         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
              AT NASHVILLE Assigned on Briefs June 19, 2012

           CAULEY McCILTON CROSS v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Marshall County No.
                              2011-CR-64Robert Crigler, Judge


                    No. M2012-00020-CCA-R3-PC - Filed January 18, 2013


The petitioner, Cauley McCilton Cross, appeals the denial of his petition for post-conviction relief.
The petitioner is currently serving an effective ten-year sentence in the Department of Correction
following his convictions for two counts of aggravated sexualbatteryand three counts of exhibition
of obscene materials to a minor. On appeal, he contends that the postconviction court erroneously
denied his petition because the proof established that he was denied his right to the effective
assistance of counsel. On appeal, he specifically contends that trial counsel was ineffective for failing
to file a motion to dismiss the charges against the petitionerbased upon a constitutionalchallenge to
Tennessee Code Annotated section 39-13504. Following review of the record, we affirm the denial
of relief.

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

JOHN EVERETT WILLIAMS ,J.,delivered the opinion of the Court,in which JOSEPH M.TIPTON , PJ.,
and THOMAS T. WOODALL , J., joined.

David J. McKenzie, Lewisburg, Tennessee, for the appellant, Cauley McCilton Cross.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel; Charles
Frank Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION


                          Procedural History and Factual Background

        The charges against the petitioner arose from his actions involving his nine-year-old



                                                   -1
stepson, the boy victim, and a twelve-year-old girl, the girl victim, who lived next door.1The
petitioner, his wife, the boy victim, and his twelve-year old brother had lived in this home for
approximately one year. The girl victim was a frequent visitor to the home as she and the
petitioner’s two stepsons often played together. On March 29, 2008, the girl victim visited the
petitioner’s home for most of the day, which was spent playing outside, watching movies with
the family, and playing video games. After a late dinner, the petitioner asked the three children if
they would like to watch a movie with him. All four proceeded into the living room and sat on
the couch, and the children observed that a movie was already playing. The movie was titled
“Zandalee” and starred Nicholas Cage. The movie was an uncut version and included multiple
graphic sex scenes and nudity. The three children attempted to avert their eyes during these
scenes. During the movie, the girl victim felt the boy victim’s hand on her left breast. She moved
his hand away several times, but “it just kept coming back.” The girl victim observed the
petitioner’s hand manipulating the boy victim’s hand in order to touch her breast. The girl victim
said the movement was not accidental on the petitioner’s part and that her breast was touched at
least five times. The girl victim eventually removed herself from the couch, and no more
incidents occurred.

         After the movie, the girl victim’s mother called her daughter’s cellphone, which was
answered by the petitioner. After the call, the petitioner informed the girl victim that she would be
spending the night at their house, and, because she was afraid to go home alone after dark, the girl
victim agreed. The next morning, the three children went next door and informed the girl victim’s
mother what had occurred the previous evening. During this conversation, the petitioner entered the
girl victim’s family home, without knocking, and stated that it was “just all a joke.”

        The petitioner was subsequently indicted by a Marshall County grand jury for two counts of
aggravated sexual battery and three counts of exhibition of obscene material to a minor. The
petitioner was convicted as charged and sentenced to an effective term of ten years in the Department
of Correction. Following the denial of his motion for new trial, the petitioner filed a direct appeal
with this court, in which he argued: (1) that the evidence was insufficient to support his aggravated
sexual battery convictions; (2) that his sentences for aggravated sexual battery were excessive; and
(3) that the aggravated sexual battery convictions should merge. Statev.Cauley McCliton
Cross,No.M2009-01179-CCA-R3-CD (Tenn. Crim. App., at Nashville, May 25, 2011). After
review, this court affirmed the convictions and sentences as imposed. Id.

