        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 4, 2015

               MAURICE JOHNSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                          No. 1002315   Chris Craft, Judge


                No. W2014-01982-CCA-R3-PC - Filed August 21, 2015
                         _____________________________

Petitioner, Maurice Johnson, was convicted by a jury of three counts of rape. The trial
court merged Counts 2 and 3 into Count 1 and sentenced petitioner to serve twenty years
at 100% release eligibility. Petitioner timely filed a petition for post-conviction relief,
which was denied by the post-conviction court after an evidentiary hearing. He now
appeals the denial of relief, alleging that the trial court erred in instructing the jury as to
the culpable mental state for rape and that trial counsel rendered ineffective assistance by
failing to object to the same. Following our review, we affirm the judgment of the post-
conviction court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Jason Matthews, Memphis, Tennessee, for the Appellant, Maurice Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Lora Fowler,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                         OPINION

                                           I. Facts

                                          A. Trial
      On direct appeal from his conviction and sentence, this court summarized the facts
developed at petitioner‟s trial as follows:

              The charges against [petitioner], who was in his fifties, arose from
       his acts against the ninety-nine year old victim. [Petitioner] considered the
       victim to be like a grandmother to him, having known her since he was a
       child when his mother married one of the victim‟s sons.

              [J.B.],1 the victim‟s son, testified that at the time of the crime in
       October, 2009, his mother was supposed to be living alone in Memphis;
       however, for several years [petitioner] had stayed with her occasionally,
       despite being told by the family that they did not want him there. According
       to [J.B.], his mother was unable to cook and clean because of her age and
       health, so he brought the victim all her meals and had the house cleaned.
       [J.B.] was appointed as power of attorney, handled all the victim‟s
       business, and checked on her two to three times daily. He indicated that the
       victim was frail and used a walker to get around.

              On October 4, 2009, [J.B.] went to the victim‟s home around 10 a.m.
       to give her medication before going to church. After church, he returned to
       the victim‟s home and was let in by [petitioner] because the victim was still
       in bed. However, the victim told [J.B.] that she wanted to talk to both him
       and [petitioner]. The victim then stated that [petitioner] had been forcing
       her to have sex and had told her that he would kill her if she told anyone.
       Based upon her disclosure, [J.B.] immediately called the police. Prior to
       leaving the home, [petitioner] told [J.B.] that the victim had gotten hurt
       when he was “wrestling” with her. The victim was subsequently taken to
       the Rape Crisis Center where an examination was conducted.

              A forensic nurse performed a physical examination of the victim and
       collected a rape kit. During the pelvic examination, the nurse was unable to
       use the speculum to collect the evidence from the victim because she
       suffered from introitus stenosis, which is a narrowing of the vaginal
       opening which occurs with age. The nurse did not observe any bruising,
       tearing, or lacerations in the genital area, which, in her opinion, made it
       impossible to confirm or negate the possibility of sexual assault. However,
       as the nurse began to spread open the vaginal lips in order to collect the
       samples, the victim complained that she was uncomfortable and that the
       nurse was “poking around” in her vagina “like [petitioner] with his peter.”

       1
          Consistent with this court‟s policy of protecting the privacy of victims of sexual abuse,
we will refer to the victim‟s immediate family members by their initials, also.
                                               -2-
Based on her experience, the presence of sperm inside the vaginal vault and
the victim‟s complaint of vaginal pain indicated penile penetration had
occurred.

       Officer Charles Lowrie of the Memphis Police Department was
dispatched to the home in response to [J.B.]‟s call. When he arrived, he
noted that the victim appeared to be coherent and communicated well with
him. The victim told him that [petitioner] had touched her underneath her
clothes and had “wrestled” with her. When asked if [petitioner] had had sex
with her, the victim responded that “he had been going up inside of her.”
Lieutenant Wilton Cleveland and Sergeant Stephen Cody Wilkerson also
spoke with the victim about the incident. An investigation was conducted at
the victim‟s home, and an alternate light source device revealed the
presence of semen on the victim‟s bed sheets and a pair of her underwear.

