                                                                                        11/20/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              September 6, 2018 Session

                 ELIOT RUSSELL v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                     No. 13-02746 John W. Campbell, Judge


                            No. W2017-02262-CCA-R3-PC


The Petitioner, Eliot Russell, appeals from the Shelby County Criminal Court’s denial of
his petition for post-conviction relief related to his convictions for attempted rape of a
child and aggravated sexual battery, for which he is serving an effective twenty-four-year
sentence. On appeal, he contends that the post-conviction court erred in (1) excluding
expert testimony and (2) denying his ineffective assistance of counsel claim. We affirm
the judgment of the post-conviction court.

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

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

Stephen C. Bush (at hearing and on appeal), District Public Defender; Barry W. Kuhn (on
appeal) and Kaycee Roberts (at hearing), Assistant District Public Defenders, for the
appellant, Eliot Russell.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Danielle McCollum and Leslie
Byrd, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

       The Petitioner’s convictions relate to sexual abuse of his former girlfriend’s
daughter. The abuse began when the victim was in the fourth grade and continued until
the victim was thirteen years old and in the eighth grade. State v. Eliot Russell, No.
W2014-01212-CCA-R3-CD, 2015 WL 5813679, at *1-2 (Tenn. Crim. App. Oct. 6,
2015), perm. app. denied (Tenn. Feb. 18, 2016). In the appeal of the convictions, the
Petitioner challenged the sufficiency of the evidence of the attempted rape of a child
conviction and the imposition of maximum, consecutive sentences. This court
determined that the appellate issues lacked merit and affirmed the convictions, and the
supreme court denied the application for permission to appeal. See id. at *4-7.

       Thereafter, the Petitioner filed a pro se petition for post-conviction relief. Counsel
was appointed, and an amended petition was filed. At the post-conviction hearing, trial
counsel testified that the Petitioner had been charged with rape of a child and aggravated
sexual battery. She said she met with him once or twice while he was in custody and
about three times after he was released on bond. She said that she met with the Petitioner
and his family members to prepare for the trial and that she spoke with the Petitioner by
telephone “a lot.” She said another attorney assisted her with the case but did not recall if
the other attorney was present for meetings with the Petitioner.

       Trial counsel testified that she and the Petitioner discussed trial strategy, including
the Petitioner’s theory that the accusations were in retaliation for his having been
unfaithful while he dated the victim’s mother. She said the Petitioner theorized that the
victim’s mother “was putting the child up to it.” Counsel said the Petitioner told her that
he left the victim’s mother and moved in with his new girlfriend and that the Petitioner
and his new girlfriend posted their wedding invitation on Facebook. Counsel said the
Petitioner gave her printouts of Facebook posts containing photographs of the victim in
provocative poses. Counsel said that many of the Petitioner’s witnesses were individuals
who would say they could not believe the Petitioner would have committed the offenses
and that he had been a father figure to the victim. Counsel said she and the Petitioner
discussed the Petitioner’s differential treatment of the victim, as compared with the
victim’s sister, the latter of whom “may have been a problem child.” Counsel identified
two documents, which were received as exhibits. She said she had seen them previously
and thought she saw them during a trial strategy meeting with the Petitioner. She thought
the Petitioner’s wife might have provided her with the documents. Counsel described
one of the documents as “a Facebook photo of I guess when they got engaged or
married.” She said the other document contained a message from the victim’s mother to
the Petitioner’s wife, which had been sent through the victim’s Facebook account.

       Trial counsel testified that she reviewed a transcript of the victim’s forensic
interview, which she said she reviewed with the Petitioner. She said no video recording
of the interview was provided during discovery. She did not think that if she had been
provided with a video recording, she would have discussed retaining an expert with the
Petitioner. She noted that the forensic interview contained some favorable information
for the defense and noted the absence of any physical injury which would support the
occurrence of a rape. She said that they discussed the possibility of developing an alibi
for some of the allegations based on the Petitioner’s work schedule but that she was
unable to verify the Petitioner’s schedule because the employer was no longer in
business. She noted that the preparer of the presentence report had been unable to verify
the Petitioner’s employment for this reason. Counsel said that she tried to confirm when

                                             -2-
the offenses were alleged to have occurred but that it was difficult because they were
identified by reference to the victim’s grade or when another person in the household
went to the mailbox or the store and not identified by date and time.

