                                      Cite as 2013 Ark. 305

                   SUPREME COURT OF ARKANSAS
                                         No.   CR-11-481

                                                    Opinion Delivered   September 5, 2013

                                                    PRO SE APPEAL FROM THE BOONE
LLOYAL WILLIE BRYANT                                COUNTY CIRCUIT COURT, 05CR-07-
                                APPELLANT           120, HON. GORDON WEBB, JUDGE
v.

STATE OF ARKANSAS                                   AFFIRMED.
                                  APPELLEE


                                          PER CURIAM

       Appellant Lloyal Willie Bryant was convicted in the Boone County Circuit Court on two

counts of rape and two counts of second-degree sexual assault, and he received an aggregate

sentence of life plus forty years’ imprisonment on the charges. This court affirmed the

judgment. Bryant v. State, 2010 Ark. 7, 377 S.W.3d 152. Appellant filed in the trial court a timely

pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2012).

The court appointed counsel, held a hearing on the petition, and entered an order denying the

petition. Appellant, now pro se, appeals. We find no error and affirm.

       Under our standard of review, this court does not reverse an order that denies

postconviction relief unless the trial court’s findings are clearly erroneous. Thompson v. State,

2013 Ark. 179 (per curiam). A finding is clearly erroneous when, although there is evidence to

support it, the appellate court, after reviewing the entire evidence, is left with the definite and

firm conviction that a mistake has been committed. Id.

       Appellant groups his arguments on appeal into two points. In both points, appellant

alleges that counsel was ineffective. The benchmark question to be resolved in judging a claim
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of ineffective assistance of counsel is whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result. Norris v. State, 2013 Ark. 205, ___ S.W.3d ___ (per curiam). We assess the effectiveness

of counsel under a two-prong standard as set forth by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984). Lowe v. State, 2012 Ark. 185, ___ S.W.3d ___ (per

curiam). Under the Strickland test, a claimant must show that counsel’s performance was

deficient, and the claimant must also show that the deficient performance prejudiced the defense

to the extent that the appellant was deprived of a fair trial. Id. A claimant must satisfy both

prongs of the test, and it is not necessary to examine both components of the inquiry if the

petitioner fails to satisfy either requirement. See Pennington v. State, 2013 Ark. 39 (per curiam).

       A petitioner claiming ineffective assistance must first show that counsel made errors so

serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth

Amendment to the United States Constitution. Walton v. State, 2013 Ark. 254 (per curiam).

There is a strong presumption that trial counsel’s conduct falls within the wide range of

reasonable professional assistance, and an appellant has the burden of overcoming this

presumption by identifying specific acts or omissions of trial counsel, which, when viewed from

counsel’s perspective at the time of the trial, could not have been the result of reasonable

professional judgment. Id.

       In order to meet the second prong of the test, a claimant must show that there is a

reasonable probability that the fact-finder’s decision would have been different absent counsel’s

errors. Delamar v. State, 2011 Ark. 87 (per curiam). A reasonable probability is a probability



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sufficient to undermine confidence in the outcome of the trial. Id.

       In his first point, appellant asserts that counsel was ineffective in his representation,

causing a conflict. Appellant does not develop that argument further, but he also raises claims

in this first point that trial counsel failed to conduct an adequate investigation, consult with his

client, or interview the prosecution’s witnesses. Appellant argues that any strategy counsel

adopted was not reasonable, that counsel did not obtain a witness’s recorded statement, and that

counsel did not effectively cross-examine the witnesses at trial. Appellant asserts that he

demonstrated prejudice, and he contends that, in determining prejudice, the court must consider

the cumulative effect of counsel’s errors.

       In his second point on appeal, appellant asserts that counsel failed to adequately attack

inconsistencies in the victim’s testimony. In this point, appellant alleges that there was

insufficient corroboration of intent and that counsel should have challenged inconsistencies in

the time and place the incidents occurred.

