Scott W. Grammar v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 23, 2010

SCOTT W. GRAMMER v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Hamilton County

No. 266358 Jon Kerry Blackwood, Judge

No. E2010-00073-CCA-R3-PC - Filed June 6, 2011

The petitioner, Scott W. Grammer, appeals the Hamilton County Criminal Court’s denial of

his petition for post-conviction relief from his convictions for three counts of aggravated

sexual battery and resulting effective twenty-two-year sentence. On appeal, the petitioner

contends that he received the ineffective assistance of counsel. In addition, he argues that

the State engaged in egregious, improper, and deceptive practices during the trial; that the

post-conviction court should have amended his improperly enhanced sentences; and that the

evidence is insufficient to support one of his convictions. 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 D AVID H. W ELLES and

D. K ELLY T HOMAS, J R., JJ., joined.

Donna Miller, Chattanooga, Tennessee, for the appellant, Scott W. Grammer.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant

Attorney General; William H. Cox, III, District Attorney General; and Mary Sullivan Moore

and Rachael Winfrey, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

I. Factual Background

The record reflects that the petitioner was charged with two counts of child rape, a

Class A felony, and one count of aggravated sexual battery, a Class B felony, against the

victim, his stepdaughter. This court stated the following facts in its opinion from the

petitioner’s direct appeal:

[E.G.]1 testified that she is A.G.’s mother, and A.G. is her

daughter from a previous marriage. In 1995, when A.G. was

five years old, [E.G.] married the [petitioner]. She and the

[petitioner] almost ended their relationship in 1993 because the

[petitioner] had told her that he had “a problem with attraction

to young girls and he was afraid that he may possibly act that

attraction out with [A.G.] . . . .” [E.G.] stated that the

[petitioner] used to give A.G. extended massages, and “[t]here

were times when the [petitioner] appeared like he didn't want to

stop touching [A.G.’s] skin.”

[E.G.] testified that in November of 2003, A.G. became

depressed and had begun cutting herself with knives. A.G. was

hospitalized for depression in late November and released on

December 1, 2003. During A.G.’s first night out of the hospital,

[E.G.] attended a meeting and was away from the home until

around 11:00 p.m. When she returned home, the [petitioner]

informed her that A.G. was agitated and needed attention. When

[E.G.] spoke with A.G., A.G. stated that she wanted to cut

herself and that she did not think she could keep herself safe

overnight. [E.G.] testified that she contacted A.G.’s caseworker

at the hospital to inquire about checking A.G. back into the

hospital. The caseworker indicated that A.G.’s behavior was not

atypical because many young people develop close friendships

while hospitalized and will “act up” in order to be readmitted.

When [E.G.] finished the phone conversation with the

caseworker, A.G. told [E.G.] that she wanted [E.G.] to read

some of the poetry A.G. had written while in the hospital. The

poem read, in part, “. . . you have shown me things/ A child

shouldn’t see/ Things a child shouldn’t know/ Things that make

me feel disgusting/ And I want to die!” [E.G.] asked A.G. if

someone had touched her inappropriately, and A.G. indicated

that the [petitioner] had. [E.G.] testified that she then

confronted the [petitioner], that the [petitioner] appeared to go

1

In order to protect the victim’s identity, we will refer to the victim’s mother by her initials.

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into shock, simply repeating “no, no, no” to all of [E.G.]’s

inquires on the subject.

[E.G.] stated that she called 911, but the [petitioner] took

the phone from her hand and hung it up. [E.G.] and the

[petitioner] discussed the situation, and she told the [petitioner]

that she was taking A.G. and leaving. According to [E.G.], the

[petitioner] asked her not to leave, and she replied that if she

were going to stay, the [petitioner] would have to tell her the

truth. The [petitioner] took several deep breaths and stated:

“I’ve touched [A.G.] inappropriately.” [E.G.] recalled yelling

at the [petitioner] and crying, and the [petitioner] was also

crying and apologizing profusely. Shortly thereafter, two police

officers arrived and separated [E.G.] and the victim from the

[petitioner]. [E.G.] visited the [petitioner] while he was

incarcerated, and she indicated that during each visit he

expressed remorse for what had happened. [E.G.] testified that

the [petitioner] had walked around their apartment nude in front

of A.G., and, at one point, she found pornographic pictures of

children on the [petitioner’s] computer.