         Trial counsel testified that she investigated reasons the victim’s mother might
coerce the victim to fabricate the offenses. She noted that cross-examination of a child
victim must be done carefully. Counsel said that the only reason she discovered which
might explain why the victim would lie was that the Petitioner was unfaithful to the
victim’s mother. She noted, however, the evidence that when the victim asked why the
Petitioner was committing the offenses, the Petitioner stated it was so he would not
“cheat on” the victim’s mother. Counsel said she was aware the State might call the
victim’s mother as a rebuttal witness. Counsel said she spoke with the victim’s mother
but decided not to call her as a witness. Counsel said that the victim’s mother was
emotional, which might create sympathy for the victim, and that the victim’s mother was
able to explain “how some of the things unfolded.” Counsel said the victim’s mother
explained that the motivation for the allegations had not been the Petitioner’s
unfaithfulness and that the victim had felt free to tell the victim’s mother what had
occurred once the Petitioner was out of the home. Counsel said the victim reported in the
forensic interview that she had seen the Petitioner assault the victim’s mother. Counsel
said she had been aware that the victim’s mother had been charged with assault
previously but did not know if the charges had been dismissed. Counsel did not think her
trial strategy would have changed if she had learned the victim’s mother had assaulted the
Petitioner’s new girlfriend. Counsel did not recall the Petitioner’s new girlfriend ever
having informed her of threats from the victim’s mother.

       Trial counsel testified that the victim’s disclosure occurred when the victim and
the victim’s mother were at a hospital because the victim had been in a fight. Counsel
said the victim asked the victim’s mother if she had ever contracted a sexually
transmitted infection (STI), the victim’s mother said the Petitioner had given her one, and
the victim disclosed the offenses. Counsel said she did not pursue a theory that the
victim had fabricated the allegations in order to divert attention from the fight that had
occurred. Counsel said the Petitioner denied having ever had an STI. Counsel said that
the Petitioner signed a “HIPPA form” but that he never identified any doctors for counsel
to contact about whether he had ever had an STI. Counsel agreed that state law required
medical personnel to report STI diagnoses and said she did not contact the health
department to search for the Petitioner’s history relative to any STI reports. She said she
did not know when the victim’s mother claimed to have contracted an STI from the
Petitioner and that counsel went directly to the Petitioner about the allegation. Counsel
acknowledged she did not seek a subpoena of the victim’s mother’s medical records but
noted that the victim had negative STI test results. Counsel acknowledged that she might
have improved the State’s case if she had obtained the Petitioner’s medical records and
learned he had been diagnosed with an STI. She said evidence that the Petitioner had an

                                           -3-
STI could have bolstered the proof about the victim’s disclosure of the offenses. Counsel
agreed she had decided not to “take that gamble” as a matter of strategy.

        Trial counsel testified that she and the Petitioner discussed whether he would
testify. She said she told him the decision was his. She said she advised the Petitioner
that he would be subject to cross-examination about his prior felony conviction.

        Trial counsel agreed that the victim’s sister testified as a State’s witness that she
“observed certain things between” the victim and the Petitioner. Counsel did not recall
whether she cross-examined the victim’s sister about a prior statement during a
Department of Children’s Services investigation that the victim’s sister had never seen
anything unusual. Counsel thought she cross-examined the victim’s sister about the
sister’s claim that she and the victim were treated differently. Counsel noted that the
victim alleged the misconduct occurred when no one other than herself and the Petitioner
were present. Counsel said she was concerned about questioning the victim’s sister about
the differential treatment the victim’s sister claimed to have received because she was
concerned about the victim’s more favorable treatment showing that the Petitioner was
“grooming” the victim for sexual abuse.

