         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE         FILED
                          JUNE 1998 SESSION
                                                   August 28, 1998

                                                 Cecil W. Crowson
                                                Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )    NO. 01C01-9705-CR-00166
      Appellee,                   )
                                  )    DAVIDSON COUNTY
VS.                               )
                                  )    HON. J. RANDALL WYATT, JR.,
CHARLES B. TREADWELL,             )    JUDGE
                                  )
      Appellant.                  )    (Aggravated Assault, Simple
                                  )    Assault and Stalking)



FOR THE APPELLANT:                     FOR THE APPELLEE:

F. THOMAS GIAMBATTISTA                 JOHN KNOX WALKUP
(At Trial)                             Attorney General and Reporter
1008 17th Avenue, S.
Nashville, TN 37212                    DARYL J. BRAND
                                       Assistant Attorney General
JOHN T. CONNERS, III                   Cordell Hull Building, 2nd Floor
(On Appeal)                            425 Fifth Avenue North
P.O. Box 1451                          Nashville, TN 37243-0493
Franklin, TN 37065-1451
                                       VICTOR S. JOHNSON, III
                                       District Attorney General

                                       STEVE R. DOZIER
                                       Assistant District Attorney General
                                       Washington Square, Suite 500
                                       222 Second Avenue, North
                                       Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                           OPINION



       The defendant, Charles B. Treadwell, was convicted by a Davidson County

jury of one (1) count of aggravated assault, one (1) count of simple assault and one

(1) count of misdemeanor stalking.             He was sentenced to five (5) years for

aggravated assault and eleven (11) months and twenty-nine (29) days each for

simple assault and stalking. On appeal, he brings the following issues for this

Court’s review:

       (1)       whether the evidence is sufficient to support his
                 convictions;

       (2)       whether he was denied his right to a unanimous jury
                 verdict on the stalking offense; and

       (3)       whether he was denied effective assistance of trial
                 counsel.

After a thorough review of the record before this Court, we find no error.

Accordingly, the judgment of the trial court is affirmed.



                                            FACTS



       In late 1994, S.L.,1 who was thirteen (13) years of age, met the defendant,

who was thirty-one (31) years of age, and the two became friends. According to

S.L., their relationship started out as friendship, but eventually turned into

“something more.” They wrote letters to each other, talked on the telephone, and

S.L. reported that they kissed and “held hands.”

       In early February 1995, Linda Lawson, S.L.’s mother, learned of her

daughter’s relationship with the defendant. Lawson confronted defendant and told

him to stay away from her daughter. However, defendant and S.L. continued the

relationship.

       In March 1995, while S.L. was speaking with defendant on the telephone,

she told defendant that she had an argument with her mother that evening.



       1
           It is the policy of this Court not to reveal the names of minor victims.

                                               2
Defendant became incensed and told S.L. that he would kill her mother.

Defendant’s anger frightened S.L., and she told defendant that she wanted to end

their relationship.

       On April 4, Lawson was driving Mary Maloney2 to school when she noticed

defendant following her very closely in his car. Lawson pulled into a gas station

parking lot, and defendant pulled in behind her. When Lawson exited her car and

walked to the pay phone, defendant followed her. Defendant then raised up his

shirt, revealing the butt of a gun and said, “bitch, when I see you out by yourself, I’ll

shoot you.” Lawson testified at trial that she was “very scared” and thought that

defendant might shoot her “right then and there.” Defendant then returned to his

car and drove away.

       On April 12, Lawson’s sister, Barbara Smith, took S.L. and some friends to

a local Taco Bell. Smith and S.L.’s sister, Amanda Tenpenny, were waiting outside

in the car while the other girls were ordering their food. Defendant and a friend

drove into the parking lot, and Tenpenny pointed him out to Smith. S.L. and the

other girls testified that defendant walked into the restaurant and began screaming,

cursing and wildly waving his arms. Because Smith knew about defendant’s

relationship with her niece, she walked inside the restaurant and asked defendant

to leave S.L. alone. Defendant retorted, “I want [S.L.]. If you don’t get out of my

way, I’ll blow your f ing brains out.” Smith testified that she was terribly frightened

because she was aware of defendant’s previous threats to kill her sister. Smith and

the young girls left the restaurant soon thereafter.

       On May 5, S.L. was on the playground at her school when she noticed

defendant’s car parked on the street beside her school. Defendant lowered his

window and stared at S.L. When defendant began talking to her, she jumped onto

a fence to get away from defendant, and defendant drove away. S.L. immediately

reported this to school authorities, and the police were summoned.

