        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs April 23, 2014

             DAVID FREEMAN CLAY v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                        No. 99042    Bobby R. McGee, Judge




              No. E2013-02262-CCA-R3-PC-FILED-OCTOBER 3, 2014


Petitioner, David Freeman Clay, appeals from the trial court’s denial of his petition for post-
conviction relief following an evidentiary hearing. Petitioner sought post-conviction relief
from his convictions of two counts of sexual battery and three counts of assault, based upon
his assertions that his trial counsel rendered ineffective assistance of counsel at trial and on
appeal. In his appeal Petitioner asserts that the trial court erred by ruling that trial counsel
did not provide ineffective assistance of counsel. After a thorough review we affirm the
judgment of the trial court.

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

T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, David Freeman Clay.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Randall Eugene Nichols, District Attorney General; and Philip Morton,
Assistant District Attorney General, for the appellee, the State of Tennessee.

                                          OPINION

       Petitioner was originally tried in a jury trial on ten counts of aggravated rape and one
count of especially aggravated kidnapping involving the August 2005 sexual assault of the
victim. As noted above, the jury found Petitioner guilty of the lesser included offenses of
two counts of sexual battery, a Class E felony, and three counts of Class B misdemeanor
assault. Petitioner was acquitted of all other charges. On appeal, this court affirmed the
convictions and the total effective sentence of nine years and six months to serve in the
Department of Correction. State v. David Freeman Clay, No. E2009-00868-CCA-R3-CD,
2010 WL 3597219 (Tenn. Crim. App. Sept. 16, 2010). As relevant to the present appeal this
Court summarized the facts in part as follows:

        Rocky Rogers testified that during the late morning of August 5, he was
        cutting hair at his Knoxville barber shop when he looked up to see “a lady
        walking towards the building naked.” He met her at the front door to tell
        her she could not come inside because there were children in the shop. She
        told him that “she was tied up and had been kidnapped and raped.”
        However, Mr. Rogers said that there was not a rope around the woman’s
        neck. He told the woman to go to the store next door and that he would call
        the police to meet her there. He tried to give her a coat to wear, but she had
        already left. Mr. Rogers also stated that there was a car wash a few doors
        down from his barber shop.

        Knoxville Police Department (KPD) Patrol Officer Keith Lyon testified that
        on August 5 when his shift ended he took his patrol car to a car wash where
        an employee brought a woman to him who claimed she had been raped.
        Officer Lyon said that the woman had a t-shirt and towel “to put around
        her.” Officer Lyon said that there was not a rope around the woman’s neck.
        He said that the woman “appeared to be very traumatized and scared to
        death.” The woman told Officer Lyon that she had been raped at a house
        about two doors from the car wash. He called for an ambulance and an
        on-duty officer.    Officer Lem Clemons arrived to complete the
        investigation.

        The victim, [D.R.], testified that she was living in Walter P. Taylor Homes,
        “the projects,” on August 5, 2005. She said that she walked to a nearby
        convenience store at around 10:00 p.m. to buy a beer. She was wearing
        jeans, clogs, and a blouse and was carrying a small change purse. As she
        was walking to the store, she saw “a black guy” walking towards her. As
        their paths met, the man said hello to her, grabbed her by the neck, and
        pulled her with him. The victim testified that the man put something around
        her neck that “felt like a shoe string” and pulled her into an abandoned
        house. She said that she tried to run, but the man was choking her. She
        said he stuffed something like “a bandana” in her mouth once they got
        inside the house. The victim said that as she struggled, the man told her “do
        you want me to kill you like I killed that last bitch.” The man next
        instructed the victim to take off her clothes and “to walk up those nine steps
        and if you do what I say then I might let you live.” The victim said that she

                                             -2-
could not remember whether she took her clothes off or the man did
because she “kept blacking out and coming to” from the choking.

The victim testified that she next remembered being “hogtied” with a rope
around her neck and her hands tied behind her back and attached to her legs.
She said that she was laying on a dirty mattress on the floor with a sleeping
bag nearby. She described the room as filthy with pornographic magazines
and Milky Way wrappers all over the floor.