         On June 23, 2011, the petitioner filed a pro se petition for post-conviction relief
asserting a myriad of grounds for ineffective assistance of counsel. Among those grounds were
that trial counsel was ineffective for: (1) failing to obtain, research records, and crossexamine
witnesses with regard to a similar claim of abuse made by the girl victim in Texas;
(2) failing to file a motion to dismiss because the facts of the case did not support the

1

         In an effort to protect the identity of the minor victims involved in this case, this court has chosen
to refer to them by “the boy victim” and “the girl victim” rather than by name or initials.

                                                      -2
statutoryrequirements and elements of aggravated sexual batterybecause there was no direct contact
between the petitioner and the girl victim; (3) failing to file a motion to dismiss on grounds that the
aggravated sexual battery statute was unconstitutionally vague and ambiguous; and (4) failing to
elicit proof that the petitioner’s wife was cheating on him. A post-conviction hearing was
subsequently held at which the petitioner and trial counsel offered testimony.

         The petitioner began by noting that he and trial counsel did not see “eye to eye” on
evidentiary materials. He indicated that trial counsel visited him only three times in the eight months
he was incarcerated pending trial. The petitioner faulted trial counsel for failing to call certain alibi
witnesses to testify at trial and to introduce phone records to further this defense. However, he
acknowledged that the witnesses would only be able to testify to his presence throughout the day,
not at the time of the incident. However, he felt this would damage the credibility of the other
witnesses who testified that he was present at the home all day. With regard to the witnesses that did
testify at trial, the petitioner felt that trial counsel did not effectively cross-examine them, i.e., ask
the questions the petitioner wanted him to ask. He also claimed trial counsel waived his
preliminaryhearing withouthis consent, refused to let him take a lie detector test, failed to secure an
independent medical examination, and failed to introduce into evidence a receipt which established
that the petitioner’s wife was the one who actually obtained the movie which was shown to the
children.

        The petitioner was very upset that trial counsel failed to secure records from Texas regarding
a prior false allegation made by the girl victim against her father. The petitioner stated that he had
learned of the prior events from the girl victim’s father when he confronted him. He was told that
the allegations were proven to be false and that they had been made to get attention. The petitioner
indicated that he made trial counsel aware of these events, but he was informed that it was hearsay
and could not be used.

        The petitioner testified that he asked trial counsel to file a motion to dismiss the charges
against him. The only ground to support the motion advanced by the petitioner during his testimony
at the hearing was that he was innocent of the charges.

         Trial counsel testified that he was appointed to the case and began his representation at the
circuit level. He indicated that he visited with the petitioner on at least six occasions prior to trial and
reviewed discovery materials with him. Trial counsel testified that, in his opinion, it would not have
been beneficial to call witnesses to establish an alibi for earlier in the day because the petitioner had
admitted that he was there at the time of the crime. With regard to a lie detector test, trial counsel
did not recall the petitioner asking to take one. However, he testified that if the petitioner had done
so, he would not have allowed it because they are inadmissible in court and he did not trust their
results. When questioned about a motion to dismiss because the petitioner was innocent of the
charges against him, trial counsel responded that there was “no such animal” because that was the
purpose of a jury trial- to determine if a defendant is innocent of the charges against him.



                                                    -3
        Trial counsel did acknowledge that the petitioner had informed him of a prior false claim of
sexual contact made by the girl victim against her father. He stated that his investigator went to their
home, but no one there would speak with him. Absent the information as to the facts or at least the
location, trial counsel had no way to further investigate the prior instance. Moreover, he testified that
even if he had known where in Texas to began his search, the Department of Children Services
usually would not speak about prior false claims. Regardless, trial counsel testified that he did not
believe the information would have swayed the jury, as the petitioner’s two stepchildren were present
during this crime and confirmed the girl victim’s story.

       After hearing the evidence presented, the trial court denied the petition. This timely
appeal followed.

