Jerome Martin Wray vs. State

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED OCTOBER SESSION, 1999 March 31, 2000 Cecil Crowson, Jr. Appellate Court Clerk JEROME MARTIN WRAY, Appe llant, V. STATE OF TENNESSEE, Appellee. ) ) ) ) ) ) ) ) ) ) C.C.A. NO. 01C01-9807-CR-00298 M1999-01200-CCA-R3-CD DAVIDSON COUNTY HON. WALTER C. KURTZ, JUDGE (POST -CON VICTIO N) FOR THE APPELLANT: FOR THE APPELLEE: DAVID L. RAYBIN Hollins, Wagster & Yarbrough, P.C. 424 Church Street, Suite 2210 Nashville, TN 37219 PAUL G. SUMMERS Attorney General & Reporter ELIZABETH T. RYAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 VICTO R S. JO HNS ON, III District Attorney General DIANE LANCE Assistant District Attorney General Washington Square, Suite 500 222 2nd Avenue North Nashville, TN 37201-1649 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION Petitioner Jerome M artin Wra y appeals as of right from the dism issal of h is post-conviction petition by the Davidson County Criminal Court. Petitioner raised numerous issues in his petition for post-con viction relief. After an evidentiary hearing the post-conviction court denied the petition in a written order. On appe al, Petitioner now a lleges th at the post-conviction court erred in its determination of eight issues. Specifically, Petitioner argues: (1) (2) (3) (4) (5) (6) (7) (8) Petitioner s trial counsel was ineffective because trial counsel failed to properly research the law, discover our Supr eme Cour t s grant of perm ission to app eal in State v. John Rickman, C.C.A. No. 03-C01-9211-CR-00393, 1993 W L 1717 06, Brad ley Cou nty (Tenn. Crim. App ., Knoxville, May 18, 199 3), and utilize the grant of appe al in Pe titioner s motion for new trial as a basis for excluding evidenc e of unch arged s exual m iscondu ct; Petition er s counsel on direct appeal was ineffective for the same reason in issue (1) at the time appellate counsel filed an ame nded motio n for a n ew trial; Petition er s counsel on direct appeal was ineffective because appellate counsel failed to properly research the law after our Supreme Court s opinion in State v. Rickman, 876 S.W.2d 824 (Tenn. 1994), failed to discover the Rickman opinion, and did not use Rickman as grou nds for a claim on direct app eal; Petition er s trial counsel was ine ffective because counsel did not request a limiting instruction to address evidence of uncharged sexual m iscondu ct; Petition er s counsel on direct appeal was ineffective because appellate coun sel did not rais e a cla im based on the absence of a limiting instruction addressing the evidence of uncharged sexual m iscondu ct; Petition er s trial counsel was ineffective because counsel did not call material witness es to testify for Petitioner. the admission of evidence of uncharged sexual misconduct at trial violated P etitioner s du e proce ss rights; there was a due process violation when th e trial court faile d to give a limiting instruc tion to th e jury re gardin g the evidence of uncha rged se xual misc onduc t. 2 Initially, we hold that issues (7) and (8) are waived because Petitioner did not raise these issues on direct appeal. As to the remaining issues, we hold that Petition er s trial couns el was effe ctive. W e also hold that counsel on direct appeal was effective in issues (2) and (5). Although we hold that Petitioner s counsel on appeal was ineffective in issue (3), we also hold that under the standard set forth in Strickland v. Washington Petitioner cannot show prejudice. Therefore we affirm the judgm ent of the p ost-con viction cou rt. I. Factual Backgrou nd and Pro cedural History On October 23, 1992, a twenty-one count ind ictmen t charge d Petitione r with sex crime s perp etrated again st his son, JW, and stepdaughter, KC. (It is the policy of this Court not to identify minor victims of child abuse. The victims will be referred to by their initials.) The charges related to crimes against K C were later severed. Petitioner therefore went to trial on three counts of aggravated rape, an d six coun ts of aggravated sexual battery. After the State s proof the trial judge granted a judgment of acquittal as to the aggravated rape charges, but not as to the lesser included charge of aggravated sexual battery in ea ch cou nt of aggr avated ra pe. The jury returned a verdict of g uilty on all nine aggravated sexual battery counts, and the trial court se ntence d Petitione r to an effec tive term o f 90 years . Petition er s trial was August 2, 1993, through August 5, 1993. Petitioner was represented at trial by John Rodgers, Sr., and on appeal by Sam Wa llace, Sr. Mr. Rodge rs filed the initial motion for a new trial, which was then a mende d by Mr. Wallace. The motion for new trial was heard on November 18, 1993. Mr. Wallace 3 filed an appea l with this Court, and filed the re cord on April 14, 1994. Mr. Wallace filed Petitione r s appella te brief in this C ourt on J une 15 , 1994. At the tim e of Pe titioner s trial and appeal a direct appeal was also being pursued in State v. John Rickman, C.C.A. No. 03-C01-9211-CR-00393, 1993 WL 171706, Bradley County (Tenn. Crim. App., Knoxville, May 18, 1993) (hereinafter Rickman I). This Court s decision was handed down in May of 1993, and our Suprem e Court granted permission to appeal in Rickman I on August 2, 1993 the same day that P etitioner s trial co mm enced . See id. at *1. Our Sup reme C ourt rendered its decision on April 14 , 1994, an d reverse d this Co urt. See State v. Rickman, 876 S.W .2d 824, 825 (Tenn. 199 4) (hereinafter Rickm an II). John Rickma n was con victed of statutory rape an d incest fo r sexual a cts with his stepda ughter. Id. at 826 . At trial the victim testified to numerous sexual contacts with Rickman other than those for which R ickma n was c harged and co nvicted. Id. The trial court allow ed suc h testimo ny for purp oses o f corrobo ration. Id. Our Suprem e Court observed that there is no sex crimes exception to the e videntiary rule that evidence of other ba d acts is ina dmiss ible to prove action in co nformity therewith. Id. at 829 . The c ourt re verse d Rick man s convictions and remanded the case for a new trial. Id. at 830. The proof presented at Petitioner s trial was ve ry simila r to that p resen ted in Rickman because the primary evidence that the Sta te pres ented of Petitio ner s misconduct was the testimony of the victim there was no physical evidence. Although the indictment charging Petitioner was not date-specific, a bill of particulars 4 narrowed the char ge to incid ents that occurred in 1990 or 1991 in Petitioner s home in Nash ville. The victim s testimony at Petitioner s trial was concise and unembellished. The victim s testimony was corroborated by testimony from the victim s mother and a licensed nurse p ractitioner w ho perfo rmed a physical examination of the victim. The victim s moth er testifie d how the victim informed her of the abuse. The nurse practitioner testified as to the conte nt of sta teme nts m ade b y the vict im regarding the abuse . JW testified that d uring his vis its to Petitioner s home in Nashville, after Petitioner was released from prison, Petitio ner rep eated ly touch ed the victim s genita ls and anus. When asked to estimate the frequency of the abuse, JW guessed appro ximate ly 35 touchings per seven day period. The victim testified first that the Pe titioner w ould put his hand around JW s penis, and touch his anus when Petitioner would co me sa y goodn ight to him . Next, JW testified that P etitioner touched the victim s penis and butt when JW would take a bath. JW also testified that Petitioner mad e the victim touch Petitioner s private sometimes through, and sometimes under Pe titioner s clothing whe n they were in the bathroom, and when they were in the living room together. JW testified that Petitioner would touch the victim s penis when they were in the living room together. Finally, JW testified that the Petitioner w ould m ake him touch P etitioner s pe nis whe n JW would g o into Petitioner s bedro om to say g oodnight to P etitioner. Like Rickman, the State presented evidence regarding sexual misconduct for which Petitioner was not charged. This evidence showed that Petitioner touched the 5 victim sexually when the victim visited Petitioner a t Petitioner s home in W hite Bluff, Tennessee, in the year fo llowing the charge d offenses. The