        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs at Knoxville January 29, 2013

        ADRAIN KEITH WASHINGTON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                      No. 2006-B-1538     Steve Dozier, Judge


                No. M2012-00705-CCA-R3-PC             Filed March 12, 2013


Petitioner, Adrain Keith Washington, was convicted of aggravated sexual battery and
sentenced to serve twelve years in prison. Following an unsuccessful direct appeal, he filed
a petition for post-conviction relief, which was denied. On appeal, he claims that trial
counsel rendered ineffective assistance of counsel by failing to argue the “rule of
cancellation” and by failing to object to certain prejudicial testimony. Based on our review,
we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and J EFFREY
S. B IVINS, JJ., joined.

William E. Griffith, Nashville, Tennessee, for the appellant, Adrain Keith Washington.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                              I. Facts and Procedural History

                                    A. Facts from Trial

       On direct appeal, our court summarized the facts presented at trial as follows:

              Appellant was a “family friend” of eight-year old S.P., the victim. In
       2006, S.P. lived with her mother, N.C. and her father, E.P., in an apartment in
       Madison, Tennessee. S.P. had two younger brothers and a younger sister.
S.P.’s mother came to the United States from Argentina the year before S.P.
was born.

       N.C. worked at a daycare facility during the day while her children
either went to school or went to work with her. N.C. also worked on Saturdays
as a housekeeper from approximately 10:00 a.m. until 7:00 p.m. When N.C.
was at work on Saturdays, a family friend watched the children at their home.
E.P. worked a varied schedule at a local cold storage facility.

        In early March of 2006, E.P. was in the hospital. At the same time that
E.P. was in the hospital, the family’s regular babysitter was out of town.
Appellant offered to babysit for the children while N.C. went to work on
Saturday, March 4, 2006. Appellant had “a very good relationship with the
children.” He often helped the family out and “would always bring something
for [the children]” like “movies or dolls.” Appellant did not ask N.C. to pay
him for babysitting, and Appellant arrived at the house that morning before
N.C. left for work.

        Sometime that afternoon, S.P. was playing outside with her friend
Lauren, whose grandmother, Judy Troutt, lived upstairs. While the two girls
were playing, S.P. told Lauren that Appellant did some inappropriate things to
her while she was lying on the couch earlier that day. Lauren insisted that the
girls tell her grandmother. The girls went upstairs and talked to Ms. Troutt
who immediately called the police. When N.C. arrived home that evening
from work, there were four police cars outside her apartment.

        Shortly after Ms. Troutt called the police, Appellant knocked on her
door. Appellant wanted S.P. to come back home. Ms. Troutt refused to let
S.P. go anywhere with Appellant. Appellant “looked like he wanted to hit her
or something” and appeared “very threatening and scary” to Lauren. Appellant
tried to reach for S.P., but the police arrived and took Appellant into custody
at that time.

        S.P. was taken for a forensic interview and medical examination at
General Hospital in Nashville shortly after the police arrived. S.P. told Lisa
Dupree, a licensed clinical social worker and veteran employee of Our Kids
Center, that Appellant touched her private with his fingers. S.P. reported to
Ms. Dupree that Appellant did not touch her in any other manner. S.P. denied
having pain or bleeding and denied any prior instances of abuse by Appellant.
S.P. later reported to a case worker that she was watching Hannah Montana on
the Disney Channel when the incident occurred.

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       S.P. was examined by Sue Ross, a pediatric nurse practitioner and
employee of Our Kids Center. Ms. Ross described S.P. as well-nourished and
did not see any signs of chronic abuse or neglect. There were no physical
injuries, including injuries to the genital and anal area. Swabs were collected
from S.P.’s external genital area and anal area as part of the exam.

       As a result of information gleaned from the investigation that was
presented to the grand jury, Appellant was indicted in June of 2006 by the
Davidson County Grand Jury for one count of rape of a child, one count of
aggravated sexual battery, four counts of reckless endangerment, and one
count of possession of a firearm.