                                                Analysis

        On appeal, the petitioner contends that the post-conviction court erred in denying his petition
because he was denied his right to the effective assistance of counsel. In order to obtain
post-conviction relief, a petitioner must prove that his or her conviction or sentence is void or
voidable because of the abridgement of a right guaranteed by the United States Constitution or the
Tennessee Constitution. T.C.A.§ 40-30-103 (2010); Howellv.State,151 S.W.3d 450, 460 (Tenn.
2004). A post-conviction petitioner must prove allegations of fact by clear and convincing evidence.
T.C.A. § 40-30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94
(Tenn. 2009). “Evidence is clear and convincing when there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d 208,
216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an
appeal of a court’s decision resolving a petition for post-conviction relief, the court’s findings of fact
“will not be disturbed unless the evidence contained in the record preponderates against them.”
Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).

        A criminal defendant has a right to “reasonablyeffective” assistance of counsel under

both the Sixth Amendment to the United States Constitution and Article I, Section 9, of the
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to effective
assistance of counsel is inherent in these provisions. Strickland v. Washington, 466 U.S. 668,
685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective assistance of counsel, a
petitioner must prove both deficient performance and prejudice to the defense. Strickland, 466
U.S. at 687-88. Failure to satisfy either prong results in the denial of relief. Id. at 697.

        Fordeficientperformance,the petitionermustshow that“counsel’srepresentation fell below
an objective standard of reasonableness” under prevailing professionalnorms,despite a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 687-89. “In other words, the services rendered or the advice given must have
been below ‘the range of competence demanded of attorneys in criminal cases.’” Grindstaff, 297


                                                   -4
S.W.3d at 216 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The petitioner must
prove that counsel made errors so serious that counsel was not functioning as “counsel”
guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. When reviewing trial counsel’s
performance for deficiency, this court has held that 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 made during the course of the proceedings.”
Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). The reviewing court “must make
every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s conduct, and to evaluate the conduct from the perspective of counsel at that time.”
Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).
However, “deference to tactical choices only applies if the choices are informed ones based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        Prejudice in turn requires proof of “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. In Strickland, the Supreme Court noted that “[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had
no effect on the judgment.” Id. at 691. The court clarified that prejudice “requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. at 687. “The defendant must show that there is a reasonable probabilitythat, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

        A claim of ineffective assistance of counsel raises a mixed question of law and fact.
Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court reviews the trial
court’s factual findings de novo with a presumption of correctness, unless the evidence
preponderates against the trial court’s factual findings. Grindstaff, 297 S.W.3d at 216. But the
trial court’s conclusions of law on the claim are reviewed under a purely de novo standard with
no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

        As his sole allegation of ineffective assistance of counsel, the petitioner has asserted that trial
counsel was deficient for failing to file a motion to dismiss the charges against him on the ground
that Tennessee Code Annotated 39-13-504 was unconstitutional. He further faults trial counsel for
allegedly not recognizing that a motion to dismiss even existed, i.e., trial counsel’s testimony that
“no such animal” exists. With regard to the statute’s constitutionality, he contends that there was an
unresolved ambiguity in the law with regard to this statute at the time of his conviction. The basis
for his entire assertion is a statement by this court on direct appeal: “In apparently a matter of first
impression, we hold that [the boy victim] was a victim because we interpret the definition of sexual
contact to include touching the intimate parts of a third party by or through another victim.” Cross,
No. M2009-01179-CCA-R3-CD. The petitioner parlays that statement into the argument that “[i]f
the underlying criminal matter was one of first impression, then axiomatically the interpretation of
the aforesaid penal statute created by this Honorable Court was not in existence at the time of the
[petitioner’s] criminal trial.” He asserts that he “was convicted of a crime for which his specific

                                                    -5
actions were not ‘plainly and unmistakably’ proscribed at the time he was charged.” Based upon
these contentions, he argues that a motion to dismiss upon constitutionality grounds challenging
vagueness and violation of ex post facto rights would have been favorable.