State also presented evidence that was within the charge of the indictment but outside the bill of particulars. This evidence showed that the Petitioner touched the victim sexuall y when the victim c ame to visit Petitioner in prison some time between 1983 and March of 1990. Evidence of the White Bluff and prison conduct was alluded to in the testimony of other witnesses, and referred to by the State both in the State s opening and closing argument. Petitioner s counsel objected to this evidence in a pre-trial motion, but the trial judge ruled that the evidence was admissible. Petition er s coun sel atte mpte d to de fend P etitione r by cha llenging the credibility of the victim a nd the victim s mother. This attempt included testimony from Petitioner, Petitioner s brother Richard Wray, Petitioner s nephew, Richard Lee Wra y, Jr., and Petitioner s then-girlfriend Jennifer Hicks (who is now Petitioner s wife, and answers to Jennifer Wray). Petitioner attempted to show motive on the part of the victim s mo ther to fr ame Petition er. Pe titioner a lso cha llenge d the vic tim s account of events through testimony which contradicted the victim s account of his visit with his father and which showed that the house in which the offenses occurred was extremely small too small for such things to occur without attracting the notice of the other occupants of the house. The grant of permission to appeal in Rickman I was not noticed by Petition er s attorneys at trial or on appeal. There was no request for a limiting instruction regarding the evidence of uncharged sexual misconduct, nor was there a reference to Rickman I in the m otion fo r a new trial. Petitioner s counsel on appeal also failed to discover our Supreme Court s decision in Rickman II. Thus P etitioner s ap pellate 6 brief, filed two m onths a fter our Su preme Court s d ecision, d id not contain any argum ents addressing Rickm an II or the evidence of uncharged sexual miscon duct. After Petitioner s conviction he pursued a direct appeal, which was not succ essfu l. See State v. Jerome Martin Wray, C.C.A. No. 01C01-9404-CR-00139, 1995 WL 11168 7, David son Co unty (Tenn. Crim. App., Nashville, Mar. 15, 1995) perm. to appeal denied (Tenn. 1995). He filed this petition for post-conviction relief on July 9, 1 996. A fter an e videntia ry hearing the post-conviction court denied the petition in a w ritten order . II. Post-conviction Proceeding At Petitioner s post-conviction hearing on May 28, 1998, Petitioner presented the testim ony of twe lve witness es, includ ing that of P etitioner. Mary M. Schaffner, Thomas F. Bloom, and Gregory D. Smith, all attorneys, testified about the standards of representation for attorneys in criminal cases in the state of Ten ness ee. Ea ch on e of the se witn esse s con clude d that a reaso nable attorney would have been awa re of our Sup reme C ourt s grant of perm ission to appeal in Rickman I, and w ould h ave us ed the grant a s a ba sis for a claim in Petition er s motion for new trial. Each expert also opined that a reasonable attorney would have been aware of our Supreme Court s decision in Rickm an II after the decision was rendered, and would have included a Rickm an II-base d claim in Petition er s dire ct app eal. 7 John Rodgers , Sr., Petitioner s attorne y at trial, te stified a t length regard ing his repre senta tion of Petitioner. Rodgers testified that his central trial strategy, given that the only evidence of wrongdoing was the testimony of the child victim, was discrediting the tes timon y of the v ictim and the victim s mother. He testified that he relied extens ively on Petition er s wife (then Petitioner s girlfriend), Jennifer Wray, for assistance in his pre-trial investigation, and also for comm unication with Pe titioner, who was incarcera ted in Morgan County. Mr. Rodgers testified that he came up with a list of witnesses for trial after consulting with Jennifer Wray and that Petition er did not directly give Rodgers any information regarding witnesses. Rodgers acknowledged that he did not call all the persons on his pre-trial witness list to testify at trial. Mr. Rodg ers expla ined his d ecision to call fewer witnesse s as one of strate gy. In the original indictment Petitio ner was charged with offenses against two victims Petitio ner s son, JW , and step daugh ter, KC. Rod gers s ucce eded in severing the offenses and confining the instant trial to those offenses committed against JW. Rodgers also prevailed in a pretrial motion in limine, which prevented the prosec ution from referring to th e offense s agains t KC. However, Rodgers was afraid that his witnesses at trial would slip and refer to the offenses against KC, thereby prejudicing Petitioner. Rodgers felt that the witnesses h e did call were strong witnesses, and that the risk that the other witnesses presented was high as compared to their potential to assist Petitioner s case. He felt that their testimony would not add anything to that which was already presented. Rodge rs also testified that he had no recollection of requesting a limiting instruction regarding the evidence o f uncharged sexual misco nduct. Rod gers stated 8 that he had no knowledge of the grant of permission to appeal in Rickman I at any time during his re presentation o f Petitioner. Sam Wa llace, S r., Petitio ner s attorney on direct appeal, testified that he was retained by petitioner in October of 1993 following Petitioner s trial. Mr. Wallace explained that he filed an amended motion for a new trial, which was heard and overruled. He did not have access to a transcript of the trial proceedings when he filed the amended motion, but he did have the transcript when the motion was heard. Wallace stated that when the motion was heard he knew there was an evidentiary issue at trial regarding evidence of uncharged sexual misconduct. Wallace then perfected an app eal to this C ourt. He testified that he was not aware of the grant of permission to appeal in Rickman I when he filed and argued the motion for a new trial. Wallace also testified that when he filed the appellate brief in Petitioner s case he was not aware of our Supreme Court s decision in Rickm an II, and thus he did not bring a Rickm an II-based challenge to the evidence of uncharged sexual misconduct that was introduced at Petitioner s trial. Mr. Wallace testified that had he been aware of the decision, he would have raised the Rickman issue on direct app eal. Jennifer Wray testified that she assisted John Rodgers, Sr., in preparing Petition er s defense for his trial. She informed Mr. Rodgers about availab le witnesses Brian Carder, Kelly Myer, Monica Charlton, and Carla Hedgecoth, but these persons were no t called to tes tify at trial. She prepared a sketch of the house where the alleged offens es occurred , but Mr. Rodg ers did not use the sketch at trial. Ms. Wray also testified that she m et with Mr. Rodg ers only one time prior to trial, and that to the best of her know ledge , Rod gers o nly met with Petitioner o ne time prior to trial. Finally, she testified that she had no contact with Mr. Rodgers from the time of 9 trial until the sentencing hearing. On cross examination she conceded that she did legal research for Rodgers prior to trial, and assisted Rodgers by interviewing potential witnesses. Brian Keith Carder testified that he lived acros s the s treet fro m Pe titioner in the summ er of 199 0, and tha t his family so cialized w ith Petitioner s family, including JW, the victim. Mr. Carde r testified that h e never s aw Pe titioner mis treat JW . Mr. Carder also stated that he told Jennifer Wray he was available to testify at Petition er s orig inal trial. Carla H edgec oth testified that sh e is Pe titioner s niece , and th at she lived in the house in front of Petitioner s during the summer of 1990. She testified that she was familiar with signs of child abuse, and that she saw none during the time that the victim stayed with Petitioner. She stated that she was ava ilable to testify at Petitioner s original trial, but that she was not contacted by anyone. Monica Maureen Charlton testified that she is Petitioner s sister-in-law, and that she lived in Petitioner s home for approximately eight months in 1990, including the time when the victim came to visit. She testified that she did not have a job and was home during the day and