James Paul Kinard v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 27, 2013

JAMES PAUL KINARD v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 2008-A-274 Cheryl Blackburn, Judge

No. M2012-01589-CCA-R3-PC - May 6, 2013

The Petitioner, James Paul Kinard, appeals the Davidson County Criminal Court’s denial of

his petition for post-conviction relief from his convictions for three counts of rape of a child

and one count of aggravated sexual battery and resulting effective sentence of seventy-five

years in confinement to be served at 100%. On appeal, the Petitioner contends that he

received the ineffective assistance of trial counsel. Based upon the record and the parties’

briefs, we affirm the judgment of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J AMES C URWOOD

W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, James Paul Kinard.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In January 2008, the Davidson County Grand Jury indicted the Petitioner for six

counts of rape of a child, a Class A felony, and one count of aggravated sexual battery, a

Class B felony. On direct appeal, this court gave the following factual account of the crimes:

The defendant was convicted of committing several

sexual crimes against the four-year-old victim, his wife’s niece.

The victim’s aunt, Belinda Henley, testified that the defendant

was married to her sister, Tonya Kinard. She testified that they

helped care for the victim and her siblings. She said that she

and her sister alternated taking care of the children because the

victim’s grandmother was sick.

Ms. Henley testified that in April 2007, the victim did not

want to stay with the defendant. She recalled that the child

acted like she was terrified to go to the defendant’s home.

Based on statements the victim made to her, Ms. Henley phoned

a Department of Children’s Services 1-800 number for child

abuse to make a report. She testified that the victim wore

panties but also wore “pullups” throughout the day and a lot at

night because she was “having a lot of accidents.”

During cross-examination, Ms. Henley testified that she

maintained contact with the victim. She also said that she had

previously caught the victim telling lies. She characterized them

as being told to get the victim out of trouble. She said that the

victim asked about the defendant and said that she wanted to see

and talk to him.

The victim testified that she was six years old and in the

first grade in school. Following a series of questions from the

trial judge, the witness demonstrated that she understood the

truth and agreed to tell the truth. The victim said that she lived

with her “papa” and her siblings. When shown a photograph of

a female body, the victim indicated places that nobody should

touch, including her mouth and her “privates.” She was also

shown a photograph of a male body and indicated places that

nobody should touch, including his mouth and “private.” She

identified the defendant as a person that had touched her

privates. She testified that the defendant touched her privates

with his hand and his privates. She also said he touched her

mouth with his private and that the defendant put his private

inside her mouth. The victim testified that something “yellow”

came out of his private and that it tasted “nasty.” Finally, she

testified that the defendant made her touch his private with her

hand. She said that she told the defendant that she did not want

to touch him in these ways and that he told her if she told

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anybody he would kill her entire family.

The victim testified that the incidents occurred while her

aunt was at work. She said that her aunt, the defendant’s wife,

worked in the office of the hotel where they lived.

Detective David Zoccola testified that he was a

thirty-one-year veteran of the police department and that he had

ten years of experience in the sexual abuse unit. He said he

interviewed the defendant at a hotel on Murfreesboro Road.

The defendant’s wife was also present when they arrived at the

hotel. The interview was conducted in the police car for privacy

purposes. He testified that he sat behind the wheel, the

defendant sat in the passenger seat, and another detective sat in

the backseat. The other detective made an audio recording of

the interview. The defendant was not aware that the interview

was being recorded. The other detective was with him because

he was being trained and had been with the department only six

or seven weeks. There was a problem with the recording, which

caused them to lose several minutes of the interview.

The detective testified that the defendant was aware of

the allegations against him because a family member had

brought it to his attention. He said the defendant said there was

a family member upset with him because he was not willing to

pay an electric bill and prevent the family member’s utilities

from being shut off. The defendant said the allegations were in

retaliation for the electricity being cut off. The detective

testified that he brought the victim to court because none of her

family members were willing to bring her to court. The

defendant acknowledged that he had applied medication to the

victim’s vaginal and anal areas and said that his wife also had

applied medication to those areas.