The victim testified that the man then began to rape her. He penetrated her
anally with his penis for about an hour. She described it as “horrible” and
“very painful.” She said that he talked “obscene” during each act and told
her that she deserved what he was doing to her. He made the victim move
into different positions and wanted her to “say obscene things to him.” She
said that the man had a pocket-knife and used it to penetrate her anally
once. The victim said that the man “licked [her] . . . . used his penis in me,
his hands, everything” both anally and vaginally. The victim said that the
man forced her to perform oral sex on him also. The victim estimated that
the man penetrated her “ten to twenty” times. She said that she acted like
she enjoyed the rapes because when she did, the man did not hurt her so
bad.

The victim testified that throughout the ordeal she “was just trying to think
of how I was going to live through it. I didn’t think I would live through
it.” The man told her not to try to escape to the next house because “he
s[old] drugs for the people next door and they [would] kill [her].” She said
that she finally gained his confidence so he untied her so that she could
urinate. She said that he told her to urinate in a corner of the room and that
each time she did, he would urinate in the same spot. The victim stated that
the man eventually fell asleep. She said she was afraid to move initially,
but when she realized that he really was asleep, she “got up and . . . ran.”
She said that the man woke up and tried to pull her back into the room to
give her her clothes, but she jumped from the balcony and landed in the
grass. She said that she ran “[b]arefooted and naked” to the barber shop.
The man at the barber shop told her to go to the convenience store next door
for help because there were kids in his shop. The victim said that she ran
to the store where a man in the parking lot gave her a “big t-shirt” from his
car and told her she could find a police officer at the car wash.




                                     -3-
From the car wash, the victim went to the hospital in an ambulance. She
said she was afraid that the man was following her the entire time. She
described the rape kit examination as “very painful.” In the courtroom, the
victim identified the Defendant as the man who had assaulted her. She said
that she had never met him before these offenses occurred.

On cross-examination, the victim admitted that she had consumed “a forty”
before the Defendant assaulted her, but she said that she was sober
throughout the incident. She acknowledged that she may have said hello to
the Defendant when he approached her on the street that night. She also
admitted that the arrest warrant contained no information about the
Defendant putting a rope or shoe string around her neck; but, on redirect
examination, she stated that there was not enough room on the warrant to
include everything that happened to her that night. The victim said that Ray
Cantrell was her neighbor at Walter P. Taylor Homes.

                                   ***

The fifty-three year old Defendant testified that he is divorced with two
adult children. He said that he had a successful life as a computer
programmer before he became addicted to cocaine following his divorce in
1985. His addiction led to a conviction for drug possession and sale of
cocaine which caused the loss of his job at IBM.

Concerning the offenses, he testified that he and the victim went to the
abandoned house to smoke crack cocaine that they had purchased from Mr.
Cantrell. The Defendant indicated that he and the victim had a conversation
about “what she wanted to get offered [in exchange] for some crack.” The
Defendant said that they agreed to go to the abandoned house. He
contended that it would have been impossible for the victim to have walked
through the house naked “without getting scratched or cut up.” He said they
went to the upstairs room where they drank vodka and smoked an “eight
ball” of crack cocaine. He said that they discussed the sexual things she
would do in exchange for the cocaine. He described the encounter as
“almost like a business arrangement.” He explained that cocaine “gives you
an illusion that you can do more than you can” but that he was unable to
maintain an erection due to the alcohol and cocaine. He said that the victim
was “sexually aroused” and “was trying to get [him] to do things he
couldn’t do” - leading to the variety of sexual acts that occurred, including
bondage. The Defendant said that the victim asked him to place a string

                                     -4-
        around her neck and pull it while he performed oral sex on her. He testified
        that he was unable to penetrate her with his penis. He denied that he
        gagged the victim with a sock or bandana or that he “hogtied” her. He said
        that any sexual activity was “agreed upon . . . I paid for what I wanted, or
        she agreed on it.”

