# Jonathan M. Cooper v. State of Tennessee

> Court of Criminal Appeals of Tennessee · September 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10581097

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** September 11, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Kyle A. Hixson
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10581097

## How later opinions describe it (automated extraction)

- stating that “‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”
- noting, in a child sexual abuse case, that “[p]erhaps, . . . the [victim’s medical] report could have been used to raise doubts in the jurors’ minds as to [the defendant’s] guilt or innocence”
- noting that this court may take judicial notice of its own records
- concluding that a prior consistent statement may be admissible when a witness is impeached through the introduction of a prior inconsistent statement that suggests that the witness’s testimony was either fabricated or based upon faulty recollection
- applying the Strickland standard to appellate-ineffectiveness claims

## Opinion text

09/11/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 24, 2024 Session

JONATHAN M. COOPER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County
No. 118011 Steven W. Sword, Judge

No. E2022-01776-CCA-R3-PC

The Petitioner, Jonathan M. Cooper, appeals the denial of his petition for post-conviction
relief challenging his multiple convictions for aggravated sexual battery, incest, and rape
of a child. On appeal, the Petitioner argues the post-conviction court erred in denying his
motion to continue the evidentiary hearing requesting more time to develop recently
discovered evidence—the report of the victim’s medical examination. The Petitioner also
contends the post-conviction court erred in denying relief because (1) the State violated his
due process rights by failing to disclose Brady evidence at trial, i.e., the report of the
victim’s medical examination; (2) he received the ineffective assistance of counsel due to
trial counsel’s failure to familiarize himself with Rule 412 of the Tennessee Rules of
Evidence, and this failure resulted in the exclusion of evidence of the victim’s sexual
behavior with her stepbrother; (3) he received the ineffective assistance of counsel due to
trial counsel’s failure to object to the State’s improper closing argument; (4) he received
the ineffective assistance of counsel due to trial counsel’s failure to properly address the
issue of venue; and (5) the cumulative effect of trial counsel’s deficiencies, along with the
State’s withholding of Brady evidence, violated his right to a fair trial. After review, we
affirm the judgment of the post-conviction court.

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

KYLE A. HIXSON, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TOM GREENHOLTZ, JJ., joined.

Eric Lutton, District Public Defender; and Jonathan Harwell (at hearing and on appeal),
and Joseph Sandford (at hearing), Assistant District Public Defenders, for the appellant,
Jonathan M. Cooper.

Jonathan Skrmetti, Attorney General and Reporter; Ronald L. Coleman, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Nathaniel Ogle,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

I. FACTUAL AND PROCEDURAL HISTORY

A. Trial

In 2016, the Petitioner was charged by presentment with two counts of aggravated
sexual battery, five counts of incest, and five counts of rape of a child. See Tenn. Code
Ann. §§ 39-13-504, -522; -15-302. These allegations involved the Petitioner’s alleged
sexual abuse of his biological daughter, F.C.,1 and were alleged to have occurred at
different locations over two sequential time periods: first, between May 28, 2013, to May
27, 2014, at the victim’s grandparent’s house, where the victim stayed with the Petitioner
and other relatives; and second, between May 28, 2014, to April 2015, at an apartment in
Country Oaks Apartments, where the Petitioner and his wife, the victim’s stepmother, later
moved. See State v. Cooper, No. E2018-00622-CCA-R3-CD, 2019 WL 2185219, at *1-2
(Tenn. Crim. App. May 21, 2019), perm. app. denied (Tenn. Sept. 18, 2019).

At the outset of the March 2017 trial, the trial court asked the parties if there were
any preliminary matters to address. The prosecutor stated that he wanted to make the trial
court aware “that there was no [Rule] 412 notice in this case” and that the State, therefore,
“wouldn’t expect any testimony regarding any other sorts of sexual acts on the part of the
victim[,]” who was twelve years old at the time of trial. Thereafter, trial counsel indicated
that he did not have any preliminary matters for the trial court on behalf of the defense.
The trial proceeded.

The victim [provided her birthdate and] testified . . . that the
[Petitioner] is her father. Initially, the [Petitioner] lived with his parents, the
victim’s grandparents, and he had custody of her “every weekend.” The
victim testified that she would stay with the [Petitioner] in his bedroom
where she had a small bed to herself.

