                                                                                        08/30/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 9, 2019

                RONNIE INGRAM v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                      No. 10-01607       Chris Craft, Judge
                     ___________________________________

                           No. W2018-01875-CCA-R3-PC
                       ___________________________________


The petitioner, Ronnie Ingram, appeals the denial of his post-conviction petition, arguing
the post-conviction court erred in finding he received the effective assistance of counsel
at trial and on appeal. Following our review, we affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and ROBERT W. WEDEMEYER, JJ., joined.

Terrell L. Tooten, Cordova, Tennessee, for the appellant, Ronnie Ingram.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

        A Shelby County jury convicted the petitioner of aggravated burglary, theft of
property valued at more than $500 but less than $1,000, criminal exposure to human
immunodeficiency virus (“HIV”), evading arrest, and resisting arrest. The trial court
sentenced the petitioner to 32 years plus 11 months and 29 days in confinement. On
direct appeal, the petitioner solely challenged the sufficiency of the evidence supporting
his conviction for criminal exposure to HIV. State v. Ronnie Ingram, No. W2011-02595-
CCA-R3-CD, 2012 WL 5355694, at *1 (Tenn. Crim. App. Oct. 31, 2012). Following our
review, this Court reversed the conviction, dismissed the charge, imposed a conviction
for attempted criminal exposure to HIV in its stead, and remanded the petitioner’s case
for a new sentencing hearing on the reduced conviction. Upon remand, the trial court
imposed a sentence of 12 years’ incarceration for attempted criminal exposure to HIV,
the petitioner appealed, and we affirmed the trial court’s sentence. State v. Ronnie
Ingram, No. W2015-01527-CCA-R3-PC, 2016 WL 3977397, at *2 (Tenn. Crim. App.
July 20, 2016). This Court summarized the underlying facts leading to the petitioner’s
convictions, as follows:

              On September 2, 2009, Memphis Police Department Officer Russell
      Woolley responded to the call of a “prowler” in the Annesdale Garden
      neighborhood of Memphis. The caller reported seeing a black male
      wearing black pants, a purple shirt, and a black jacket. Officer Woolley
      arrived to the area at approximately 2:00 a.m. and soon observed a man
      fitting the description, later identified as the [petitioner], carrying items to
      the middle of the street from a nearby yard. When the [petitioner] walked
      back to the yard, Officer Woolley alerted nearby officers of a burglary in
      progress and walked to inspect the items in the street. He then observed
      lawn equipment and a “musical machine” among the items.

             Officer Woolley recalled that an approaching squad car “spooked”
      the [petitioner] as he returned to the street, and the [petitioner] began
      running. In fleeing, the [petitioner] ran directly toward Officer Woolley,
      who ordered the [petitioner] to the ground. The [petitioner] did not heed
      Officer Woolley’s commands and instead ran in another direction away
      from the officers. Officer Woolley gave chase through several yards,
      ultimately ending up in the back yard of a nearby residence. Throughout
      the pursuit, Officer Woolley identified himself as a police officer and
      commanded the [petitioner] to the ground.

             Once in the back yard, Officer Woolley stepped into knee-high
      water, observed the [petitioner’s] jacket floating in the water, and
      immediately tripped over the [petitioner], who was lying in the water.
      Officer Woolley testified that the [petitioner] began grabbing his ankles and
      hands. Officer Woolley feared the [petitioner] was reaching for either of
      his two service weapons--one at his ankle and one at his waist. Officer
      Woolley began “striking . . . [the petitioner] with a closed fist” in an effort
      to subdue the [petitioner]. He then separated from the [petitioner] to move
      away to a more open and safe vantage point in the back yard.

             Officer Woolley testified that Officer Tracy McDonald soon arrived
      with her police dog named Alex. The leashed dog immediately began
      tracking the [petitioner’s] scent and located the [petitioner]. After a
      struggle between the leashed dog and the [petitioner], the [petitioner]
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yielded. Officer Woolley then handcuffed the [petitioner] as Officer
McDonald returned the dog to her squad car.

