        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs April 14, 2015

                 BYRON BECTON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                   No. 10-04987    James C. Beasley, Jr., Judge


                No. W2014-00993-CCA-R3-PC - Filed June 23, 2015


The petitioner, Byron Becton, appeals the denial of post-conviction relief from his 2011
Shelby County Criminal Court jury convictions of aggravated rape, claiming that he was
denied the effective assistance of counsel at trial. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and NORMA MCGEE OGLE, J., joined.

Brooks Stevenson, Memphis, Tennessee, for the appellant, Byron Becton.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              The evidence at the petitioner‟s jury trial revealed that, between 7:00 and
7:30 p.m. on December 16, 2009, the victim left her Memphis residence on foot,
intending to purchase marijuana from a friend. State v. Byron Becton, No. W2011-
02565-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Jackson, Mar. 11, 2013). While en
route to her friend‟s house, the victim was approached by the petitioner, who inquired
whether she knew where he “„could go and sit and get high?‟” Id. The victim indicated
an abandoned house nearby and continued walking. Id. The petitioner then grabbed the
victim and pushed a sharp object against her back, threatening to kill her if she did not
comply. Id.

             The petitioner forced the victim into an abandoned house, keeping one arm
around her neck and continuing to press something sharp against her back. Id., slip op. at
3. The petitioner led the victim into “„the first bedroom on the left‟” and struck the
victim. Id. The victim struggled to fend off the petitioner as he continued to strike her
with his fist and choke her; the petitioner also beat the victim with a nearby light fixture.
Id., slip op. at 3-4. When the victim was unable to continue fighting, the petitioner
ordered her to remove her clothing. Id., slip op. at 4. The petitioner then repeatedly
penetrated the victim‟s vagina with a nearby beer bottle. Id.

                Afterwards, the petitioner ordered the victim to remove his own clothing,
and he forced her to perform fellatio on him. Id. After “a few minutes,” the petitioner
“proceeded to get on top of [her] and have sex with [her].” Id. The victim gave the
petitioner a fake name and told him that she would be “„his girlfriend‟” in “an attempt to
convince the [petitioner] to let her leave the house alive.” Id., slip op. at 5. Eventually,
the petitioner agreed to let the victim leave, and the victim left her bra behind as she got
dressed. Id. The petitioner and victim parted ways at a bridge near the victim‟s house.
Id., slip op. at 6. The petitioner walked toward a nearby Mapco, and the victim ran to her
residence, where she told her fiancé what had transpired. Id. The victim‟s fiancé armed
himself with a knife, and the two proceeded toward the bridge. Id. The victim saw the
petitioner standing outside the Mapco, and she and her fiancé “approached police officers
who were parked in their patrol cars across the street from the Mapco.” Id. After telling
the officers what had happened and identifying the petitioner as the perpetrator, the
officers arrested the petitioner. Id. Law enforcement officers who later examined the
abandoned house located the items the victim had described, including, among other
things, a beer bottle, a folding knife, a bra, and a light fixture. Id., slip op. at 17.

              The victim was transported to the hospital and then to the Mid-South
Sexual Assault Resource Center for an examination. The victim had multiple injuries to
her head, her upper body, her hands, and her legs. Id., slip op. at 7, 10, 13, 18. A penile
swab taken from the petitioner “revealed a „partial DNA profile‟” which was “„consistent
with the mixture of genetic material‟ from the victim and the [petitioner].” Id., slip op. at
20. Although the Tennessee Bureau of Investigation agent who performed the testing
was unable to say “„to the exclusion of all other people‟” that the DNA profile from the
swab belonged to both the victim and the petitioner, she confirmed that “„it‟s consistent
with the two.‟” Id.

              The petitioner chose not to testify and did not present any proof. Id., slip
op. at 20. A Shelby County Criminal Court jury convicted the petitioner of six counts of
aggravated rape. Id., slip op. at 1. The trial court merged the alternative counts, entered
three judgments of conviction, and imposed a total effective sentence of 65 years‟
incarceration. Id. This court affirmed the judgments on direct appeal. Id.



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               On May 30, 2013, the petitioner filed, pro se, a timely petition for post-
conviction relief. Following the appointment of counsel and the amendment of the
petition, the post-conviction court held an evidentiary hearing on April 16, 2014.

               The petitioner testified that, on the evening of December 16, 2009, he was
“smoking crack” with the victim and a woman named Ann; the petitioner stated that he
did not know Ann‟s last name but that “the neighborhood called her Auntie.” According
to the petitioner, he requested that trial counsel locate Ann to testify on his behalf but that
trial counsel failed to do so. The petitioner admitted that he did not have an address for
Ann but that he “knew what house and everything she stayed in” which was “in the
vicinity where everything supposed to had happened at.”

              The petitioner stated that trial counsel failed to visit and photograph the
crime scene, which the petitioner claimed would have proven that the alley referenced by
the victim did not exist; that trial counsel failed to hire a private investigator; that trial
counsel failed to hire an independent expert witness; and that trial counsel failed to seek
DNA testing on the petitioner‟s clothing. The petitioner testified that trial counsel met
with him “maybe two, maybe three times” in the nearly two years that trial counsel
represented him, and the petitioner denied that trial counsel discussed trial strategy with
him.