       On May 23, S.L. went to Shelby Park after school with her cousin and some



       2
         As an occupation, Lawson provided care for young children. Maloney was one of
the children under Lawson’s care and was twelve (12) years old at the time of trial.

                                           3
friends. Once again, she noticed defendant’s car nearby. When defendant realized

that the children had spotted him, he sped away in his car.

       On the night of May 25, defendant repeatedly drove up and down the street

“all night” in front of S.L.’s home. Although S.L. was in her room most of the

evening, she recognized the car from her window and identified it as being the

defendant’s.

       As a result of the May incidents, S.L. testified that she suffered from

nightmares, fearing that defendant was in her house.               S.L. had dreams that

defendant was trying to “get us.” S.L. was afraid that defendant might kill her or her

mother.

       The defendant’s father (Treadwell) testified for the defense. He stated that

on April 4, defendant was at his home all day assisting him paint his house.

Treadwell testified that defendant’s car was not working on that day, so he could not

have been following Lawson in his car.

       Treadwell further testified that on May 5, he saw the defendant at the post

office with a friend around the same time defendant was alleged to have been

watching S.L. at her school. Treadwell also stated that defendant was at home all

day on both May 23 and 25.3

       Jim Liner, a friend of the defendant, testified for the defense as well. He

stated that he waxed defendant’s car on May 23, and defendant was with him from

approximately 5:00 p.m. to 8:30 p.m.

       The jury returned guilty verdicts for the aggravated assault of Lawson on April

4, the simple assault of Smith on April 12, and stalking S.L. as a result of the

incidents on May 5, May 23 and May 25. Defendant now brings this appeal as of

right pursuant to Tenn. R. App. P. 3.




                          SUFFICIENCY OF THE EVIDENCE


       3
        At the hearing on the motion for new trial, it was established that defendant’s father
was actually mistaken as to defendant’s whereabouts on these days. In fact, defendant
worked eight (8) hours on both days.

                                              4
       In his first issue defendant contends that the evidence is insufficient to

sustain the jury’s finding of guilt on all three offenses. The crux of his argument is

that the predicate acts for the offenses, while arguably offensive, do not constitute

criminal conduct. Therefore, he asserts that even taking the state’s evidence as

true, he is not guilty of a criminal offense.

                                           A.

       When an appellant challenges the sufficiency of the evidence, the standard

of review is whether, after viewing the evidence in the light most favorable to the

state, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn.

1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the strongest

legitimate view of the evidence and all reasonable or legitimate inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

This Court will not reweigh the evidence, reevaluate the evidence, nor substitute its

evidentiary inferences for those reached by the jury. State v. Carey, 914 S.W.2d

93, 95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, great weight is

given to the result reached by the jury. State v. Johnson, 910 S.W.2d 897, 899

(Tenn. Crim. App. 1995).

                                           B.

       In Count One, defendant was charged with the aggravated assault upon

Lawson by the use or display of a deadly weapon. Aggravated assault is defined

as intentionally or knowingly causing “another to reasonably fear imminent bodily

injury” while using or displaying a deadly weapon. Tenn. Code Ann. §§ 39-13-

101(a)(2) (1991), 39-13-102(a)(1)(B) (Supp. 1994).

       On April 4, Lawson noticed the defendant “tailgating” her car. When she

pulled her car into a parking lot, defendant followed her. Defendant got out of his

car, walked to the pay phone where Lawson was standing and began “yelling” at

Lawson. He then raised his shirt, exposing the butt of a gun, and threatened to kill

Lawson.



                                           5
       Defendant argues that his words, “when I see you out by yourself, I’ll shoot

you” was a threat “to take action in the future.” Therefore, it would have been

unreasonable for Lawson to have feared imminent bodily injury. However, Lawson

testified that she was “very scared” by defendant’s actions and thought that

defendant might shoot her “right then and there.” There was sufficient evidence for

a rational trier of fact to conclude that defendant caused Lawson to “reasonably fear

imminent bodily injury” while displaying a deadly weapon.

       This issue is without merit.

                                          C.

       Defendant was charged in Count Two with the simple assault of Smith.

Assault is defined as intentionally or knowingly causing another “to reasonably fear

imminent bodily injury.” Tenn. Code Ann. § 39-13-101(a)(2) (1991).