A.G. testified that, at the time of the trial, she was

fourteen years old, and she considered the [petitioner] to be her

father. A.G. said that the [petitioner] normally wore boxer

shorts or would be naked while they were at home, and the

[petitioner] often lay in bed with her completely naked, which

made her uncomfortable. A.G. stated that the [petitioner] began

sexually abusing her when she was nine years old, and the first

sexual abuse occurred in March or April of 2000, while her

mother was away at a weekly social group. A.G. was at home

with the [petitioner] watching the film Pleasantville, and there

was a scene involving female masturbation. A.G. indicated that,

at the time, she did not know that the character in the film was

masturbating and she had at that time never engaged in

masturbation. During this scene, the [petitioner] “French

kiss[ed]” her. She said that the [petitioner] then had her take off

her clothes, touched her breasts and vagina, and performed oral

sex on her. A.G. testified that the [petitioner] “masturbated” her

by touching her on the outside of her vagina and by sticking his

finger inside of her. He then made her lay down on her back

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and inserted his tongue into her vagina. A.G. testified that she

thought that what the [petitioner] was doing was appropriate

because she loved the [petitioner]. At one point, A.G. asked the

[petitioner] if there was anything wrong with it, and he

responded that “not everyone thinks this is right.” A.G. said she

then asked him, “Does [m]ommy think this is al[]right?” He

responded, “No, so you shouldn't tell her.” A.G. testified she

did not ask the [petitioner] any further questions because she

trusted him.

....

A.G. testified that another time, . . . the [petitioner] came

into A.G.’s room while A.G.’s mother was asleep. A.G. was

having trouble with a video game called “Pets,” and the

[petitioner] determined that a piece of software needed to be

downloaded to fix the game. While the software was

downloading, the [petitioner] kissed A.G. and had her take off

her clothes.

....

A.G. stated that on several occasions the [petitioner] had

her lie on top of him. She described one such incident in detail

saying:

[H]e had me lay on top of him with my hind-end

like over his face, and he performed oral sex on

me and put his tongue and fingers inside of me

and had me masturbate him. . . . I remember it

was daylight, warm outside, because I remember

while this was happening, a lot of times I would

look out the window, because I didn't want to pay

attention to what was happening.

A.G. testified that in November of 2003, after a fight

with her mother, she began thinking about the abuse and decided

to start cutting herself to feel better. She indicated that some

friends at school were very involved in cutting themselves and

told her that it would make her feel much better. On November

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24, 2003, A.G. was admitted to the hospital for the

psychological and emotional problems she was having. On

December 1, 2003, she was released, and the following day she

disclosed the abuse she had suffered. A.G. also recalled the

[petitioner] acknowledging “I touched her inappropriately”

when A.G.’s mother threatened to leave the [petitioner]if he did

not tell her the truth.

A.G. testified that sometimes during the abuse she would

ask the [petitioner] to stop, and he would momentarily stop and

then commence what he was doing. She said that the abuse

finally ceased when she was around eleven years old. She

recalled that the [petitioner] never inserted his penis into her.

On cross-examination, A.G. agreed that sometimes she

cut herself because she was upset about breaking up with a

girlfriend. A.G. also acknowledged that during her initial

interview regarding the abuse, she may have said that she could

not remember anything specific and that her memory of the

incidents was “fuzzy.” She testified that as time has passed, she

has begun to remember things better.

The [petitioner] testified that he had a good relationship

with A.G. However, he felt that the relationship became

strained when A.G. began to go through puberty. According to

the [petitioner], A.G.’s behavior further deteriorated through

2003, and A.G. began cutting herself in November of 2003

when A.G. broke up with her girlfriend. The [petitioner] said

that he and his wife responded by taking A.G. to an inpatient

facility, but A.G. was allowed to return home after “contracting”

that she would not hurt herself. Shortly thereafter, A.G. woke

the [petitioner] and his wife up one night and said that she

wanted to cut herself, which they later learned was actually an

aborted suicide attempt. A.G. was readmitted into the

psychiatric hospital and remained there for several days.

The [petitioner] testified that, upon A.G.’s return home,

A.G. informed her mother that the [petitioner] had been

touching her inappropriately. The [petitioner] stated that he was

first made aware of this accusation while A.G.’s mother was on

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the phone with what he believed was the psychiatric hospital. He

said that he took the phone and hung it up out of “instinct” and

that he did not know that A.G.’s mother was actually on the

phone with a 911 operator. The [petitioner] denied ever making

the statement “I touched her inappropriately” during the initial

confrontation with A.G.’s mother. The [petitioner] stated that

a few minutes later the police arrived, and he was told that he

had to leave and to contact Detective Akins in the morning. The

[petitioner] testified that he never expressed any form of sexual

attraction to children.