        Based upon the comments made by the victim, [petitioner] was
developed as a suspect. After conducting a search for him, [petitioner] was
eventually found in a barber shop. When approached by the officer,
[petitioner] replied, “I was wondering when y‟all were going to come
looking for me.” After being advised of his rights, [petitioner] agreed to
talk to Sergeant Wilkerson. He acknowledged that he had been living with
the victim for over a year and that they slept in separate bedrooms. With
regard to the victim‟s memory problems, [petitioner] indicated that the
victim had forgotten who he was, but had never mistaken him for someone
else. He adamantly denied having any sexual contact whatsoever with the
victim. He did acknowledge that he had “wrestled” with her on one
occasion when she was trying to wrap a coat hanger around a door. When
asked about the rape allegations, [petitioner] simply stared at the floor and
eventually stopped responding to the questions asked. DNA samples were
collected from [petitioner].

       Later testing by the Tennessee Bureau of Investigation revealed the
presence of spermatozoa on the vaginal swabs, and, because of the large
number of sperm found, it was estimated that the sperm was probably
deposited twenty-four to forty-eight hours prior to collection. The DNA
profile found on the vaginal swabs matched [petitioner]‟s DNA profile.

       Based upon these acts, [petitioner] was indicted for three counts of
rape. At the subsequent jury trial, [petitioner] testified and again denied that
he had raped the victim. He acknowledged that he had resided with the
victim, indicating that it was he, not the victim‟s son, who cooked, cleaned,
ran errands, and served as security for the victim. However, he testified
                                      -3-
       that, on the night of the alleged rape, he was not in the home. He indicated
       that the victim had given him money to stay at a boarding house that
       evening because of problems with her son. He continued, however, to state
       that on the evening prior, he had been asleep in his bed and woke up to find
       that the victim, who was naked, had gotten into bed with him. According to
       [petitioner], the victim asked him “can you give me a little bit?” He said
       that he initially refused her request, but he changed his mind because she
       had let him move in with her and he felt obligated to her. However, he
       denied that he had penetrated the victim, claiming instead that the victim
       had masturbated him. He stated that the victim had tried to insert his penis,
       but was unable to do so. He maintained that he had ejaculated on the
       outside of her vagina.

               Because of her advanced Alzheimer‟s disease, the victim was unable
       to testify at the trial. The court declared her unavailable, and evidence was
       introduced through other witnesses accordingly.

               After hearing the evidence presented[,] the jury convicted
       [petitioner] as charged in all counts. The trial court subsequently merged
       counts two and three into count one and sentenced [petitioner], as a
       multiple offender, to twenty years at 100%.

State v. Maurice Johnson, No. W2011-01079-CCA-R3-CD, slip. op. at 1-4 (Tenn. Crim.
App. May 29, 2012). Petitioner did not seek discretionary review by the Tennessee
Supreme Court.

                                   B. Post-Conviction

        Petitioner filed a timely petition for post-conviction relief and, through counsel,
filed two additional amended petitions. The trial court heard testimony over the course of
three evidentiary hearings.

       At the May 6, 2014 evidentiary hearing, petitioner called trial counsel as his first
witness. Trial counsel testified that his representation of petitioner began in November
2009. He recalled that he waived petitioner‟s preliminary hearing and that he met with
petitioner to prepare for the deposition of the victim, which took place at the nursing
home where she resided. He said the victim did not remember petitioner but stated that
she would not have had sexual intercourse with him because “she wasn‟t raised that
way.” He testified that petitioner‟s defense was that the victim wanted to have
intercourse with him and that he felt obligated to do so because she had helped him
financially. However, petitioner decided he could not have intercourse with the victim,
so he masturbated on her instead.
                                            -4-
       Trial counsel testified that he was aware that the mens rea requirement for rape as
codified in the Tennessee Code Annotated was intentionally or knowingly and that he did
not recall whether recklessly was included in the definition. He acknowledged that at the
time of trial, he was not aware of the State v. Weltha Womack case to which post-
conviction counsel referred and that he did not know at the time to object to the trial
court‟s jury instruction that included recklessly in the mens rea definition.2 Upon further
questioning, trial counsel stated that he did not think the jury believed petitioner‟s version
of the events, i.e., that the rape was “reckless.”

        Petitioner then testified on his own behalf and said that he did not think that trial
counsel‟s representation of him was “effective enough.” Specifically, petitioner said that
trial counsel failed to subpoena petitioner‟s brother as a witness, failed to verify DNA
testing, and failed to hire an investigator. Petitioner claimed that trial counsel “tricked”
him into waiving his preliminary hearing. He said that trial counsel advised against his
testifying but that he wanted “to tell the truth” about what had happened.