       There was testimony at trial that on April 12 defendant walked into the Taco

Bell restaurant screaming, cursing and wildly waving his arms. Smith testified that

when she attempted to ask the defendant to leave her niece alone, he responded,

“[i]f you don’t get out of my way, I’ll blow your f ing brains out.”

       Defendant claims that while this response was impolite, this does not

constitute an assault. However, defendant was screaming and cursing loudly in the

restaurant, and Smith was aware of defendant’s previous threats to kill her sister.

Smith testified that she was “just scared he would do something to some of us. I

mean, you know, he’s acting plum crazy.” Smith also stated that defendant was

acting like “a wild man.” The evidence was sufficient for the jury to find that

defendant caused Smith to “reasonably fear imminent bodily injury.”

       This issue has no merit.

                                          D.

       Count Three of the indictment charged the defendant with stalking. Tenn.

Code Ann. § 39-17-315(a) (Supp. 1994) provides as follows:

       (1) [a] person commits the offense of stalking:

              (A) [w]ho repeatedly follows or harasses another person
              with the intent to place that person in reasonable fear of
              a sexual offense, bodily injury or death;



                                           6
              (B) [w]hose actions would cause a reasonable person
              to suffer substantial emotional distress; and

              (C) [w]hose acts induce emotional distress to that
              person.

       (2) As used in this subsection:

              (A) “Follows” means maintaining a visual or physical
              proximity over a period of time to a specific person in
              such a manner as would cause a reasonable person to
              have a fear of a sexual offense, bodily injury or death;

              (B) “Harasses” means a course of conduct directed at
              a specific person which would cause a reasonable
              person to fear a sexual offense, bodily injury, or death,
              including, but not limited to, verbal threats, written
              threats, vandalism, or unconsented-to physical contact;
              and

              (C) “Repeatedly” means on two (2) or more separate
              occasions.

       S.L. testified that on three (3) separate occasions, defendant was watching

her at school, at Shelby Park and at her home. S.L. was thirteen (13) years old, and

defendant was thirty-one (31) years of age. S.L. believed that defendant was

capable of violence in light of his prior threats to kill her mother and his assault upon

her aunt. S.L. began having nightmares that defendant was in her house and

feared for her own safety as well as that of her mother. As a result of these

incidences, S.L. was forced to undergo counseling, and her school work suffered.

       We find that there is sufficient evidence that the defendant “followed” S.L.

repeatedly with the intent to place her in “reasonable fear of a sexual offense, bodily

injury or death.” Furthermore, we also find that defendant’s actions would cause a

reasonable person to suffer emotional distress, and S.L. did suffer emotional

distress as a result of defendant’s actions. The evidence is sufficient to support

defendant’s conviction for stalking.

       This issue is without merit.



                           UNANIMOUS JURY VERDICT



       In his next issue, defendant contends that he was deprived of his right to a

unanimous jury verdict on the offense of stalking. He argues that because the

                                           7
stalking charge involved three alleged instances of conduct, there was a possibility

that the jury was not unanimous as to the occurrence of each instance. He claims

that the trial court should have instructed the jury to “specifically identify each

[stalking] occasion as to which the jury was unanimous as to its occurrence and

then used by the jury to support its conclusion of the Defendant’s guilt of this

offense.”

       The Tennessee Supreme Court recently decided this issue in the case of

State v. Hoxie, 963 S.W.2d 737 (Tenn. 1998). In that case, the defendant claimed

that he was denied his right to a unanimous jury verdict because the state was not

required to elect among incidences of stalking at the close of its proof. The

Supreme Court disagreed, finding that in crimes such as stalking and harassment,

there is no requirement that the state elect which incident of stalking it was relying

upon for a conviction. Id. at 743.

       Although defendant frames his argument in terms of an improper jury

instruction, we are not persuaded that defendant’s argument is distinguishable from

that in Hoxie. Therefore, in accordance with Hoxie, we find no error.



                    INEFFECTIVE ASSISTANCE OF COUNSEL



       In his final issue, defendant contends that he received ineffective assistance

of trial counsel.4 In making this argument, defendant alleges several instances of

ineffective assistance. While arguing that each error prejudiced his case, he also



claims that the cumulative effect of these errors deprived him of the effective

assistance of counsel.

                                     A. Allegations

       At the hearing on the motion for new trial, defendant, represented by newly-

appointed counsel, alleged many errors committed by trial counsel, including failure


       4
         This Court has previously ruled that raising the issue of ineffective assistance of
counsel on direct appeal is a “practice fraught with peril.” Thompson v. State, 958 S.W.2d
156, 161 (Tenn. Crim. App. 1997).