        The Defendant said that he fell asleep at around 6:00 in the morning. He
        awoke to a noise and discovered $340 dollars missing from his pants. He
        found the victim on the porch with his money in one hand and her clothes
        in the other. They struggled on the porch for some time before the
        Defendant, realizing that it would not look good to be seen struggling with
        a naked woman on the porch, took the victim’s clothes from her and told
        her she would get her clothes back when she handed him his money. The
        Defendant decided that the victim was not going to give him his money so
        he went inside to finish getting dressed. He planned to confront the victim
        on her way out of the house, but when he returned to the porch, the victim
        was gone with his money. The Defendant went back to work about two
        blocks away. He testified that he was embarrassed by the events of the
        night.

David Freeman Clay, 2010 WL 3597219 at *1-2.

       In the present appeal, Petitioner asserts that the evidence at the post-conviction
hearing showed that his trial counsel rendered ineffective assistance of counsel in three
ways:

        (1) Trial counsel failed to argue for the admissibility of Petitioner’s
        testimony that the victim was a prostitute.

        (2) Trial counsel failed to raise as an issue in the direct appeal of his
        convictions that the trial court erred by ruling that Petitioner’s prior
        conviction for aggravated assault could be used for impeachment of
        Petitioner’s trial testimony.

        (3) Trial counsel rendered ineffective assistance of counsel by requesting
        the trial court to charge the jury with the lesser included offense of sexual
        battery, as a lesser included offense of the indicted offenses of aggravated
        rape.




                                             -5-
        The trial court made its ruling from the bench in this case at the conclusion of the
post-conviction hearing. As to Petitioner’s issues, the trial court made the following findings
of fact and conclusions of law:

                 The Court notes also that there’s no - - there was no presentation at
        trial, at least I don’t believe so, and there’s been no presentation today that
        there was any actual proof that the victim was a prostitute. There’s
        certainly no evidence that the victim - - that [Petitioner] had hired her for
        sex before and paid her. There’s been no testimony offered that he knew
        firsthand, observed her, you know, firsthand taking money and performing
        sex.

               And so it would not appear to be - - even had it been preserved on
        appeal there’s no strong argument made here that the appellate court
        would’ve come anywhere near reversing a conviction because of the judge’s
        ruling on the admissibility of that word [“prostitute”].

              [Petitioner] also claims that it was very serious error for the trial
        counsel to allow the [aggravated] assault to be used for impeachment
        purposes when he testified. The Court would note that apparently a Rule
        609 hearing was held, the judge heard both sides, and the judge made the
        determination that would come in.

               It’s difficult to fault the attorney for that, and since it is the judge’s
        duty and job to determine the admissibility of those things, it’s hard to say
        how that could’ve been - - how it can be argued now that the trial counsel
        was deficient for failing to appeal it. There’s no evidence here that - - the
        only evidence here on the issue is the same evidence we always have when
        we do a 609, it’s an argument, should it come in, should it not come in.

                There’s - - it appears that the defense - - part of the defense strategy
        is going to be that [Petitioner] would testify. And, of course, that was very
        important where there’s the only two people who are witnesses to the
        alleged crime are the victim and the defendant, the accused. There’s, of
        course, an obvious need for the accused to give his account of what
        happened. And so the attorney apparently, some fairly skillfully, used the
        fact that [Petitioner] had an extensive record to try to bolster his credibility.

              He brought it out on direct examination, and he tried to create the
        argument and the impression that this defendant was open and would admit

                                               -6-
to the things he was guilty of and should, therefore, be believed when he
said he didn’t commit the acts for which he was on trial.

      And the Court would also find that it’s not entirely clear that the
aggravated assault would not be admissible on the issue of credibility

                                   ***

       And, again, there’s very little lucid argument here that this would
clearly have been a basis for which the Court of Criminal Appeals would
reverse the case.

                                    ***
       And third, the issue involving the lesser included offense, the sexual
battery . . . we now have to find that any lesser included that we charge is
supported by the facts.