       At trial, S.P. testified that she was watching television on March 4,
2006, on the couch in the living room of her apartment. Appellant was sitting
next to her on the couch. S.P.’s brothers and younger sister were in the back
bedroom playing a Spiderman video game. S.P. reported that she fell asleep
on the couch and woke up while Appellant was pulling her pants and panties
down before he “got on top of [her] and started moving.” S.P. used a pair of
stuffed bears at trial to demonstrate Appellant’s actions to the jury. S.P.
reported that she kept her eyes closed during the encounter. According to S.P.,
Appellant’s “private” touched her “private” on the “inside” and “it hurt.” S.P.
reported that Appellant did not touch her anywhere else on her body that day
or with any other part of his body. S.P. remembered that Appellant covered
them up with a “cover that had a moose on it.”

       When S.P.’s friend Lauren knocked on the door, Appellant got off of
S.P. Appellant went to the bathroom while S.P. “pulled [her] pants up and
opened the door.” S.P. went outside to play with Lauren. S.P. reported the
incident to Lauren, and the two girls went together to tell Ms. Troutt. S.P.
reported to Lauren that Appellant “did sex to her.” At trial, the trial court
informed the jury that they were not to use S.P.’s statements to Lauren as
substantive evidence. After the girls told Ms. Troutt about the incident, Ms.
Troutt called the police. Appellant was arrested.

       The arresting officers did not take a statement from S.P. because they
had limited training in dealing with children. They called for a Youth Services
Department sex crime detective to perform the interview. S.P. was taken to the
hospital for an exam.

....



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              The swabs that were taken from S.P. were sent to a private laboratory
       for Y-STR testing. Margaret Ewing, a Senior DNA Analyst from Bode
       Laboratories, testified at trial about the testing done on the swabs taken from
       Appellant and the victim. The Y-STR testing procedure examines genetic
       markers on the Y chromosome, found only in males. The testing revealed a
       small amount of male DNA on the swabs taken from S.P.’s genital and anal
       area. These small amounts were described as non-sperm epithelial fractions.
       When compared with Appellant’s DNA, Appellant could not be excluded as
       a match to the samples. There was only a partial profile available from the
       vaginal swabs, however, and it indicated that only fifteen percent of the male
       population matched the samples taken from S.P.’s genital area. The swabs
       taken from the perianal area were only based on retrieval of a single allele,
       which indicated that 62% of the male population matched the profile. The lab
       also ran DNA testing, including PCR and STR analysis on the swabs. A
       preliminary DNA test on the swabs revealed no male DNA. However, it was
       explained that the abundance of female DNA can mask male DNA.

       ....

               The defense also introduced evidence that the Department of Children’s
       Services had investigated S.P.’s family on several prior occasions. In fact,
       E.P., S.P.’s father, had two prior convictions for two counts of attempted child
       neglect.

              At the conclusion of the proof, the jury found Appellant not guilty of
       rape [of a child] in count one. The jury convicted Appellant of aggravated
       sexual battery in count two. After a sentencing hearing, the trial court
       sentenced Appellant to twelve years in incarceration.

State v. Adrain Keith Washington, No. M2008-01870-CCA-R3-CD, 2010 WL 653008, at *1-
3 (Tenn. Crim. App. Feb. 24, 2010), perm. app. denied (Tenn. Aug. 26, 2010). This court
affirmed petitioner’s conviction and sentence. Id. at *1.

                                   B. Procedural History

        Petitioner filed a petition for post-conviction relief and, through appointed counsel,
filed an amended petition. The post-conviction court held an evidentiary hearing on February
3, 2012, and denied relief by written order dated March 8, 2012. It is from the denial of
relief that petitioner now appeals.




