        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs March 25, 2008

               GEORGE A. JOHNSON v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Sevier County
                         No. 11338-III Rex Henry Ogle, Judge



                    No. E2007-00920-CCA-R3-PC - Filed August 4, 2008


Petitioner, George A. Johnson, was convicted by a Sevier County Jury of rape and statutory rape.
As a result, he received an effective sentence of twenty years. Petitioner appealed his convictions
and sentence to this Court. See State v. George A. Johnson, No. E2003-02881-CCA-R3-CD, 2005
WL 225025, at *1 (Tenn. Crim. App., at Knoxville, Jan. 31, 2005), perm. app. denied (Tenn. May
2, 2005). Petitioner subsequently sought post-conviction review on the basis of ineffective
assistance of counsel. The post-conviction court denied the petition, determining that Petitioner
failed to carry the burden required for post-conviction relief. We agree and, therefore, affirm the
denial of the post-conviction petition.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER and J. C.
MCLIN , JJ., joined.

James R. Hickman, Jr., Sevierville, Tennessee, for the appellant, George A. Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Al Schmutzer, Jr., District Attorney General; and Steven Hawkins, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                        OPINION


                                           FACTUAL BACKGROUND

        Petitioner was convicted in Sevier County of rape and statutory rape. On appeal from his
convictions and sentence, this Court summarized the facts that formed the basis for the convictions
as follows:

               The victim, S.N.,1 who was fifteen years old at the time of trial in September
       2003, testified that the defendant is married to her aunt. In April 2002, she went to
       the defendant’s apartment to spend the night with the defendant’s daughter, C.J.
       While C.J. was asleep on the top bunk, and S.N. was asleep on the bottom bunk, S.N.
       awoke because the defendant was beside the bed touching her vagina with his “finger
       and his tongue.” Asked if his finger went inside of her, S.N. responded, “Yes.” She
       said the defendant pulled down her pajamas, although she “told him not to.” S.N. did
       not “holler” for her aunt because she was scared she “would get in trouble.” She also
       responded affirmatively when asked if the defendant put his tongue in her vagina.
       When she got home the next day, she did not tell her mother because she was scared
       she would get in trouble, but when her mother asked her “some days” later if the
       defendant had “touched anything,” S.N. “cried” and told her mother what had
       happened. She related that until the rape, she liked her uncle and had no problems
       with him in the past.

               On cross-examination, S.N. testified that she was wearing “regular pajamas”
       which the defendant pulled down “a little to [her] knees.” He pulled her legs apart
       and did not say anything during the encounter. When defense counsel asked S.N. if
       she “ever threatened to make accusations like these against anybody else,” the
       transcript reflects her response was indiscernible. She acknowledged knowing a “Mr.
       Ireland,” but answered, “No” when asked if she remembered telling him she would
       get him in trouble. Asked if she attempted to push the defendant’s hand away, S.N.
       answered, “One time.”

                Julia Edney, the victim’s mother, testified that S.N. has “ADHD, which
       means she’s a little slow as far as picking up work” and that although S.N. was in the
       ninth grade, most of her schoolwork was on the fifth grade level. She said her
       daughter was thirteen years old in April 2002 and had occasionally spent the night
       at the defendant’s apartment, doing so in April 2002. Sometime after the rape, Edney
       confronted her daughter and asked her if the defendant “had ever touched her.” S.N.


       1
           It is the policy of this court to identify victims of sexual abuse by their initials only.



                                                             -2-
“got all quiet and started crying.” Edney stated the school counselor “had already
turned it in,” and both she and S.N. talked to the police and the Department of
Human Services (“DHS”). On cross-examination, she denied that S.N. had accused
someone of a similar offense a few years before.

        Detective Sam Henson of the Sevierville Police Department met with S.N.,
her mother, and a DHS representative in June 2002 to discuss the rape. He also
questioned the defendant on three separate occasions. After the second meeting, the
defendant “indicated he needed to relate some information . . . , and that he would be
back.” The defendant voluntarily returned for a third meeting and gave an
incriminating statement, which was tape-recorded. The audiotape was played in
court and entered into evidence, along with a typed transcript of the interview.
Detective Henson testified that the defendant was advised of his Miranda rights and
signed an admonition and waiver form, which was also entered into evidence, at the
third meeting on June 27, 2002. After the third meeting, the defendant was not
arrested, but was allowed to leave so that he could “finish out his pay period so that
he could get his paycheck and give it to his wife . . . .” According to Detective
Henson, the defendant was not a “flight risk,” and S.N. was being kept away from the
defendant and was therefore not in danger. The defendant was arrested later on the
rape charges. On cross-examination, Detective Henson said that the defendant
denied the rape allegations at the first two meetings. At the third meeting, the
defendant related to Detective Henson that he was concerned about his family’s
financial situation.