        Well, if you look at the sexual battery statute, and look at the
evidence in this case certainly - - certainly those - - sexual battery was
supported by the evidence. A great deal more was supported by her
testimony, but certainly this particular lesser included was raised by the
evidence, and very likely a judge would have a duty now to charge it even
if the defendant didn’t ask for it, because we’re back to the point where the
judge once again has to make the determination of if it’s fairly raised by
evidence the charge has to be complete. And there’s good argument that
it’s not complete unless relevant lesser includeds are charged.

                                   ***

       This Court finds as a matter of fact that counsel’s performance was
not deficient involving matters of decisions, and choices, and tactics, and
strategies that are the work of lawyers, these decisions have to be made.
They’re not to be reviewed through the clear vision of 20/20 hindsight.
They must be viewed within the context of the case as it appeared at the
time.

       This Court finds that this trial attorney’s performance was not
deficient. And having made that determination there is no need to go
further to deal with the issue of prejudice.



                                     -7-
               For those reasons the petition for post conviction relief is
        respectfully denied.

        We will summarize the testimony presented at the post-conviction hearing which
pertains to the issues raised by Petitioner in this appeal. Petitioner testified that he “knew
[the victim] was a prostitute” who “got high off crack.” He testified that the judge at his trial
ruled that Petitioner’s proposed testimony that the victim was a prostitute would not be
admissible. Petitioner acknowledged that he had never had sex with the victim prior to the
night of the incidents which led to his convictions. Petitioner testified that on four or five
previous occasions he had seen the victim at the “crack house” and observed her “exchange
favors [sex]” for crack cocaine.

        On cross-examination, Petitioner acknowledged that he was permitted to testify at the
trial that the victim was inside a “crack house” and that Petitioner gave crack cocaine to the
victim in exchange for consensual sex with the victim. Petitioner testified that he was
prejudiced by the trial court’s ruling because if he could have told the jury that the victim was
a prostitute, it would have rebutted the State’s expert witness’s testimony that the victim had
vaginal tears which corroborated rape. Petitioner reasoned that if he had been allowed to
testify as he had desired, the proof of the victim’s status as a prostitute would have assisted
his defense. Specifically, Petitioner testified at the post-conviction hearing,

        I had stated I didn’t have any penetration, therefore, to explain the
        penetration we had to explain to the jury that she was a prostitute. That was
        the only explanation.

(emphasis added)

        Petitioner acknowledged that he knew prior to trial that the State would impeach his
testimony at trial by submitting proof of his prior convictions. Petitioner testified that trial
counsel should not have asked the trial judge to charge the jury that sexual battery was a
lesser included offense of aggravated rape. However, Petitioner admitted that he had
testified at trial that he had used his tongue to have sexual contact with the victim and that
his conduct could constitute sexual battery. Petitioner then testified during cross-
examination that he had nothing else to complain about as to trial counsel’s representation.

      As to Petitioner’s issue that trial counsel failed to adequately assert that Petitioner
should have been allowed to testify that the victim was a prostitute, trial counsel testified
upon direct examination by the State as follows:




                                               -8-
Q.     Now, [Petitioner] first complains about the evidence being tendered,
       or not tendered, however it was at trial, about the victim being an
       alleged prostitute. Tell the Court about your approach to that issue
       and how you handled it at trial.

A.     Well, I guess my position was whether we called her a prostitute or
       not if we were able to convince the jury that she met [Petitioner] at
       a crack house and observed him purchasing crack cocaine and left
       with him that that would indicate it would be a consensual encounter
       because initially her allegation was that she was just walking down
       the street and he had thrown a noose or a rope around her neck and
       had choked her and drug her back to his particular house.

       However, we had a witness who testified who was the - - for the lack
of a better word - - operator of this crack house who witnessed [Petitioner]
purchasing these drugs and her essentially falling over him trying to leave
with him to consume the cocaine.

       And it was - -

Q.     And I take it through your investigation there was no actual witness
       that could be found that would come in and say that this lady traded
       sex for cocaine? That actually observed that activity other than
       just - -


A.     No. Other than [Petitioner’s] statement to that. But the - - I think
       Mr. Cantrell who testified indicated that she kind of hung around for
       that very purpose as well to watch for men who were purchasing
       crack cocaine.


