         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                      AUGUST SESSION, 1997


                                                       FILED
CHRIS KENDAL TIPTON,       )                         October 9, 1997
                           )    No. 02C01-9607-CC-00240
      Appellant            )                        Cecil Crowson, Jr.
                           )    HENRY COUNTY        Appellate C ourt Clerk
vs.                        )
                           )    Hon. JULIAN P. GUINN, Judge
STATE OF TENNESSEE,        )
                           )    (Post-Conviction)
      Appellee             )



For the Appellant:              For the Appellee:

VICTORIA L. DiBONAVENTURA       CHARLES W. BURSON
P. O. Box 1231                  Attorney General and Reporter
Paris, TN 38242
                                DEBORAH A. TULLIS
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                ROBERT "GUS" RADFORD
                                District Attorney General
                                Post Office Box 686
                                Huntington, TN 38344




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                    OPINION



             The appellant, Chris Kendal Tipton, appeals the Henry County Circuit

    Court's dismissal of his petition for post-conviction relief. On November 18,

    1992, a jury found the appellant guilty of one count of aggravated rape.1

    Following the sentencing hearing, the trial court imposed a sentence of twenty

    years in the Department of Correction. His conviction and sentence were

    affirmed by this court on direct appeal. See State v. Tipton, No. 02C01-9305-

    CC-00099 (Tenn. Crim. App. at Jackson, May 4, 1994), perm. to appeal

    denied, (Tenn. Sept. 12, 1994). An amended petition for post-conviction relief

    was filed on November 27, 1995. Subsequently, an evidentiary hearing was

    held and, on April 16, 1996, the post-conviction court dismissed the petition

    finding that the appellant's claims were previously determined by this court on

    direct appeal and that the record is void of an abridgement of any constitutional

    right. In this appeal, the appellant alleges that he was denied his constitutional

    right to the effective assistance of trial counsel. As evidence of his claim, the

    appellant specifically contends that:

             I. Counsel failed to inspect the State's evidence until the day
             prior to the trial;

             II. Counsel failed to file pretrial motions in compliance with local
             court rules;

             III. Counsel failed to object to testimony relating to the
             aggravated assault upon the victim;

             IV. Counsel failed to move for a judgment of acquittal at the


         1
            In February, 1992, after an evening at a friend's house of partying which involved the use
of alcoh ol and dru gs, the ap pellant, the vic tim, and Kevin Cr aig reloca ted to Cra ig's hous e to
con tinue their s ocia lizing. A ppa rently, e ach me mb er of the g roup was intox icate d, an d Cra ig
eventually "passed out." The appellant began "touching" the victim, whose pleas for help from the
"passed-out" Craig were fruitless. At this point, Craig's sister, Kelli Maczalla arrived at the
residence. Still angered from a previous incident, Maczalla hit the victim twice with a board and
the two struggled. The appellant held the victim's hands while Maczalla brutally hit her in the face
and he ad with a w rench. T he app ellant then d isrobed the victim and pen etrated h er vagina lly.
Throu ghout the rape, M aczalla stoo d overh ead thre atening th e victim w ith more physical ha rm. In
a join t indic tme nt, the appe llant w as c harg ed w ith the aggr avate d rap e of th e victim resu lting in
bodily injury, while his co-defendant, Maczalla, was charged with aggravated a ssault. However,
their trials were severed with Maczalla ultimately pleading guilty to aggravated assault. At the
appellant's trial, the appellant relied upon the defense of consent and called Maczalla to support
this position .

                                                        2
             close of the State's case in chief; and

             V. Counsel failed to challenge the sufficiency of the indictment
             on the grounds that it failed to allege a mens rea and is devoid of
             any factual allegation.


             Following a thorough review of the record, we affirm the trial court's

    dismissal of the appellant's petition.2




                                                  I. Analysis



             In post-conviction proceedings, the appellant bears the burden of

    proving the allegations in his petition by a preponderance of the evidence.

    Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995). Moreover, this court is

    bound by the trial court's findings of fact unless the evidence preponderates

    against those findings. Id.



             When a claim of ineffective assistance of counsel is raised, the

    appellant bears the burden of showing that the services rendered by trial

    counsel were deficient, i.e., whether counsel's performance was within the

    range of competence demanded of attorneys in criminal cases, Baxter v. Rose,

    523 S.W.2d 930, 936 (Tenn. 1975), and that the deficient performance was

    prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064

    (1984); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).




                                    A. Failure to Inspect Evidence




         2
          Although we affirm the trial court's denial of relief on other grounds, we accredit the
State's po sition that the appellant h as waive d his claim s due to h is failure to inclu de app ropriate
referen ces to the record in his argum ent. See Tenn . R. App. P . 27(g); see also State v.
Killebrew, 760 S.W .2d 228 (Tenn. Crim . App. 1988).