                                             8
to fully develop the defense theory, failure to properly question defendant’s father

on direct examination, denying defendant his right to testify, failure to secure a

photographic line-up of defendant for identification purposes, failure to call alibi

witnesses, and failure to inspect the crime scene.

       In its written order denying the motion for new trial, the trial court found that

defendant received effective assistance of counsel. Further, the trial court found

that defendant had not shown that he was prejudiced by any of the alleged

instances of ineffective assistance. Therefore, the trial court denied the motion for

new trial on the basis of ineffective assistance of trial counsel.

                              B. Standard of Review

       The findings of fact made by the trial court relative to an ineffective

assistance of counsel claim are binding upon this Court unless the evidence in the

record preponderates against these findings. See State v. Anderson, 835 S.W.2d

600, 607 (Tenn. Crim. App.        1992).    Questions concerning the credibility of

witnesses, weight and value to be given their testimony, and factual issues raised

by the evidence are resolved by the trial court. Id. at 607. This Court must not

reweigh or reevaluate the evidence or substitute its inferences for those drawn by

the trial court. Id. The defendant bears the burden of establishing that the evidence

contained in the record preponderates against these findings. Id.

       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner

has the burden to prove that (1) the attorney’s performance was deficient, and (2)

the deficient performance resulted in prejudice to the defendant so as to deprive

him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;

Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d

6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).

       The test in Tennessee in determining whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936. The



                                           9
petitioner must overcome the presumption that counsel’s conduct falls within the

wide range of acceptable professional assistance. Strickland v. Washington, 466

U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn. Crim.

App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).

                                  C. Defense Strategy

          In his first claim of ineffective assistance of counsel, defendant argues that

trial counsel did not fully develop the defense strategy to the jury. Defendant agrees

with trial counsel’s overall defense strategy that (1) the alleged conduct did not

constitute a criminal defense, and (2) defendant had an alibi for many of the dates

in question. However, defendant argues that the state’s witnesses were fabricating

their testimony and trial counsel should have provided the jury with their motivation

to lie.

          Trial counsel testified that he believed that the witnesses’ motivation to

fabricate their testimony was “evident to any reasonable human being, that the

motive was that this woman and her family did not like the idea that a 33-year old

man was either dating or having a romantic relationship with a 13-year old. I mean

that goes without saying.” He stated that the idea of the state’s witnesses lying was

implicit in the defense, and he alluded to that fact in his opening and closing

remarks.

          The trial court found that trial counsel “diligently prepared for trial” and

performed “more than adequately” in his presentation of a defense to the jury.

Moreover, trial counsel’s decision as to how the defense theory is presented to the

jury was a tactical decision and is entitled to great deference. See Goad v. State,

938 S.W.2d at 369. Defendant has not proven that the evidence preponderates

against the trial court’s finding of effective representation. Nor has defendant

established that he was prejudiced by this alleged error.

          This issue is without merit.

                                     D. Key Witness

          Defendant also complains that trial counsel erroneously treated his father as

the “key witness” for the defense. He claims that he himself should have been the



                                            10
“key witness” as to his alibis on the questioned dates, and his father should have

testified to corroborate his story.

       However, as the state correctly points out, Treadwell’s testimony was crucial

in that defendant merely testifying that he was not present on the dates in question

would have carried little weight with the jury. Furthermore, this was a strategical

decision made by trial counsel. This Court is not at liberty to measure trial counsel’s

decisions by “20-20 hindsight.” Hellard v. State, 629 S.W.2d at 9.

       This issue has no merit.

                               E. Father’s Testimony

       Defendant further argues that trial counsel provided ineffective assistance in

his direct examination of Treadwell. Treadwell testified on direct examination that

defendant was at home all day on both May 23 and May 25, when in fact defendant

worked on both days. This testimony was contrary to Treadwell’s testimony at the

preliminary hearing and Treadwell’s statements to counsel prior to the trial where

Treadwell stated that defendant was working on May 23 and May 25. Defendant

claims that trial counsel should have attempted to refresh Treadwell’s memory as

to his prior testimony when he began giving erroneous testimony. Defendant

contends that, as a result, defendant did not testify for fear of contradicting his

father’s testimony.