                                   ***

Q.     Well, [Petitioner] I guess, specifically complains about that you
       didn’t appeal that issue when the judge cut off, I guess, questioning
       in that area, why did you not do that?




                                    -9-
        A.      Well, it was my belief based on the verdict that we got that the jury
                reached a conclusion that was consistent with the belief that she was
                trading sexual favors for crack cocaine.

        Trial counsel further testified that Petitioner’s intention from the beginning was to
testify in his own defense. Trial counsel knew that he would have to “deal with” Petitioner’s
significant number of prior convictions that could be used for impeachment purposes. Trial
counsel’s strategy was to tell the jury that Petitioner has previously pleaded guilty when he
was guilty, but he went to trial in this case because he was innocent. As to his request to the
trial court to charge the jury with the lesser included offenses of sexual battery, trial counsel
testified that it was his understanding at the time of the trial that sexual battery was a lesser
included offense of aggravated rape and that failure to request the court to charge sexual
battery as a lesser included offense might constitute ineffective assistance of counsel.

       During cross-examination by Petitioner’s post-conviction counsel, trial counsel
acknowledged that Petitioner’s defense to the charges “all along” was that there was consent
“for everything that happened” and not that there was a lack of penetration during the sexual
encounters.

ANALYSIS

        Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee
or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2012). The
petitioner bears the burden of proving factual allegations by clear and convincing evidence.
Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the
findings of fact made by the court are conclusive on appeal unless the evidence
preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When
reviewing factual issues, the appellate court will not reweigh the evidence and will instead
defer to the post-conviction court’s findings as to the credibility of witnesses or the weight
of their testimony. Id. However, review of a post-conviction court’s application of the law
to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents
mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

      To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

                                              -10-
668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability
sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

       Applying the law to the facts in this case it is clear that the trial court did not err by
denying post-conviction relief to the Petitioner. The trial court ruled that Petitioner failed
to prove that trial counsel rendered deficient performance. The trial court did not address
whether Petitioner was prejudiced by any alleged deficient representation by trial counsel.
However, since a petitioner in post-conviction proceedings must prove both deficient
performance by trial counsel and prejudice, failure to establish either one mandates that post-
conviction relief cannot be granted. Mobley v. State, 397 S.W.3d 70, 80 (Tenn. 2013).

       Petitioner failed to prove at the post-conviction hearing that trial counsel rendered
deficient performance either at trial or on appeal in any of the three ways asserted by
Petitioner. As to trial counsel’s representation in the appeal of the convictions, Petitioner has
not set forth any appellate argument, with citations to the direct appeal record and to legal
authority, that he claims trial counsel should have presented on appeal. Mere assertions to
the effect that counsel on appeal should have done a better job are not sufficient to show
deficient performance. The trial court implicitly discredited Petitioner’s post-conviction
testimony that the victim was a prostitute. Anyway, at the trial, trial counsel developed
proof that the victim exchanged consensual sex with Petitioner for some of Petitioner’s crack
cocaine. Trial counsel had a legitimate strategy to use as to Petitioner’s prior convictions
which would be admitted into evidence for impeachment. Furthermore, even if it was error

                                               -11-
by the trial court to allow the aggravated assault conviction to be used, it appears from the
record a hearing was held and the trial court ruled against Petitioner. The issue was not
ignored or overlooked by trial counsel. Finally, regarding counsel’s request for the court to
charge the jury with the lesser-included offense of sexual battery, Petitioner’s testimony at
the post-conviction hearing, quoted above, shows that Petitioner wanted the “prostitute”
testimony admitted at trial to corroborate his statement that “I didn’t have any penetration.”
Thus, it is abundantly clear that sexual battery, which requires no penetration to be
committed, was an appropriate lesser included offense to be charged in this case whether or
not it was requested by trial counsel. See State v. Bowles, 52 S.W.3d 69, 77 (Tenn. 2001).

       Accordingly, we affirm the judgment of the trial court.

                                                    ___________________________________
                                                    THOMAS T. WOODALL, JUDGE




                                             -12-