the night. Ms. Charlton testified that the victim slept in the living room on the couc h, but that s he slept in her bed room. She testified that she did not see the Petitioner behave inappropriately towards the victim. Kelly Lynn Myers testified that she is Petitioner s niece. She lived in Petition er s hom e for a w eek in 1990 when the victim was visiting. At that time she was 11 years old. She testified that during that week she slept on the floor of the 10 living room while the victim slept on the couch in the living room, and she did not see Petitioner behave inappro priately towards the victim. She stated that she was availab le to tes tify at Pe titioner s origina l trial. Petitioner testified on his own behalf. He stated that the victim did not visit Petitioner in priso n in 19 90 th e victim s last visit to the prison was during the summer of 1989. III. Analysis In order to o btain pos t-conviction relief a petitioner m ust alle ge tha t his conviction or sentence is void or voidable because of an abrid geme nt of a constitutional right. T.C.A . § 40-30-203. If granted an evidentiary hearing, the petitioner has the burden of proving the allegations by clear and convincing evidence. T.C.A . § 40-30 -210(f). T he trial judg e s findings of fact in a po st- conviction proceeding are afforded the weight of a jury verdict. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim App. 1990). Consequently, this Court is bound by the trial judge s findings of fact unless we conclude that the evidence preponderates against the judgment entered by the post-con viction cou rt. Caruth ers v. State , 814 S.W .2d 64, 67 (T enn. Crim. A pp. 1991). Our examination o f the post-conviction c ourt s decision is con strained by three fundamental rules of appellate review. First, this Court cannot reweigh or reevalu ate the evidence. Nor may this Court substitute its inferences for those drawn by the trial judge. Black, 794 S.W.2d at 755. Second, any questions regarding the credibility of the witnesses, the weight and value to be given to their testimon y, and 11 the factual issues raised by the evidenc e are to b e resolve d by the trial jud ge. Id. Third, Petitioner bears the bu rden o f proof, a nd m ust sh ow wh y the ev idenc e in the record preponderates against the judgment entered by the po st-convictio n court. Id. The above stand ards are m odified when th e claim for relief is ineffective assistance of counsel. In State v. Burns our Supreme Court held that a claim of ineffective assistance of counsel raised on direct appeal is a mixed question of law and fact, and thu s is subjec t to a de novo review. 6 S.W .3d 453, 461 (Tenn. 199 9). In so holding, our Supreme Court made clear that a defendan t alleging ineffective assistance of cou nsel o n direc t appe al mu st prov e his claim by clear and convincing evidence the same standard of proof required of a petitioner bringing the same claim in a post-c onviction p etition. See id. at 461 n.5. W e interpre t Burns as requiring the application of the same legal criteria to all claims of ineffective assistance of cou nsel, re gardle ss of w hethe r a claim is raised on dire ct app eal or in a post-conviction petition. Thus the claims of ineffective assistance of counsel before us are reviewed de novo. Here, Petitioner has raised eight issues on this appeal. In issue number (7) Petitioner allege s that h is due proce ss rights were violated when evidence of uncharged sexual misconduct was admitted at his trial. In issue (8) Petitioner alleges a due process violation when the trial court failed to give a limiting instruction to the jury regarding the evidence of uncha rged se xual misc onduc t. These issues are waived because Petitioner failed to include them on direct appeal. Tenn. Code Ann. § 40-30-206(g) (1997). The remainder of Petitioner s issues are all variations on the theme of ineffective assistance of counsel, and we address each in turn. 12 Petitioner alleges that both his trial and appellate counsel were ineffective, violating his right to co unsel un der the S ixth Ame ndme nt of the United States Constitution, and Article I, § 9 of the Constitution of Tennessee. In determining whether couns el provide d effective a ssistanc e this Co urt must decide whether coun sel s performance was within the range of co mpeten ce dem anded of a ttorneys in criminal c ases. Baxter v. Rose, 523 S.W .2d 93 0, 936 (Ten n. 197 5). To preva il on a claim that his co unsel was ine ffective a petitioner bears the burden of proving two elements: First, that his counsel made errors so serious that he was not functioning as coun sel as gu arantee d by the S ixth Ame ndme nt. Strickland v. Washington, 466 U .S. 668, 6 87 (198 4); Coop er v. State , 849 S.W.2d 744, 747 (Tenn. 1993). This element is proved by sho wing th at cou nsel s repres entatio n fell below an objec tive standa rd of reas onable ness. Strickland, 466 U.S. at 688. Second, the petitioner must prove that he was prejudiced by his counsel s unprofessional errors, such that there is a reasonable probability that, but for coun sel s errors, the result of the proceeding would have been different. Strickland, 466 U .S. at 694 ; Butler v. Sta te, 789 S.W .2d 898 , 900 (T enn. 19 90). When review ing a d efens e attorn ey s actions, this Court may not use 20-20" hindsight to sec ond-g uess coun sel s decisions regarding trial strategy and tactics. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel s alleged errors should be judged at the time they were made in light of all the facts and circums tances. Strickland, 466 U.S . at 690; Cooper 849 S.W.2d at 746. Petitioner alleges six instance s of ineffective assistance. In su b-part A we w ill address together those claims that involve trial and appellate counsel s awareness of Rickman I and Rickm an II. Sub-pa rt B will addre ss the claims of ineffective 13 assistance of counsel regarding the lack of a limiting instruction at trial regarding the admission of evidence of sexua l misco nduc t. Sub- part C will add ress P etitione r s allegation that trial counsel was ineffective because he failed to call material witnesse s on Pe titioner s beh alf. A. Ineffective assista nce of coun sel: failure to raise arguments at trial and on direct appeal based on Rickman I and Rickm an II. Petitioner alleges that his trial and ap pellate attorneys we re ineffective because they failed to take notice of the grant of permission to appeal in Rickman I, 1993 WL 1717 06, an d our S uprem e Cou rt s subsequent ruling in Rickm an II, 876 S.W.2d 824. Petitioner argues that the evidence of non-charged sexual misconduct introduced at Petitioner s trial was admitted in violation of Rickm an II, and that had Rickman II been applied at trial or o n app eal the nece ssary r esult w ould have been a reversal o f Petitioner s conviction . Accord ingly, we now turn to the first prong of Strickland, and a sk if trial and ap pellate co unsel s fa ilure to bring a Rickman-based challenge was objectively unreasonable. (i) Objectively reasonable representation In determ ining if trial and appellate counsel acted reasonably, and within the standard of competency expected of attorneys in criminal cases, it is necessary to briefly discuss the Rickm an II holding and why it is applicable to Petitioner s case. (a) Rickman II and the a dmiss ion of evide nce of u ncharged sexual misconduct Rickman II addressed the sc ope o f Ten ness ee Ru le of Evidence 404, which prohibits the introduction of character evidence, or eviden ce of a character trait, for 14 the purpose of proving action in conformity with the character or trait on a particular occasio n. Tenn.R.Evid. 404(a). The rule s prohibition extends to using evidence of other crim es, wron gs, or acts for the sam e purpo se. Tenn.R.Evid. 404(b). In other words, evidence of other criminal activity cann ot be introd uced s imply to prove that the defendant committed the crime for which he is ch arged . This g enera l rule is base d on th e reco gnition that su ch evid ence easily re sults in a jury imp roper ly convicting a defendant for his or her bad character or apparent propensity or disposition to commit a crime regardless of strength of the evidence concerning the offense on trial. Rickm an II, 876 S.W.2d at 828 (citing Ande rson v. Sta te, 56 S.W.2d 731 (Tenn. 1933)). Evidence of other crimes may be adm itted, ho weve r, if it is relevant to som e matter at issue in the case at trial, and if the pro bative value of the evidenc e is not ou tweighe d by the p rejudicial effe ct upon the defen dant. Tenn.R.Evid. 404(b); State v. Bunch, 605 S.W.2d 227, 229 (Tenn. 1980). Thus evidence of other crimes may be admitted to prove (1) identity, including motive or common scheme or plan, (2) inten t, and (3 ) to rebu t a claim of mis take o r accid ent if such is raised a s a defen se. State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996) (citing Tenn .R.Evid. 4 04, Adv isory Com m n C omm ents; State v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985)). In Rickman II our Supreme Court rejected an interpretation of Rule 404 that created an exception to the rule for sex crimes. 