        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 March 8, 2011 Session

             JAMES C. OSBORNE, IV v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Wilson County
                      No. 02-1340 John D. Wootten, Jr., Judge


                   No. M2010-00065-CCA-R3-PC - August 16, 2011


The petitioner, James C. Osborne IV, appeals the Wilson County Criminal Court’s denial of
post-conviction relief from his conviction of rape. He claims on appeal that the trial court
erroneously instructed the jury as to the State’s burden of proof and that his trial counsel
rendered ineffective assistance in failing to object to the erroneous instruction. The record
supports the post-conviction court’s denial of relief, and we therefore affirm.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J OHN E VERETT W ILLIAMS, J., joined.

William Cather, G. Jeff Cherry and David H. Veile, Lebanon, Tennessee, for the appellant,
James C. Osborne, IV.

Robert E. Cooper, Jr., Attorney General and Reporter; and Benjamin A. Ball, Assistant
Attorney General; Tom P. Thompson, Jr.; District Attorney General; and Robert Hibbett,
Assistant District Attorney General, for the appellee.

                                        OPINION

        A Wilson County Criminal Court jury convicted the petitioner of rape, and the trial
court sentenced him to serve a sentence of twelve years at one hundred percent. The
conviction and sentence were affirmed on appeal. See State v. James C. Osborne, No.
M2005-00893-CCA-R3-CD (Tenn. Crim. App., Nashville, Sept. 7, 2006), no applic. perm.
app. filed.

      On March 4, 2005, the petitioner filed a premature petition for post-conviction relief
which he amended after this court’s opinion on direct appeal was filed in 2006. The post-
conviction court conducted an evidentiary hearing in December 2009 and denied relief.

       We need not recount in any detail the evidence presented either at trial or at the post-
conviction hearing. On appeal the petitioner claims that his trial counsel failed to object to
an erroneous jury instruction and verdict form that instructed the jury that to acquit the
defendant they must find him not guilty beyond a reasonable doubt. The petitioner points to
a portion of the trial court’s jury charge on lesser included offenses that says, “If you
unanimously find beyond a reasonable doubt the Defendant not guilty to the more serious
indicted offense you then will consider the Defendant’s guilt or innocence of the lesser
included offense(s).”

       The petitioner also points to the “Judgment Sheet” utilized by the trial court, which
was essentially a verdict form. The form contains the recitation: “If you unanimously find
beyond a reasonable doubt the Defendant not guilty to the more serious indicted offense you
will consider the Defendant’s guilt or innocence of the lesser include offense(s) in order.”

        The petitioner contends that the use of this language was a structural error that
improperly shifted the burden of proof to him and violated his rights to due process of law
and to a trial by a jury of his peers. He further claims that his trial counsel was ineffective
by failing to raise the issue during the trial proceedings.

       The State responds that the post-conviction court properly ruled that the jury
instructions, as a whole, properly and adequately informed the jury about the State’s burden
of proof in the case.

        The post-conviction petitioner bears the burden of proving his or her allegations by
clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). 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).

       The Sixth Amendment of the United States Constitution and Article I, section 9 of the
Tennessee Constitution both require that a defendant in a criminal case receive effective
assistance of counsel. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9; see also Baxter
v. Rose, 523 S.W.2d 930 (Tenn. 1975). “Claims of ineffective assistance of counsel are
considered mixed questions of law and fact and are subject to de novo review.” Serrano v.
State, 133 S.W.3d 599, 603 (Tenn.2 004); see State v. Burns, 6 S.W.3d 453, 461 (Tenn.

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1999). When a defendant claims ineffective assistance of counsel, the court must determine
(1) whether counsel’s performance was within the range of competence demanded of
attorneys in criminal cases, Baxter, 523 S.W.2d at 936, and (2) whether any deficient
performance prejudiced the petitioner, Strickland v. Washington, 466 U.S. 668, 694 (1984);
see also Powers v. State, 942 S.W.2d 551, 557 (Tenn. Crim. App. 1996). Courts need not
address these components in any particular order or even address both if the petitioner fails
to meet his burden with respect to one. Henley, 960 S.W.2d at 580.

       A reviewing court must indulge a strong presumption that counsel’s conduct falls
within the range of reasonable professional assistance. Strickland, 466 U.S. at 695. This
court should not second-guess informed tactical and strategic decisions by defense counsel.
Henley, 960 S.W.2d at 579.

       In sum, a defendant is not entitled to perfect representation, only constitutionally
adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996).
To show prejudice, the petitioner must demonstrate that there is a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694. A reasonable probability is “a probability sufficient
to undermine confidence in the outcome.” Id.