During cross-examination, the detective testified that he

did not attend the victim’s forensic interview. He had not

spoken to the victim when he interviewed the defendant. The

detective said that he told the defendant that the victim had been

given a medical examination when, in fact, she had not been

examined. He acknowledged that telling the defendant there

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had been an examination was part of a learned technique that

medical evidence might exist. The detective was aware that

there was no medical evidence at the time. The detective also

acknowledged that he set out a “what if” for the defendant

involving medical results from the Tennessee Bureau of

Investigation (TBI), although nothing was ever sent to the TBI

for examination.

Sue Ross, a pediatric nurse practitioner with Our Kids

Center in Nashville, testified that she specialized in conducting

medical evaluations on children who are alleged to be victims of

sexual abuse. She testified that a social worker interviewed the

victim and the victim’s grandmother and received information

consistent with the referral they received from the Department

of Children’s Services. In July of 2007, she performed a

“head-to-toe” examination of the victim, including an anogenital

examination which involves a magnification of the area to be

observed to see that everything is normal. The victim’s

examination was normal and indicated no chronic or lasting

injury to her genitalia. She testified that it is typical to have

normal examinations with children; therefore, the examination

does not provide an answer as to whether sexual abuse occurred.

Tonya Kinard, the defendant’s wife and aunt of the

victim, testified that she had been married to the defendant for

seven years. She said that she had little contact with the victim

when she was born because there was conflict between the

victim’s mother and herself. She took a more active role in the

victim’s life when she reached the ages of three and four, and

she saw the victim once or twice a month and on holidays. She

and the defendant moved to Nashville in 2006, and they began

to share in care giving duties for the victim and her siblings.

She testified that she and her husband were both employed at the

same hotel on Murfreesboro Road. She said that she was an

assistant manager in the office of the hotel but, at the time of the

allegations, she worked part-time at the hotel’s front desk. The

defendant, who was a full-time employee at the hotel, also

worked at the front desk.

The defendant’s wife testified that they lived in a

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standard room at the hotel with a single king bed in it. Her boss

lived in a house that was attached to the hotel and located

directly behind the hotel office. She testified that the victim and

her siblings spent every other weekend with her at the hotel.

The children often went to the office with her because her boss

had a young son who was a playmate of the children. She said

that the victim would not have been left alone with the

defendant. She testified that she did not allow the girls to be

alone with men because she was raped by her grandfather as a

child. She testified that there was never a time when the victim

would have been alone with the defendant. She did not have

any direct contact with the victim following the defendant’s

arrest. She acknowledged that she had provided support to the

victim’s father, who was the custodial parent of the children, to

assist in paying bills and providing for the children’s needs. The

defendant’s wife testified that she had not tried to discuss the

case with the victim. She said she had caught the victim in a

number of lies. During cross-examination, the defendant’s wife

testified that she trusted her husband with the children because

he had given her no reason not to trust him.

The defendant was convicted of three counts of rape of

a child and sentenced to twenty-five years on each count, to be

served consecutively.1 He was also convicted of one count of

aggravated sexual battery, for which he was sentenced to twelve

years. The aggravated sexual battery conviction was ordered to

be served concurrently with the rape convictions, for an

effective seventy-five-year sentence.

State v. James Paul Kinard, No. M2008-02840-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS

427, at **2-9 (Nashville, May 28, 2010), perm. to appeal denied, (Tenn. 2010).

On direct appeal, the Petitioner claimed that the evidence was insufficient to support

the convictions because the victim was not reliable, that the trial court abused its discretion

in finding that the victim’s prior allegations of abuse by other men were inadmissible, and

that the trial court improperly sentenced him. See id. at *2. Finding no error, this court

affirmed the Petitioner’s convictions and sentences. Id.

1

According to the trial transcript, the State announced after its case-in-chief that it was dismissing

three of the charges for rape of a child.

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Subsequently, the Petitioner filed a timely petition for post-conviction relief, arguing

that he received the ineffective assistance of trial counsel. The post-conviction court

appointed counsel to represent the Petitioner, and counsel filed an amended petition, arguing

that trial counsel was ineffective because counsel failed to consult with the Petitioner, failed

to investigate his case and prepare for trial adequately, failed to file appropriate pretrial

motions, and failed to ask the victim “a single question on cross examination about who may

have touched her inappropriately in the past, or even concerning the incident the Defendant

was on trial for. [Counsel] simply asked the victim questions about his house and her house,

there was nothing substantive about her abuse at all.”