       Officer Woolley testified that the [petitioner] “was bleeding pretty
bad[ly] from the face, from his head around his eyes, and like around the
cheek area.” He said, “[A]s I was walking [the petitioner] back to the
roadway[,] right before we got to it he turned towards me and he spit in my
face.” Officer Woolley testified that the [petitioner] then told him that he
was infected with HIV. Officer Woolley testified that the [petitioner’s]
saliva went into his mouth, eyes, and nose. Soon after, as Officer
McDonald approached Officer Woolley’s squad car, the [petitioner] told
Officer McDonald, “I’ve got AIDS or I have HIV. I hope your dog gets
AIDS.” The [petitioner] then “tried to spit in [Officer McDonald’s]
direction,” but the officers were “able to slam the car door quick[ly] enough
where nobody else could be contaminated.”

        After calming down in the back seat of the squad car for a few
minutes, the [petitioner] volunteered to direct Officer Woolley to the
residence from which he had stolen the items. Officer Woolley testified
that the [petitioner] said, “‘[H]ey, I’ll show you where I got it from, it ain’t
nothing but a burglary.’” After going to the residence, Officer Woolley
transferred custody of the [petitioner] to another officer and went to the
hospital to have his eyes, nose, and mouth flushed. In the year following
the incident, Officer Woolley underwent periodic blood tests to determine
whether he had contracted HIV.

        Officer Tracy McDonald testified that she was trained as a “Police
K-9 Handler” and that her dog, Alex, assisted in apprehending the
[petitioner] on September 2, 2009. She recalled that Alex began “pulling
strong” toward a flooded area in a back yard. She said that the dog
remained on a leash throughout the search for and apprehension of the
[petitioner]. She said, “Once I heard the screaming and I knew Alex made
contact . . . I told the suspect let me see your hands and the dog will be
removed.” She explained that the dog was trained to “latch on” until
commanded to release. Despite the leashed dog’s biting the [petitioner] on
the head, the [petitioner] continued to struggle. He grabbed Officer
McDonald around the waist in an effort to remove her gun from her gun
belt.    Ultimately, the [petitioner] relented, and Officer McDonald
commanded Alex to release his hold on the [petitioner]. Officer Woolley
handcuffed the [petitioner] while Officer McDonald returned Alex to her
squad car. Because the [petitioner] had suffered injuries during his
                                     -3-
      apprehension, Officer McDonald attempted to take photographs at the
      scene. The [petitioner] did not cooperate with Officer McDonald’s request
      to document his injuries. Officer McDonald testified that the [petitioner]
      told her that he had AIDS and that her dog was going to die. She recalled
      that the [petitioner] was “cursing very loud[ly]” throughout the incident.

              George Todd testified that police officers woke him up sometime
      after 1:00 a.m. on September 2, 2009, to ask if his home had been
      burglarized. After inspecting an adjacent garage-apartment, he discovered
      that small tools, a weed eater, and a cymbal bag had been stolen. He
      identified the items found in the street as those taken from his residence.
      He said that the [petitioner] did not have permission to enter his home or
      take the items. He estimated their value at “about $1,000.”

             The parties stipulated the authenticity and accuracy of medical
      records showing that the [petitioner] had HIV. The State then rested its
      case-in-chief. Following the trial court’s denial of the [petitioner’s] motion
      for judgment of acquittal, the [petitioner] testified.

              The [petitioner] testified at trial, claiming that Officer Woolley
      arrested him at a bus stop, placed him in handcuffs, and then took him to an
      isolated area where Officer Woolley and several other officers beat him.
      The [petitioner] said, “He told me if I don’t plead guilty to these charges
      they were going to sic the dog back on me, but it was a beating happened
      between him and three more officers before the dog got there.” The
      [petitioner] claimed that “[Officer McDonald] came over and stood over
      top of [the petitioner] shaking her butt[,] that’s when the dog engaged [the
      petitioner] while [he] was already handcuffed.” After this assault, the
      [petitioner] claimed Officer McDonald said “‘good boy’” to the dog.