       Trial counsel said the defense theory was that the Petitioner had not committed the
offenses. She said she focused on the lack of physical evidence. She agreed that the
victim’s age was an essential element of the offense of rape of a child. She said her
recollection was that the victim testified she was twelve years old at the time of the
offense on which the State elected to proceed. Counsel said that if the trial transcript
showed that the victim was “probably twelve, thirteen,” this would “[n]ot necessarily”
have made a difference in the trial strategy. Counsel thought that the discovery showed
that the victim “was definitively twelve” and that the victim testified she “was probably
twelve.” She said the question of the victim’s age was for the trier of fact to determine.
Counsel was asked if she thought a defense attorney should object on the basis of
misstatement of fact if a victim in a rape of a child case testified that she was “probably
twelve, thirteen” but the prosecutor stated in closing argument that the undisputed proof
showed the victim was age twelve. Counsel said she did not necessarily think a defense
attorney should object in this situation. Counsel said the jury heard the proof and was
instructed that the closing arguments were not evidence. Counsel said closing argument
can be an interpretation of how a party views the evidence.

       Trial counsel testified that the Petitioner was convicted of attempted rape of a
child, a lesser-included offense of the charged offense of rape of a child. Counsel said
she did not represent the Petitioner in the appeal of the convictions. She agreed that the
Court of Criminal Appeals concluded that the evidence was sufficient to support the
attempted rape of a child conviction, which included the element of the victim’s age.
Counsel agreed that the evidence relative to the victim’s age included the victim’s

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testimony about her age, as well as the evidence of her grade in school, the identity of the
school she attended, and other circumstances in her life.

        Shelby County Health Department employee Phyllis Crump testified that no STI
diagnosis records relative to the victim’s mother or the Petitioner existed in Shelby
County or the State of Tennessee. She agreed that a doctor might fail to report an STI
diagnosis. She said she did not search for records in other states. She said that the
diseases which were “reportable” were HIV, syphilis, gonorrhea, and chlamydia. She
said trichomoniasis was an STI but was not reportable.

       The victim’s mother testified that she had been involved with the Petitioner “off
and on” for eight years, ending in March 2012. She said she ended the relationship after
learning that the Petitioner had also been involved for three years with the woman to
whom he was now married. She said that she and the Petitioner had broken up for about
a week in January 2012. The victim’s mother said that after the March breakup, the
Petitioner called and threatened her, that she did not call the police because she was not
scared, that she contacted the Petitioner’s new girlfriend through Facebook, that she and
the new girlfriend spoke by telephone, and that the new girlfriend “started spilling the
beans” about her relationship with the Petitioner. The victim’s mother said that she never
looked at the Petitioner’s new girlfriend’s Facebook page after sending her a message in
March 2012 and that she had been unaware of the new girlfriend’s May 2012 Facebook
post regarding the Petitioner’s and the new girlfriend’s engagement.

       The victim’s mother testified that she was enrolled in a certified medical assistant
course from April through December 2012. She said that on June 7, 2012, she took the
victim to a hospital for treatment of an eye injury the victim sustained in a fight with the
victim’s cousin. She said that while they were waiting for the victim to be treated, she
had the victim assist her with flashcards the victim’s mother was using to study for a test
on STIs. The victim’s mother said that the victim asked if the victim’s mother had ever
had an STI, that the victim’s mother replied that the Petitioner had given her
trichomoniasis, and that the victim looked “like she had seen a ghost.” The victim’s
mother said the victim asked if the Petitioner received medical treatment. The victim’s
mother said the victim was tearful and said the Petitioner had been touching her. The
victim’s mother said she told a nurse practitioner who was treating the victim for the eye
injury about the sexual abuse, that the victim’s mother requested STI testing for the
victim, and that the police investigated the allegations.

       The victim’s mother testified that she had the STI in approximately 2011, that she
received treatment at “Getwell Family Medical and Delta,” and that she had been
monogamous when she was in a relationship with the Petitioner.



                                            -5-
       The victim’s mother acknowledged that she had a prior assault conviction. She
stated that it was related to an incident in which her ex-husband’s wife pulled a gun on
her.

