        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 17, 2013

             OMAR THERON DAVIS v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                    No. 40500164      John H. Gasaway, Judge


                 No. M2012-01061-CCA-R3-PC - Filed May 22, 2013


The petitioner, Omar Theron Davis, appeals the denial of his petition for post-conviction
relief from his 2006 Montgomery County Circuit Court convictions of aggravated rape,
aggravated burglary, aggravated robbery, especially aggravated kidnapping, and theft of
property valued over $500, claiming that he was denied the effective assistance of counsel
at trial. Discerning no error, we affirm the order of the Circuit Court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and R OBERT W. W EDEMEYER, JJ., joined.

B. Nathan Hunt, Clarksville, Tennessee, for the appellant, Omar Theron Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               A Montgomery County Circuit Court jury convicted the petitioner of three
counts of aggravated rape, one count each of especially aggravated kidnapping, aggravated
robbery, aggravated burglary, and theft of property valued over $500 but less than $1000.
The trial court imposed an effective sentence of 60 years’ incarceration. This court affirmed
the judgments on direct appeal. See State v. Omar Theron Davis, No. M2007-02206-CCA-
R3-CD, slip op. at 1 (Tenn. Crim. App., Nashville, Dec. 16, 2008), perm. app. denied (Tenn.
June 1, 2009).

              In Omar Theron Davis, this court summarized the facts of the case as follows:
The [petitioner] was originally charged as a juvenile but was
transferred to circuit court to be tried as an adult. At trial, [the
victim] testified that she was home alone at approximately 7:00
a.m. on November 8, 2004, when her doorbell rang. When she
opened the door, a man wearing a ski mask, a dark jacket with
a hood, and black gloves barged into the house. He was
carrying a handgun. She tried to leave, but the man slammed
her into a wall, knocking her down. He then tied her hands
behind her back. She said that she cried and pleaded with him
to stop and that he held the gun to her head and told her to shut
up. He removed her pants, pantyhose, and underpants and
grabbed her arms, forcing her to the bedroom with the gun
against her back. Once in the bedroom, he tied a sweater around
her head so that she could not see anything. She said that she
heard him getting undressed and that he raped her vaginally in
several different positions. Afterward, he forced her into the
kitchen where he used one of her kitchen knives to cut off her
blouse and bra. He then took her into the bathroom where he
fondled her and replaced the sweater that was covering her face
with a bandana and something else over her eyes.

[The victim] testified that the [petitioner] forced her into the
shower with him and washed her. She said that he dried her off
and forced her back into the bedroom where he lifted her onto
the bed and performed cunnilingus. He then held the gun to her
head and forced her to perform fellatio. He raped her again
vaginally. During the attack, he mentioned [the victim’s]
daughter and told [the victim] that she “had better cooperate.”
[The victim] said that the bandana loosened so that she was able
to see the [petitioner’s] face clearly. The attack ended when [the
victim] told the [petitioner] that she could not keep up anymore
and pretended to pass out.

[The victim] said that she heard the [petitioner] ransacking her
bedroom after the attack and that the [petitioner] found a loaded
gun that she kept in the drawer of her night stand. She said the
[petitioner] put the gun to her head and asked if she had any
more guns in the house. She told him about a broken rifle that
was in the closet. He then asked her whether she had more

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bullets. She denied having more bullets, although there were
some in one of her drawers. The [petitioner] continued to rifle
through the house until he found her purse. He lifted the
bandana from her eyes to ask her about her two credit cards and
her car key. She gave him the “PIN number” for one of the
credit cards and confirmed that the key he found belonged to her
car. He placed the bandana back over her eyes, and she heard
the sound of zippers as though he were placing items in a
backpack. Before the [petitioner] left the house, he forced the
victim onto her stomach and tied her wrists and ankles together
behind her.

[The victim] freed herself and called 9-1-1 a little after 8:00 a.m.
When police arrived, she told them what had happened and that
her car was missing. She was afraid that her daughter was in
danger and insisted that the police send someone to Kenwood
High School to get her daughter. Later that day, police showed
[the victim] a Kenwood High School yearbook, and she
identified the [petitioner] as her attacker.

The parties stipulated that the [petitioner] arrived at Kenwood
High School at 8:47 a.m. on November 8, 2004. Hal Bedell, the
school principal, testified that the [petitioner] signed in late that
day. Based on a telephone call he received from the Clarksville
Police Department that morning, Bedell instructed the school
security officer to search the school parking lot for the victim’s
car. The car was discovered in the student parking lot. At
approximately 9:00 a.m., Bedell advised Detective Parrish of the
Clarksville Police Department that the car had been found.