             The [petitioner] explained that he had trouble breathing following
      the beating and dog attack. He testified that he inadvertently coughed
      saliva and mucus onto Officer Woolley’s chest. He claimed that he
      repeatedly warned the officers of his HIV status throughout the incident
      and apologized to Officer Woolley for coughing on his chest. He admitted
      learning of his HIV infection while incarcerated in 1995. The [petitioner]
      denied any involvement in the burglary of the Todd residence. He claimed
      he was apprehended by the police, attacked, and beaten for no reason.

Ronnie Ingram, 2012 WL 5355694, at *1-3 (internal footnote omitted).

                                          -4-
       The petitioner filed a pro se petition for post-conviction relief on June 4, 2013.
After the appointment of counsel, he filed an amended petition on November 4, 2014,
which the trial court stayed until the petitioner’s direct appeal was resolved on July 20,
2016. The petitioner then filed a second amended petition on October 10, 2017, wherein
he argued he received the ineffective assistance of counsel at trial and on appeal.1 The
petitioner alleged trial counsel failed to: object to speculative and conclusory testimony
of Officer Woolley; request the State to elect the offense upon which it relied for the
charges of evading arrest and resisting official detention; and file a motion to suppress the
petitioner’s statement made while in Officer Woolley’s police car. The petitioner further
alleged trial counsel erred in filing a motion in limine to exclude testimony about the
petitioner’s familiarity with the arresting officers “based on prior run-ins with them,”
asserting this testimony would have bolstered his “credibility with the jurors.”
Separately, the petitioner argued the State’s failure to elect rendered his trial unfair and
violated due process and appellate counsel was later ineffective for not challenging the
State’s failure to elect on appeal.

        At the post-conviction hearing, trial counsel stated the proof at trial established the
petitioner was found in a neighborhood with property connected to a burglary and when
confronted by police, the petitioner ran. Trial counsel recalled several officers were
involved in arresting the petitioner. He noted two interactions between the petitioner and
Officer Woolley that supported the evading arrest charge, including the petitioner’s
failure to follow Officer Woolley’s command to stop and the petitioner’s attempt to grab
Officer Woolley’s weapon while the petitioner hid after fleeing. Despite these facts, trial
counsel did not request, and the trial court did not require, the State to make an election
of offenses for the charges of evading arrest or resisting official detention. Trial counsel
believed the proof supporting the evading arrest conviction was strong. Though he did
not know what facts the jury relied on in reaching its verdict, trial counsel did not believe
the State’s failure to elect affected the jury’s verdict. He did not recall if the trial court
provided a jury instruction on election.

       Trial counsel also addressed the fact that he did not file a motion to suppress the
statement the petitioner made while detained in the back of Officer Woolley’s police car.
In reference to the property found on the scene, trial counsel explained, “Officer Woolley
said something to the effect of, ‘That stuff,’ or something about, ‘Where did you get it,’
or ‘Is that your stuff we saw you with,’ something to that effect.” In response, the
petitioner stated, “‘It’s not my stuff,’ but then, according to Officer Woolley, [the
petitioner] said, ‘I can show where I got it.’” Trial counsel noted “there probably should
have been a motion to suppress done on [the petitioner’s statement]” but at the time of

        1
         Before the filing of the second amended petition, the trial court appointed new post-conviction
counsel after the death of original counsel.
                                                 -5-
trial, his “impression of [the statement] was that it was like a spontaneous utterance.”
Trial counsel believed he would have filed a motion to suppress the statement if it had
been warranted by the discovery. Regardless, trial counsel did not believe the
suppression issue affected the outcome of the trial based upon the strength of the State’s
case.

       Neither the petitioner nor appellate counsel testified at the hearing. After its
review of the evidence presented, the post-conviction court denied the petition, finding
the petitioner failed to carry his burden of proof to show the ineffective assistance of
counsel. The petitioner timely appealed.

