        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 12, 2011

                 DAVID HAMMOND v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Madison County
                      No. C-09-106     Donald H. Allen, Judge


               No. W2010-01716-CCA-R3-PC - Filed February 6, 2012


A Madison County Circuit Court jury convicted the petitioner, David Hammond, of rape, and
he was sentenced to twelve years in the Tennessee Department of Correction. Thereafter,
the petitioner filed a petition for post-conviction relief, alleging that his trial counsel was
ineffective. The post-conviction court denied the petition, and the petitioner now appeals.
Upon review, we affirm the judgment of the post-conviction court.

 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 T HOMAS T. W OODALL, J., joined.

J. Colin Morris, Jackson, Tennessee, for the appellant, David Hammond.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       On direct appeal, this court summarized the proof presented at trial as follows:

              [T]he victim testified that on March 29, 2002, she attended a
              party at her sister’s apartment in Jackson, Tennessee. Sequoia
              Greer, the victim’s sister, lived in the same apartment complex
              as the victim.
       The party started around 10:00 p.m. At some point that
evening, [the petitioner] showed up at the party. According to
the victim, [the petitioner] was not invited. The victim drank
approximately seven shots of tequila during the party. The
victim went into one of Ms. Greer’s bedrooms to go to sleep
around 1:30 a.m. She was accompanied to the bedroom by her
friend, Ted Ingram. The victim testified that she slept in the
bed, fully-clothed, with Mr. Ingram until approximately 2:45
a.m., when Mr. Ingram’s “partner” woke him up to leave the
party.

        The victim testified that the next thing she remembered
was waking up “when [she] felt [the petitioner] coming out of
[her].” According to the victim, the room was dark when she
woke up. She felt someone having sex with her and turned on
the lights to find [the petitioner] in the room. The victim’s pants
and panties were pulled down to her ankles. The victim stated
that she was menstruating at the time, and there was blood on
the bed sheets. She saw [the petitioner] getting dressed and
noticed that he had blood on his pants. [The petitioner] asked
her to go to “dinner sometime.” The victim did not scream out
to anyone when she saw what [the petitioner] was doing. She
asked [the petitioner], “What the ‘F’ just went on?” Then the
victim pulled up her pants and left the bedroom. She then exited
the apartment and went to her own apartment. Ms. Greer
testified that the victim was “very upset and crying and
screaming and stuff” when she left the apartment.

       When the victim got to her own apartment, she douched
and took a bath. The victim then called Ms. Greer to tell her
what had happened. The victim went back to Ms. Greer’s
apartment, but [the petitioner] was no longer there. The victim’s
friends drove around town, looking for [the petitioner]. When
they were unable to locate [the petitioner], the victim drove to
the police station to report the rape.

       The victim was examined at the hospital for evidence of
rape. There was no semen detected after a vaginal swab, but the
DNA tests performed on the victim’s underwear revealed the
presence of [the petitioner’s] DNA “along the edge of the crotch

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               area.”

                       Michelle Lee, [the petitioner’s] sister, testified at trial on
               his behalf. According to Ms. Lee, she and [the petitioner] were
               invited to the party by Anthony Hawkins, Ms. Lee’s cousin. Ms.
               Lee did not drink any alcoholic beverages at the party. At some
               point, she overheard the victim say that “somebody is going to
               get f[***]ed tonight.” The victim denied making that statement.

                      Ms. Lee stated that [the petitioner] fell asleep on the
               couch and slept there until around 2:45 a.m., when he got up
               from the couch. At that point, Ms. Lee saw [the petitioner] go
               into the bedroom where the victim was sleeping. [The
               petitioner] was going into the room to “get his coat.” About five
               to ten minutes later, Ms. Lee saw the victim leave the bedroom.
               Contrary to Ms. Greer’s testimony, Ms. Lee claimed that the
               victim did not appear upset when she left the bedroom or the
               apartment. Ms. Lee did not see any blood on [the petitioner’s]
               pants when he left the bedroom. After leaving the bedroom,
               [the petitioner] and Ms. Lee went to the kitchen and made a
               sandwich. The two then left the apartment at approximately
               3:30 a.m.

State v. David Harold Hammond, No. W2007-00219-CCA-R3-CD, 2008 WL 465278, at
**1-2 (Tenn. Crim. App. at Jackson, Feb. 21, 2008). This court affirmed the petitioner’s
conviction for rape and the accompanying twelve-year sentence. Id.

        Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his
trial counsel was ineffective (1) by not raising the lack of proof that the petitioner committed
the rape by force or coercion as alleged in the indictment, (2) by failing to “stand on [the]
Motion for Judgment of Acquittal,” (3) by not requesting that the court appoint a DNA expert
for the defense, and (4) by failing to pursue DNA evidence establishing that other men had
sex with the victim at the party.

       At the post-conviction hearing, the petitioner testified that trial counsel was appointed
to represent him in 2006. The petitioner stated that he met with trial counsel about four times
and that they discussed the State’s proof and possible defenses. The petitioner said that
everyone was drinking alcohol at the party and that the victim “invited sex” with the
petitioner and other men. He told trial counsel that he thought the victim had sex with other
men that night.

