         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                         AUGUST 1997 SESSION
                                                     FILED
                                                      March 13, 1998

                                                    Cecil Crowson, Jr.
REGINALD D. TUTTON,                  )               Appellate C ourt Clerk
                                     )   NO. 02C01-9610-CR-00351
      Appellant,                     )
                                     )   SHELBY COUNTY
VS.                                  )
                                     )   HON. L. T. LAFFERTY,
STATE OF TENNESSEE,                  )   JUDGE
                                     )
      Appellee.                      )   (Post-Conviction)



FOR THE APPELLANT:                       FOR THE APPELLEE:

A. C. WHARTON, JR.                       JOHN KNOX WALKUP
Shelby County Public Defender            Attorney General and Reporter

WALKER GWINN (on appeal)                 CLINTON J. MORGAN
CHARLES D. WRIGHT (at hearing)           Assistant Attorney General
Assistant Public Defenders               Cordell Hull Building, 2nd Floor
Criminal Justice Complex, Ste. 201       425 Fifth Avenue North
201 Poplar Street                        Nashville, TN 37243-0493
Memphis, TN 38103-1947
                                         WILLIAM L. GIBBONS
                                         District Attorney General

                                         CHARLES W. BELL, JR.
                                         Assistant District Attorney General
                                         Criminal Justice Complex
                                         Suite 301
                                         201 Poplar Street
                                         Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JERRY L. SMITH,
JUDGE
                                       OPINION


          The petitioner, Reginald D. Tutton, appeals the denial of his petition for post-

conviction relief by the Criminal Court of Shelby County. Petitioner is serving

consecutive sentences of 35 years and 12 years for the offenses of attempted first

degree murder and rape, respectively. Two (2) issues are presented for our review;

to-wit:

                 (1) whether the indictment was deficient for failing to
                 properly allege the mens rea, and

                 (2) whether petitioner received ineffective assistance of
                 counsel.

After reviewing the record, we affirm the judgment of the trial court.



                                              I



          The first count of the indictment alleged that the defendant committed the

offense of aggravated rape in that he “did unlawfully sexually penetrate and cause

bodily injury to [the victim].” Although convicted by the jury of the charged offense

of aggravated rape, this Court on direct appeal reduced the conviction to simple

rape. See State v. Reginald Tutton, C.C.A. No. 02C01-9210-CR-00238, Shelby

County (Tenn. Crim. App. filed November 3, 1993, at Jackson). The petitioner now

contends the indictment was fatally defective by failing to allege the mens rea of the

offense of aggravated rape.

          State v. Hill, 954 S.W.2d 725, 729 (Tenn. 1997), upheld a similarly worded

indictment. Likewise, we hold that the indictment in this case met the constitutional

and statutory requirements of notice. This issue is without merit.



                                             II



          Petitioner contends he received ineffective assistance of counsel. In his brief

petitioner primarily complains that trial counsel failed to conduct an adequate pre-

trial investigation. More specifically, he contends trial counsel was unable to locate

                                             2
a non-family alibi witness. The trial court found that trial counsel attempted to locate

this witness; petitioner could not point out where the witness lived; nor could

counsel find any address of this person. The trial court found no deficient

performance as a result of counsel’s efforts. Nor do we.

       Although not addressed in petitioner’s brief, petitioner alleged in his petition

some fourteen (14) additional instances illustrating ineffective assistance of counsel.

The trial court filed excellent, detailed findings as to each of these allegations. The

trial court concluded, after hearing the testimony of petitioner and his trial counsel,

that none of the allegations had merit. We must agree.



                                          III



       The trial judge's findings of fact on post-conviction hearings are conclusive

on appeal unless the evidence preponderates otherwise. Butler v. State, 789

S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354 (Tenn.

Crim. App. 1995). The trial court’s findings of fact are afforded the weight of a jury

verdict, and this Court is bound by the trial court’s findings unless the evidence in

the record preponderates against those findings. Henley v. State,           S.W.2d

(Tenn. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This

Court may not reweigh or reevaluate the evidence, nor substitute its inferences for

those drawn by the trial judge. Henley v. State,      S.W.2d at     ; Massey v. State,

929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755

(Tenn. Crim. App. 1990). Questions concerning the credibility of witnesses and the

weight and value to be given to their testimony are resolved by the trial court, not

this Court. Henley v. State,     S.W.2d at      ; Black v. State, 794 S.W.2d at 755.

The burden of establishing that the evidence preponderates otherwise is on

petitioner. Henley v. State,     S.W.2d at      ; Black v. State, 794 S.W.2d at 755.

       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner



                                           3
has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;

Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d

6, 11 (Tenn. 1994).



                                        IV



       Based upon the record, we concur fully in the findings and conclusions of the

trial court. The petitioner has not met his burden of establishing that the evidence

preponderates against those findings and conclusions.



       The judgment of the trial court is AFFIRMED.



                                          _____________________________
                                          JERRY L. SMITH, JUDGE



CONCUR:


______________________________
DAVID G. HAYES, JUDGE



______________________________
THOMAS T. WOODALL, JUDGE




                                         4