876 S.W.2d at 827-29. Instead, the court reaffirmed its prior holdings that evidence of sexual misconduct is subject to the sam e eviden tiary rules as non-se xual misc onduc t. See id. at 829. In so holding, however, the court clarified that evidence of sexual misconduct may be adm issible beca use it is relevant when (1) the in dictm ent is not time-specific, and (2) the evidence relates to sex crimes that allegedly occurred within the time frame 15 charged by the indic tment. Id. This special rule is balanced by the requirement that the State elect, at the conclusion of the State s proof, as to the particular incident for which a conviction is sough t. Id. Thus the introduction of other incidents of sexual crimes occurring within the indicted period requires an election of offenses; otherwise the intro ductio n of oth er sexu al crim es ou tside th e indic ted pe riod, or in a date s pecific indictm ent req uires c omp liance with R ule 404(b) p rocedu res. State v. Hoyt, 928 S.W .2d 935, 947 (Tenn. Crim. App . 1995). For evidence to be adm issible under Ru le 404(b) there must be (1) a hearing outside the presence of the jury to address admissibility; (2) a determination by the trial court that the evidence is relevant to a material issue other than conduct conforming with the character trait; and (3) a determination by the trial court that the probative value of the evidenc e outwe ighs the d anger o f unfair preju dice to the defend ant. Tenn.R.Evid. 404(b). Moreover, the trial court must find that the defendant committed the other incidents by clear and co nvincing e vidence . McCary , 922 S.W .2d at 514 (citing T enn.R.Evid. 40 4, Advisory Co mm n C omm ents). Here, Rickman II clearly applies to the evidence of sexual misconduct that was presented at Petitioner s trial. Rickman was convicted of statutory rape and incest for having sex with his stepdaughter on one particular occasion. 876 S.W.2d at 826. The evidence at issue in Rickm an II was th e testim ony of th e defe ndan t s stepdaughter regarding other instances of sexual contact between her and Rickm an co nduct tha t was no t within the ch arge of th e indictm ent. Id. The above scenario is similar to that which was presented at Petitio ner s tria l. The language of the indictment that charged Petitioner was not date-specific, and described the time and place of the offenses as follows: on a day in 1990 or 1991, 16 in Davidson County, Ten ness ee. H owev er, the S tate s re spon se to P etitione r s motion for a bill of particulars gave further information regarding the crimes charged: all were alleged to have occurred in the Petitioner s house or residence after [Petitioner] had be en released from the pen itentiary. The trial court allowed the prosecution to present evidence regarding sexual conduct by Petitione r, towards the victim, a t three times an d locations that we re separa te and distinct from o ne anothe r. First, the prosecution presented evidence that Petition er mo lested the victim when the victim cam e to visit P etitione r in prison in Tennessee. The time-frame of these crimes was not specified by the victim and could have be en at any period du ring Pe titioner s incarc eration from 1 983 u ntil March of 1990. Second, the prosecution presented evidence that Petitioner molested the victim a t the reside nce on Illinois Avenue, in Nashville, Davidson County, during the summer of 1990, when the victim came to visit Petitioner during the victim s summer vacation. Third, the prosecution presented evidence that the Petitioner moles ted the victim in W hite Bluff, Dickson County, Tennessee, in 1991, which w as also a visit during the victim s sum mer va cation. Only one of these instances the conduct on Illinois Avenue in Nashville was squa rely within the charg e of the indictment. First, the conduct in White Bluff was not because Petitioner was not tried for criminal conduct occurring outside of Davidson County. Second, it appears that the S tate s proof did not show that the prison misconduct occu rred w ithin Davidson County. Third, it is also possible that under Rickm an II the bill of particulars narrowed the cha rge of the indictme nt to exclude conduct during the prison visitations. See Rickm an II, 876 S.W.2d at 828 (citing State v. Shelton, 851 S.W .2d 134 , 137 (T enn. 19 93)). 17 W e are of the opinion that Rickm an II would p resently g overn the admis sibility of the evidence of sexual misconduct that was p resen ted at P etitione r s trial. Petitioner was charged with committing sex offenses at his home in Nashville. The evidence presen ted, how ever, includ ed com pletely unre lated evidence of other sexual misconduct during the prison visits a nd W hite Bluff visitation . Beca use it is clear that Rickm an II provides controlling law that could have been used to address the adm issibility o f eviden ce of u ncha rged s exual m iscon duct in troduced at Petition er s trial, we now ask whether it was objectively unreasonable for trial and appellate counsel to have failed to bring a Rickm an II-based challenge to the evidence. (b) Objectively reasonable representation: trial counsel Although Rickm an II contro ls the e videntiary issu e pres ented at Petitio ner s trial, we are o f the opinio n that trial counsel s failure to raise Rickm an II was not objec tively unreasonable. This Court s decision in Rickman I was released on May 18, 1993. See 1993 WL 171706, at *1. Our decision held that the challenged evidence of uncha rged se xual misc onduc t was ad missible . Id. at *7. This was the law at the time that Pe titioner s trial began on A ugust 2, 199 3. Petitioner s trial counsel did file a pretrial motion which set forth Petitioner s obje ction to the introduction of evidence of uncharged sexual misconduct. When the trial judge denied this m otion he relied on prior decisions by this Court that deemed such evidence admissible. Petitioner s trial counsel conceded to the trial court that he knew of no case law which would support the exclusion of the evidence. Petitioner argue s that h is trial counsel was ineffective because counsel failed to discover that our Supreme Court granted permission to appeal in Rickman I on 18 August 2, 1993 the same day that Petitioner s trial started. Petitioner argues that a reasonable attorney would have noted the gra nt of pe rmiss ion to a ppea l, and used it in the motion for a new trial as a basis to attack the admission of the evidence of uncharged sexual misconduct. Petitioner buttressed this argument at the postconviction hearing with the testimony of three attorneys, all of whom were qualified by the court as experts in appellate practice in Tennessee. Each attorney testified that a reasonable attorney would have b een aw are of the grant of pe rmission to appe al, and used it in the new trial motio n. Petitio ner s re liance on this eviden ce is based on his presumption that the grant of permission to appeal in Rickman I nece ssarily meant that the Court of Criminal Appeals was going to be reversed. As put forth by Tho mas F. Bloo m, on e of Pe titioner s experts: I do no t know what it is like in other states, but I do know that in Tennessee . . . the Tennessee Supreme Court gen erally does not take a case unles s they are going to reverse it. The post-c onvictio n cou rt disag reed w ith Petitio ner, stating that the cou rt does not be lieve tha t such clairvoy ance is within the standard of compe tency. W e agree with the post-conviction court. Trial counsel s failure to argue the procedural posture of Rickman I does not