On cross-examination, the [petitioner] denied walking

around the house naked in front of A.G. He stated that [E.G.]

had insisted it was fine for him to be naked in front of A.G.

when she was young, but he never felt comfortable being nude

in her presence and stopped when A.G. was seven or eight years

old. The [petitioner] indicated that [E.G.] had testified that the

[petitioner] said “I touched her inappropriately” because [E.G.]

wanted to facilitate a divorce with him. The [petitioner] stated

that he never contacted any girls A.G.’s age on the internet but

that he did communicate on the internet with a couple of girls

three or four years older than A.G. He was referred to these

girls’ online diary entries from A.G.’s online diary, and he read

them because they were similar in content to A.G.’s and would

allow him to better understand how A.G. was thinking.

The [petitioner ]denied ever having pornography on the

computer in the home and indicated that he had not fought with

[E.G.] about the issue. The [petitioner] testified that A.G. would

lie to get out of trouble and that, in spite of the allegations

leveled against him, he still loved A.G. He indicated that A.G.

had severe problems and that he did not hold her responsible for

her words or actions in this case. The [petitioner] denied

sexually abusing A.G., and he stated that he did not deny the

allegation to the police when they arrived because he was

“mortified” and did not know what to say. The [petitioner]

indicated that he never apologized to [E.G.] for anything that

transpired between the [petitioner] and A.G. He also did not

recall A.G. ever writing poetry.

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State v. Scott W. Grammer, No. E2005-02604-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS

171, at **3-13 (Knoxville, Feb. 26, 2007), perm. to appeal denied, (Tenn. 2007). The jury

convicted the appellant of three counts of aggravated sexual battery. Id. at *2.

After our supreme court denied the petitioner’s application for permission to appeal

his convictions, the petitioner filed a timely petition for post-conviction relief, arguing that

he received the ineffective assistance of counsel and that the trial court improperly enhanced

his sentences. The post-conviction court appointed counsel, and counsel filed three amended

petitions for post-conviction relief, expanding on the petitioner’s ineffective assistance of

counsel claim. Relevant to this appeal, the petitioner argued that trial counsel was ineffective

for (1) failing to object to numerous instances of misconduct and misstatements of the

evidence by the prosecutor during her closing argument and while cross-examining the

defense expert; (2) failing to object to inadmissible hearsay by E.G., the first police officer

who responded to E.G.’s 911 call, and the nurse who performed the victim’s physical exam;

(3) failing to prepare the petitioner adequately for cross-examination; (4) failing to present

evidence favorable to the defense such as testimony from the victim’s friends and the

petitioner’s character witnesses; and (5) failing to cross-examine the victim about her telling

a police officer that the abuse occurred for four years when she testified at trial that the abuse

occurred for two years.

At the evidentiary hearing, the petitioner’s lead trial counsel testified that he began

practicing law in 1970, was appointed to represent the petitioner, and “accepted the

responsibility for the trial overall.” Prior to becoming a defense attorney, he worked as a

prosecutor and tried about twenty-five sex abuse cases. However, this may have been his

first sex abuse trial as a defense attorney. He and co-counsel met with the petitioner in jail

several times. He acknowledged that before trial, the trial court ruled that the defense could

not have the victim’s psychological records. The defense had wanted to talk with the

victim’s friends but could not find any of them. Lead counsel said he cross-examined the

victim’s mother extensively to show “some inconsistency with her and Mr. Grammer’s

relationship and relationship to the daughter.” He said that no pictures of child pornography

were on the petitioner’s computer and that he did not know why he failed to object when the

victim’s mother testified pictures were on the computer. The victim was a better witness for

the State than lead counsel had expected, and he thought she had been coached. However,

he did not remember whether he cross-examined her about any coaching. He said that he

was familiar with the fresh complaint doctrine and acknowledged that a police officer, a

detective, the victim’s mother, and a nurse testified about the victim’s statements without any

objection from the defense. He explained,

I think that we got into the point that it was a spontaneous

statement by [the victim] to her mother, who could testify about

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it, and once that was opened, it really didn’t make a lot of

difference whether other people repeated. Her mother was

going to testify to that fact and to the incriminating statement

Mr. Grammer made in response to the first accusation.

Lead counsel testified that although the defense expert had not interviewed the victim

before trial and was not in the courtroom during the victim’s testimony, the expert

understood the petitioner’s case and “got out everything we had gone over.” When asked

why he did not object to the prosecutor’s “brutal” cross-examination of the expert, lead

counsel said, “Some people badger people. My technique is not to do that but to deal with

the important, really important issues in a case.” He said that the defense “would have loved

to have had some character witnesses” and contacted one of the petitioner’s friends but that

“he was not able to qualify as a legitimate character witness.” Lead counsel said he did not

remember inconsistencies between the victim’s testimony and her statements to employees

at the Child Advocacy Center, and he acknowledged that his cross-examination of the victim

had been critical to the defense’s strategy. Lead counsel talked with the petitioner about how

to answer the State’s questions on cross-examination.