Detective Ronald T. Parrish testified that he went to the
[petitioner’s] home around 6:00 p.m. on November 8, 2004, and
searched the [petitioner’s] bedroom. He found a wet bandana
and a backpack underneath the [petitioner’s] bed. Inside the
backpack, he found items the victim had reported missing,
including the gun from her night stand, one of her credit cards,
her bra, her cellular telephone, two microcassette recorders,
photographs, pens, and pencils. Detective Parrish also testified
that the [petitioner] was excluded as a contributor of DNA that
was obtained from the victim’s rape kit. The victim testified

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              that she had intercourse with her fiancé during the weekend
              preceding the attack.

State v. Omar Theron Davis, slip op. at 2-3.

               On May 11, 2010, the petitioner filed a timely petition for post-conviction
relief, alleging multiple instances of ineffective assistance of counsel. Following the
appointment of counsel and the amendment of the petition, the post-conviction court held an
evidentiary hearing.

               The petitioner testified that trial counsel failed to properly emphasize to the
jury the fact that the deoxyribonucleic acid (“DNA”) evidence recovered from the victim
excluded him as a contributor. The petitioner believed that trial counsel should have hired
an expert to determine the true identity of the DNA contributor and that if counsel had done
so, the petitioner “wouldn’t have got convicted of the charges [he] did.” The petitioner
alleged that trial counsel only met with him on one or two occasions prior to trial and that
during one of those meetings, counsel told the petitioner that he was not prepared and that
he did not have any defense for him. The petitioner also complained that trial counsel should
have requested that the trial court merge his charges because they were all part of a
continuing crime.

               The petitioner claimed that trial counsel should have moved for a change of
venue on the basis that, in the weeks leading up to his trial, publicity about the crime “was
all in the newspaper, on the news, . . . it was everywhere. . . . I was lost from the beginning
because it was no way nobody from Clarksville didn’t know about my case and I believe it
was too . . . hot at that time.” He asserted that if trial counsel had moved for a change of
venue, he would “have had a better chance.” In his petition for post-conviction relief, the
petitioner also alleged that, during voir dire, trial counsel failed to adequately question
potential jurors about their knowledge of the case.

               With respect to sentencing, the petitioner testified that he believed his sentence
to be excessive. In his first amended petition for post-conviction relief, the petitioner argued
that trial counsel failed to advise the petitioner of his right to be sentenced under the 2005
revised Sentencing Act. At his hearing, the petitioner further claimed that trial counsel failed
to properly inform him regarding his right to testify. The petitioner conceded that the trial
court informed him of this right and that he was 17 years old at the time of trial. He
contended, however, that, when he informed counsel that he wished to testify, counsel
responded that “the Judge was mad and that it would further make him mad if [the petitioner]
was to get up on the stand and testify,” and on that basis, the petitioner made the decision not
to testify, which he believed impacted the verdict to his detriment.

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                Trial counsel testified that he had been employed by the Public Defender’s
office for nearly 20 years. He stated that he spoke with the petitioner “several times” prior
to trial and that he underwent his typical trial preparation in the petitioner’s case. He could
not recall specifically how many times he met with the petitioner, but he testified that he was
“confident” that he spoke with him on more than one or two occasions. When asked if
anything unusual occurred in preparing for the petitioner’s trial, trial counsel responded that
he had the most difficulty with the following:

              [W]ithin an hour to two hours of this event occurring and the
              police being called, items that came from the victim’s home
              were found in the home of the [petitioner], under his bed, . . .
              and it was one of those things where I am not quite sure what I
              could have done or who I could have called to explain how they
              managed to make their way from the victim’s house to his
              house[.]

Trial counsel denied telling the petitioner that he was not ready for trial.

               Regarding the DNA evidence, trial counsel explained that the DNA evidence
from the victim’s rape kit was not that of the petitioner and that there “was no physical
evidence found in the house, either fingerprints or DNA . . . nothing that was found in the
house connect[ing the petitioner] to this event.” Trial counsel testified that he emphasized
this point during cross-examination. When asked if he thought it important to determine who
the DNA belonged to, he responded that he did not because the victim’s car was located in
the high school parking lot following the crime and her belongings were found in the
petitioner’s room mere hours after the crime occurred. Because of the overwhelming
evidence against the petitioner, trial counsel expressed his concerns about the petitioner’s
testifying on his own behalf, but he did discuss with the petitioner his option to testify. Trial
counsel recalled that the trial court conducted a relatively lengthy Momon hearing, explaining
at length the petitioner’s right to testify. See Momon v. State, 18 S.W.3d 152, 161-62 (Tenn.
1999).

                When asked about his decision not to request a change of venue, trial counsel
explained that the petitioner’s case “did not rise to [the] level” of necessitating a venue
change. Counsel did not recall much pretrial publicity on the case, particularly on the
television or on the radio. He stated that the trial court generally questioned potential jurors
about their independent knowledge of the case. Trial counsel testified that he did not believe
that the failure to obtain a change of venue had any detrimental impact on the outcome of the
trial. Trial counsel also stated that he did not believe any of the petitioner’s charges
warranted a motion to merge the convictions.

