surrounding the statements Defendant now protests were
resolved during the course of the trial. Thus, we cannot find that any rule of law was breached as
a result of the prosecutor’s actions. Even were we to conclude that the prosecutor was guilty of
misconduct, the factors for a finding of plain error are not satisfied. Although Defendant’s trial
counsel testified at the motion for new trial hearing, he was not asked about his reasons for not


                                                  -8-
raising other objections during the prosecutor’s closing argument. Under these unique
circumstances, Defendant has failed to show that trial counsel did not waive the opportunity to raise
other objections for tactical reasons. Accordingly, we find no plain error. Defendant is not entitled
to relief.

                                         CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.


                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




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