Lead counsel testified that he had been familiar with the prosecutor in this case and

that she was a “competent prosecutor.” He said he did not remember the prosecutor’s

misstating the evidence or giving her personal opinion during closing arguments. When

asked why he did not object to the prosecutor’s stating during her argument that the petitioner

admitted having child pornography on his computer, lead counsel said that “I don’t recall it”

and that “sometimes you can do as much damage objecting as you can by not objecting.

When you do object, it emphasizes things to the jury.” Regarding the prosecutor’s tactics,

he said, “Sometimes her techniques rubbed against the grain of defense attorneys, but she

was, she was effective in her own way.” When asked if any of the prosecutor’s tactics hurt

the defense, he said, “No. Sometimes it actually worked to our favor, I think.” Lead counsel

and co-counsel also represented the petitioner on direct appeal. Lead counsel said that

although co-counsel prepared the appeal, lead counsel “looked at the finished product.”

On cross-examination, lead counsel testified that he had conducted “[t]housands” of

jury trials since becoming licensed to practice law. He received discovery in this case and

met with the petitioner several times about discovery and what would happen at trial. He

said he did not object to some things that happened during the trial because “there are times

it can highlight that rather than just let it go.” He said the defense expert did not interview

the victim because “the victim wasn’t available to us, period.” The petitioner was adamant

that he was not guilty and rejected an offer from the State to plead guilty to one count of

attempted aggravated sexual battery in exchange for an eight-year sentence to be served as

eleven months, twenty-nine days in jail and the remainder on community corrections.

-8-

Co-counsel testified that she assisted lead counsel at trial. She had participated in one

jury trial and several bench trials prior to the petitioner’s trial but had not handled any jury

trials on her own. She said the petitioner’s trial was her first “major” trial. She and lead

counsel attempted to interview the victim’s friends, but co-counsel was unsuccessful in

locating or speaking with any of them. She also did not talk with the victim’s mother or any

of the victim’s doctors or counselors. She said she did not remember the petitioner’s giving

her a list of character witnesses. Co-counsel spent several days with the petitioner, preparing

him for his direct testimony. The trial court had ruled that the defense could not have the

victim’s psychological records, and defense counsel did not file an interlocutory appeal to

challenge that ruling. Co-counsel did not remember filing a motion to exclude evidence of

pornography allegedly on the petitioner’s computer. She also did not remember the State’s

failing to include one of its elected offenses in the bill of particulars.

Co-counsel testified that she prepared the petitioner’s direct appeal. She did not

remember whether the trial court enhanced the petitioner’s sentences within the range, and

she did not raise any sentencing issues on appeal. She said she did not know why the

victim’s psychological records were not included in the direct appeal record.

On cross-examination, co-counsel testified that she located and retained an expert to

testify on the petitioner’s behalf and was responsible for questioning the expert at trial. She

also received discovery and went over it with the petitioner. She said she and lead counsel

met with the petitioner in jail, discussed trial strategy with him, and went over “everything”

with him in preparation for trial. Lead counsel was supposed to handle objections during the

trial, and he made several objections. Co-counsel was responsible for questioning the

petitioner on direct examination. She said that she did not know how much time she spent

preparing the petitioner for cross-examination but that she was “sure” she talked with him

about his cross-examination testimony. She acknowledged that she received a letter from the

petitioner after the trial and that he did not mention anything in the letter about having

received the ineffective assistance of counsel. She also acknowledged that the jury did not

convict the petitioner as charged.

On redirect examination, co-counsel acknowledged that she received a letter from the

petitioner before trial and that the letter contained a list of possible character witnesses. She

said that she contacted one of the witnesses on the list but that “[he] did not want to be a part

of it.” She also acknowledged that prior to trial, she received a letter from the petitioner in

which he complained about things that had not been done for trial. Co-counsel said the

petitioner was intelligent, and she acknowledged he was cooperative. The defense’s strategy

was to show the petitioner did not commit the crimes. Defense counsel recommended that

the petitioner testify so he could explain the victim’s allegations and his relationship with her.