                                             -4-
                      C. Facts from Post-Conviction Evidentiary Hearing

       Petitioner testified on his own behalf. He stated that he believed that trial counsel
provided ineffective assistance by failing to argue the “rule of cancellation.” Petitioner
recalled that the victim testified to “penile[-] vaginal” contact at trial, but an expert witness
from Our Kids’ Center testified that the victim had disclosed “hand” to genital touching.
Petitioner acknowledged that the inconsistent statements may have contributed to the jury’s
verdict of not guilty with regard to the rape of a child charge. However, he believed that had
counsel argued the rule of cancellation more strenuously, the trial court may not have allowed
the second count of the indictment, aggravated sexual battery, to go to the jury. His
understanding of the rule of cancellation was that the victim’s inconsistent statements
“should have cancelled out,” thus preventing either count from being considered by the jury.

        Petitioner also contended that trial counsel should have objected to certain testimony
that he deemed prejudicial. He stated that the victim’s mother testified that both she and the
victim received counseling for two years, that the victim suffered difficulties at school, that
a counselor advised them to relocate, and that the victim’s mother would cry “bitterly.”
Petitioner thought that the jury would have assumed he was guilty because of the mother’s
testimony.1

         On cross-examination, petitioner confirmed that his position was that the rule of
cancellation should have been applied to inconsistent statements that could not be explained
and should have prevented either count of the indictment from going to the jury. He said
there was one act that was made the basis for two separate charges. The State reviewed the
trial transcript with petitioner. He agreed that trial counsel objected to the testimony about
counseling and that trial counsel stated, “My objection goes to essentially drawing sympathy
for or attempting to elicit sympathy.” However, all of the other testimony about which
petitioner complained had already been admitted.

        Trial counsel testified that his knowledge of the rule of cancellation was “kind of
hazy.” He stated that when he reviewed the issues in the instant case, that principle did not
come to mind. Although not by name, trial counsel argued “strenuously” that the victim had
made inconsistent statements and was not believable. On that basis, he argued in the motion
for judgment of acquittal that count two of the indictment should not go to the jury because
of the inconsistencies in the victim’s testimony. Trial counsel conceded that count one could
properly be considered by the jury but that both counts of the indictment could not proceed
to the jury because the child “alleged one particular touching.”


        1
          Petitioner offered additional testimony about various claims of ineffective assistance of counsel.
However, because he has abandoned those claims on appeal, those facts are not pertinent to our review. We
also have omitted the extraneous testimony on those issues offered by trial counsel.

                                                    -5-
       Trial counsel took the same approach during closing arguments. He agreed that the
jury must have credited his argument because it convicted on aggravated sexual battery but
acquitted on rape of a child.

        With regard to his failure to object to the testimony that petitioner deemed prejudicial,
trial counsel agreed that it was “a very conscious trial strategy to present the child, and maybe
even more so[,] the family[,] . . . [as] sort of mentally unstable and emotionally unbalanced.
. . .” The family had a history of contact with the Department of Children’s Services, and
trial counsel wanted to highlight the family dynamic. Based on his trial strategy, he elected
not to object until he “thought it [had gotten] too far.”

        On cross-examination, trial counsel clarified that generally speaking, an attorney
would argue against the more serious count of the indictment going to the jury. However,
in this case, the victim testified at trial that penetration had occurred, and trial counsel stated
that in the light most favorable to the State, that count would go to the jury. He instead
argued against aggravated sexual battery going to the jury because the only way for the jury
to consider it was as an alternate theory of the sole event. He argued that the State should
have had to elect which theory it wanted to pursue. The trial court denied his motion, and
the jury deliberated on both counts of the indictment.

                                          II. Analysis

       Although petitioner raised several instances of ineffective assistance of counsel in his
petition and amended petition, he pursues only two issues on appeal. He claims that trial
counsel was ineffective for failing to argue the rule of cancellation and for failing to object
to prejudicial testimony from the victim’s mother.

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “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.” Tenn.
Code Ann. § 40-30-103 (2012). A post-conviction petitioner bears the burden of proving his
or her factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f)
(2012). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009)).