At the evidentiary hearing, the Petitioner testified that he first met counsel shortly after

his arrest, which was six to eight months before trial. During that time, counsel met with the

Petitioner only twice. At their first meeting, counsel showed the Petitioner the victim’s

video-recorded forensic interview. They discussed the interview and listened to Detective

Zoccola’s audio-recorded interview of the Petitioner. The Petitioner said that he told counsel

about the victim’s sexual abuse allegations against a man named Calvin Brown and that

counsel “got the record . . . showing where she accused Calvin of touching her and stuff.”

However, the Petitioner did not know if counsel investigated the victim’s allegations against

Brown, and counsel did not subpoena Brown for trial. The Petitioner also told counsel that

the victim’s aunts, Amanda and Robin Henley, would testify about the victim’s being a

habitual liar. Counsel told the Petitioner that he would talk with the victim’s aunts, but the

Petitioner did not think counsel did. The Petitioner said that he knew of only one pretrial

motion counsel filed and that the motion “was something . . . to do with my record [in] South

Carolina.” The Petitioner said that counsel should have had an expert testify at trial about

“how someone could lead [children] into telling stories or put accusations in their mind and

stuff.” Counsel also did not sufficiently cross-examine the victim or discuss the case with

the Petitioner. The Petitioner did not know how to prepare himself for trial.

On cross-examination, the Petitioner acknowledged that the victim’s video-recorded

interview and his audio-recorded interview informed him about the State’s case. He said it

would have been beneficial for the jury to have heard that the victim accused Brown of abuse

but later changed her story. The Petitioner acknowledged that the trial court ruled such

evidence was inadmissible. An expert’s testimony would have been helpful at trial because

the Petitioner thought the victim’s mother was trying to get back at him for his and his wife’s

attempting to obtain custody of the victim. In the victim’s video-recorded interview, she said

that the appellant made her bleed. Counsel did not question the victim at trial about the

bleeding, which would have been significant because no physical evidence supported the

claim.

Trial counsel testified for the Petitioner that he was appointed in this case and

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remained the Petitioner’s attorney until the trial court denied the Petitioner’s motion for new

trial. Counsel did not know of any experts in Tennessee who could testify about how

children could be influenced to make false accusations of sexual abuse. Counsel did not file

a pretrial motion based on Tennessee Rule of Evidence 412, the rule that limits evidence of

a victim’s sexual behavior, because he did not think the Rule applied in this case. Post-

conviction counsel asked trial counsel why he did not question the victim “about how and

where and why” the Petitioner touched her, and trial counsel answered, “I thought that it was

relatively clear from her testimony as to how she said that he had touched her.” Counsel also

stated, “I did not expect to get an affirmative answer that would have assisted [the

Petitioner’s] defense from her.”

On cross-examination, trial counsel testified that he became licensed to practice law

in 1976, worked in the public defender’s office, and “[r]outinely” handled child sex abuse

cases. According to counsel’s notes, he met with the Petitioner eleven times before trial and

three times after trial. Counsel said he and the Petitioner also exchanged a couple of letters.

Counsel had documentation about the victim’s prior allegations of sexual abuse and planned

to question Detective Zoccola about the victim’s prior allegations against Calvin Brown and

another man. However, the trial court ruled that such evidence was inadmissible under

Tennessee Rule of Evidence 412. The Petitioner’s defense was that it was impossible for

him to have committed the crimes because he was never alone with the victim. Therefore,

counsel did not think an expert’s testimony about influencing a child to make false

accusations of sexual abuse had “particular pertinence,” and counsel made no attempt to hire

an expert. Counsel said he was concerned that if the Petitioner testified at trial, he or the

Petitioner would “open the door” to the Petitioner’s having a South Carolina conviction for

a sexual offense involving a child.