       At the June 25, 2014 hearing, petitioner presented his brother, James Culp, as a
witness, who testified that he was the victim‟s grandson. He stated that he attempted to
discuss petitioner‟s case with trial counsel and that trial counsel would not provide him
with any information. He said that at trial, counsel became “sarcastic” with him because
he could not understand the results of the DNA test and that they “began to exchange
words” outside the courtroom. Because of this, Mr. Culp did not believe that trial
counsel provided petitioner adequate representation.

        On July 9, 2014, petitioner was recalled and testified that he was unaware that the
victim had given a statement to a detective prior to trial. The State recalled trial counsel
who testified that he provided petitioner with a full copy of the discovery he received.
Trial counsel also listed the factors he considered when waiving the preliminary hearing.
First, the victim‟s home had been burglarized, and she had been severely injured and
hospitalized for some time, thus necessitating a delay in the hearing. Second, the State
agreed to provide him with discovery prior to presenting the case to the grand jury. Third,
trial counsel said that as a matter of strategy, he preferred not to have the victim‟s sworn
testimony recorded so that it could be played back at a later time if necessary. Trial
counsel said that petitioner understood the reasons why he waived the preliminary
hearing.



       2
           At this juncture, a colloquy between post-conviction counsel and the court occurred
during which the court clarified that “recklessly” was included in the statute and the pattern jury
instructions and that the Weltha Womack decision was an unpublished opinion from this court.
                                               -5-
       The post-conviction court denied relief by written order dated September 2, 2014.
This appeal follows.

                                        II. Analysis

        In this appeal, petitioner raises two issues: (1) whether the trial court erred in
including “recklessly” in the mens rea requirement for rape and (2) whether trial counsel
provided ineffective assistance by failing to object to the trial court‟s jury instructions in
this regard. Specifically, he argues that State v. Weltha Womack, No. E2003-02332-
CCA-R3-CD, 2005 WL 17428 (Tenn. Crim. App. Jan. 4, 2005), overruled by State v.
Clark, 452 S.W.3d 268, 296 (Tenn. 2014), which stands for the proposition that
“reckless” should not generally be charged to the jury in aggravated rape cases, operates
to his advantage.

                                  A. Standard of Review

       To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of
proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann.
§ 40-30-110(f). “„Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.‟”
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).

        Appellate courts do not reassess the post-conviction court‟s determination of the
credibility of witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing
R.D.S. v. State, 245 S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of
witnesses is a matter entrusted to the post-conviction judge as the trier of fact. R.D.S.,
245 S.W.3d at 362 (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). The post-
conviction court‟s findings of fact are conclusive on appeal unless the preponderance of
the evidence is otherwise. Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim. App. 2011)
(citing 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)). However, conclusions of law receive no
presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001)). As a mixed question of law and fact, this court‟s review of petitioner‟s
ineffective assistance of counsel claims is de novo with no presumption of correctness.
Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

       The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and article I, section 9 of the Tennessee
                                             -6-
Constitution require that a criminal defendant receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose,
523 S.W.2d 930 (Tenn. 1975)). When a petitioner claims that he received ineffective
assistance of counsel, he must demonstrate both that his lawyer‟s performance was
deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984); Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007) (citation
omitted). It follows that if this court holds that either prong is not met, we are not
compelled to consider the other prong. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn.
2004).

       To prove that counsel‟s performance was deficient, petitioner must establish that
his attorney‟s conduct fell below an objective standard of “„reasonableness under
prevailing professional norms.‟” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202
S.W.3d 106, 116 (Tenn. 2006)). As our supreme court held:


      “[T]he assistance of counsel required under the Sixth Amendment is
      counsel reasonably likely to render and rendering reasonably effective
      assistance. It is a violation of this standard for defense counsel to deprive a
      criminal defendant of a substantial defense by his own ineffectiveness or
      incompetence. . . . Defense counsel must perform at least as well as a
      lawyer with ordinary training and skill in the criminal law and must
      conscientiously protect his client‟s interest, undeflected by conflicting
      considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial
counsel‟s performance, this court “must make every effort to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel‟s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689).