The victim testified that one night, when she was “[a]bout nine” and
in the fourth grade, the [Petitioner] closed the door to his bedroom and told
her to come to his bed. The [Petitioner] then “started touching [her] private
parts” over her clothing. The victim explained that her “private parts” were
her “[b]oobs and vagina.” When he was finished, the [Petitioner] told the
victim to go back to her bed. The victim testified that she did not tell anyone

1
It is the policy of this court to refer to minors and victims of sexual offenses by their initials.

-2-
about this because she “was scared.” According to the victim, this happened
“[l]ike three or four times.” During these incidents, the [Petitioner] would
instruct the victim to take off her clothes and touch his penis. The victim
recalled an incident at her grandparents’ house when the [Petitioner] “put his
penis in [her] mouth and kissed and licked [her] privates.”

The victim testified that around the time she turned ten and started the
fifth grade, the [Petitioner] got married and moved into an apartment with
his wife. The [Petitioner] and his wife had a baby . . . in June 2014. The
victim testified that she shared a bedroom with her baby brother when she
stayed with the [Petitioner].

The victim recalled that, late one night, the [Petitioner] entered her
bedroom and took her baby brother out of the room. The [Petitioner] returned
to the room without the baby, he shut the door, took off his clothes, and took
off the victim’s clothes. The victim testified that the [Petitioner] then started
“kissing and touching” her “vagina and boobs.” The victim testified about
another incident when the [Petitioner] took her baby brother out of the
bedroom, came back without the baby, took off both of their clothes, and
“[p]ut his penis in [her] mouth and was touching and licking [her] private.”
When he finished, the [Petitioner] had her put on her clothes and go back to
bed.

The victim testified that the final incident occurred at the
[Petitioner’s] apartment when she was eleven. On that night, the [Petitioner]
penetrated her vagina with his penis. The victim testified that the [Petitioner]
was “[g]oing back and forth” with his penis for “a short amount of time”
before the [Petitioner] “took his penis out of [her] vagina and put white stuff
on [her] stomach.” The [Petitioner] then put his clothes on, took the victim
to a bathtub, and “washed it off.” The victim testified that she dried off,
dressed, and went back to bed.

After the last incident, the [Petitioner] and his wife moved from their
apartment to a house. The victim testified that she “waited for a little bit after
[the Petitioner] moved into his new house” to tell her mother because she
was “nervous about what they were gonna say and still scared.” In November
2015, the victim told her mother about what the [Petitioner] had done. The
victim explained that she “didn’t want it to happen any longer.”

-3-
The victim testified that no one had told her what to say, that her
testimony was the truth, and that what she had testified to had really
happened. The victim testified that she did not sleep in a separate bedroom
at her grandparents’ house when these incidents occurred. The victim
clarified that she only slept in a separate bedroom at her grandparents’ house
“after this like quit.” Additionally, the victim was inconsistent about when
the last incident took place. The victim initially testified that it occurred
during the summer, after school had ended for the year. The victim then
testified that it occurred before her birthday in May, maybe in April, but
before school had ended for the year.

Cooper, 2019 WL 2185219, at *1-2.

In addition to these details,2 the victim also testified that at the time of trial, she was
twelve years old, was in the seventh grade, and attended a middle school in Union County.
She confirmed that her grandparents’ house was located in Knox County and that the
apartment the Petitioner moved to in 2014, when she was around ten years of age, was
located inside Country Oaks Apartments complex. When the Petitioner and his wife
moved into the apartment, the Petitioner’s wife’s mother still lived there, but the
Petitioner’s wife’s mother subsequently moved out. The victim described who stayed
where and the furniture in the bedrooms over the time period she visited with the Petitioner
at the apartment. The victim testified that when she was around eleven, the Petitioner and
his family moved from the apartment to a residence on Ellison Road.

The victim also confirmed that she was interviewed about these allegations at the
ChildHelp center by a woman named “Nicole.” The victim stated that after this interview,
she had remained at her mother’s house “ever since[.]”

On cross-examination, trial counsel asked the victim about her testimony on direct
examination that she had remained in the home with her mother and stepfather “ever since”
reporting these allegations. When prompted, the victim agreed that this was not “really
true[.]” The victim then stated, “But like when I moved out of my dad’s, I was there.”
When trial counsel again attempted to clarify if the victim had remained at her mother’s
ever since, the prosecutor objected, and a bench conference ensued.