In a written order, the post-conviction court denied the petition for post-conviction

relief. Regarding the Petitioner’s claim that counsel failed to meet with him or communicate

with him adequately, the post-conviction court specifically accredited trial counsel’s

testimony that he met with the Petitioner eleven times. In any event, the court concluded that

even if counsel met with the Petitioner only twice, the Petitioner failed to show that he

received the ineffective assistance of counsel because he conceded that he knew of the

State’s primary evidence against him. Regarding counsel’s failure to file pretrial motions,

the court noted that it ruled during the Petitioner’s trial that evidence about the victim’s prior

allegations was inadmissible and that this court affirmed the trial court on direct appeal.

Regarding counsel’s failure to question the victim about bleeding, the post-conviction court

noted that the lack of medical evidence was addressed at trial and found that counsel’s

“method of cross-examining the victim to be part of his trial strategy.” Finally, as to

counsel’s failure to call an expert witness to testify about influencing children to make false

accusations of sexual abuse, the court accredited counsel’s testimony that he did not consider

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such an expert to be pertinent to the case and found that, regardless, the Petitioner failed to

have an expert testify at the evidentiary hearing.

II. Analysis

On appeal, the Petitioner contends that he received the ineffective assistance of

counsel because trial counsel met with him only twice before trial, failed to subpoena

witnesses, failed to “recruit an expert to offer testimony regarding the victim’s potential

inclination to make false accusations regarding sexual molestation,” and failed to cross-

examine the victim adequately. The State argues that the post-conviction court properly

denied the petition. We agree with the State.

To be successful in a claim for post-conviction relief, a petitioner must prove factual

allegations contained in the post-conviction petition by clear and convincing evidence. See

Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means evidence in which

there is no serious or substantial doubt about the correctness of the conclusions drawn from

the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting

Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Issues regarding the

credibility of witnesses, the weight and value to be accorded their testimony, and the factual

questions raised by the evidence adduced at trial are to be resolved by the post-conviction

court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore,

the post-conviction court’s findings of fact are entitled to substantial deference on appeal

unless the evidence preponderates against those findings. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. See

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s

findings of fact de novo with a presumption that those findings are correct. See Fields, 40

S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law

purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance

of counsel, “the petitioner bears the burden of proving both that counsel’s performance was

deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,

369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish

deficient performance, the petitioner must show that counsel’s performance was below “the

range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d

930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

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to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,

[b]ecause a petitioner must establish both prongs of the test, a

failure to prove either deficiency or prejudice provides a

sufficient basis to deny relief on the ineffective assistance claim.

Indeed, a court need not address the components in any

particular order or even address both if the [petitioner] makes an

insufficient showing of one component.

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

Regarding the Petitioner’s claim that counsel met with him only twice before trial, the

post-conviction court specifically accredited counsel’s testimony that he met with the

Petitioner eleven times. Moreover, the court determined that the Petitioner failed to

demonstrate the ineffective assistance of counsel because he acknowledged that he was

aware of the State’s evidence against him. As to the Petitioner’s claim that he received the

ineffective assistance of counsel because counsel failed to subpoena witnesses or have an

expert testify on his behalf at trial, the Petitioner failed to present those witnesses at the

evidentiary hearing. Generally, “[w]hen a petitioner contends that trial counsel failed to

discover, interview, or present witnesses in support of his defense, these witnesses should

be presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752,

757 (Tenn. Crim. App. 1990). We may not speculate on what benefit the witnesses might

have offered to the petitioner’s case. Finally, as to the Petitioner’s argument that counsel

failed to cross-examine the victim adequately, the Petitioner has failed to explain on appeal

what questions counsel should have asked the victim. At the evidentiary hearing, the

Petitioner testified that counsel should have questioned the victim about her stating during

her forensic interview that the Petitioner made her bleed. However, neither party questioned

counsel about his failure to cross-examine the victim regarding bleeding. Moreover, the

Petitioner has failed to show that informing the jury about the victim’s bleeding claim would

have helped, let alone changed the outcome of, his case. Therefore, we agree with the post-

conviction court that the Petitioner has failed to show that he received the ineffective

assistance of trial counsel.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the post-

conviction court.

_________________________________

NORMA McGEE OGLE, JUDGE

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