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        The petitioner acknowledged that at trial, an expert witness for the State testified that
the petitioner’s DNA was found on the victim’s underwear. The petitioner said that he did
not ask trial counsel to hire an expert to conduct further DNA tests. However, he stated that
he thought an expert could have told trial counsel that men other than the petitioner had sex
with the victim. The petitioner said that the expert found a “partial protocol” on the victim’s
underwear and that the petitioner believed that “mean[t] it’s more than one person’s semen.”
The petitioner acknowledged that trial counsel cross-examined Ted Ingram, who had been
at the party, and that Ingram denied having sexual contact with the victim.

       The petitioner said that he was charged with rape by force or coercion but that he did
not believe the State proved force or coercion. The petitioner said the proof established that
the victim was asleep and that a person who is asleep cannot be forced or coerced.

       The petitioner stated that at the conclusion of the State’s proof, trial counsel made a
motion for a judgment of acquittal. The petitioner maintained that trial counsel erred by
“failing to stand” on the motion. The petitioner acknowledged that the trial court denied the
motion and that he had wanted his brother and sister to testify. The petitioner said that he
chose not to testify at trial.

        Trial counsel testified that he and the petitioner met approximately three or four times
and that they discussed the evidence and defenses. Trial counsel said that the petitioner and
the victim were at a party where everyone was drinking alcohol; specifically, the victim
drank six or seven shots of tequila. Trial counsel said he established during the
cross-examination of the DNA expert that the semen found on the victim’s underwear could
have been from preejaculatory fluid. Trial counsel said that evidence supported the defense
theory that the petitioner and the victim had sexual contact after the victim propositioned the
petitioner but that no penetration occurred because the petitioner learned that the victim was
menstruating. Trial counsel said that he believed the victim was embarrassed because she
had a boyfriend and that she “came up with the story that he had raped her to try to cover
what she had done.” Trial counsel said that he thought the petitioner had a “pretty good case
for the jury.”

       Trial counsel said that the State conducted DNA testing. Although no DNA was
found on the victim, the petitioner’s DNA was found on the victim’s underwear. Trial
counsel explained that the DNA expert found twelve out of fourteen “markers” in the DNA
from the victim’s underwear. Trial counsel explained that this “partial profile” was sufficient
to identify the petitioner as the contributor. The petitioner told counsel that he thought more
than one man had sex with the victim that night. Trial counsel opined that proof of other men
having sex with the victim that night would have definitely influenced the jury. However,
there was no evidence of another person’s DNA on the victim or her clothing. Additionally,

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the other men around the victim that night denied having sexual contact with her. Therefore,
trial counsel opined that a defense DNA expert would not have made a difference. Trial
counsel said that the only thing he might have done differently was to have the petitioner
testify at trial.

        Trial counsel stated that he made motions for a judgment of acquittal at the close of
the State’s case-in-chief and the close of all the proof. The trial court denied the motions.
He and the petitioner did not discuss whether to put on defense proof after the denial of the
first motion because they had always anticipated calling the petitioner’s sister and brother to
refute the victim’s testimony. Trial counsel said that he thought the petitioner’s siblings were
“good witnesses.” Trial counsel stated that the sister’s testimony was beneficial because she
testified that the victim said she was going to have sex with someone on the night in
question. However, he noted that the victim denied making that statement. Trial counsel
said that he believed they proved that the petitioner and the victim had consensual sexual
contact but that they did not have intercourse because the petitioner discovered the victim
was menstruating.

        At the conclusion of the hearing, the post-conviction court found that the petitioner
failed to prove that trial counsel was ineffective. The petitioner appeals this ruling.

                                         II. Analysis

       To be successful in his claim for post-conviction relief, the petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.

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       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,

                       [b]ecause a petitioner must establish both prongs of the
              test, a failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance claim.
              Indeed, a court need not address the components in any
              particular order or even address both if the [petitioner] makes an
              insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

       On appeal, the petitioner contends that trial counsel “should have let his case go to the
jury without providing a defense[, thereby] . . . standing on the Motion for Judg[ment] of
Acquittal.” Additionally, the petitioner stated that if trial counsel “hired a DNA expert . . .
the outcome of his case would have been different.”

       Trial counsel testified that there was no proof that the DNA of anyone other than the
petitioner was found on the victim or the victim’s clothes. Trial counsel stated that a DNA
expert would, therefore, not have made a difference. The petitioner did not provide proof
at the post-conviction hearing concerning any DNA evidence. Regarding the decision to
proceed with defense witnesses, the post-conviction court noted that the presentation of
defense witnesses “supported the [petitioner’s] defense” that he was at the party but that he
did not sexually penetrate the victim. Moreover, we note that on direct appeal this court
examined the sufficiency of the evidence and affirmed the petitioner’s rape conviction.
Hammond, No. W2007-00219-CCA-R3-CD, 2008 WL 465278, at *3. The post-conviction
court found that “[t]here is no credible proof to support the claim that [trial counsel] was
deficient in his representation or performance or that his representation or performance
prejudiced the [petitioner] in any way.” Based upon the record before us, we agree with the
post-conviction court that petitioner has failed to show he is entitled to relief.




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                                     III. Conclusion

       In sum, we conclude that the petitioner failed to establish that his trial counsel was
ineffective and that the post-conviction court correctly denied post-conviction relief.




                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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