The prosecutor indicated trial counsel was “about to try and go into a brief period”
when the victim was in the custody of the Department of Children’s Services (“DCS”) due
2
By order dated April 20, 2023, this court granted the Petitioner’s motion to take judicial notice of
the underlying trial record in this case. See State v. Lawson, 291 S.W.3d 864, 869 (Tenn. 2009) (noting
that this court may take judicial notice of its own records).

-4-
to sexual activity with her stepbrother. The prosecutor asserted that “this line of
questioning,” which was “starting to go down that path,” was irrelevant. Trial counsel
responded that the evidence was first relevant because the question bore on the witness’s
character for truthfulness. Trial counsel then argued the evidence was relevant for an
additional reason: “After this incident, she went to her mother’s house and was perped on
by the stepbrother, and the reason why this is relevant is she had the testimony about
ejaculation[.]”

The trial court interjected that this was “412 stuff[,]” to which trial counsel agreed.
Trial counsel observed the State would likely argue the victim only gained knowledge of
sexual matters based upon her interactions with the Petitioner, and the prosecutor replied
he would not be arguing such. Trial counsel then said this was “not a question of her sexual
history[,]” to which the trial court disagreed. The trial court ruled,

And to show basis of knowledge is one of those reasons under 412 that you
can delve into this stuff, but we specifically asked at the beginning, and you
said you weren’t going into it so you’re precluded from it. I don’t think
there’s any reason to get into the DCS stuff, so I’m going to grant the State’s
objection. You can’t pursue this line of questioning.

The bench conference ended, and testimony resumed.

After the victim’s testimony, the victim’s mother testified that she and the Petitioner
were both eighteen years old when the victim was born. After their relationship ended,
they arranged a visitation schedule for the victim, which consisted of “every other week
until [the victim] reached school age, and then she would stay with [her mother] during the
week for school, and then she would go visit [the Petitioner] on the weekends.” To
facilitate the victim’s exchange, she would meet with the Petitioner or his family member
first at “the CVS in Halls” and then later at “the TVA in Halls.” The victim’s mother
confirmed that the victim initially visited the Petitioner at his parents’ house and later at an
apartment in Country Oaks Apartments. The victim’s mother also confirmed that the
Petitioner’s parents’ house was located in Knox County.

The victim’s mother . . . testified that she noticed that the victim had
become “really withdrawn” from the time she was nine until she reported the
abuse when she was eleven. [The victim’s mother] explained that this was
especially noticeable when she would pick the victim up from her weekend
visitations with the [Petitioner]. However, [the victim’s mother] admitted
that the victim was not “withdrawn” at every pickup.

-5-
Cooper, 2019 WL 2185219, at *2. In addition, the victim’s mother testified that since the
end of 2015, the victim was “a much happier child[,] . . . like a weight’s been lifted off of
her.”

On cross-examination, the victim’s mother affirmed that there was a total of five
children in the household she shared with her husband—three were stepchildren, one was
the victim, and one was the child of the victim’s mother and stepfather. The victim’s
mother confirmed that the family had taken two trips to Florida, once when the victim
accompanied them to Disney World, and another when the victim did not accompany them
on the trip. However, the victim’s mother clarified that the victim was twelve years old at
the time of the family trip when the victim did not accompany them, so the trip had been
recent.

Knoxville Police Department (“KPD”) Investigator Shaun Sakovich testified that
he was a police officer with the Special Crimes Unit and that he had worked with the KPD
since 2008. Inv. Sakovich said that in November 2015, he was assigned to investigate
allegations of sexual abuse levied against the Petitioner, following a DCS referral from
Karen Orsulak. Ms. Orsulak had arranged a forensic interview for the victim at ChildHelp,
which Inv. Sakovich attended. Inv. Sakovich testified that he observed the victim through
a two-way mirror during her forensic interview at the ChildHelp facility and that she “cried
for an extended period of time.” Cooper, 2019 WL 2185219, at *2.

In addition, the day after the victim’s forensic interview, Inv. Sakovich attempted
to contact the Petitioner at the Petitioner’s workplace, a radio station “off of Old Kingston
Pike,” but the Petitioner was not present. Inv. Sakovich “learned that [the Petitioner] was
at . . . another position doing part of his job” at a car dealership on Parkside Drive, so Inv.
Sakovich proceeded to that location. Once at that location, Inv. Sakovich located the
Petitioner and spoke with him about these allegations. According to Inv. Sakovich, the
Petitioner’s demeanor during the interview “started off as confusion and then went more
towards like worry and concern[.]” Inv. Sakovich then returned to the Petitioner’s
workplace off of Old Kingston Pike to speak with the Petitioner’s wife. Inv. Sakovich
described the Petitioner’s wife as “very assertive” when he spoke with her.