        To prove that petitioner suffered prejudice as a result of counsel‟s deficient
performance, he “must establish a reasonable probability that but for counsel‟s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A „reasonable probability is a probability sufficient to
undermine confidence in the outcome.‟” Id. (quoting Strickland, 466 U.S. at 694). As
such, petitioner must establish that his attorney‟s deficient performance was of such
magnitude that he was deprived of a fair trial and that the reliability of the outcome was
called into question. Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463
(Tenn. 1999)).

      B. Whether the Trial Court Erred in Including “Recklessly” in the Mens Rea
                                           -7-
                       Requirement for Rape in the Jury Instructions

       The Post-Conviction Procedure Act states, “Relief under this part shall be granted
when the conviction or sentence is void or voidable because of the abridgment of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. However, a ground for relief may be waived if:

       (g)    the petitioner personally or through an attorney failed to present it
              for determination in any proceeding before a court of competent
              jurisdiction in which the ground could have been presented unless:

              (1)    The claim for relief is based upon a constitutional right
                     not recognized as existing at the time of trial if either
                     the federal or state constitution requires retroactive
                     application of that right; or

              (2)    The failure to present the ground was the result of state
                     action in violation of the federal or state constitution.

Id. § 40-30-106. Our supreme court has recognized waiver in the context of failure to
give particular jury instructions. See Wiley v. State, 183 S.W.3d 317, 327 (Tenn. 2006)
(recognizing that appellant was entitled to a jury instruction on second degree murder and
the trial court was obligated to give it regardless of whether it was requested but that the
trial court‟s error could have been raised on direct appeal but was not; thus, the issue was
waived for post-conviction consideration). Likewise, because petitioner‟s issue could
have been raised at trial, at a motion for new trial, or on direct appeal, we conclude that it
is waived for post-conviction review.

     C. Whether Trial Counsel Provided Ineffective Assistance by Failing to Object
              to the Trial Court‟s Jury Instructions in this Regard

        However, this issue may still be considered in the context of whether trial counsel
rendered ineffective assistance by failing to object to the trial court‟s jury instruction.
Both the United States and the Tennessee Constitutions guarantee a right to trial by jury.
U.S. Const. amend. VI; Tenn. Const. art. I, 6; Bryant v. State, --- S.W.3d---, 2015 WL
1137755, at *6 (Tenn. Mar. 13, 2015). This includes the “right to a complete and correct
charge of the law, so that each issue of fact raised by the evidence will be submitted to
the jury on proper instructions.” Bryant, 2015 WL 1137755, at *6 (quoting State v.
Dorantes, 331 S.W.3d 370, 390 (Tenn. 2011)); see Tenn. R. Crim. P. 30. “As part of
their instructions in criminal cases, trial courts must describe and define each element of
the offense or offenses charged.” Clark, 452 S.W.3d at 295 (citing State v. Faulkner, 154
S.W.3d 48, 58 (Tenn. 2005); State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989)).
                                             -8-
       Although the jury instruction was not included in the record, the post-conviction
court cited it in the order denying relief. According to the order, the trial court instructed
the jury as follows:

       Count 1:      For you to find the defendant guilty of this offense, the State
                     must have proven beyond a reasonable doubt the existence of
                     the following essential elements:

              (1)    that the defendant had unlawful sexual penetration of the
                     alleged victim;

                     and

              (2)    that force or coercion was used to accomplish the act;

                     and

              (3)    that the defendant acted either intentionally, knowingly, or
                     recklessly.

       Count 2:      For you to find the defendant guilty of this offense, the State
                     must have proven beyond a reasonable doubt the existence of
                     the following essential elements:

              (1)    that the defendant had unlawful sexual penetration of the
                     alleged victim;

                     and

              (2)    that the sexual penetration was accomplished without the
                     consent of the alleged victim and the defendant knew, or had
                     reason to know, at the time of the penetration that the alleged
                     victim did not consent;

                     and

              (3)    that the defendant acted either intentionally, knowingly, or
                     recklessly.