The defense also had hoped that the defense expert’s testimony would cause the jury to

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question the victim’s reliability. When asked why the defense did not cross-examine the

victim about inconsistencies between her statements in the Child Advocacy Center report and

her testimony, co-counsel said, “I don’t know.” She acknowledged that the defense had

received the Child Advocacy Center Report for trial.

The petitioner testified that he gave trial counsel a list of character witnesses before

trial and that he thought they discussed “Jeff and Amy” on the list. The petitioner also sent

a letter to counsel, complaining about problems with his defense, but counsel did not resolve

the issues. The petitioner said he was concerned that the victim’s psychological records had

not been included in “the file” and that the victim may have made exculpatory statements to

a counselor. He acknowledged that the victim previously had denied the abuse to her mother,

during a family meeting with the victim’s psychologist, and when the victim was admitted

to Peninsula Village. The petitioner said he asked counsel to interview the victim’s friends

and call them as witnesses “[t]o show that the relationship between [the victim] and I was

normal.” However, counsel did not call any of the victim’s friends to testify. The victim had

told a police officer that the abuse had been occurring for four years, but she said two years

at trial, and counsel did not cross-examine the victim about the inconsistency. The victim

was very intelligent, and the petitioner did not think counsel was adequately prepared to

cross-examine her. The petitioner remembered meeting with counsel only one time for

fifteen to twenty minutes to discuss his cross-examination testimony, and he was not

prepared for many of the State’s questions. He said he never admitted having child

pornography on his computer. Counsel failed to raise some issues on appeal that the

petitioner thought should have been included.

On cross-examination, the petitioner testified that defense counsel did not call his

sisters to testify and that he thought his sisters would have said he and the victim had a

normal relationship. He said counsel told him “about some of what would happen” at trial.

Counsel did not force him to testify but strongly suggested it. After the trial, the petitioner

asked counsel to file a complaint against the prosecutor with the Board of Professional

Responsibility. The petitioner said counsel refused and “that led me to believe that they had

a reason not to upset the prosecutor.”

Amy Hensley testified that she was a registered nurse, that she had known the

petitioner since 1990, and that she and her husband “came down” for the petitioner’s trial.

No one ever contacted her about being a character witness for the petitioner. She said she

would have testified for the petitioner that she never saw anything improper between him and

the victim. She said, “They were like a normal father-daughter relationship.” She also had

never seen the victim express any fear of the petitioner or the petitioner exhibit any violence.

She said that she did not have children but that she would not have had any concern about

the petitioner’s being around her nieces and nephews. She said she did not think the

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petitioner was capable of the crimes. On cross-examination, Hensley acknowledged that she

was not present at the Grammer home when the abuse allegedly occurred.

Lorrie Miller testified that she used to work for the public defender’s office, had been

practicing criminal defense law for ten years, and had handled sexual abuse cases. She stated

that minor inconsistencies in a victim’s statement were very important because “it boils down

to a lot of times the defendant’s word versus the victim’s word.” She said that it was routine

for a defense attorney to try to speak with the victim and the victim’s peers, teachers, and

counselors. She said that defense counsel also should gather psychological records and that

character witnesses should testify “[i]n some circumstances.” She explained that fresh

complaint testimony was sometimes inadmissible at trial and that she did not think evidence

about child pornography was admissible because its probative value often was outweighed

by its prejudicial effect. She explained that when preparing a defendant to testify, “you want

to go through their direct testimony . . . so that they’re not dealing with their nerves.” She

also stated that “you’ve got to prepare them for whatever questions you anticipate that the

State will ask” and that defense counsel needed to know a defendant’s answers in advance.

She said that in a “substantial case,” such as this one, a defendant could not be prepared for

cross-examination in fifteen to twenty minutes. Regarding the victim’s testimony about the

Pets computer game incident, she said the victim did not testify about the types of touches

involved and that the issue should have been raised on appeal. She acknowledged that the

defense also should have raised an issue about the fresh complaint doctrine.

On cross-examination, Miller acknowledged that she was not present at trial and that

a defense attorney could not force a victim to speak with the attorney. She said she had gone

to trial on only four cases, one of which was a sex abuse case, and acknowledged that she had

less experience than lead counsel. She also acknowledged that an attorney’s failure to file

pretrial motions was not dispositive of a case. On redirect examination, Miller acknowledged

that she saw egregious errors in this case.

The post-conviction court denied the petition for post-conviction relief. Regarding

counsel’s failure to object to instances of prosecutorial misconduct, the post-conviction court

stated that “while some portions of the argument were outside the Record and were personal

observations,” the petitioner failed to show he was prejudiced by the prosecutor’s actions.