       The State in its response correctly notes that not all of appellant’s arguments on appeal

were raised below or addressed by the trial court. An appellant in a Rule 37.1 proceeding is

limited to the scope and nature of his arguments below, and he cannot raise new arguments on

appeal. Hogan v. State, 2013 Ark. 223 (per curiam). In an appeal of the denial of a Rule 37.1

petition, failure to obtain a ruling on an issue, including a constitutional issue, precludes review

on appeal. Norris, 2013 Ark. 205, ___ S.W.3d ___. We accordingly limit our review of

appellant’s arguments to those issues for which the trial court provided a ruling.

       In the order denying postconviction relief, the trial court provided rulings on three issues



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that relate to appellant’s arguments in his first point. The first of these issues was appellant’s

claim in the Rule 37.1 petition that counsel did not adequately cross-examine witnesses or

remove the “taint” of the State’s questioning. The trial court interpreted this as a broad claim

that counsel had not vigorously cross-examined any of the witnesses, and it found that counsel

made appropriate motions and objections to challenge the introduction of the evidence, that

counsel did cross-examine most witnesses, and that counsel chose not to cross-examine the

remaining witnesses as a matter of trial strategy.1

       The second issue was that counsel failed to impeach and adequately cross-examine two

witnesses who testified concerning appellant’s prior second-degree sexual-assault conviction in

Montgomery County on a guilty plea. On this issue, the trial court found that counsel had made

a tactical decision not to cross-examine these witnesses because he did not wish to emphasize

the testimony and believed that there were grave risks involved in additional questioning. The

trial court ruled that counsel’s decision was a reasonable strategic choice.

       The last issue addressed by the trial court was whether counsel was ineffective for failing

to perform sufficient investigation to obtain a statement by the victim in the prior Montgomery

County case. The trial court found that counsel did perform a substantial amount of discovery

on the matter and that appellant had not established the existence of the statement that appellant

alleged had been made by the victim. The court further found that appellant was not prejudiced



       1
        Appellant argues in his brief that the claim was intended to include an allegation that
counsel failed to object to the State’s having influenced the victim’s testimony by its method of
questioning the victim, which was repetitive. The court’s findings indicated that appellant’s
intent as to this issue was unclear, and the order did not provide a ruling on any allegations
beyond a general claim that counsel failed to vigorously cross-examine the witnesses.
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because counsel’s decision not to cross-examine the victim in the Montgomery County case was

a reasonable strategic decision.

       Although appellant included in his first point on appeal some references to counsel’s

failure to interview other witnesses, appellant’s allegations of error that are relevant to the three

rulings all concern only two witnesses, the victim and the mother of the victim from the

Montgomery County case. Appellant’s arguments for reversal concerning these three rulings are

that counsel did not make strategic decisions not to cross-examine the two witnesses or to limit

pretrial investigation of the Montgomery County case, that counsel’s decision not to cross-

examine the witnesses was not reasonable, and that prejudice resulted from counsel’s failure to

cross-examine the witnesses. He also asserts that the court should have considered the

cumulative effect of all errors in determining prejudice. The concept of cumulative error,

however, is not recognized in Rule 37.1 proceedings when assessing whether a petitioner was

afforded effective assistance of counsel. Nickelson v. State, 2013 Ark. 252 (per curiam).

       The trial court found that counsel had made a strategic decision not to cross-examine the

two witnesses. Where a decision by counsel was a matter of trial tactics or strategy, and that

decision is supported by reasonable professional judgment, then counsel’s decision is not a basis

for relief under Rule 37.1. Adams v. State, 2013 Ark. 174, ___ S.W.3d ___ (citing Abernathy v.

State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam)). Counsel is allowed great leeway in making

strategic and tactical decisions. Leak v. State, 2011 Ark. 353 (per curiam). On review, if we

determine that the trial court correctly found that the decision not to cross-examine the two

witnesses was a strategic decision supported by reasonable professional judgment, there is no



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need to examine whether appellant was prejudiced. The trial court’s finding that a reasonable

strategic decision had been made is in essence a finding that appellant did not demonstrate

deficient conduct in the failure to cross-examine the witnesses so as to satisfy the first prong of

the Strickland standard.