                                             -9-
       Count 3:      For you to find the defendant guilty of this offense, the State
                     must have proven beyond a reasonable doubt the existence of
                     the following essential elements:

              (1)    that the defendant had unlawful sexual penetration of the
                     alleged victim;

                     and

              (2)    that the defendant knew, or had reason to know, that the
                     alleged victim was mentally defective, mentally incapacitated
                     or physically helpless;

                     and

              (3)    that the defendant acted either intentionally, knowingly, or
                     recklessly.

The Clark opinion made clear that “[n]ot every statutory crime contains a specific
required mental state.” 452 S.W.3d at 295; see State v. Page, 81 S.W.3d 781, 786 (Tenn.
Crim. App. 2002) (noting that culpable mental states are generally defined by criminal
statutes). To that end, the Tennessee Code contains a generic mens rea statute: generally,
whenever a statutory offense does not specify a culpable mental state, then “intent,
knowledge, or recklessness suffices to establish the culpable mental state.” Id. (quoting
Tenn. Code Ann. § 39-11-301(c)).

       The Clark opinion also noted a split among panels of this court regarding whether
“reckless” should be charged to the jury in cases involving rape of a child, see, e.g., State
v. Johnny Lynn, No. M2008-00532-CCA-R3-CD, 2009 WL 1812419, at *5 (Tenn. Crim.
App. June 25, 2009) (acknowledging a split of authority regarding the mens rea for rape
of a child), perm. app. denied (Tenn. June 19, 2012); State v. Charles L. Williams, No.
M2005-00836-CCA-R3-CD, 2006 WL 3431920 (Tenn. Crim. App. Nov. 29, 2006) (split
opinion concerning rape of a child). Clark, 452 S.W.3d at 295. However, opinions of
this court seem to be in unison on instructing the jury on intentional, knowing, and
reckless for rape. See State v. Albert C. Scott, No. M2012-01137-CCA-R3-CD, 2013 WL
3329093, at *8 (Tenn. Crim. App. June 28, 2013) (citing with approval Tennessee Code
Annotated section 39-13-503‟s definition of rape as “the unlawful sexual penetration of
the victim, committed intentionally, knowingly, or recklessly, and accompanied by: (1)
force or coercion; or (2) without the consent of the victim; or (3) the defendant‟s
knowledge or reason to know that the victim is mentally defective, mentally incapacitated
or physically helpless”); see also State v. Jones, 889 S.W.2d 225, 230 (Tenn. 1994)
(holding that the statutory language requires that in rape cases, “intentional,” “knowing,”
                                            -10-
and “reckless” all should have been charged to the jury). Thus, because the trial court
gave an instruction that was consistent with the law, trial counsel did not error by failing
to object to it.

        We further note that the trial court instructed the jury in accordance with the
Tennessee Pattern Jury Instructions. See T.P.I. 10.02 (pattern jury instruction for rape).
“While the pattern jury instructions are frequently used as a source for jury instructions in
criminal cases, State v. Davis, 266 S.W.3d 896, 901 n.2 (Tenn. 2008), they are not
entitled to greater deference than the other instructions given by the trial court, see State
v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (quoting State v. Rimmer, 250 S.W.3d 12,
30 (Tenn. 2008)).” Clark, 452 S.W.3d at 295. Nonetheless, case law consistently grants
deference to trial counsel when the failure to object to a jury instruction is grounded upon
the trial court‟s instructing the jury in accordance with the pattern jury instructions. See
Torrey L. Frazier v. State, No. E2012-01751-CCA-R3-PC, 2013 WL 5964011, at *11
(Tenn. Crim. App. Nov. 6, 2013), perm. app. denied (Tenn. May 14, 2014) (concluding
that because the trial court gave the second degree murder instruction reflected in the
Pattern Jury Instructions, trial counsel were not deficient for failing to object);
Christopher A. Davis v. State, No. M2010-01045-CCA-R3-PD, 2012 WL 3679571, at
*40 (Tenn. Crim. App. Aug. 24, 2012) (concluding that trial counsel was not ineffective
for failing to object to jury instructions on felony murder and criminal responsibility that
“mirrored the Tennessee Pattern Jury Instructions”). We cannot conclude that trial
counsel performed ineffectively in failing to object to the trial court‟s instruction.
Petitioner is not entitled to relief.

                                     CONCLUSION

       Based on our review of the record, the briefs of the parties, and the applicable
legal authorities, we affirm the judgment of the post-conviction court.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




                                            -11-