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               With this evidence, the post-conviction court denied relief. The court
specifically found “that the petitioner has failed to establish that he received ineffective
representation at trial.”

              On appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, claiming that trial counsel failed to properly address the DNA evidence; failed to
adequately investigate and prepare for trial; failed to challenge the multiplicity of the rape,
burglary, robbery, and theft counts; failed to move for a change of venue and failed to
properly voir dire jurors about their knowledge of the case; failed to advise the petitioner
regarding sentencing; and failed to advise the petitioner of his right to testify.

              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 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; Goud 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).

                                               -6-
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.
With respect to the DNA evidence, the court, in a very thorough and well-reasoned opinion,
pointed out that the DNA results were “perhaps the strongest evidence in this case favoring
the petitioner.” If, as advanced in the original petition, counsel had moved to exclude the
DNA evidence on the basis that the testifying detective was not an expert in the field of DNA
testing, the jury would have never heard this potentially exonerating evidence. The post-
conviction court found no deficiency in trial counsel’s failure to identify the actual DNA
contributor, noting that the petitioner had not provided the court with any authority in support
of his argument that such a failure constituted ineffective assistance. Morever, the court
pointed out the victim had testified that she had engaged in sexual intercourse with her fiancé
two days prior to the rape and that evidence “conclusively identifying the actual source of
the DNA (be it the fiancé or some other man)” would have contributed “little (if anything)”
to the petitioner’s defense. Furthermore, the court found that trial counsel, in both cross-
examining Detective Parrish and in delivering his closing argument, sufficiently addressed
the DNA evidence, emphasizing that no DNA evidence “whatsoever” connected the
petitioner to the crime.

               The post-conviction court accredited trial counsel’s testimony that he met with
the petitioner “several times” before trial and determined that the petitioner’s statements to
the contrary “lack[ed] credibility.” The court specifically found that trial counsel’s “pretrial
preparation, investigation, and client interaction . . . did not constitute deficient
performance.” Regarding the petitioner’s claim of multiplicity, the post-conviction court
found, first, that evidence adduced at trial established three distinct forms of penetration:
vaginal rape, forced cunnilingus, and forced fellatio. Citing State v. Phillips, the court
pointed out that rape involving separate acts of penetration can lead to multiple convictions,
even when the separate acts occur during one continuing episode. See State v. Phillips, 924
S.W.2d 662, 665 (Tenn. 1996) (citing State v. Burgin, 668 S.W.2d 668, 670 (Tenn. Crim.
App. 1984). Second, the court held that the burglary, robbery, and theft convictions were not
multiplicitous because each emanated from different facts. The aggravated burglary charge

                                              -7-
alleged an intent to commit rape when the petitioner entered the victim’s home. The charge
of aggravated robbery alleged use of a deadly weapon to take items from the victim’s home,
and the theft charge related to the petitioner’s theft of the victim’s car. Because these crimes
comprised separate factual elements, the trial court concluded that no basis existed for trial
counsel to raise an issue of multiplicity.

               With respect to the petitioner’s argument regarding change of venue, the post-
conviction court noted that the petitioner failed to present any evidence in support of his
claim of excessive publicity. In the absence of such evidence, the court accredited trial
counsel’s testimony that pre-trial publicity was minimal. Regarding the petitioner’s claim
that trial counsel failed to properly voir dire potential jurors, the court again pointed out that
the petitioner failed to provide a transcript of the voir dire proceedings in support of his
assertion and held that the petitioner “has not established this factual allegation by clear and
convincing evidence.”

               The post-conviction court was not persuaded by the petitioner’s argument that
trial counsel failed to advise him of his right to be sentenced under the 2005 revised
Sentencing Act and that counsel’s alleged failure resulted in an excessive sentence. Because
the crimes at issue were committed on November 8, 2004, the court agreed that the petitioner
could have elected to be sentenced under the revised Act, but the court found the petitioner
was not prejudiced by being sentenced under the pre-2005 Sentencing Act. Although the
petitioner believed he would have received a sentence of less than 20 years on each of the
aggravated rape convictions under the revised Act, the trial court correctly held this belief
to be erroneous. Under the revised Act, the petitioner could have potentially received a
sentence of greater than 20 years for each count of aggravated rape, given the increased
amount of discretion afforded to trial courts when making sentencing determinations.

               Finally, the post-conviction court found no merit to the petitioner’s claim that
trial counsel failed to advise him of his right to testify or that the petitioner’s failure to testify
resulted in any prejudice.

               We find no error in the findings of the trial court, and we hold the petitioner
has failed to prove by clear and convincing evidence that trial counsel’s representation was
deficient or prejudicial.

               Accordingly, the judgment of the post-conviction court is affirmed.

                                                       _________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE



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