        Testifying for the defense, Leon Ireland identified himself as the defendant’s
brother-in-law and the victim’s uncle. Asked about the victim’s reputation for
honesty or dishonesty, Ireland stated, “Well, I guess generally, in my opinion, she’s
not been the most honest person to me. But then I can’t speak for everybody else.”
On cross-examination, he acknowledged that he had no direct knowledge of what
transpired between the defendant and the victim the night of the rape.

        Patricia Johnson, the defendant’s wife, testified that the victim, her niece,
visited her home “two to three times a month during the summer” and often spent the
night. She acknowledged that the victim had spent the night in her home on more
than one occasion in April 2002. On the night of the rape, Johnson did not recall
hearing or being awakened by any sort of noises. The morning after the rape, S.N.
did not act differently toward the defendant or say anything to Johnson about the
incident. Johnson also testified that if her husband had gotten up during the night, she
would have awakened.

       The defendant testified he never went into the bedroom where S.N. was
sleeping at night. He also denied removing her clothing, touching her vagina, or
performing oral sex on her. Asked to explain why the victim made these allegations,


                                          -3-
       the defendant stated, “Well, I told her she couldn’t go in me [sic] and my wife’s
       bedroom to watch TV anymore because I found her going through things on my
       wife’s side of the bed” about a week before the incident. The defendant admitted
       making a statement to the police but said it was not a true statement. He explained
       that he was pressured into making a statement to Detective Henson:

               Q. Please explain why you made that statement.
               A. I was told on the third occasion that I went down there, and this
               was in the training room where there’s no recording devices or TV
               cameras or anything, that if I didn’t cooperate he was going to come
               down like a ton of bricks and I would go to the slammer.
               Q. Okay. By “cooperate,” what did you take that to mean?
               A. That means I make a statement here and now or else.
               Q. And did you talk to the detective about the need for you to work?
               A. Yes, ma‘am.
               Q. And when did that conversation occur?
               A. In the training room.
               Q. Did it occur before or after you made your statement?
               A. Before.
               Q. So you told him you are needing to get out and work, take care of
               your family, before you made your statement?
               A. Yes, ma‘am.
               Q. And did he say anything in response to that?
               A. He said I could make a statement now or I could go to jail.
               Q. So you believed that if you didn’t make a statement you would be
               arrested immediately.
               A. Yes, ma‘am.

                On cross-examination, the defendant acknowledged being advised of his
       “rights” and to signing waiver forms before being questioned the first two times by
       Detective Henson and that he denied during those two interviews that the incident
       occurred. He admitted that the voice on the audiotape of the third meeting was his
       and he had told Detective Henson that he touched the victim’s vagina. However, he
       testified that the statement was untruthful and the questions were “specifically
       tailored . . . in a way where I was to answer them in order for him to garner the
       information he needed for a conviction.” The defendant said he gave a confession
       out of “fear for [his] family.”

         On appeal, this Court determined that the evidence was sufficient to support the convictions,
the trial court properly denied the motion to suppress, the record supported the sentence imposed by
the trial court, and Petitioner waived an issue with regard to impeachment of the victim for failing
to raise it in a motion for new trial. See id. at *3-11. The supreme court denied permission to appeal
on May 2, 2005.


                                                 -4-
        Petitioner subsequently filed a pro se petition for post-conviction relief in which he alleged
that he received ineffective assistance of counsel because: (1) counsel failed to raise an issue
regarding impeachment of the victim on appeal; (2) counsel failed to object to the competence of the
victim to testify at trial and failed to preserve this issue for appellate review; (3) counsel failed to
present a “coherent defence [sic] to the rape (by coersion [sic]) conviction and preserve for appellate
review;” and (4) counsel failed to object to the dual convictions for rape and statutory rape on double
jeopardy grounds. The post-conviction court appointed counsel and held a hearing on the petition.