        Initially, we must point out that the petitioner has taken trial counsel’s statement that “no
such animal” as a motion to dismiss existed wholly out of context. We agree with the petitioner that
Tenn. R. Crim. P. 12(a) does delineate that such a motion does exist in the criminal court context.
However, trial counsel’s statement that no such motion existed was made in the context of the
petitioner’s testimony regarding a motion to dismiss because he was innocent of the charges. Trial
counsel responded that a motion to dismiss was not the proper vehicle in that instance but rather that
was the purpose of a jury trial. We agree. Trial counsel cannot be faulted for failing to file a motion
to dismiss on grounds of innocence prior to trial. Moreover, as pointed out by the post-conviction
court, the issue of prejudice was foreclosed by this court’s holding that the evidence was sufficient
to support the conviction.

         While we note that the issue of a motion to dismiss based upon the constitutionality of the
statute was raised in the petitioner’s pro se petition for relief, we must agree with the State thatthe
record of the post-conviction hearing is devoid of anyproof that the petitioner’s desired motion to
dismiss was based uponanythingotherthan his self-proclaimed innocence. No proof was offered to
support a finding that such a motion to dismiss would have been successful if it had been filed. The
post-conviction court’s findings of facts and conclusions of law are devoid of any reference to a
motion to dismiss on constitutional grounds. Other than a mere conclusory allegation in his petition,
we can find no mention of the issue. The petitioner may not now advance an argument that trial
counsel was ineffective for failing to file a motion to dismiss upon this ground when he failed to
raise it before the post-conviction court. See State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim.
App. 1994). Therefore, relief is not warranted.

        We make clear that our reading of the petitioner’s brief leads us to conclude that he is
asserting only an ineffective assistance of counsel claim based upon the failure to file a motion to
dismiss and not a challenge to the constitutionality of the statute itself. Nonetheless, because the
question of constitutionality of a statute may be raised at any time, in the interest of finality and
completeness, we will briefly address the constitutionality of the statute in question. See State v.
Sowder, 826 S.W.2d 924 (Tenn. Crim. App. 1991).

        As pointed out by the State, this statute has previously been upheld against a vagueness
challenge. See State v. Schimpf, 782 S.W.2d 186 (Tenn. Crim. App. 1989) (superseded by statute on
other grounds). In light of that precedent, we cannot conclude that a comment made by this court on
direct appeal regarding first impression can support a vagueness challenge at present. That comment
cannot support the petitioner’s claim that he was convicted of a crime which was not defined at the
time of its commission. The crime was defined and in existence at the time the petitioner committed
it. That this court noted for the first time that the petitioner’s specific conduct was included in the
statute based upon its plain meaning and definitions does not equate to the conclusion that the statute
was unconstitutional.

                                                  -6
         Likewise, the petitioner’s challenge to the statute under the ex post facto provisions of the
constitution is not well-taken. An ex post facto violation under article I, section 11 of the Tennessee
Constitution occurs whenever a law (1) “provides for the infliction of punishment upon a person for
an act done which, when it was committed, was innocent,” (2) “aggravates a crime or makes it
greater than when it was committed,” (3) “changes punishment or inflicts a greater punishment than
the law annexed to the crime when it was committed,” (4) “changes the rules of evidence and
receives (sic) less or different testimony than was required at the time of the commission of the
offense in order to convict the offender,” and (5) “in relation to the offense or its consequences,
alters the situation of a person to his disadvantage.” Miller v. State, 584 S.W.2d 758, 761 (Tenn.
1979) (citing Calder v. Bull, 3 U.S. 386 (1798); State v. Rowe, 181 A. 706, 709-10 (1935)). The
statute under which the petitioner was convicted was in effect at the time he committed the acts for
which he was charged. As noted above, it withstands a vagueness challenge. Thus, because

it was in existence and clearly defined, there is no ex post facto violation present.

                                        CONCLUSION

        Based uponthe foregoing, the denial of post-conviction relief is affirmed.




                                                       _________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




                                                  -7