        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928

                                                -6-
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing 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)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

        The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. 2004) (citing Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975)).
When a petitioner claims that he received ineffective assistance of counsel, he must
demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citations omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court has previously held:

       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this 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).

       To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the

                                             -7-
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

                        A. Failure to Argue the Rule of Cancellation

       Tennessee law holds that “contradictory statements by a witness in connection with
the same fact cancel each other.” State v. Matthews, 888 S.W.2d 446, 449 (Tenn. Crim. App.
1993) (citing Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476, 482 (Tenn. Ct. App.
1978)). However, the “rule of cancellation applies only when inconsistency in a witness’s
testimony is unexplained and when neither version of his testimony is corroborated by other
evidence.” Id. (citing Taylor, 573 S.W.2d at 483) (emphasis added). Moreover, as the post-
conviction court correctly noted, the rule of cancellation may only be applied when a
witness’s sworn statements are contradictory. State v. Roger Dale Bennett, No. 01C01-9607-
CC-00139, 1998 WL 909487, at *5 (Tenn. Crim. App. Dec. 31, 1998).

       In addressing this claim, the post-conviction court concluded that

       the cancellation rule is inapplicable since the statements contradicting the
       victim’s trial testimony were unsworn statements given over the course of a
       forensic interview. In addition, the inconsistencies between the two statements
       are easily explained by the age of the victim, and the trial testimony was also
       corroborated by DNA evidence. For these reasons, the cancellation rule was
       inapplicable and any inconsistency between the victim’s forensic interview and
       trial testimony merely raised a credibility issue for the jury to resolve. This
       issue is without merit.

         We agree with the post-conviction court. We also highlight that the forensic evidence
at trial established that male genetic material was found on the victim’s genital and anal area,
thus corroborating her trial testimony. For these reasons, the rule of cancellation did not
apply to the instant case. Trial counsel cannot be deemed to have rendered ineffective
assistance by failing to raise a legal theory that, by definition, did not apply to the case.
Petitioner is not entitled to relief on this claim of error.

                       B. Failure to Object to Prejudicial Testimony

      Petitioner next claims that trial counsel’s representation of him was ineffective
because counsel failed to object to allegedly prejudicial testimony. As outlined more fully

                                               -8-
above, the prejudicial testimony about which petitioner now complains involved the victim’s
mother explaining to the jury that she and the victim underwent counseling, the counselor
advised them to relocate, the victim experienced difficulties in school, and the victim’s
mother would cry “bitterly.”

       In denying relief on this claim, the post-conviction court concluded that “[t]rial
counsel’s decision to object or not object to testimony directly relates to overall trial strategy,
which the [c]ourt is not in a position to second-guess.” This conclusion is correct. Trial
counsel testified that he wanted the jury to view the victim and her family as “mentally
unstable and emotionally unbalanced.” Based on this strategy, he made the “very conscious”
decision to refrain from objecting to the mother’s testimony until it became necessary. In
furtherance of trial counsel’s strategy, he successfully argued a motion in the trial court to
allow limited introduction of records from the Department of Children’s Services to
substantiate that the family had a history with the department. “We should defer to trial
strategy or tactical choices if they are informed ones based upon adequate preparation.”
Harris v. State, 947 S.W.2d 156, 163 (Tenn. Crim. App. 1996).

        Trial counsel developed a reasonable and informed trial strategy. To some degree, it
was obviously successful because the jury acquitted petitioner on the charge of rape of a
child, despite the existence of male genetic material on the victim’s body. We cannot say
that trial counsel’s performance was deficient in this regard or that petitioner was prejudiced
by trial counsel’s strategy. Petitioner is not entitled to relief on this claim.

                                        CONCLUSION

       Based on our review of the record, the parties’ briefs, and the applicable law, we
affirm the judgment of the post-conviction court.


                                                      _________________________________
                                                      ROGER A. PAGE, JUDGE




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