       At the hearing on the motion for new trial, trial counsel testified that he fully

prepared Treadwell for his testimony. He reviewed Treadwell’s preliminary hearing

testimony with him, including the dates of the offenses and the facts and

circumstances of defendant’s alibi. Although Treadwell erroneously testified as to

defendant’s whereabouts on May 23 and May 25, trial counsel felt that because the

jury was not aware of defendant’s actual whereabouts, there was no reason to

attempt to correct Treadwell’s mistake by refreshing his memory. Trial counsel felt

that refreshing Treadwell’s memory would, in effect, impeach his testimony.

       The trial court found no ineffective assistance in trial counsel’s direct

examination of defendant’s father. The trial court stated that trial counsel “acted in

the manner he deemed appropriate and in the petitioner’s best interest under the



                                          11
circumstances presented to him at the time.” This Court will not second guess a

strategic decision made by trial counsel to be in the best interest of his client at the

time. Defendant has not shown that the evidence preponderates against the trial

court’s finding of effectiveness on this issue, nor has he demonstrated prejudice.

        This issue has no merit.

                         F. Defendant’s Failure to Testify

        In a related issue, defendant asserts that he was effectively denied his right

to testify due to the foregoing error. As defendant was deciding whether to testify,

trial counsel warned him not to alter his testimony to “match” his father’s testimony

as to the erroneous facts. Trial counsel explained to him that, as an officer of the

court, he could not allow defendant to offer perjured testimony. Defendant argues

that trial counsel’s warning that he would notify the court of defendant’s perjury

“destroyed the attorney-client trust or bond . . . and effectively denied the Defendant

his right to testify.”

        Trial counsel testified that he did not believe that it was in defendant’s best

interest to testify. Counsel felt that the major points of the defense theory had been

brought before the jury through the state’s witnesses and defendant’s father. He

felt that defendant’s case would be harmed if defendant were to contradict his father

on the witness stand. Furthermore, trial counsel was concerned that defendant

would simply attempt to align his testimony with that of his father. Counsel testified

that he was not accusatory in his warning, but merely informed defendant “[j]ust so

he knew that if he was thinking about doing that, that there are repercussions.”

        The trial court found that trial counsel made an “informed and reasonable

recommendation” to the defendant not to testify. Further, because defendant

placed the decision of whether he would testify in his attorney’s hands, the trial court

found that defendant was not denied his right to testify.

        Defendant has not shown that the evidence preponderates against the trial

court’s finding that trial counsel’s recommendation to defendant not to testify was

informed and reasonable. Once again, this was a strategic decision which this

Court may not second guess.



                                          12
       Moreover, we note that trial counsel was under an ethical duty to dissuade

his client from offering perjured testimony. “In the representation of a client, a

lawyer shall not . . [k]nowingly use perjured testimony or false evidence.” Sup. Ct.

Rule 8, DR 7-102(A)(4). “A lawyer who receives information clearly establishing that

. . . [t]he client has, in the course of the representation, perpetrated a fraud upon a

person or tribunal, shall promptly call upon the client to rectify the same, and if the

client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected

person or tribunal, except when the information is protected as a privileged

communication.” Sup. Ct. Rule 8, DR 7-102(B)(1).

       We conclude that the defendant chose not to testify after deferring to trial

counsel’s judgment. Moreover, this choice was not tainted by trial counsel’s caveat

of the consequences of offering perjured testimony.

       This issue has no merit.

                             G. Photographic Line-up

       Defendant further alleges that trial counsel was ineffective for failing to

request that Mary Maloney be required to view a photographic line-up to determine

whether she could identify defendant as the man who assaulted Lawson on April

4. Defendant contends that Maloney’s testimony might have excluded defendant

as the man who assaulted Lawson, thus bolstering defendant’s theory that Lawson

was fabricating her testimony.

       There is no evidence in the record as to whether Maloney would have

identified defendant.    Therefore, defendant cannot demonstrate that he was

prejudiced by this alleged error. See Black v. State, 794 S.W.2d 752, 757-58

(Tenn. Crim. App. 1990).

       This issue has no merit.

                   H. Failure to Cross-Examine Mary Maloney

       Similarly, defendant argues that trial counsel provided ineffective assistance

for failing to cross-examine Mary Maloney at trial. He claims that “[t]he potential

benefit [of cross-examination] could have been significant if the witness had

identified someone else or was not able to identify the Defendant.”


                                          13
         Maloney was not called to testify at the hearing on the motion for new trial,

and there is no evidence in the record as to what “beneficial” testimony trial counsel

could have elicited on cross-examination. This Court cannot speculate as to what

the witness’ testimony would have been on cross-examination. See Black v. State,

794 S.W.2d at 757-58.

         This issue is without merit.