                              Evidence at the Post-conviction Hearing

         At the post-conviction hearing, the only testimony was provided by trial counsel. She
testified that she was appointed to represent Petitioner at trial. Trial counsel informed the post-
conviction court that she had been an assistant public defender since 1995 and had handled numerous
cases involving sexual offenses. She recalled that prior to trial Petitioner insisted that the minor
victim was incompetent to testify. Trial counsel explained the standards for competency to
Petitioner and informed him that she believed that the victim would be deemed competent to testify.
Trial counsel made this informed decision based on her preparation for trial which included an
interview of the victim’s mother and several other people. Trial counsel was aware that the victim
had been diagnosed with Attention Deficit Hyperactivity Disorder but did not feel that this would
affect her ability to testify at trial. On cross-examination, trial counsel stated that she did not find
anything during her investigation that made her believe that the victim was incompetent to testify.

         Trial counsel recalled that during trial, she questioned Petitioner’s brother-in-law , who is
also the victim’s uncle, about the victim’s personality and trustworthiness. In his opinion, the victim
was “particularly untruthful.” Trial counsel testified that she attempted to elicit testimony from the
victim’s uncle about an alleged threat that he made against the victim. Trial counsel stated that the
trial court did not allow this testimony after objection by the State. Trial counsel acknowledged that
this issue was not included in the motion for new trial.

       The post-conviction court denied the petition for post-conviction relief. In its memorandum
opinion, the post-conviction court stated:

       The first issue, as has been pointed out [in the opinion on direct appeal] . . . relates
       to the issue of preserving the issue of credibility and the admission of - - or exclusion
       of certain statements, and the Court of Criminal Appeals said that it was not raised
       in a motion for a new trial . . . .

              An attorney does not . . . , have a duty to raise issues that they do not think are
       appropriate. . . . It wasn’t raised at the motion for a new trial. The Court ruled and
       the Tennessee Court of Criminal Appeals obviously did not alter the Court’s ruling,
       but the Court - - the initial inquiry, and the Court held, that those were not
       admissible. The Court still feels like they were not admissible based on the



                                                  -5-
       statement, and so the Court is satisfied that counsel was in compliance with the Sixth
       Amendment on those issues.

               As to the competency of the victim in this case to testify, again, counsel has
       to make a decision as to whether that is an issue or how far to pursue it; especially
       in cases of sexual abuse involving a minor, it starts down a slippery slope when you
       attack the victim. . . .

                The Court would point out, however, that every witness is presumed
       competent to testify assuming that they meet the preliminary standards of
       understanding the seriousness of the matter about which they are testifying and the
       acknowledgment of the duty and importance of telling the truth. And that, the Court
       is satisfied, was done. The Court had no issue about the competency of . . . this
       witness . . . [trial counsel] made a tactical decision that that was not an issue that
       needed to be challenged further. . . . So the failure to raise it on appeal . . . the Court
       does not see any harm in this.

                And I go back again to the confession of this defendant. The Court judged
       his credibility. I mean, it was clear to this Court from the suppression hearing and
       his trial that this defendant’s defense was a farce. It’s a flat out farce. The jury didn’t
       believe it. The Court didn’t believe it. The Court of Criminal Appeals didn’t believe
       it. So, you know, there you have it.

               The essence here is, is there anything that counsel either did or didn’t do that
       had an effect, a negative effect for [Petitioner] on his trial, his conviction and his
       sentence. Based on the admissions, which the Court has already determined, of
       [Petitioner], any error to raise these issues on appeal is, beyond a reasonable doubt,
       harmless. So, based upon all that, the Court finds that the motion for post-conviction
       relief has not met the standard of clear and convincing evidence . . . .

       On appeal, Petitioner argues that the post-conviction court improperly denied the petition for
post-conviction relief.

                                             Analysis
                                Post-Conviction Standard of Review

         The post-conviction court’s findings of fact are conclusive on appeal unless the evidence
preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). During our review
of the issues raised, we will afford those findings of fact the weight of a jury verdict, and this Court
is bound by the post-conviction court’s findings unless the evidence in the record preponderates
against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958
S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not reweigh or re-evaluate the evidence,
nor substitute its inferences for those drawn by the post-conviction court. See State v. Honeycutt,


                                                  -6-
54 S.W.3d 762, 766 (Tenn. 2001). However, the post-conviction court’s conclusions of law are
reviewed under a purely de novo standard with no presumption of correctness. See Shields v. State,
40 S.W.3d 450, 458 (Tenn. 2001).

                                  Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “Because a petitioner must
establish both prongs of the test to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a sufficient basis to deny relief
on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court may
not second-guess a reasonably-based trial strategy, and we cannot grant relief based on a sound, but
unsuccessful, tactical decision made during the course of the proceedings. See id. However, such
deference to the tactical decisions of counsel applies only if counsel makes those decisions after
adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App.
1992).

