             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                   Assigned on Briefs June 15, 2004

                 STEPHEN OTIS NICELY v. STATE OF TENNESSEE

                           Appeal from the Criminal Court for Knox County
                             No. 70791     Richard Baumgartner, Judge



                          No. E2003-02113-CCA-R3-PC - Filed July 15, 2004


The petitioner, Stephen Otis Nicely1, appeals the Knox County Criminal Court’s denial of his
petition for post-conviction relief from his rape of a child conviction, his aggravated sexual battery
conviction, and his resulting effective sentence of twenty-two years. The petitioner claims that he
received the ineffective assistance of counsel because his attorney (1) refused to let him testify at
trial; (2) failed to challenge the admissibility of evidence of the victim’s post-traumatic stress
disorder; (3) failed to prepare and investigate adequately for trial; and (4) failed to instruct the
petitioner on the range of punishment if convicted. We affirm the trial court’s denial of the petition.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

Kristi M. Davis, Knoxville, Tennessee (on appeal); Gerald L. Gulley, Jr., Knoxville, Tennessee (at
post-conviction hearing), for the appellant, Stephen Otis Nicely.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Leland L. Price, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                    OPINION

        This case relates to the conduct of the petitioner toward his girlfriend’s daughter, N.B. This
court affirmed his convictions on direct appeal and provided the following factual account of the
offenses:


         1
           The petitioner’s name is spelled interchangeably as “Stephen” and “Steven” throughout the record. The
petitioner’s signature also uses both spellings in various documents in the record. The style of his post-conviction
petition has “Stephen,” but the typed name and written signature for the oath are “Steven.” W e use the spelling in the
style of the petition.
        In the summer of 1994, N.B., the victim, the victim’s mother,
Wilma Faye Wynn, and the appellant lived in the Karns community
of Knox County. Ms. Wynn and the appellant began their relationship
around 1992. In 1994, they began living together. N.B. was eleven
years old and entering the sixth grade at that time. Although the
thirty-seven year old appellant and the victim’s mother were
unmarried, N.B. viewed the appellant as a “father figure.” In
September of 1995, the victim confided in a friend that she and the
appellant had been involved in sexual activity. In January of 1996, the
appellant was charged in a two count indictment with rape of a child
and aggravated sexual battery.

        At trial, she testified, providing no specific dates, that the
“touchin’ happened all the time” in his room, the living room, and the
kitchen. She testified that the appellant had touched her vagina with
his penis and his mouth. The victim admitted that she would go into
the appellant’s room because she liked the attention. She stated that
during the incidents of abuse, she remained clothed but the appellant
was unclothed.

        The victim recounted that the first sexual encounter occurred
when she and the appellant were watching television in his bedroom.
The appellant began rubbing her back and eventually removed her bra
and began rubbing her stomach and chest. Frightened, the victim left
the room. The appellant followed her outside and told her that if she
told they would both be “in trouble.”

        Another incident occurred in the living room, when the
appellant digitally penetrated her vagina. She testified that on another
occasion he put her hand on his penis and she masturbated him until
he ejaculated. Yet, another offense occurred in the victim’s brother’s
room. The appellant put his hands on her and asked if she had had sex
standing up before. This offense ceased when the victim’s mother
returned home from work.

        The victim testified that on or about September 3, 1995, the
appellant got out of the shower and had a towel wrapped around him.
The victim had entered his room to retrieve a towel for herself. The
appellant pulled her onto the bed where they both began touching
each other. The appellant then penetrated the victim’s vagina with his
penis. When she complained that it hurt, he stopped. She stated that
she liked the appellant to fondle her; however, the penetration scared
and hurt her.


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                       Later that same day, the appellant took the victim and her
               brother to the lake. The appellant dropped her brother off at the bank
               with other children while he and the victim went riding in the boat.
               The appellant gave the victim a Valium for a headache. After entering
               a cove on the lake, the appellant gave the victim a beer. That evening,
               when the appellant and her mother were away at a concert, the victim
               drank some liquor, locked herself in the bathroom, and passed out.
               Her brother called Debbie, their father’s girlfriend, who took the
               victim to her trailer in Powell. It was on this occasion that the victim
               related to Debbie her sexual encounters with the appellant. Debbie
               called the victim’s mother and advised what the victim had told her.

State v. Steven Otis Nicely, No. 03C01-9805-CR-00174, Knox County, slip op. at 2-4 (Tenn. Crim.
App. Oct. 18, 1999).

         At the post-conviction evidentiary hearing, the petitioner testified that he was prejudiced
because his trial attorney failed to file a pretrial motion for an instruction on his sentencing range.
He also stated that his attorney was ineffective for failing to challenge the state’s admission of
evidence of his prior bad acts. He said that his trial attorney told him that he could receive fifteen
to sixty years in prison if convicted but that he did not recall whether the attorney told him this
before or after his trial started. He said that if he had been told about the sentencing range before
trial, he probably would have taken the prosecution’s fourteen-year offer.