                                                        3
       The appellant contends that trial counsel was ineffective for failure to

inspect evidence of photographs of the victim until the day prior to trial. We

note that the appellant has waived review of this issue because he has failed to

make any argument regarding this claim in his brief. See Tenn. R. App. P.

27(a)(7). Notwithstanding waiver, however, the appellant concedes that these

pictures were unavailable to counsel until the day prior to the trial. Indeed, the

appellant admits that the late inspection of these photographs was not due to

neglect of trial counsel. Thus, there is no merit to this claim.



                       B. Late Filing of Motion in Limine

       The appellant next contends that trial counsel was ineffective for waiting

until the day of trial to file pretrial motions. At the post-conviction evidentiary

hearing, trial counsel testified that he waited to file his motion to exclude all

photographs depicting the victim's injuries until the day of the trial in order to

protect his defense strategy. Specifically, he stated that the State had charged

the appellant "with aggravated rape and not aggravated assault and the

photographs depicted the injuries that [the victim] had to her face and other

parts of her body." The trial court denied this motion on the ground that it was

late filed in violation of local court rules. However, during the trial, counsel did

object to the introduction of each photograph on the ground that these

photographs were "irrelevan[t] to the charge." His objections were overruled.

On direct appeal, a panel of this court upheld the admission of these

photographs. See Tipton, No. 02C01-9305-CC-00099. This court will not

relitigate claims of error raised and determined previously by a court of

competent jurisdiction although now couched in terms of ineffective assistance

of counsel. See Swanson v. State, 749 S.W.2d 731, 833 (Tenn. 1988); State

v. McClintock, 732 S.W.2d 268, 272 (Tenn. 1987); see also Tenn. Code Ann.

§ 40-30-206(h) (1995 Supp.). Accordingly, this issue is without merit.




                                         4
C. Failure to Object to Testimony Regarding the Assault and Failure to
                       Move for Judgment of Acquittal


       The appellant asserts that trial counsel erroneously interpreted the

court's ruling denying his pretrial motion, supra, as "effectively" amending the

indictment to include Tenn. Code Ann. § 39-13-502(a)(3), that the appellant

was "aided or abetted by another," and that counsel proceeded to trial based

upon this misinterpretation. Specifically, he contends that, due to this

misconception, trial counsel failed to object to testimony of the aggravated

assault, which established that a weapon was used by the co-defendant,

Maczalla. Thus, he argues, that had counsel objected to this testimony,

counsel could have moved for a judgment of acquittal at the close of the

State's case-in-chief based upon the State's failure to prove that a weapon was

used by the appellant as required by the indictment. This argument is flawed

because the use of a weapon is not an element of the indicted offense.



       Initially, we note that comprehension of the appellant's already circuitous

argument is compounded by the fact that apparently both trial counsel and

post-conviction counsel erroneously share the belief that the State was

required to prove both (1) force and a deadly weapon and (2) bodily injury to

the victim in order to secure a conviction for aggravated rape. See Tenn.

Code Ann. § 39-13-502(a)(1), -502(a)(2). The wording of the indictment,

however, clearly shows the State's prosecution for aggravated rape was based

upon the element of "bodily injury" to the victim. The indictment charging the

appellant with aggravated rape reads:

       . . . Chris Kendal Tipton. . .commit aggravated rape by having
       unlawful sexual penetration by force or coercion of one, Trina
       Blazer, causing bodily injury, in violation of Tenn. Code Ann. §
       39-13-502(a)(1) and (2).


(emphasis added). Tenn. Code Ann. §39-13-502 (1990) defines aggravated

rape as the:


                                        5
    . . .unlawful sexual penetration of a victim by the defendant. . . accompanied by
    any of the following circumstances:
            (1) Force or coercion is used to accomplish the act and the
            defendant is armed with a weapon. . .;

            (2) The defendant causes bodily injury to the victim;

            (3) The defendant is aided or abetted by one or more other
            persons. . . .

    (emphasis added). Thus, we conclude that the language of the indictment was

    sufficient to give the appellant notice of the crime with which he was charged.

    Moreover, the recitation of a code section in a charging instrument is mere

    surplusage and not fatal thereto. State v. Bowers, 673 S.W.2d 887, 888 (Tenn.

    Crim. App. 1984). The State, in order to elevate the offense from rape to

    aggravated rape, was only required to show that the victim suffered bodily

    injury. Accordingly, the appellant's interpretation of the charging instrument is

    unfounded.