       The Petitioner’s wife testified that she began dating the Petitioner in the
“[b]eginning of January 11” and that they had been married for almost five years. She
said she had received text messages from the victim’s mother asking if the Petitioner was
at the Petitioner’s wife’s home and if the Petitioner was “talking to” his wife. The
Petitioner’s wife said she received a Facebook message from the victim’s mother and
called her. The Petitioner’s wife stated that during the Petitioner’s trial, she had seen the
victim’s younger sister crying and heard her say she “didn’t want to come in.” The
Petitioner’s wife said she did not know “if one of them had told her to say something.”

        Leticia Cole, a forensic interviewer from the Memphis Child Advocacy Center,
testified that she was trained to use open-ended questions to avoid suggesting an answer
to a child who was an alleged victim of sexual abuse, that she interviewed children as
quickly as possible after receiving a report of alleged abuse, and that the child’s age and
developmental ability were relevant factors in conducting an interview. Ms. Cole said
that it was sometimes harmful for a child to talk to an untrained person but that it
depended on the child.

       Ms. Cole testified that she conducted the victim’s forensic interview. She agreed
that the victim stated she had talked to an aunt and a cousin about the sexual abuse. She
agreed that the victim’s family members had commented to the victim about the
Petitioner’s conduct. She acknowledged that statements by others could impact a child’s
statement about alleged sexual abuse but said any effect depended on the child.

       The Petitioner testified that he, his wife, and his mother retained trial counsel. He
said he met with counsel “[m]aybe twice” in addition to when he made payments. He
said they discussed trial strategy “[m]aybe on one occasion.” He said he gave counsel his
work history and schedule in order for her to investigate whether he could have
committed the offenses when they were alleged to have occurred. He said his employer
was still in business when he gave the information to counsel. He said he also provided
counsel with social media messages for use in the defense. He said the messages were
from the victim’s grandmother inquiring where the Petitioner was and who he was with.

       The Petitioner identified his wife’s Facebook post containing a photograph of her
engagement ring. He said he provided it to trial counsel because it showed the timeline
of the engagement occurring before the allegations were made. He said the victim’s
grandmother thought the victim’s mother should be the one who was engaged because of
the length of the Petitioner’s relationship with the victim’s mother. He said counsel told
him she would use the Facebook post if he could get any additional evidence “to go with

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it.” He said, however, that counsel did not use the Facebook evidence at trial and did not
argue his theory to the jury or explain why she had not used his theory. He agreed that
counsel’s theory was that the offenses did not occur but that she did not offer a theory
why the allegations had been made.

        The Petitioner testified that the victim had at least three or four inconsistencies in
her trial testimony, although he did not specify them. He said the victim testified about
abuse at three apartment complexes. He said she testified about her age as being
“[t]welve or 13” and being in the seventh grade but not stating a specific date for an
incident at Flairwood Apartments. He said that counsel did not argue in her closing
argument that the victim could not recall her age for the incident at Flairwood
Apartments, and he agreed that the victim’s age would have made the difference between
conviction and acquittal. He said that he asked counsel about this but that she said the
victim’s age did not matter without explaining her rationale.

        The Petitioner testified that he spoke with counsel from the beginning about
calling the victim’s mother as a witness. He said that, based upon their last strategy
meeting a week or two before the trial, he understood that counsel planned to call the
victim’s mother as a witness. He said counsel “asked for” the victim’s mother but that
the victim’s mother never came into the courtroom. He said counsel stated that the
victim’s mother was too hysterical to bring into the courtroom. He agreed that counsel
had not wanted the jury to see the victim’s mother crying and having a breakdown on the
stand. He said that the victim’s mother’s testimony would have shown that the
allegations had been fabricated and that the victim’s mother was angry and vindictive.
The Petitioner stated that he told counsel the victim’s mother had beat up her ex-
husband’s wife when the victim’s mother was angry at her ex-husband. He said that
counsel did not investigate this and that she did not discuss retaining a defense forensic
expert.