          Failure to Investigate Victim’s Competence and Object to Victim’s Testimony

      First, Petitioner argues on appeal that trial counsel failed to investigate the victim’s
competence and failed to object to the testimony of the victim at trial.

        The testimony presented at the hearing included statements of trial counsel, who testified that
she investigated the victim’s competence prior to trial and did not feel that it was an issue worthy
of raising. Furthermore, trial counsel did not feel that this issue would be worthwhile to pursue on
appeal. Petitioner presented no testimony to show how he was prejudiced by trial counsel’s decision


                                                  -7-
or that the victim was, in fact, incompetent. Again, this Court may not second-guess a
reasonably-based trial strategy, and we cannot grant relief based on a sound, but unsuccessful,
tactical decision made during the course of the proceedings. See id. Trial counsel investigated the
issue of the victim’s competence prior to trial and made a tactical decision not to pursue the matter.
Petitioner has failed to sustain his burden. This issue is without merit.

               Failure to Impeach Victim with Victim’s Prior Inconsistent Statement

        Petitioner also argues on appeal that he received ineffective assistance of counsel because
trial counsel failed to impeach the victim at trial with a prior inconsistent statement and failed to
preserve this issue for appeal by including it in the motion for new trial. Further, Petitioner argues
that the trial court improperly excluded the extrinsic evidence of the victim’s prior inconsistent
statement. The State counters that Petitioner failed to satisfy his burden on appeal and that the
evidence does not preponderate against the judgment of the post-conviction court.

          At trial, trial counsel asked the victim if she had ever threatened anyone with false
accusations of sexual abuse. The victim testified that she had not. Trial counsel attempted to call
Leon Ireland to impeach the victim’s statement. Apparently, Mr. Ireland would have testified that
after the allegation was made against Petitioner, the victim had threatened Mr. Ireland with false
accusations of sexual abuse by saying, “If you don’t leave me alone, you’ll be in the jailhouse like
. . . .” The victim did not finish the sentence. At trial, the trial court excluded the testimony. Trial
counsel objected. The trial court record “does not reveal when or where the victim allegedly made
this statement, and it is unclear why, supposedly, it was made to defense witness Leon Ireland, since
he was not asked about it in his testimony.” George A. Johnson, 2005 WL 225025, at *10. At the
hearing on the post-conviction petition, trial counsel admitted that the issue regarding impeachment
of the victim was “left out” of the motion for new trial, but that it was “argue[d] . . . in the appeal.”
 On direct appeal to this Court, we determined that the issue was “waived, for purposes of appeal”
because it was not raised in the motion for new trial. Id.

         Petitioner argues on appeal that counsel’s failure to raise the issue of impeachment in the
motion for a new trial constituted deficient performance. Moreover, Petitioner argues that the trial
court erred in refusing to allow Mr. Ireland to testify as to the victim’s alleged statement to him.
First, it should be noted that the question of whether the trial court erred in denying the admission
of Mr. Ireland’s testimony on this point was waived in the direct appeal, and remains waived in the
post-conviction appeal. See, T.C.A. 40-30-106(g).

        Turning to the failure of trial counsel in the motion for new trial to raise the issue of
impeachment of the victim with a prior inconsistent statement, it appears that at the post-conviction
hearing trial counsel was not asked why the issue was not presented in the motion for new trial.
Nevertheless, Petitioner has failed to carry his burden of showing that had this issue been raised he
would have received relief on the merits. He has also failed to prove that more probably than not
the results of his trial would have been different had the failure to admit Mr. Ireland’s testimony been
properly preserved and addressed on appeal. Mr. Ireland did not testify as to how the victim had


                                                  -8-
threatened him with allegations of sexual abuse or in what context such alleged threats were made.
As noted earlier, the trial record reveals only a statement of counsel as to what Mr. Ireland would
testify if allowed. The alleged statement made by the victim did not reference any sexual abuse.
Under these circumstances we cannot say that had this issue been reviewed on appeal the trial court
would have been reversed and the extrinsic evidence of prior statements admitted.

        Moreover, even if evidence of the victim’s alleged prior statement had been admitted it is
unlikely the result of the trial would have been different. Petitioner had confessed to a sexual
encounter with the victim, and although he argued at trial his confession was the product of duress,
it was powerful evidence of guilt unlikely to be undone by the rather vague alleged threat of sexual
abuse allegations by the victim against Mr. Ireland. Under these circumstances we hold Petitioner
has failed to carry his heavy burden of proof in showing he received ineffective assistance of counsel.

                                             Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




                                                 -9-