constitute ineffective assistance of counsel. The grant of permission to appeal by our Supreme Court does indee d tell a re ason able attorney that a decision by the Supreme Court of Tennessee will be rendered in the case for which an appeal is granted. But such a gran t does not tell a reaso nable attorney which way the decision will fa ll. Indeed, a review of the criminal cases decided by the Supreme Court in 1999 available on the Westlaw database shows that of the 48 decisions issued by the cou rt, over 50% of those decisions affirmed the Co urt of Crim inal App eals. In our opinion a reasonable attorney is versed and aware of the law as it stands we decline to expand the definition of a reas onab le 19 attorney to require tha t attorne ys rese arch a nd arg ue wh at the la w mig ht pos sibly becom e. (c) Objectively reasonable representation: counsel on direct appeal Petitioner also alleges that appellate counsel, Sam Wallace, Sr., was ineffective for failing to notice the grant of permission to appeal in Rickman I, and our Supreme Cour t s dec ision in Rickman II. This argument is twofold. First, Petitioner argues that appellate counsel was ineffective because counsel failed to prope rly research the law, discover ou r Supreme Cour t s gran t of perm ission to app eal in Rickman I, and utilize the grant in Rickman I in the amended motion for new trial as a basis for excluding evidenc e of unch arged s exual m iscondu ct. Second, Petitioner argues that Wallace was ineffective because he failed to properly research the law after Rickm an II had been decided, did not discover the Rickm an II opinion, and thus did not use Rickm an II as gro unds for a cla im on direct a ppea l. Petition er s claim is framed in this manner because Wallace represented petitioner both before and after our Supreme Court s decision in Rickm an II. Petition er s trial concluded on August 5, 1993 three days after permission to appeal was granted in Rickman I. Wallace was made attorney of record on October 21, 1993. He filed an amended motion for a new trial and judgment of acquittal which was heard on No vemb er 18, 1 993. O ur Su prem e Cou rt rend ered its decisio n in Rickman II on April 11, 1994. See 876 S .W .2d 82 4. W allace filed the record in Petition er s case in this C ourt on April 14, 199 4, and filed Petitioner s appellate brief in this Court on June 15, 1994. 20 For the reasons set forth above in pa rt IIA(i)(b), we hold th at Mr. W allace s representation was not objec tively unrea sonab le when he failed to note the grant of permission to appeal, use it in the motio n for a n ew trial, and bring a challenge to the evidence of uncharge d sexual m isconduct. W e hold, howe ver, that W allace s representation was o bjective ly unre ason able when h e failed to research the law and become aware of the Supreme Cour t s dispo sition in Rickm an II after the decision had been rendered and disseminated to the public. As a res ult, W allace s failu re to bring a Rickm an II-based claim leads us to the conclusio n that W allace s representation of Petitioner fell below the standard exp ected of attorneys in criminal cases. Mr. Wallace testified at the post-conviction hearing that he had no knowledge of the Rickman case at a ny time d uring Pe titioner s direc t appea l. He testified that he had read the transcript of Petitione r s trial in order to prepa re Pe titioner s appe al, and that he was aware that evidence of uncharged sexual misconduct had been admitted at Petitioner s trial. Wallace also testified that if he had known of the Rickman II decision, he would have brought a Rickm an II-based challenge to the evidenc e of unch arged s exual m iscondu ct. The post-conviction court held that W allace s actions after the Rickm an II decision had been released were reasonable because Rickm an II represented a sea-change in the law regarding the evidentiary use of uncharged sexual misco nduct. Although we recognize that sudden changes in well-established law can catch a reaso nable attorney o ff-guard, we re spectfully d isagree with the po stconviction court s conclusion on this issue. One reason that an attorney must conduct thorough research is because the law is constantly changing. Although 21 some areas of law change more drastically than others , we be lieve tha t a reas onab le attorney is one wh o is awar e that the la w is not static, and wh o con ducts timely research each time that his service s are re quired in ord er to en sure th at he is familiar with the law. Wallace submitted his appellate brief to this Court two months after Rickman II was de cided. At minimum, a reasonable attorney in a like position would have researched the law pertinent to all issues raised at trial and in the motion for a new trial before completing the brief. In so doing, a reasonable attorney would have discovered Rickm an II. Althoug h Petitione r s objection to the evidence of uncharged sexual m iscondu ct was no t preserve d in the motion for a new trial, a reaso nable attorney would have challenged the evidence at issue before this C ourt under the doc trine of plain e rror. See Ten n.R.C rim.P . 52(b) . Wa llace s representation of Petitioner after the Rickm an II decisio n was objec tively unreasonable. (ii) Prejudice Even though ap pellate counse l s representation of Petitioner was unreasonable, and fell below the s tandard expected of attorneys in criminal cases, we may no t set aside Petitioner s conviction unless P etitioner can show prejudice resultin g from his attorney s u nprofes sional erro r. In other words , there must be a reaso nable probab ility that, but for co unsel s e rrors, the re sult of the proceeding would have be en differen t. Strickland, 466 U.S. at 694; Butler, 789 S.W.2d at 900. Petitioner can on ly show prejudice here if there is a reasonable probability that (1) this court would have applied our Supreme Court s decision in Rickm an II retroactively to Petitioner s direct app eal, (2) the evidence of uncharged sexual misconduct was wrongfully adm itted under Rickm an II, and (3) the admission of the evidence wa s reversible error. 22 (a) Retroactive Application of Rickman Even though Pe titioner s motion for a new tria l did not pre serve trial cou nsel s initial objec tion to th e evide nce o f unch arged sexua l misco nduc t, this Co urt cou ld have reached the issue on Pe titioner s direct appeal un der the doctrine o f plain error. See Tenn.R.Crim.P. 52(b). However, our Supreme Cour t s decision in Rickm an II does not state what type of retroactive effect the cou rt intended the decision to have. See 876 S.W.2d 824 (Tenn. 199 4). Althou gh the re is a g enera l rule m anda ting full retroactive application of new state constitutional rules that enhance the integrity and reliability of the fa ct-findin g proc ess a t trial, see State v. Meadows, 849 S.W.2d 748, 754 (Ten n. 199 3), we h ave pr evious ly held that Rickm an II does not announce a new constitutional rule. See Jame s Robe rt Blevins v. S tate, C.C.A. No. 03C01-9611-CR00396, 1997 W L 280052 , at *2, Wa shington C ounty (Tenn. Crim. App., Knoxville, May 28, 199 7), perm. to appeal denied (Tenn . 