              On cross-examination, the petitioner admitted that he gave a signed
statement to law enforcement officers shortly after his arrest in the early morning hours
of December 17 and that, in his statement, he claimed to have engaged in consensual
sexual intercourse with the victim, whom he knew as “Slim.” The petitioner did not
provide law enforcement officers with the names of the victim or her fiancé, and he did
not mention anyone by the name of Ann. The petitioner also admitted that he told law
enforcement officers that he had “slapped” the victim, and he acknowledged that trial
counsel attempted to demonstrate to the jury at trial that things “couldn‟t have happened
the way the victim said it happened.” With respect to trial counsel‟s failure to call Ann as
a witness at trial, the petitioner conceded that Ann was not present to testify at his post-
conviction hearing.

               Trial counsel testified that he had 14 years of experience as a public
defender and that the petitioner‟s case was not his first aggravated rape trial. Although he
was unable to recall the exact number of occasions on which he met with the petitioner,
trial counsel testified that he “would have visited him in jail a number of times in the two
week period leading up to the trial” and that he “would have had some prior jail visits” as
well.



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               Trial counsel had a “vague recollection” that the petitioner had mentioned a
witness who was present while he and the victim were allegedly using drugs together on
December 16 but that the witness was not present when the petitioner and the victim
engaged in consensual intercourse. Moreover, trial counsel advised the petitioner that the
court was unlikely to allow a witness to testify as to the alleged character of the victim as
a prostitute and a drug-user.

              With respect to the petitioner‟s claim that trial counsel should have visited
and photographed the area near the crime scene to prove that the victim gave an
erroneous street address for the crime scene, trial counsel explained that he was familiar
with the area and that just because the victim mentioned the wrong street name, such an
error would not be enough to exonerate him.

              Trial counsel testified that his strategy focused primarily on inconsistencies
in the victim‟s statement to law enforcement officers and the fact that DNA evidence
from the victim‟s underwear was not a match to the petitioner.

               With this evidence, the post-conviction court denied relief, noting the
inherently circumstantial nature of the case and finding no evidence that trial counsel was
unprepared or that there was “anything that he could have done that . . . would have
resulted in a different verdict with this jury.” The post-conviction court was unconvinced
that “Ann” would have been able to provide the petitioner with an alibi or that trial
counsel could have accomplished anything further by seeking more DNA testing.

               On appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, contending that trial counsel was ineffective by failing to call “Ann” as an alibi
witness and by failing to procure an independent expert witness to test the petitioner‟s
clothing. The State responds that the post-conviction court properly denied relief because
the petitioner failed to call either “Ann” or an expert as a witness at the post-conviction
hearing.

              We view the petitioner‟s claim with a few well-settled principles in mind.
Post-conviction relief is available only “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.” T.C.A. § 40-30-103 (2006). A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court‟s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court‟s conclusions of law receive no
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deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

                To establish entitlement to relief via a claim of ineffective assistance of
counsel, the defendant must affirmatively establish first that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
second that his counsel‟s deficient performance “actually had an adverse effect on the
defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the
defendant “must show that there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Should the defendant fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed,
“[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

              When reviewing a claim of ineffective assistance of counsel, we will not
grant the defendant the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of 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). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).

             Claims of ineffective assistance of counsel are mixed questions of law and
fact. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010); State v. Honeycutt, 54 S.W.3d
762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). When
reviewing the application of law to the trial court‟s factual findings, our review is de
novo, and the trial court‟s conclusions of law are given no presumption of correctness.
Fields, 40 S.W.3d at 457-58; see also State v. England, 19 S.W.3d 762, 766 (Tenn.
2000).

              In our view, the record supports the post-conviction court‟s denial of relief.
The petitioner failed to present either “Ann” or an expert witness at the evidentiary
hearing. As such, we cannot speculate what either witness might have testified to at trial.
See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (“When a petitioner
contends that trial counsel failed to discover, interview, or present witnesses in support of
his defense, these witnesses should be presented by the petitioner at the evidentiary
hearing.”). The petitioner encourages this court to depart from this firmly-held rule,
arguing that trial counsel‟s failure to procure the requested witnesses should not be held
against the petitioner. This argument fails for two reasons. First, that trial counsel did
                                            -5-
not present the testimony of witnesses requested by the petitioner at trial does nothing to
change the fact that the petitioner failed to present the testimony of those witnesses at the
post-conviction evidentiary hearing, as required by Black. Second, trial counsel‟s
reasoning for not calling these witnesses – that “Ann” would not have provided the
petitioner with an alibi and that the DNA evidence presented by the State was already
sparse – was a “reasonably based trial strategy” that we will not “second-guess.” See
Adkins, 911 S.W.2d at 347. As such, we hold the petitioner has failed to prove by clear
and convincing evidence that trial counsel‟s representation was deficient or prejudicial.

               The petitioner failed to establish that he was denied the effective assistance
of counsel at trial. Accordingly, the judgment of the post-conviction court is affirmed.

                                                  _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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