            Additionally, this court has previously addressed trial counsel's

    misinterpretation of the trial court's pretrial ruling. See Tipton, No. 02C01-

    9305-CC-00099. On direct appeal, this court concluded that the court's ruling

    did not "effectively" amend the indictment. Id. Moreover, this court determined

    that, even absent any evidence of the aggravated assault, the proof was

    sufficient to find the appellant guilty of aggravated assault as charged in the

    indictment.3 Tipton, No. 02C01-9305-CC-00099. Accordingly, we are unable

    to conclude that the appellant was prejudiced by trial counsel's misconstrued

    interpretation of the trial court's pretrial ruling.



            Finally, a motion for a judgment of acquittal at the conclusion of the

    State's case is waived when the defendant chooses to offer proof in his own

    behalf. Mathis v. State, 590 S.W.2d 449, 453 (Tenn.1979). Trial counsel


        3
          Specifically, this court found that Dr. Apple's testimony that the victim was bruised in the
thigh and vulva areas established "bodily injury," as defined by Tenn. Code Ann. § 39-11-
106(a)( 2). See Tipton, No. 02C01-9305-CC-00099.

                                                     6
testified that the appellant insisted that his co-defendant, Maczalla, testify to

support his contention that the penetration was consensual, and, in fact, this

witness was subpoenaed by defense counsel. Notwithstanding this waiver,

when a trial court is presented with a motion for judgment of acquittal, the only

concern is the legal sufficiency, as opposed to the weight of the evidence.

State v. Blanton, 926 S.W.2d 953, 957 (Tenn. Crim. App. 1996) (citation

omitted). Again, on direct appeal, this court determined that the evidence was

sufficient to sustain a conviction for aggravated rape. See Tipton, No. 02C01-

9305-CC-00099. This issue has been previously determined and is without

merit. See Swanson, supra.




                        E. Sufficiency of the Indictment



       Finally, the appellant contends that trial counsel was ineffective for

failing to challenge the sufficiency of the indictment, based upon the

indictments failure to allege a mens rea. In order for an indictment to satisfy

both constitutional and statutory guidelines, it must contain the material

elements of the offense and must sufficiently apprise the accused of the

offense he is called upon to defend. State v. Tate, 912 S.W.2d 785, 789

(Tenn. Crim. App. 1995); see also Tenn. Code Ann. § 40-13-202 (1990). As

applicable to the present case, aggravated rape is defined as the "unlawful

sexual penetration of a victim by the defendant" and the victim suffers bodily

injury therefrom. Tenn. Code Ann. § 39-13-502(a)(2). No requisite mental

state is included in the definition of the offense. When the legislature fails to

define a specific mental state in the definition of an offense, proof of either

intent, knowledge, or recklessness suffices to establish the culpable mental

state. Tenn. Code Ann. § 39-11-301(c)(1991). Accordingly, the accused's

mental state is not a material element of the offense and need not be included


                                        7
in the indictment. State v. Dison, No. 03C01-9602-CC-00051 (Tenn. Crim.

App. at Knoxville, Jan. 31, 1997). Other panels of this court have upheld the

validity of indictments under similar challenges. See, e.g., Slagle v. State, No.

03C01-9704-CR-00145 (Tenn. Crim. App. at Knoxville, June 25, 1997); State

v. Vann, No. 03C01-9602-CC-00066 (Tenn. Crim. App. at Knoxville, June 10,

1997); State v. James, No. 01C01-9601-CR-00016 (Tenn. Crim. App. at

Nashville, Mar. 27, 1997); State v. Burrell, No. 03C01-9404-CR-00157 (Tenn.

Crim. App. at Knoxville, Feb. 11, 1997). Contrary to the appellant's assertions,

the allegations in the indictment sufficiently apprise the accused of the offense

of aggravated rape by bodily injury. The indictment is valid, and, consequently,

trial counsel was not ineffective for not challenging its validity. This issue is

without merit.




                                    II. Conclusion



       The burden rests with the appellant to prove his allegations by a

preponderance of the evidence. Taylor, 875 S.W.2d at 686. The post-

conviction court found that the appellant failed to carry his burden of proof and

that the issues had previously been determined on direct appeal. In

consideration of the foregoing and the record as a whole, we conclude that the

evidence does not preponderate against the trial court's findings which resulted

in a denial of relief. Accordingly, we affirm the trial court's order denying the

appellant post-conviction relief.




                                     ___________________________________
                                     DAVID G. HAYES, Judge



                                         8
CONCUR:



_____________________________________
JERRY L. SMITH, Judge


_____________________________________
THOMAS T. W OODALL, Judge




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