1997). The re is no com parab le rule for new rules of criminal law that do not stem from constitutional mandates. According ly, in order to determ ine whether this C ourt would ha ve applied Rickman II retroactively on Petitioner s direct appeal, we look to other cases in which Rickman II has been retroactively applied. In State v. Frank D aniel Peters this Court applied Rickman II retroactively on direct appeal and reversed Peters conviction of aggravated sexual battery. C.C.A. No. 03C0 1-9312 -CR-0 0405, 1 994 W L 6785 41, Ha mblen Coun ty (Tenn . Crim. A pp., Knoxville, Dec. 6, 1994 ), no Rule 11 application filed. Peter s was convic ted on July 19, 1993 ten months before Rickman II of perpetrating the battery upon his stepdaughter. At trial, the victim testified that th e defendant touched her sexually on numerous occasions in the year prior to the crime for which the defendant was 23 charged. Peters, 1994 WL 678541, at *1. This Court applied Rickm an II, noting that the evidence of the prior acts between the victim and the defendant was a significant part of the victim s testimo ny. Id. at *2. T his Court re verse d Pete r s conviction after concluding that under Rule of Evidence 404(b) the prejudicial effect of the evide nce ou tweighe d the pro bative valu e. Id. at *3. In State v. Dutton the Tennessee Supreme Court applied Rickm an II retroactiv ely on direct appeal and reversed Dutton s conviction on three counts of aggravated rape. 896 S.W.2d 114, 115 (Tenn. 1995). Dutton was convicted on August 25, 1992, one year and nine m onths before the Rickm an II decisio n. At trial, the victim s cousin testified that he h ad seen the defendan t perform sexual acts on the victim on occa sions oth er than th ose ch arged in the indictm ent. 896 S.W.2d at 115. The victim also testified that the defendant had performed sexual acts on the victim appro ximate ly twenty tim es since the victim w as seve n-years-o ld. Id. at 116. Our Supreme Court determined that Rickm an II controlled the issue, and applied a harmless error ana lysis. Id. 116. The Court determined that the evidence was not harmless beca use th e trial took on the form o f a cred ibility con test: the victim s testimony was the primary evidence against the defendant. The defendant took the stand and denied the charges against him. Essentially the jury had to decide who to believe . . . . Id. at 117. The court concluded that under these circumstances the evidence more prob ably than not affecte d the judgm ent, and reversed the defend ant s con victions. Id. In State v. Otis Breeden this Court applied Rickm an II retroactively on direct appeal and reversed Otis Breeden s conviction on two counts of aggravated sexual battery and two counts of exhibiting harmfu l materials to minor s. C.C.A. No. 03C0L24 93L0-CR-00335, 1995 WL 3909 52, Se vier cou nty (Te nn. C rim. A pp., Kn oxville, Ju ly 15, 1995) no Rule 11 application filed. Breeden was co nvicted on April 6, 1993 thirteen months before Rickm an II of two counts of sexual battery and two counts of exhibiting harmful materials to minors. Breeden, 1995 W L 3909 52, at *1. At trial, one of Bre eden s victim s testifie d that B reede n touc hed h er priva te parts with his hands more th an twen ty times. Id. The other victim testified that Breeden had touched her genitals and breasts more than twenty times and that Breeden had tried to get her to p erform fe llatio upon him. Id. This C ourt initia lly affirmed Bree den s convic tion, holding that the evidence of uncharged sexual misconduct was adm issible to show a state of intimacy between the victims and the defend ant. See State v. Otis Breeden, C.C.A. No. 03C01-9310-CR-00335, 1994 WL 361555, at *2, Sevier County (Tenn. Crim. App., Knoxville, July 13, 19 94), perm. to appeal granted (Tenn. 1995). Our S upreme Court remanded the case to this Court for reconsideration in light of Rickm an II. State v. Otis Breeden, No. 03-C-01-9310-CR00335, 1995 WL 355588, Sevier County (Tenn., Knoxville, June 12,1995). On remand this Court held the evidence on uncharged sexual misconduct should not have been admitted, and re versed B reeden s conviction s. State v. Otis Breeden, 1995 WL 390952, at *1. In State v. Woodcock this Court applied Rickm an II retroactively, and reversed Barry Wo odco ck s conviction on two counts of rape and three counts of incest. 922 S.W.2d 904 (Tenn. Crim. App. 1995). Woodcock was convicted on October 15, 1993 seven months before the Rickm an II decision . Wo odcoc k was ch arged w ith five crimes, which occurred on four se parate d ays. 922 S.W.2d at 907. During the State s proof-in-c hief the victim provided explicit testimony regarding uncharged sexual condu ct betwe en the victim and the defend ant. Id. at 909-9 10. The State 25 also introduced other evidence of sexual misconduct and referred to the uncharged conduct repeate dly in closing argum ents. Id. at 910. Although the defendant objected to the introdu ction o f eviden ce of u ncha rged c ondu ct (in a pre-trial motion), the trial court overrule d the m otion, a nd relie d in pa rt on this Cour t s dec ision in Rickman I. 922 S.W.2d at 908-909. On appeal, this Court held that Woodcock s convictions must be reversed und er Rickm an II because the evidence of uncharged condu ct was h ighly prejud icial, and co uld not be harmle ss error. Id. at 912. Finally, in State v. McC ary our Supreme Court applied Rickm an II retroa ctively on direct appeal and reversed Donald McC ary s convictions on thirteen sex offenses. 922 S.W .2d 511 (Tenn . 1996). McCary was convicted on A pril 1, 1992, two years and one month before the Rickm an II decision. McCary was a minister at a church, and he was indicted for sexual acts perpetrated on four minors. 922 S.W.2d at 513. At trial the State presented the testimony of a fifth party with whom McC ary had sexual contact, a nd this witn ess testified at length regarding five years of sexual activities with the de fendan t. Id. at 513. Our S upreme Court held that this evidence did not fall u nder a ny of the Rule 4 04 exc eption s, and thus w as ina dmis sible propen sity evidenc e. Id. at 514. The court held that the eviden ce wa s profo undly prejudicia l, and co nclude d that its ad mission could no t be harm less error. Id. at 515. After reviewing the above cases we conclude that there is a reasonable probab ility that this Court would have applied Rickm an II retroa ctively to Petition er s direct appeal had the issue been raised. (b) Applic ation o f Rickm an to P etitione r s Ca se on Direc t Appe al 26 Assuming that this Co urt would have applied Rickman retroactively on Petition er s direct appeal, we must first decide if the evidence of uncharged sexual misconduct was ad mitted in vio lation of Rickman. If the evidence was imp roper ly admitted, we mus t then decide if the ad mission wa s reversible error. After very careful cons ideratio n we h old that the evidenc e regard ing misc onduc t in W hite Bluff was improperly admitted. We also hold that the evidence regarding sexual misconduct at the prison m ay have been impro perly adm itted. N oneth eless , we ho ld that the admission of the above evidence was harmless error. As a result, Petitioner cannot show that he was prejudiced by his counsel s failure to raise the issue. Under Rickm an II the introduction of othe r incidents of sexu al crimes occu rring w ithin the indicted period requires an election of offenses; otherwise the introduction of other sexual crimes outside the indicted period, or in a date specific indictment requires compliance with Rule 404(b ) procedures . Hoyt, 928 S.W.2d at 947. As previously discussed, the language of the indictment here was not datespecific, and described the time and place o f the offe nses as follo ws: on a day in 1990 or 1991, in Davidson Coun ty, Tenn essee . Howe ver, the Sta te s respo nse to Petition er s motion for a bill of particulars gave further information regarding the crimes charge d: all were a lleged to have occurred in the Petitioner s house or residence after [P etitioner] had been released from the penitentiary. The language of the indictment and the bill of particulars make it clear that Petitioner was no t indicted for s exual m iscondu ct during vis its to Petitioner s residence in White Bluff. Thus the Rickm an II exception does not apply, and under Rickman II this evidence should have been s ubject to R ule 404 (b) proce dures. See Hoyt, 928 S.W.2d at 947. It is unclear if the evidence about the prison visitation s is 27 within the charge of the indictment for purposes of the Rickman exception . In Rickman II our Supreme Court discussed its prior holding in State v. Shelton, and concluded that the evidence of sexual misconduct admitted against Shelton was prope rly admitted because it was within the time frame of the indictment as narrowed by the bill of particulars . See 876 S.W.2d at 828 (citing 851 S.W.2d 134, 157 (Tenn. 1993)). Our Supreme Cour t did no t sugg est wh at the c onclu sion w ould be had the evidence been with in the c harge of the in dictm ent, bu t outsid e that o f the bill o f particulars. See id. We also note that at Pe titioner s trial the S tate neg lected to present any proof sho wing that the m isconduct du ring the prison visits occu rred within Davidson Coun ty, thus bring ing the co nduct w ithin the sco pe of the in dictme nt. Beca use it is unclear what the correct result is here, we will proceed based on the assumption that the evidence of sexua l misconduct at the prison was outside the charge of the indictment. Thus this evid ence shou ld also have been subje ct to Ru le 404(b) p rocedu res. See Hoyt, 928 S.W .2d at 947 . Given that Rickm an II had yet to be decided at the time of trial, the trial judge did not apply Rule 404(b) to either the prison misconduct or the m iscondu ct in W hite Bluff. However, even if Rule 404(b) had been app lied the evidence would not ha ve been admis sible. None of the Rule 404(b ) exceptions ap ply here the evid ence here does not spea k to identity, motive, a comm on schem e or plan, or intent. Furthe r, there was no claim of mistake or accide nt raised a s a defen se. Nor can we say that the probative value of this evidence outweighs the prejudicial effect upon Pe titioner. See Tenn .R.Evid. 4 04(b). The evidence regarding the sexual misconduct at the prison and at White Bluff has no probative value whatsoever as regards to the offense s that occ urred in N ashville. 