As to the petitioner’s claim that counsel failed to object to inadmissible hearsay, the court

noted that lead counsel believed the testimony about the victim’s statements was admissible

as fresh complaint and also did not object based upon strategy. In addition, the post-

conviction court found that “there existed a sound evidentiary base for the admission of these

hearsay statements.” As to the petitioner’s claim that counsel failed to prepare him

adequately for cross-examination, the trial court stated that the petitioner “fails to point out

any portion of his cross examination to support this assertion.” Regarding counsel’s failure

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to call the victim’s friends and the petitioner’s character witnesses to testify, the court noted

that defense counsel testified that they were unable to find the victim’s friends and that none

of the petitioner’s friends qualified as character witnesses. The post-conviction court also

concluded that testimony such as Amy Hensley’s probably would have been inadmissible and

would not have affected the outcome of the trial. The petitioner maintains on appeal that he

received the ineffective assistance of counsel.

II. Analysis

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

factual allegations contained in his post-conviction petition by clear and convincing

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

evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.

App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

Issues regarding the credibility of witnesses, the weight and value to be accorded their

testimony, and the factual questions raised by the evidence adduced at trial are to be resolved

by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579

(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to

substantial deference on appeal unless the evidence preponderates against those findings.

See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

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

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

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

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

purely de novo. Id.

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

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

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

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

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

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

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

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

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

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

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[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).

A. Prosecutor’s Statements

The petitioner argues that he received the ineffective assistance of counsel because

his trial attorneys failed to object to numerous instances of misconduct by one of the

prosecutors during her closing argument and while questioning the defense expert. The State

contends that the post-conviction court properly found that the petitioner failed to show he

was prejudiced by any alleged prosecutorial misconduct. We agree with the State.

Our review of the record shows that many of the petitioner’s claims of misconduct

have no merit. For example, the petitioner argues that the following statement by the

prosecutor was an improper voucher of credibility on the State’s witnesses:

The mother, like her or not, immediately believes her

child, so much so that she called 911. Again, man she’d lived

with, known since 1980, high school sweethearts, all she’d ever

known. Calls 911 right away because she believes her child so

much. Consistent with her testimony. Tells Officer Haley the

exact same thing. Consistent with her testimony. Talks to

Detective Akins four days later. Consistent with her testimony.

Exact same, didn’t change. Talks to the DA’s office.

Consistent. Story never changed. Same story.

In our view, the prosecutor’s pointing out that E.G.’s story had remained consistent was not

a personal voucher for E.G.’s truthfulness. See State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim.

App. 2003) (stating that one of five areas of prosecutorial misconduct includes “expressing

the prosecutor’s personal belief or opinion as to the truth or falsity of any testimony or

evidence or the guilt of the defendant”).

On the other hand, some of the prosecutor’s statements were improper. For example,

during her rebuttal closing argument, the prosecutor stated, “Scott purported, in his direct,

how much he loves [A.G.] . . . . I’m not certain of that” and “But how would Scott Grammar

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benefit by lying, which he so obviously did?” See id. (stating that “[i]t is unprofessional

conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity

of any testimony”). The prosecutor also incorrectly stated that the petitioner admitted to

having pornography on his computer. See id. (stating that a prosecutor cannot intentionally

misstate the evidence). However, the trial court instructed the jury, “Statements, arguments,

and remarks of counsel are intended to help you in understanding the evidence and applying

the law, but they are not evidence. If any statements were made that you believe are not

supported by the evidence, you should disregard them.” Generally, we presume that a jury

has followed the trial court’s instructions. See State v. Butler, 880 S.W.2d 395, 399 (Tenn.

Crim. App. 1994). While not condoning certain statements or remarks made by the

prosecutor, we agree with the post-conviction court that the petitioner has failed to

demonstrate he was prejudiced by them.

B. Hearsay Testimony

Next, the petitioner claims that his attorneys should have objected to inadmissible

hearsay testimony given by E.G.; the first police officer who responded to E.G.’s 911 call;

and nurse Kathy Spada, who interviewed the victim and performed the victim’s physical

examination. We conclude that the petitioner is not entitled to relief.

According to the trial transcript, E.G. testified without objection that on the night she

learned of the abuse, the victim was agitated and wanted to cut herself. E.G. telephoned the

victim’s hospital caseworker, and the caseworker spoke with the victim over the phone. E.G.

stated that while the victim was talking with the caseworker, the victim “got more and more

agitated” and told the caseworker, “I have to talk to my mom right now.” The victim gave

the phone to E.G., and E.G. spoke with the caseworker briefly. E.G. hung up the telephone,

and the victim gave E.G. a poem that the victim had written in the hospital. After reading

the poem, E.G. asked the victim if someone had touched the victim inappropriately, and the

victim nodded her head yes. E.G. said that she asked the victim, “Who did this to you?” and

that the victim “pointed towards the back of the house where my husband was at that time.”