         The petitioner testified that his attorney should have established at trial that the victim was
sexually active with a fourteen-year-old boy when she was nine. He said that the victim was
pregnant at the time she accused him of rape and that she made the accusation to protect the father
of the baby. He said his attorney should have introduced evidence of the pregnancy at trial. He said
his attorney should have impeached the victim by showing that she had previously claimed to be able
to perform various sexual acts when, in fact, she did not know how to perform these acts. He said
that although the victim testified at trial that she hurt and bled when the petitioner penetrated her,
the victim’s mother could have testified that she heard the victim previously say she did not hurt or
bleed.

         The petitioner testified that he told his attorney that his brother and his brother’s wife were
lying when they testified at his trial but that his attorney never attempted to show that they were
being untruthful. He stated that he had testified against his brother in an unrelated matter and that
his attorney should have asked his brother whether he was testifying at the petitioner’s trial for
revenge. He said his attorney should not have called Dr. Jeffrey Davis to the stand, who testified
regarding the victim’s post-traumatic stress disorder. He said that after the victim lied while
testifying, he told his attorney that he wanted to testify on his own behalf. He said his attorney
warned him that his drug history would be admissible if he testified, which made sense at the time.
He said, however, that he had quit using drugs, with the exception of Valium, and that he could have
explained this while testifying. He said his sisters and brother-in-law also advised him not to testify.


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He said that a juror was good friends with the victim’s father and that he told his attorney to ask for
a mistrial based on the juror’s relationship. His said his attorney should have tried to suppress Nancy
Jackson’s testimony regarding incriminating statements he made to her because his fifth amendment
rights were violated. He said he did not tell Ms. Jackson that he believed he was a child molester
and that he allowed the victim to masturbate him. He said his attorney erred in closing arguments
by calling the victim a “pathetic little girl.” He said his attorney should have challenged the bill of
particulars, which did not specify what specific crimes against which he needed to defend.

        On cross-examination, the petitioner testified that his attorney did not discuss trial strategy
with him. He said that if he had testified, he would have told the jury that the victim was lying and
that the victim grabbed him inappropriately. He said he remembered discussing the prosecution’s
fourteen-year plea offer, but he denied that his attorney discussed possible sentencing ranges with
him at that time. He said that he told his attorney that he would take a twelve-year offer but that he
only said this to buy time in order to fire his attorney.

         The petitioner’s trial attorney testified that he advised the petitioner to accept the state’s plea
offer and explained the possible sentences the petitioner faced if he was convicted. He said he told
the petitioner that he should accept the state’s offer because of his incriminating statement to a nurse,
in which he asked her if he was a pervert because he allowed a little girl to masturbate him. He said
that from the beginning, he told the petitioner that his sentence would range from fifteen to twenty-
five years as a Range I offender. He said the defendant insisted on using the defense that the victim
provoked him. He said that he told the petitioner that because the victim was twelve, her
provocation was not a defense and that this was part of the reason that he advised the petitioner not
to testify. He said that his strategy at trial was to show that the victim was confused, that she had
hallucinations, and that she had made up her story because of drug abuse.

         In response to the petitioner’s claim that he did not adequately prepare for trial, the attorney
testified that he met with the petitioner several times, explained the defense he was going to use, and
told the petitioner about the problems with his case. He said that in his closing argument to the jury,
he mentioned the sentence the petitioner was facing and the time he would be required to serve if
convicted. He said he did not try to suppress the petitioner’s statement to the nurse because he could
not find a legal basis for its suppression. He said that he tried to talk to the victim before the trial
but that he did not, noting that most victims are reluctant to talk with a defense attorney. He said that
he met with each defense witness twice and that he did not use certain witnesses because their
testimony would not have been helpful. He said he was prepared for trial and had explored all
possible defenses.

        The trial attorney said that when the victim testified, he was able to elicit the responses he
wanted from her regarding the victim’s sexual history and provoking the petitioner. He said that Dr.
Jeffrey Davis’ testimony was helpful to overcome the petitioner’s admission to Ms. Jackson and that
he was able to get the doctor to testify about the victim’s problems. He acknowledged that some
questions asked by the prosecution on cross-examination hurt the petitioner. He said, however, that
calling Dr. Davis to testify was the best strategy for the petitioner at the time of his trial and that he


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did not believe the victim’s post-traumatic stress disorder played a significant role in the case. He
said he did not want the petitioner to testify because of his drug history, his demeanor, and because
when preparing him for cross-examination, the petitioner always used the victim’s provocation as
justification for the offenses. He said he told the petitioner that he had an absolute right to testify
and would call him to the stand if that was his decision. He said the main problem with the
petitioner testifying was that he did not deny the allegations. He said that he always gives clients a
jury list and that if the client tells him that they are uncomfortable with a juror, he would have the
juror removed from the case. He said he described the victim as a “pathetic little girl” because that
is how he believed the jury felt about her at the time.