28 This does not conclude our inquiry, for even if the trial judge did err, this Court would not have set aside Petitioner s conviction unless there was a substantial probab ility that the error affected the outcome of Petitione r s trial. Dutton, 896 S.W.2d at 117 (citing Ten n.R.App.P . 36(b)). We do not believe this to be the case, and conclud e that the e rror was h armles s. We base our holding o n the facts presented at trial. The evidence regarding the charged offenses was substantial and detailed. The evidence regarding Petitioner s sexual misconduct during the prison and Wh ite Bluff visits was limited and nondescript. As a result, the error that resulted fro m the a dmiss ion of the e vidence was ha rmless . As set forth in Part I of this opinion, the State s direct evidence regarding Petition er s condu ct during th e victim s visit to Petitioner s hom e in Na shville consisted primarily of the victim s testimony. This was supported by testimony of the victim s mother, Beverly McCarthy, who testified how the victim informed her of the abuse. Testimony was also given by Sue Ross, a licensed nurse practitioner who examined the victim for signs of sexual abus e. Ros s testifie d rega rding th e victim s description of the abuse given to Ross at the time of the examination. Although Petitioner objected to this evidence as hearsay, the trial court asked counsel why the evidence did not co nstitute statem ents g iven for purpo ses o f med ical diag nosis and treatment (apparently referring to the hearsay exception codified at Tenn.R.Evid. 803(4)), and Petitioner withdrew the objection. The State did not introduce any physica l evidence . The victim s testimony regarding the charged conduct was clear and concise. The victim testified first that the Petitioner would put his hand around the victim s penis, and touch the victim s anus when Petitioner would come say goodnight to the 29 victim. Next, th e victim testified that Petitioner touched the victim s p enis and butt when the victim would take a bath. The victim also testified that Petitioner made the victim touch Petitioner s private sometimes through, and sometimes under Petition er s clothing when they were in the bathroom, and when they were in the living room tog ether. T he victim testified that Pe titioner w ould to uch th e victim s penis when they were in the living room together. Finally, the victim testified that Petitioner would make the victim touch Petition er s penis when the victim would go into Petitioner s bedro om to say g oodnight to P etitioner. This eviden ce is the conte xt in whic h the im prope rly admitted evidence, and any referenc es there to, mus t be place d. The first reference that we find to the evidence of uncharged sexual misconduct is in the State s opening statement, when the State referred to Petitioner s condu ct in W hite Bluff: In May of 91 , going backw ards, Mr. Wray moved to White Bluff. And the child continued to visit him and has visited him, in fac t, in Wh ite Bluff . . . . Mr. Wra y continue d to abu se his so n not only here in Nashville, but in W hite Blu ff until the moth er foun d out a bout it in April of 1992. The State then presented proof regarding the uncharged sexual misconduct in five separa te instanc es. First, in the State s direct examination of the victim, the State initially referred to the prison visitations: Q: And why did you stop seeing your dad? A: Because he abused me. Q: And how did he do that? Did he do something to you that you didn t like? A: Yes. Q: Did he touch your body? A: Yes. Q: Can you tell me what part of your body he touched? A: My butt and my penis. Q: Now, let me as k you a little bit about where you were when that would hap pen. Oka y? Did it happen to you at the pen itentiary? A: Yes. 30 Second, after the State had the victim testify to the abuse that occurred in Nash ville, the State asked the victim if the abuse occurre d in W hite Bluff: Q: A: Q: A: Q: A: Q: A: Q: A: After that d id you see him in a p lace called Wh ite Bluff? Yes. Do you know what W hite Bluff is? No. A (sic) think I know w hat hou se you re talking ab out. It ain t the one next to the store, is it? The one out by the woods? Tha t s what I m asking you. The next time yo u went to see him where did he live? Out by the woods. So you don t know what the name of the place is, the town, where the house by the woods is? No. When you went to see him at the house by the woods did the same things happen to you there? Yes. The State also addressed the uncharged Wh ite Bluff miscon duct on redirect. On cross examination Petitioner attempted to impeach the victim by introducing a prior statement of the victim s in which the victim stated that the offenses occurred in White Bluff, and not in Nashville. On red irect, the Sta te soug ht to reha bilitate the victim s identification of the location of the offenses: Q: Well, all I really want to know is the things you told me about, told the jury abou t, that your dad did to you that you didn t like, did he do that to you at every house that you visited him? A: Yes. Q: So when you tell the lady, Yes, he did bad th ings to me in Wh ite Bluff, is that true? A: Yes. Fourth, the State indirectly revisited the uncha rged W hite Bluff conduct during the cross ex amina tion of Jen nifer W ray (then J ennifer H icks), who was living w ith Petitioner during 1990 and 1991: Q: Ms. Hicks, where do you live now? A: Wh ite Bluff. Q: At this same place in White Bluff that you lived in May of 91? 31 A: No. Q: Is it true that when you left Illinois Avenu e you m oved to an apartm ent in W hite Bluff? A: It was a cabin, yes. Q: A cabin? A: Uh-huh (a ffirmative). Q: Was it near the woods? A: It was it had some trees and some high grass off to the side and a railroad track behind it. It wasn t near the woods. Q: Okay, but there was a wooded area and the re was a railroad track there? A: Right. .... Q: At the time that Justin came to visit you in 1991 A: Uh-huh (a ffirmative). Q: in August A: Right. Q: which did you live in? A: The cabin. Finally, the State directly addressed the prison visit conduct during Mrs. W ray s cro ss exa mina tion: Q: Let s see. You re saying that when you took the child to meet his father [at the prison] it was n ot pos sible fo r him to be alo ne with his father? A: Right. Q: Now obviously from the dates we can see that Kendra w as born at a time when [Petitioner] was incarcerated and at a time a year or so after you m et him while h e was still incarc erated . So yo u were able to be alon e with [Pe titioner] at the p en; right? A: Correc t. Q: You didn t have any problem being alone with him? A: Yes. Q: You did have a problem A: W ell Q: bu t you cou ld man age it. A: You ca n man age it. Finally, in closing, the State referred to the uncharged sexual misconduct of Petitioner during the victim s visits to Petitioner in prison: W e know he started doing this to [the victim] when he went to the penitentiary. We have n o evide nce th at he e ver did this to th e child before that. In the p enitentiary w e mus t accept th e fact that the 32 penitentiary is probably what you heard here about what it s like. It s proba bly not w hat you thoug ht it was like at all. This is a place w here you have wa ll-to-wall carp eting, you have curtains, you have TV, you had a VCR, you had a refrigerator. It s not exactly how you m ight have typically imagined it would be like in the penitentiary. And of course there can be no