       During the post-conviction hearing, the parties referred to the record of the
conviction proceedings, and the post-conviction court considered its contents in ruling on
the post-conviction claims. The record of the Petitioner’s previous appeal reflects the
following questioning of the victim at the trial:

             [Q.] . . . [You] told us that when these things were happening at
       Flairwood you were in the 7th grade, is that right?

              A.     Yes, ma’am.

              Q.     How old were you in the 7th grade?

              A.     I was probably about twelve, thirteen.

                                             -7-
              Q.     Twelve. . . .

The trial transcript also reflects that trial counsel argued in closing argument that the
Petitioner did not commit the offenses, that the victim’s allegations were factually
implausible, that no physical evidence corroborated the victim’s allegations, that the
victim never testified that penetration occurred, and that the facts showed the victim’s
mother was “a scorned lover.” The transcript reflects, as well, that the victim’s birthdate
was August 10, 1998 and that she was in the tenth grade and fifteen years old when the
Petitioner’s March 2014 trial occurred.

      After receiving the evidence, the post-conviction court denied relief. This appeal
followed.

                                             I

                                     Evidentiary Ruling

       The Petitioner contends, first, that the post-conviction court erred in excluding
testimony of defense experts. Although the Petitioner did not make an offer of proof at
the hearing, we glean from the discussion on the record that the Petitioner sought to offer
the testimony of two criminal defense attorneys to testify about the standard of
performance required of an attorney in a child sexual abuse case. The State contends that
the post-conviction court did not abuse its discretion in excluding the evidence. We
agree with the State.

        Regarding the admissibility of expert testimony, Tennessee Rule of Evidence 702
provides, “If scientific, technical, or other specialized knowledge will substantially assist
the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education may testify
in the form of an opinion or otherwise.

       Whether to admit expert testimony is within the sound discretion of the trial court.
State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). A trial court’s ruling will be
reversed only if the lower court abused its discretion, which requires a showing that the
court “‘applied an incorrect legal standard, or reached a decision which is against logic or
reasoning that caused an injustice to the party complaining.’” State v. Shirley, 6 S.W.3d
243, 247 (Tenn. 1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

       The record reflects that the post-conviction court was unconvinced that expert
testimony would substantially assist it as the trier of fact. The judge noted his own
experience teaching trial advocacy for almost twenty years, training with other judges,

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training prosecutors, and training military attorneys who prosecuted and defended child
abuse cases. Thus, the court concluded that the proposed expert testimony was
inadmissible.

       Upon review, we conclude that the Petitioner has not shown that the post-
conviction court’s ruling was an abuse of its discretion. The post-conviction judge, who
was presiding over a court with jurisdiction of criminal cases, noted his own knowledge
and experience in the relevant fields of criminal prosecution and defense. See Howell v.
State, 185 S.W.3d 319, 338 (Tenn. 2006) (holding that the post-conviction court did not
abuse its discretion in excluding expert testimony of a criminal defense attorney
regarding an ineffective assistance of counsel issue in which the court was able to rely
upon its own knowledge of the standard of performance for criminal defense attorneys).
The Petitioner had the burden of establishing the admissibility of the evidence. He did
not make an offer of proof consisting of testimony, an affidavit, or other evidence to
show how the proposed testimony was necessary to substantially assist the trier of fact,
and no issues unique to this case which required specialized knowledge beyond that
possessed by the post-conviction court are apparent from the record. See T.R.E.
103(a)(2) (offers of proof). The court did not err in excluding the evidence, and the
Petitioner is not entitled to relief on this basis.

                                             II

                            Ineffective Assistance of Counsel

        The Petitioner contends that the post-conviction court erred in denying relief on
his claim that trial counsel provided ineffective assistance because she did not argue that
the State failed to offer sufficient proof that the victim was less than thirteen years old at
the time of the attempted rape of a child offense. See T.C.A. § 39-13-522(a) (2014)
(“Rape of a child is the unlawful sexual penetration of a victim by the defendant or the
defendant by a victim, if the victim is more than three (3) years of age but less than
thirteen (13) years of age.”). The State contends that the court did not err. We agree with
the State.

       Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Id. § 40-30-103 (2012). A petitioner
has the burden of proving his factual allegations by clear and convincing evidence. Id. §
40-30-110(f) (2012). A post-conviction court’s findings of fact are binding on appeal,
and this court must defer to them “unless the evidence in the record preponderates against
those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State,
40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s application of law to its


                                             -9-
factual findings is subject to a de novo standard of review without a presumption of
correctness. Fields, 40 S.W.3d at 457-58.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused’s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a 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.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

       In its order denying relief, the post-conviction court stated:

               As to the allegations that [trial counsel] was ineffective for failure to
       object to certain questions and statements made by the prosecution that
       allegedly misstated the testimony and the proof, the Court finds that it is not
       clear that these statements and questions were misstatements of the
       testimony or the proof. After a review of the trial transcript, the allegation
       that the State mischaracterized the victim’s answer [about her age] . . . and
       there was a failure to object, is conceivable [sic] true. However, [after] a
       review of the proof as a whole as well as trial counsel’s testimony of the
       trial strategy she pursued, it appears that this failure to object would not

                                             -10-
       have affected the outcome of the trial. [Trial counsel] testified that her trial
       strategy was to emphasize that there was no corroborating evidence that any
       of these events happened. There were no witnesses, there was no physical
       evidence, there was no DNA. The only proof was the testimony of a young
       child that disclosed weeks after the last alleged incident occurred. [Trial
       counsel] testified that arguing over when [the victim] turned 13 was not
       part of her strategy, only arguing that none of the events ever happened.
       The court finds that this was a strategic decision made by defense counsel
       that does not appear to be unreasonable. Furthermore, a review of the proof
       establishes that there was evidence to support the jury’s finding that the
       victim was under 13 when the child rape incident was supposed to have
       occurred. The Court of Criminal Appeals was also satisfied that the
       evidence was sufficient to establish that the victim was under the age of 13
       to support the conviction for Criminal Attempt Rape of a Child.

              As to the allegations that trial counsel was ineffective for not
       objecting to the State’s closing argument that the proof was uncontroverted
       that the victim was 12 at the time of the offense, the Court finds that this
       proof was uncontroverted since the defense theory was that the acts did not
       happen no matter what the age of the victim was. The failure to object was
       not ineffective based on the defense theory and therefore [the issue] is
       without merit.

       Upon review, we conclude that the evidence does not preponderate against the
post-conviction court’s findings. Trial counsel testified that, after consulting with and
preparing for trial with the Petitioner, she chose to pursue a defense that the facts failed to
show the Petitioner committed the alleged offenses. A strategy of arguing that the facts
failed to show that the Petitioner had sexually penetrated the victim did not turn on a
question of the age of the victim. Counsel’s informed strategic decisions are entitled to
deference. See Adkins, 911 S.W.2d at 347; see also Pylant, 263 S.W.3d at 874. We note,
as well, that although the Petitioner was charged with rape of a child, counsel’s strategy
proved somewhat successful in that he was acquitted of that offense and was convicted of
the lesser included offense of attempted rape of a child. The Petitioner has not shown
that the post-conviction court erred in concluding that clear and convincing evidence was
not shown that counsel’s performance was deficient.

       In any event, in the previous appeal, this court analyzed the sufficiency of the
evidence to support the Petitioner’s conviction of attempted rape of a child and stated,
“Viewing the evidence in the light most favorable to the State, the victim’s testimony
established that the defendant made the victim undress, put his penis on the victim’s anus,
and ‘bumped’ his penis against her anus without penetrating her when she was twelve
years old.” See Eliot Russell, 2015 WL 5813679, at *5 (emphasis added). This court’s

                                             -11-
previous determination regarding the sufficiency of the evidence of the victim’s age
speaks further to the lack of benefit to be had from an objection to the State’s
characterization of the evidence of the victim’s age. The Petitioner has not shown that
the post-conviction court erred in concluding that the Petitioner failed to prove by clear
and convincing evidence that prejudice existed. The Petitioner is not entitled to relief on
this basis.

       In consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.


                                            _____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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