E.G. confronted the petitioner and immediately telephoned 911. The first officer who

responded to the 911 call was Officer Mark Haley, who testified that the victim claimed the

petitioner “touched her breasts, rubbed her vagina, sometime he would orally violate her.”

The petitioner contends that E.G.’s and Officer Haley’s testimony about what the victim told

them was inadmissible hearsay.

The victim’s nodding her head affirmatively and pointing to the back of the house in

response to her mother’s questions and her statements to Officer Haley were hearsay. See

Tenn. R. Evid. 801. Generally, hearsay statements are inadmissible unless they fall under

one of the recognized exceptions to the hearsay rule. Tenn. R. Evid. 802. Our supreme court

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has held that the fresh complaint doctrine allows a prosecutor to enter into evidence in the

State’s case-in-chief the fact of a victim’s complaint of a sexual offense. State v. Kendricks,

891 S.W.2d 597, 603 (Tenn. 1994). As noted by the petitioner, in State v. Livingston, 907

S.W.2d 392, 394 (Tenn. 1995), the court eliminated the doctrine of fresh complaint when a

child is the victim of sexual abuse. However, a “child” for the purposes of the fresh

complaint doctrine is less than thirteen years old. See State v. Schaller, 975 S.W.2d 313, 321

(Tenn. Crim. App. 1997). The direct appeal record reflects that the victim was born in

October 1990 and that she reported the abuse to her mother and Officer Haley in November

2003. Therefore, the victim would have been thirteen years old, and E.G.’s and Officer

Haley’s testimony would have been admissible under the fresh complaint doctrine.

The petitioner also complains that counsel failed to object to hearsay testimony given

by Kathy Spada, the registered nurse who interviewed the victim and performed the victim’s

physical examination. The record reflects that during a jury-out hearing, the following

exchange occurred regarding Spada’s testimony:

[THE COURT]: [S]he can testify to her general

examination.

[The State]: Yes, sir. And I provided opposing counsel

with the Children’s Advocacy Center medical report and I’m

just going to go through what the child said, for purposes of

medical diagnosis and treatment, what the findings were, that

kind of thing.

THE COURT: Is that clear?

[Lead counsel]: For medical examination?

THE COURT: Medical examination, yes, sir.

[The State]: And recommendations for treatment?

[Lead counsel]: I’m still objecting to a nurse

recommending treatments, Your Honor.

[The State]: Your Honor, she’s not just a nurse, she is the

medical person that does --

THE COURT: What were your recommendations?

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[Spada]: For counseling on a long-term basis.

THE COURT: All right. If that’s what she’s going to

say, that will be fine.

Spada testified that she asked the victim about the abuse in order to “know how to

direct my exam, in terms of what I need to look at, what I need to focus on, what cultures I

need to do, if she is high risk for any other sexually-transmitted diseases.” Spada said the

victim told her that “her stepfather had put his mouth on her privates and that he’d also put

his fingers inside of her and that he scared her.” Spada also stated that the victim claimed

the abuse had not occurred “[in] a long time. It had been like well after a week or 72-hour

period.” Spada did not make any other statements regarding what the victim told her. Spada

said that the victim’s exam was consistent with the victim’s history of digital penetration and

cunnilingus and that she recommended counseling for the victim.

Tennessee Rule of Evidence 803(4) provides that “[s]tatements made for purposes of

medical diagnosis and treatment describing medical history; past or present symptoms, pain,

or sensations; or the inception or general character of the cause or external source thereof

insofar as reasonably pertinent to diagnosis and treatment” are not excluded by the hearsay

rule. Initially, we note that Spada’s testimony concerning what the victim told her was

extremely limited. In any event, we believe the victim’s statements to Spada were made for

the purpose of medical diagnosis and treatment.

The petitioner argues that the victim’s telling Spada that he “scared her,” was not

permissible under Rule 803(4), Tennessee Rules of Evidence, and that the statement was

extremely prejudicial because it reinforced the victim’s credibility. We disagree. The record

reflects that lead counsel objected to Spada giving any testimony regarding recommended

treatment. However, the trial court ruled Spada could testify that she recommended long-

term counseling for the victim. Therefore, in our view, the victim’s fear of the petitioner

could be construed as falling within the purview of the hearsay exception. In any event,

Spada’s brief statement that the petitioner scared the victim would have been, at most,

harmless error. See Tenn. R. App. P. 36(a).