       Counsel testified at the Rule 37.1 hearing that he wanted to minimize the impact of the

negative testimony concerning the Montgomery County victim’s case. He indicated that he did

not cross-examine the witnesses because any questions would have emphasized the testimony

and had more detrimental impact than beneficial. We cannot say that the trial court was clearly

erroneous in ruling that counsel made a reasonable, professional strategic decision, based on the

information that counsel had at the time, not to cross-examine the two witnesses.

       Counsel testified that he had reviewed the prosecution’s files on the case. During the

Rule 37.1 hearing, the State introduced documents from those files that included reports with

statements from the seven-year-old child’s parents. Those statements described statements

made by the child about the incidents in which the victim had said that appellant “stuck his

finger up his butt.” Counsel testified that he did not recall his client pointing out any

inconsistencies in the victim’s testimony at trial and that his recollection was that the testimony

at trial was consistent with what had been contained in the information, statements, and other

documents in the file. Counsel testified at the Rule 37.1 hearing that, if he had been aware of

inconsistencies, he would have cross-examined the witness only if he believed that questioning

the witness would have been helpful, and he indicated that some discrepancies would not merit

reinforcing the testimony through questions.



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       Appellant alleges that the Montgomery County victim did not testify consistently with

his previous statements, in that the victim testified that appellant had used his penis instead of

his finger. Counsel testified at the Rule 37.1 hearing that he believed the jury would view the

difference between the victim testifying that appellant had inserted his penis instead of his finger

as “a distinction without a difference” and that, because the difference in appellant’s use of his

penis or his finger would have had no legal significance in determining the applicable charge,

such an inconsistency would not merit highlighting the testimony with cross-examination.

       The evidence at the Rule 37.1 hearing was that counsel had made a carefully considered

decision not to cross-examine the witnesses. In Arkansas, matters of trial strategy and tactics,

even if arguably improvident, fall within the realm of counsel’s professional judgment and are

not grounds for finding ineffective assistance of counsel. Hickey v. State, 2013 Ark. 237, ___

S.W.3d ___ (per curiam); Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783; Howard v. State, 367

Ark. 18, 238 S.W.3d 24 (2006). Appellant had the burden of overcoming the presumption that

counsel was effective by identifying specific acts or omissions, which, when viewed from

counsel’s perspective at the time of the trial, could not have been the result of reasonable

professional judgment. Viewing the decision from counsel’s perspective at the time of trial, with

the information that counsel had, we cannot say that the trial court clearly erred in finding that

counsel’s decision not to cross-examine the witnesses was based on reasonable professional

judgment.

       Appellant, however, also alleged that counsel failed to adequately investigate the

Montgomery County conviction. Appellant contends that, if counsel had done so, he would



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have obtained a statement by the victim in the prior Montgomery County case and that counsel

could not have, with the information in that statement, made a reasonable decision at trial not

to cross-examine the witnesses.

       In his brief, appellant contends that counsel had no calculated strategy for gathering

additional information about the guilty plea outside of the State’s file and that counsel

overlooked the possibility of obtaining more specific information. Counsel, however, stated in

his Rule 37.1 hearing testimony that he had specifically considered whether to try to obtain more

detailed information concerning the evidence in the Montgomery County case but decided not

to pursue it. Counsel indicated that he had concluded that more specific information about the

victim’s statements would not be helpful in opposing the admission of the evidence and that he

had decided to use a different legal tactic in his motions to exclude the evidence. Counsel

testified at the Rule 37.1 hearing that his research had convinced him that discrepancies that

might have been revealed by a statement, if one had existed, would not have kept the evidence

out. It was apparent from counsel’s testimony that he had chosen to focus his efforts on

preventing the admission of the evidence rather than on challenging the evidence that might

have been admitted concerning appellant’s guilty plea in Montgomery County.

       Moreover, even if the decision to not further investigate the incidents in Montgomery

County had been unreasonable, appellant clearly did not demonstrate prejudice on this claim of

ineffective assistance because he did not demonstrate that further investigation would have

resulted in the discovery of evidence that would have allowed his attorney to better cross-

examine the Montgomery County victim. During the Rule 37.1 hearing, appellant did not



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introduce a copy of any statement by the Montgomery County victim. Appellant did not

establish that any statement had been recorded for counsel to have discovered.                  The

discrepancies that appellant alleged could have been discovered were of limited value in cross-

examining a child witness.