         On cross-examination, the petitioner’s trial attorney acknowledged that the petitioner never
used the word “provocative” to describe the victim’s behavior. He said the petitioner instead stated
that the victim “came on” to him. He said that the defendant wanted to use as a defense that he
prematurely ejaculated when the victim grabbed him but that he believed a jury would find this
defense incredible. He said the only positive aspect of the defendant’s case was that he believed a
jury may not have sympathy for the victim because of her drug use and hallucinations. He said he
did not recall anything about the victim being pregnant. He acknowledged that the petitioner’s drug
related convictions were not recent at the time of his trial. He said the petitioner’s demeanor and his
testimony would have created the largest problem if the petitioner testified, not his drug use. He said
that although he did not recall the prosecution asking the victim about inappropriate touching before
the charged offenses, if they did, he should have objected. The petitioner, recalled by his post-
conviction attorney, testified that he did not tell anyone that he ejaculated; rather, he told “them” that
he had a urinary tract infection which could have caused a discharge during one of the incidents with
the victim. He said his trial attorney told him that documentation of his infection would not be
helpful.

        Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the
burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the
deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial
was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,
842-44 (1993). The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that
attorneys should be held to the general standard of whether the services rendered were within the
range of competence demanded of attorneys in criminal cases. Further, the court stated that the range
of competence was to be measured by the duties and criteria set forth in Beasley v. United States,
491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.
1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629


                                                   -5-
S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the
defense does not, alone, support a claim of ineffective assistance. Deference is made to trial strategy
or tactical choices if they are informed ones based upon adequate preparation. See Hellard, 629
S.W.2d at 9; DeCoster, 487 F.2d at 1201.

        In a post-conviction case, the burden is on the petitioner to prove by clear and convincing
evidence his grounds for relief. T.C.A. § 40-30-210(f). On appeal, we are bound by the trial court’s
findings of fact unless we conclude that the evidence in the record preponderates against those
findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions
of law and fact, we review the trial court’s conclusions as to whether counsel’s performance was
deficient and whether that deficiency was prejudicial under a de novo standard with no presumption
of correctness. Id. at 457.

         With regard to the petitioner’s claim that his attorney refused to let him testify, the post-
conviction court accredited the trial attorney, who testified that he told the petitioner that he had an
absolute right to testify and that he would put the petitioner on the stand if that was what he decided.
He said, however, that he advised the petitioner not to testify because he would still be guilty using
his victim provocation justification for the offenses. He said the petitioner’s demeanor and his drug
history would have also damaged his case if the petitioner had decided to testify. Moreover, during
the petitioner’s testimony at the post-conviction hearing, he never claimed that his attorney refused
to let him testify. He testified that his attorney said that he should not testify because of his prior
drug convictions, which made sense to the petitioner at the time. The evidence shows that the
petitioner’s trial attorney did not refuse to allow the petitioner to testify.

        As to the petitioner’s claim that his attorney should have challenged the admissibility of the
testimony of Dr. Jeffrey Davis regarding the victim’s post-traumatic stress disorder, we conclude the
petitioner is not entitled to relief. In State v. Ballard, 855 S.W.2d 557 (Tenn. 1993), our supreme
court held that admission of expert testimony concerning symptoms of post-traumatic stress
syndrome has a “strong potential to prejudice a defendant’s cause” and that its admission was
reversible error. Thus, in the present case, the petitioner’s trial attorney should have objected to the
testimony of Dr. Davis concerning post-traumatic stress disorder. Given the substantial evidence
presented at trial, however, including the petitioner’s admission to a nurse that he allowed the victim
to masturbate him, we believe that even if the attorney had objected and the jury had not heard
testimony about the victim’s post-traumatic stress disorder, the petitioner would still have been
found guilty. The petitioner has not shown that trial counsel’s failure to object to the testimony of
Dr. Davis at trial prejudiced him to the extent of a reasonable probability that it affected the jury’s
verdict.

        With regard to the petitioner’s claim that his attorney failed to investigate and prepare
adequately for trial, his trial attorney testified that he explained the possible sentences the petitioner
might receive if he were to be convicted and advised the petitioner to plead guilty. He stated that
once the petitioner decided to go to trial, his strategy was to show that the victim was confused and
lied because she was abusing drugs. He said that he met with the petitioner several times and that


                                                   -6-
he explained possible defenses and problems with the case. He said he interviewed each defense
witness twice, explored all possible defenses and was prepared for trial. We conclude that the
petitioner has failed to show that his attorney was deficient by failing to prepare and investigate the
case.

        Finally, with regard to the petitioner’s claim that his trial attorney was ineffective by failing
to instruct the petitioner on his range of punishment if convicted, the attorney testified that he
explained the possible sentences the petitioner may receive if he was convicted. He said he told the
petitioner that his sentence would be fifteen to twenty-five years as a Range I offender. We hold that
the petitioner has failed to show that he received the ineffective assistance of counsel.

        Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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