argument that [Petitioner] did not have private access to the child while at the pen itentiary. Obvio usly his girlfriend, Jennifer Hicks, conceived her first child with [Petitioner] at the pen itentiary. It s obvious that you can arrange or be aware of ways to have privacy while you re at the pen. And that s the same as it goes for the ho use. You do n t do this in front of other people. You d on t do it in front of o ther pe ople. It s a secr et. Do n t tell anyone or you ll get in trouble. There were no other references in the State s closing to uncharged sexual misco nduct. As is evide nt from the ab ove, w ith one excep tion, the State s evidence regarding the no n-cha rged c ondu ct durin g priso n visitatio ns an d durin g the vic tim s visit to W hite Bluff was genera l in detail. When this is compared with the substantial and detailed e vidence that the victim gave regarding the charged conduct, we conclude that any unfair prejudice that accrued to Petitioner during the presentation of the evide nce wa s harm less. Moreover, although the references to the uncharged sexual misconduct in the State s opening and closing compounded the prejudicial effect of the evidence, we note that the portion of the State s argument that references the un charg ed co nduc t is brief. W hen e ach p rejudic ial refere nce is placed in the context of the entire opening and closing arguments the prejudicial references are, stand ing alone , insignificant. The State emphasized the circumstances surrounding the charged offenses and the victim s testimony, and made only a passing reference to the uncharged conduct in both the opening and the closin g. 33 W e note that the evide nce here is less prejudicial than the evidence presented in the case s that P etitione r cites a s con trolling a uthority that wo uld require reversal of Petitioner s conviction. These prior cases all involve strong and direct evidence of uncharged sexual misconduct. In State v. Woodcock the victim s testimony regarding the un charg ed se xual m iscon duct in clude d grap hic an d explic it descriptions of sexual activity. 922 S.W .2d at 909-910. In State v. Breeden, a 10 year old victim testified that, in addition to the charged conduct, the defendant attempted to get the victim to perform fellatio, and touched her front part more than twenty times. 1995 WL 390952, at *1. The other victim testified that the defendant touched her genitals more than twenty times. Id. In State v. McC ary a third-par ty witness testified to having sexu al contact with the de fendant for a pe riod of five years, when the witness was age 15 to age 20, including kissing, fondling, and masturbation. 922 S.W.2d at 513. In State v. Dutton a witness testified that he watched the defendant perform sexual acts on the victim at times outside the charge of the indictment. 896 S.W.2d at 115. Finally, in State v. Peters , the victim testified that in the year preceding the charged incident the defendant would touch the victim s genit als before she would be allowed to go out with friends, and the defend ant touch ed her b reasts an d tried to kiss her. 199 4 W L 6785 41, at *1. W e do not think the improperly admitted evidence here rises to the level of that described above. Although the victim s testimony was not corroborated by physical evidence, the victim s mother and nurse Ross both c onfirm ed tha t the victim informed them of Petitioner s misconduct. The evidence is not overwhelming, but the victim s testimon y provided sufficient evid ence o f Petitioner s crimes. 34 B. Ineffective Assistance of Counsel: failure to request a limiting instruction fo r evidence o f uncharg ed sexu al miscon duct. Petitioner alleges that his trial counsel Joh n Rodge rs, Sr., was ineffective because he did not request a limiting instruction for the evidence of uncharged sexual misconduct. Petitioner also alleges that his appellate counsel, Sam Wallace, Sr., was ineffective because appellate counsel failed to raise a claim based on the absence of a limiting instruc tion. Th e bas is for Pe titioner s argum ent is case law which pre-dates our Su prem e Cou rt s opin ion in Rickm an II. Under th is preced ent, evidence of uncha rged se xual misc onduc t was ad missible , but only for limited purposes, such as corrobo ration, or to s how a s tate of intim acy. See, e.g., State v. Lockhart, 731 S.W .2d 548 , 551 (T enn. C rim. App . 1986); State v. Williams, 768 S.W .2d 714, 716 (Tenn. Crim . App. 1988 ). W e need not co nsider if trial counsel s and appellate cou nsel s respective inaction on this issue was objectively unreasonable. As we discus sed in part IIA of this opinion, the admission of the evidence of uncharged sexual misconduct was not prejudicial error. Thus Pe titioner cannot sho w prejudice eve n if trial counsel s failure to request such an instruction was un reason able. Likewise, Petitioner cannot show prejudice even if appellate counsel s failure to raise the issue on direct appeal was unreasonable. Petitioner is not entitled to relief on this issue. C. Ineffective Assistance of Counsel: failure to call material witnesses. Petition er s final claim alleges that his trial counsel, John Rodgers, Sr., was ineffective because he failed to call material witnesses o n Petitione r s behalf. 35 Petitioner argues that Mr. Rodgers had a duty to call all available witnesses on Petition er s beha lf beca use th e only direct proof in the case was the testimony of the victim. Petitioner argues that counsel s failure to call several witnesses, all of whom were available to testify, reflects counsel s inadequate preparation for trial, and was not based on a rational strategic decision. We disagree. Mr. Rodgers testified at the post-con viction hea ring abo ut his dec ision to not call all the witnesses listed in his witness list. In the original indictment Petitioner was charged with offenses against two victims Petitioner s son, JW, and stepdaug hter, KC. Counsel succeeded in severing the offenses and confining the instant trial to those offenses committed against JW. Counsel also prevailed in a pre-trial motion in limine, wh ich preve nted the prosec ution from referring to the offenses against KC during trial. However, counsel was afraid that his witnesses at trial would slip and refer to the offenses against KC, thereby prejudicing Petitioner. Mr. Rodgers felt that the risk posed by the other witnesses presented was high as compared to their potential to assist Petitioner s case: And with every question and with every w itness I stood in fear of going down the drain. At that time the witnesses that were le ft were in my opinion not strong enou gh to ta ke a ch ance , so I did n t call them. Nothing in Petitione r s post-co nviction pro of rebuts Mr. Rod ger s ass essm ent. The witnesses presen ted at th e pos t-conv iction h earing Bria n Car der, C arla Hedgecoth, Monica Charlton, and Kelly Lynn Myers did not have personal knowledge of any fac ts surro undin g Petitio ner s crimes. They all testified to the fact that they lived in or near Petitioner s home at the time in question and that they never saw Petitioner behave inappropriately towards the victim. 36 W e conclude tha t Mr. Rodge rs decision to not call any further witnesses was a reason able exe rcise of his p rofession al judgm ent. The post-conviction court found that the testimony of the additional witnesses would have been cumulative, and the evidence does n ot prepo nderate against th is finding. Absent clear and convincing evidence that the witnesses not called poss essed m aterial and highly prob ative information regarding Petitioner s case, we wil l not second-guess counsel s trial strategy. Moreover, even if Mr. Rodgers failure to c all witne sses was o bjective ly unreasonable, Petitioner cannot show preju dice. We cannot say that there is a reaso nable probability that the evidence offered at the post-conviction hearing by the non-c alled w itness es wo uld ha ve alter ed the outco me o f Petition er s trial. IV. Conclusion For the above reasons we affirm the post-conviction court s dismissal of the Petition. ____________________________________ THOMAS T. W OODALL, Judge CONCUR: ___________________________________ JOE G. RILEY, JR., Judge ___________________________________ JAMES CURW OOD W ITT, JR., Judge 37

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