                                         Analysis

        On appeal, the petitioner asserts the outcome of his trial would have been different
absent the deficiencies of trial counsel. The petitioner bears the burden of proving his
post-conviction factual allegations by clear and convincing evidence. See Tenn. Code
Ann. § 40-30-110(f). The findings of fact established at a post-conviction evidentiary
hearing are conclusive on appeal unless the evidence preponderates against them. See
Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). This Court will not reweigh or
reevaluate evidence of purely factual issues. See Henley v. State, 960 S.W.2d 572, 578
(Tenn. 1997). However, appellate review of a trial court’s application of the law to the
facts is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95,
96 (Tenn. 1998). The issue of ineffective assistance of counsel presents mixed questions
of fact and law. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court
reviews the petitioner’s post-conviction allegations de novo, affording a presumption of
correctness only to the post-conviction court’s findings of fact. See id.; Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the standard for determining ineffective assistance of counsel applied in federal cases is
also applied in Tennessee). The Strickland standard is a two-prong test:

              First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s

                                           -6-
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.;
see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).

       The petitioner argues trial counsel was ineffective for failing to require an election
of offenses for the charges of evading arrest and resisting official detention which the
petitioner asserts violated due process and rendered his trial unfair. At the post-
conviction hearing, trial counsel stated he did not request an election as to the facts upon
which the State relied for the charges of evading arrest and resisting official detention and
he did not think the State’s failure to elect affected the outcome of the petitioner’s trial.
Citing State v. Adams, the post-conviction court determined election was not warranted as
“the indicted counts of evading arrest and resisting official detention, given the facts of
this case, were continuing offenses, and that there was no danger to the petitioner of
being convicted by a non-unanimous jury verdict.” 24 S.W.3d 289, 294 (Tenn. 2000)
(noting election is not necessary when the evidence establishes the accused has
committed a continuing offense which “generally stem[s] from a single motivation or
scheme, although such offenses can be committed by multiple discrete acts occurring
over a period of time”). Upon our review of the record and pertinent authorities, we
agree with the post-conviction court. Nothing in the record suggests election was
required, and the petitioner has failed to present any evidence to show otherwise.
Because the law does not require the State to make an election here, the petitioner cannot
                                            -7-
establish trial counsel was deficient or that he was prejudiced by trial counsel’s failure to
require election. Strickland, 466 U.S. at 694. The petitioner is not entitled to relief as to
this issue.

        The petitioner next asserts trial counsel was ineffective for failing to file a motion
to suppress the statement he made to Officer Woolley. Trial counsel explained he did not
think it was necessary to file a motion to suppress because he believed the petitioner’s
statement was spontaneous. In hindsight, trial counsel stated his best practice would be
to file a suppression motion “to see how [the statement] came about.” Upon its review,
the post-conviction court noted, “this suppression issue was never developed prior to,
during or after the trial in this cause, [and] this court cannot find that the statement would
have been suppressed.” The post-conviction court went on to note that even if the
statement had been suppressed, “this court finds that the proof of the petitioner’s guilt
was so overwhelming that it would not have made a difference in the petitioner’s trial.”
Again, we agree with the post-conviction court as the petitioner has failed to present
proof to support this claim and nothing in the record preponderates against the post-
conviction court’s finding of fact on this issue. See Tidwell, 922 S.W.2d at 500; Henley,
960 S.W.2d at 578. Accordingly, we will not disturb its findings on appeal, and the
petitioner is not entitled to relief.

       Finally, the petitioner requests a reduction of the sentence imposed for his theft
conviction, arguing the conviction is now classified as an A misdemeanor rather than a
felony. The petitioner’s blanket request for a reduction in his sentence, however, is not
supported by citations to authority or the record. Absent “citations to the authorities and
appropriate references to the record,” this issue is waived. Tenn. R. App. P. 27.
Furthermore, the claim is inappropriate for post-conviction review, and we decline to
extend any relief. Tenn. Code Ann. § 40-30-103.

                                        Conclusion

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.


                                              ____________________________________
                                              J. ROSS DYER, JUDGE




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