Given that the all of the witnesses’ testimony was admissible, counsel did not render

deficient performance by failing to object. The petitioner is not entitled to relief.

C. Petitioner’s Cross-examination

The petitioner argues that trial counsel failed to prepare him adequately for cross-

examination. However, as noted by the post-conviction court, the petitioner has failed to

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point out any portion of his cross-examination testimony for which he was unprepared. He

also has failed to explain what more counsel should have done to prepare him for the State’s

questions. Therefore, he has failed to show that counsel rendered deficient performance or

that he was prejudiced by any deficiency.

D. Defense Evidence

The petitioner contends that he received the ineffective assistance of counsel because

trial counsel failed to have the victim’s friends or the petitioner’s character witnesses testify.

The victim’s friends did not testify at the evidentiary hearing. See Black v. State, 794

S.W.2d 752, 757 (Tenn. Crim. App. 1990). As to the petitioner’s character witnesses,

defense counsel testified that they could not find any suitable witnesses to testify on the

petitioner’s behalf, and the post-conviction court obviously accredited counsel’s testimony.

In any event, Amy Hensley testified at the hearing that the petitioner and the victim appeared

to have a normal father/daughter relationship. However, she also acknowledged that she was

not present when the abused allegedly occurred, and the post-conviction court concluded that

such testimony would not have made a difference in the outcome of the trial. We agree.

Therefore, the petitioner is not entitled to relief.

We note that within this argument, the petitioner notes that he testified at the

evidentiary hearing that he provided defense counsel with the victim’s online computer diary

in which she referred to her mother and the petitioner as “her rocks” and said she did not

know what she would do without them. To the extent that the petitioner is raising this as an

ineffective assistance of counsel claim, the post-conviction court did not address it in its

order denying relief. Regardless, the diary is not in the post-conviction record. Moreover,

our review of the trial transcript shows that lead counsel cross-examined the victim about the

diary, and she acknowledged saying in the diary, “I seriously don’t know what I’d do without

[the petitioner] and Mom.” Therefore, the petitioner has failed to show that counsel rendered

deficient performance or that the petitioner’s case was prejudiced.

E. Victim’s Cross-examination

The petitioner argues that counsel should have cross-examined the victim about an

inconsistency in her testimony. Specifically, he contends that the victim testified at trial that

the abuse occurred for two years, but Officer Haley testified in a jury-out hearing that the

victim told him the abuse occurred for four years. The post-conviction court did not address

this argument. Nevertheless, we can conclude that the petitioner is not entitled to relief. The

purported jury-out hearing is not in the direct appeal or post-conviction records. See Tenn.

R. App. P. 24(a). Moreover, according to Officer’s Haley’s trial testimony, the victim told

him the abuse “had been going on for a number of years,” which would not be inconsistent

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with the victim’s testifying that the abuse occurred for two years. Finally, our review of the

victim’s testimony shows that lead counsel cross-examined her extensively concerning her

mental state, the online diary in which she never alleged any sexual abuse, and her motives

for claiming the petitioner abused her. The petitioner has failed to show he received the

ineffective assistance of counsel.

In addition to the petitioner’s ineffective assistance of counsel claim, the petitioner

raises several other issues. First, he contends that the post-conviction court should have

determined that he was entitled to relief because the prosecutor engaged in “egregious,

improper, and deceptive” practices during the trial. However, outside of an ineffective

assistance of counsel claim, this issue has been waived because it could have been raised on

direct appeal. See Tenn. Code Ann. § 40-30-110(f). Second, the petitioner contends that the

post-conviction court should have addressed his claim regarding the trial court’s enhancing

his sentences within the range in violation of Blakely v. Washington, 542 U.S. 296 (2004).

However, this claim also should have been raised on direct appeal. See Roosevelt Morris v.

State, No. W2008-01449-CCA-R3-PC, 2010 Tenn. Crim. App. LEXIS 852, at *65 (Jackson,

Oct. 11, 2010), perm. to appeal denied, (Tenn. 2011). Finally, the petitioner argues that this

court should reverse his aggravated sexual battery conviction for the Pets computer game

incident because the evidence is insufficient to support that conviction. However, the issue

is waived because it was previously determined by this court on direct appeal. See Grammer,

No. E2005-02604-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 171, at *40. In any event,

“post-conviction proceedings may not be employed to question or review or test the

sufficiency of the evidence at the original trial.” Myers v. State, 462 S.W.2d 265, 267 (Tenn.

Crim. App. 1970).

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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