       Appellant alleged in the Rule 37.1 hearing that the inconsistencies were those previously

discussed, that is, that the victim testified that appellant had used his penis instead of his finger

during the incidents, and that the incident described at trial by the Montgomery County victim

was rape, not the sexual-assault charge to which appellant entered his plea. As noted above, the

description of the statements that had been made by the victim in the Montgomery County case,

which were included in the file and reviewed by counsel, were consistent with the victim’s

statement at trial, with the exception that the child testified that appellant had used his penis.

Appellant did not allege facts to support his contention that the statement, if it existed, contained

any information that counsel did not already have.

       Counsel has a duty to make a reasonable investigation or to make a reasonable decision

that makes particular investigations unnecessary; but, where a petitioner under Rule 37.1 alleges

ineffective assistance for failure to perform adequate investigation, he must delineate the actual

prejudice that arose from the failure to investigate and demonstrate a reasonable probability that

the specific materials that would have been uncovered with further investigation could have

changed the trial outcome. See Hickey, 2013 Ark. 237, ___ S.W.3d ___; see also State v. Harrison,

2012 Ark. 198, ___ S.W.3d ___. The burden is entirely on the claimant to provide facts that

affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations



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without factual substantiation are sufficient to overcome the presumption that counsel was

effective, and such statements and allegations will not warrant granting postconviction relief.

Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). A petitioner under Rule 37.1 who

asserts ineffective assistance for failure to investigate must show that further investigation would

have been fruitful, and that the specific materials identified that counsel could have uncovered

would have been sufficiently significant to raise a reasonable probability of a different outcome

at trial. See Watson v. State, 2012 Ark. 27 (per curiam). Appellant did not make such a

demonstration.

       In appellant’s second and final point on appeal, he alleges error in the trial court’s finding

that counsel was not ineffective for failing to vigorously examine or adequately challenge

inconsistencies in the Boone County victim’s testimony.2 Appellant alleges that the victim made

inconsistent statements concerning where the incidents occurred and who was in the home at

the time. The trial court addressed this issue in its order, finding that the alleged inconsistencies

were brought out in cross-examination of the victim by counsel and that the manner of

questioning of the victim on cross-examination was a strategic decision not to appear abusive

or offend the jury. The trial court additionally found that the specific inconsistencies could

easily have been reconciled by the jury.

       Appellant points to statements that the victim made on direct and cross-examination that

he contends could be interpreted as inconsistent, in that there are references to rooms and

people that appellant asserts indicate different descriptions by the child as to where the incidents


       2
       As with appellant’s first point, he raised additional arguments on appeal that were not
addressed in the postconviction order and that we do not address.
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occurred and who was at home at the time. We agree with the trial court’s determination that

some of these statements, taken in context, were not inconsistent and that the remaining

statements could easily be interpreted by the jury to be reconciled.

       How aggressively to cross-examine a six-year-old child such as the victim here, much like

a decision whether to call a particular witness, is a decision that is largely a matter of professional

judgment in which trial counsel must use his or her best judgment to determine what

questioning will be beneficial to the client, and the decision must be assessed by taking into

account that the decision is a matter that experienced advocates could endlessly debate. See Small

v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam). As a matter of strategy, counsel’s

decision not to vigorously cross-examine the victim would be beyond the purview of a Rule 37.1

proceeding. See Nickelson, 2013 Ark. 252.

       As in the previous point, in order to overcome the presumption that counsel’s decision

was based on reasonable professional judgment and satisfy the second prong of the Strickland

test, appellant must have identified specific inconsistencies that were sufficient to alter the

outcome of the trial. See Small, 371 Ark. 244, 264 S.W.3d 512. We cannot say that the trial court

clearly erred in finding that the discrepancies in the testimony that appellant identified were not

sufficient to alter the outcome of the trial, or that counsel was not ineffective for failing to

vigorously cross-examine the victim on those inconsistencies. Appellant has not therefore

demonstrated error in the trial court’s denial of postconviction relief, and we affirm on this point

as well.

       Affirmed.

       Lloyal Willie Bryant, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.

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