                                I. Witness Bloodworth

         Defendant also argues that trial counsel rendered ineffective assistance by

failing to call Robert Bloodworth as a witness at trial. Defendant claims that

Bloodworth could support his alibi for May 5 and could additionally support the

defense theory on Lawson and her family’s motivation to fabricate their testimony.

         Trial counsel testified that he attempted to locate Bloodworth on many

occasions. Defendant did not provide him with Bloodworth’s phone number or exact

address, but merely the street name. Trial counsel instructed defendant to do

whatever he could to locate Bloodworth and have Bloodworth call trial counsel.

However, Bloodworth never contacted him. Furthermore, Bloodworth had a capias

out on him during the time of trial which was not served until after the conclusion of

trial.

         The trial court found that trial counsel made a diligent effort to locate

Bloodworth, but to no avail. Therefore, trial counsel was not ineffective for failing

to call this witness at trial.5      Defendant has not shown that the evidence

preponderates otherwise.

         This issue has no merit.

                               J. Employment Records

         Defendant further complains of trial counsel’s failure to obtain defendant’s

employment records for May 23 and May 25, which establish that defendant worked

on both days. He claims that these records would corroborate his alibi that he was

not near S.L. on those dates.


         5
        Although Bloodworth testified at the hearing on the motion for new trial that
defendant was with him during the afternoon of May 5, it is noteworthy that he and defendant
were co-defendants in a pending criminal prosecution at the time of trial.

                                            14
       Trial counsel stated that he attempted to contact the defendant’s supervisor,

but was not able to get in touch with her. He also testified that defendant never

informed him that he was employed through a temporary service, which is where the

records were obtained.

       Regardless, defendant cannot show that he was prejudiced by his attorney’s

failure to secure his employment records. The records indicate that defendant left

work at 3:30 p.m. on both May 23 and May 25. The May 25th incident was alleged

to have taken place at night. Therefore, the employment records would not serve

as alibi evidence on May 25. Furthermore, although there was testimony that the

May 23 incident occurred around 3:00 p.m., S.L. testified that it was dusk when she

saw the defendant lurking nearby. Because defendant’s employment records do

not affirmatively establish an alibi for either date, defendant cannot prove prejudice.

       This issue has no merit.

                                  K. Witness Duke

       Defendant also maintains that trial counsel was ineffective for failing to call

his auto mechanic, Russell Duke, to testify at trial. Defendant contends that Duke’s

testimony would show that defendant’s car was inoperable on April 4, thus

supporting defendant’s alibi defense.

       Attached to the motion for new trial was an affidavit signed by Duke which

stated that defendant’s automobile was in extremely poor condition on April 3, 1995.

Duke further attested that he changed the transmission fluid in defendant’s car on

that day and, by changing the fluid, there was a “concern that the transmission

would shut down completely.”

       However, there is nothing in Duke’s affidavit to support the assertion that

defendant’s automobile was completely inoperable on April 4. Therefore, defendant

is not able to demonstrate prejudice.

       This issue has no merit.

                                  L. Crime Scenes

       In his next allegation of ineffective assistance of counsel, defendant claims

that trial counsel erroneously failed to inspect the crime scenes. He argues



                                          15
generally that inspection of the crime scenes would have assisted trial counsel in

his cross-examination of the state’s witnesses.

          However, defendant does not indicate what favorable testimony could have

been elicited had trial counsel inspected the crime scenes. As such, he cannot

show that he was prejudiced by this alleged failure.

          This issue is without merit.

                                  M. Cumulative Errors

          Finally, defendant argues that the cumulative effect of the foregoing errors

effectively deprived defendant of his right to ineffective assistance of counsel.

However, because we find no error, we must respectfully disagree. The trial court

found that trial counsel’s representation was well within the competence mandated

by Baxter and Strickland. This Court sees no reason to disturb the trial court’s

ruling.

          This issue has no merit.




                                      CONCLUSION



          The evidence is sufficient to sustain the jury’s findings of guilt for defendant’s

convictions for aggravated assault, simple assault and stalking. Furthermore, the

defendant was not denied his right to a unanimous jury verdict for the stalking

conviction. Moreover, defendant has not proven that the evidence preponderates

against the trial court’s finding that he received effective assistance of counsel at

trial. Accordingly, the judgment of the trial court is affirmed.




                                                      JOE G. RILEY, JUDGE



CONCUR:

                                              16
CURWOOD WITT, JUDGE




LEE MOORE, SPECIAL JUDGE




                           17