        First, we determine that to the extent that the petitioner on appeal expresses a free-
standing due process or jury-trial right violation, that issue is waived based upon the terms
of collateral attack allowable pursuant to the Post-Conviction Procedure Act. Under the Act,
waiver occurs when the “the petitioner personally or through an attorney fail[s] to present
[the claim] for determination in any proceeding before a court of competent jurisdiction in
which the ground could have been presented.” T.C.A. § 40-30-106(g) (2006). Waiver in a
post-conviction context is determined by an objective standard under which a petitioner is
bound by the action or inaction of his attorney. House v. State, 911 S.W.2d 705, 714 (Tenn.
1995). The presumption that a ground not raised has been waived is rebuttabable. T.C.A.
§ 40-30-106(g). To rebut the presumption, however, the petition must contain “allegations
of fact supporting each claim for relief set forth in the petition and allegations of fact
explaining why each ground for relief was not previously presented in any earlier
proceeding.” Id. § 40-30-104(e). Nothing in the record leads us to conclude that the free-
standing constitutional claim was not waived by the petitioner’s failure to raise it at trial, in
the motion for new trial, and in the direct appeal.

        Next, we must determine the petitioner’s claim that trial counsel’s failure to timely
raise the issue equated to ineffective assistance of counsel.

       The State does not challenge the petitioner’s assertion that the above-quoted reference

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in the lesser included offense instruction and in the verdict form was erroneous. However,
it claims that the petitioner suffered no prejudice because the jury instructions, when read as
a whole, fairly submitted the legal issues to the jury. We agree with the State.

         A trial court in a jury case is obliged to provide a “complete charge of the law
applicable to the facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see
also Tenn. R. Crim. P. 30(d)(2). “‘Jury instructions must be reviewed in their entirety.
Phrases may not be examined in isolation.’” State v. James, 315 S.W.3d 440, 446 (Tenn.
2010) (quoting State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008)). A charge “is erroneous
if it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.”
James, 315 S.W.3d at 446 (quoting State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997)).
Whether a conviction should be reversed on the basis of an erroneous jury instruction is
determined by “‘whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.’” Rimmer, 250 S.W.3d at 31.

       In the present case, the problematic language in both the instructions and the verdict
form was offset by other language in the charge that conveyed the proper burden of proof in
the case, leading us to conclude that petitioner was not prejudiced by counsel’s failure to
object to the offending language. Specifically, the charge instructed the jury that

                       The law presumes that the Defendant is innocent of the
               charge against him. This presumption remains with the
               Defendant throughout every stage of the trial, and it is not
               overcome unless from all the evidence in the case you are
               convinced beyond a reasonable doubt that the Defendant is
               guilty.

                       The state had the burden of proving the guilty of the
               Defendant beyond a reasonable doubt, and this burden never
               shifts but remains on the state throughout the trial of the case.
               The Defendant is not required to prove his innocence.

                       The state must have proven beyond a reasonable doubt all
               of the elements of the crime charged, and that it was committed
               before the finding and returning of the indictment in this case.

In addition, the trial court, using traditional language, defined “reasonable doubt,” and it
concluded by adding, “If you find that the State has not proven every element of the offense
beyond a reasonable doubt, then you should find the Defendant not guilty.”



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        As to the indictment charge of aggravated rape, the trial court instructed the jury on
the lesser included offenses of rape, aggravated sexual battery, sexual battery, and assault.
The offending language cited by the petitioner appears in the general instruction on lesser
included offenses that preceded the trial court’s instructions on the specific lesser included
offenses listed above. In the case of each specific lesser included offense mentioned by the
trial court, however, it told the jury that the State must prove “beyond a reasonable doubt the
existence of the . . . essential elements” which the court listed as to each offense. The court
instructed the jury to proceed to a consideration of a lesser included offense only when it held
a reasonable doubt that the petitioner committed the greater offense. We point out that the
jury acquitted the petitioner of the charged offense of aggravated rape and, instead, convicted
him of the lesser included offense of rape. See James C. Osborne, No. M2005-00893-CCA-
R3-CD, 2006 WL 2682773, at *1.

       In the context of the overall jury charge and the jury’s decision to acquit the petitioner
of the charged offense, we conclude that the petitioner did not establish by clear and
convincing evidence that counsel’s failure to object to the cited language in a portion of the
charge and in the verdict form prejudiced him. The jury instructions repeatedly referenced
the State’s burden of proof; in contrast, the language cited by the petitioner was mentioned
only once, very briefly, in the general lesser included offense instruction. Although that
language was repeated in the verdict form, the entire jury instruction certainly overbore the
form’s language even if, indeed, the jury even reviewed the form before reaching its verdict.

        Thus, because the petitioner did not establish prejudice as required by Strickland, he
failed to establish a claim of ineffective assistance of counsel. Accordingly, the judgment
of the post-conviction court is affirmed.


                                                     _________________________________
                                                     NORMA McGEE OGLE, JUDGE




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