Inv. Sakovich testified that through conversations with the Petitioner, as well as
“some background investigation” that included a review of “driver’s license records[,]” he
was able to determine that the Petitioner lived at three different locations during the
relevant time period. Inv. Sakovich stated that he “believed” the Petitioner moved from
his parents’ home to an apartment in Country Oaks Apartments in the summer of 2014 and
that, in the summer of 2015, the Petitioner moved to a residence on Ellison Road. Inv.
Sakovich said that his recollection of these dates was based “off of like birthdays and

-6-
things” that he could remember. Inv. Sakovich also contacted “the management company
at a particular apartment complex and confirm[ed] that [the Petitioner] was a tenant there
for . . . a given period of time via their paper records.”

Inv. Sakovich went to the Petitioner’s parents’ house and interviewed the
Petitioner’s parents and the Petitioner’s sister and observed the various rooms inside the
house. At one point, Inv. Sakovich, along with an assistant district attorney general, went
to the victim’s school, and Inv. Sakovich observed the prosecutor speak with the victim.

At the close of Inv. Sakovich’s direct examination, Inv. Sakovich was asked, “At
the conclusion of your investigation . . . what did you do?” Inv. Sakovich replied that he
“turned over [his] case file” to the prosecutor. Inv. Sakovich was then asked, “And did all
these events take place here in Knox County?”, to which he responded affirmatively.

Thereafter, the State rested its case. The Petitioner moved for a judgment of
acquittal, arguing that the evidence was insufficient to support the charges, given the
victim’s inconsistent testimony and the State had not proven that the allegations occurred
within the timeframes listed in the indictment. The trial court denied the motion, and the
defense proceeded with its proof.

At the outset of the defense proof, the parties stipulated that “in a prior interview,”
the victim had reported that the Petitioner “inserted his penis into her vagina and that this
act occurred at the end of summer, 2015.” The defense then called the Petitioner’s father,
who testified

that the victim would sleep in his and his wife’s bed when she stayed at their
house for the victim’s visitations with the [Petitioner]. The [Petitioner’s]
father testified that they placed a toddler bed for the victim in the
[Petitioner’s] bedroom in 2008. However, she continued to sleep in their
bedroom with him and his wife. According to the [Petitioner’s] father, in
2010, they removed the toddler bed and placed a futon in a separate bedroom
for the victim. The [Petitioner’s] father testified that the victim never
actually slept on the futon. Instead, she continued to sleep in his bedroom
with him and his wife. The [Petitioner’s] father also testified that he had
never known the victim to lie.

Cooper, 2019 WL 2185219, at *2.

The Petitioner’s father was also asked on direct examination about when the
Petitioner moved from the family home. The Petitioner’s father indicated the Petitioner

-7-
moved out of the home once the Petitioner married in 2013. The Petitioner’s father was
asked where the couple lived after returning from their honeymoon, to which the
Petitioner’s father replied, “He lived at their apartment . . . over in Pond Gap area. I don’t
even—.” Trial counsel interjected, “On Papermill?” and the Petitioner’s father said, “I
don’t even know the name of it. I couldn’t tell you the name. The Petitioner’s father
averred that he would “beat the crap out” of the Petitioner if he thought these allegations
were true.

On cross-examination, the Petitioner’s father confirmed that Inv. Sakovich spoke
with the Petitioner on a Friday and that the family often had lunch together on Sundays.
He confirmed he had a conversation with the Petitioner about these events.

“The [Petitioner’s] sister testified similarly [as the Petitioner’s father] about the
sleeping arrangements at the [Petitioner’s] parents’ house.” Cooper, 2019 WL 2185219,
at *2. She confirmed that the Petitioner was married in May 2013 and that the Petitioner
moved into an apartment with his wife thereafter. On cross-examination, the Petitioner’s
sister was questioned about her opinion of the victim’s character for truthfulness, and she
said that victim had never lied to her but that the victim had “not always been honest with
telling others the truth[.]”

The Petitioner’s wife affirmed that she married the Petitioner in May 2013 in
Knoxville and that they immediately left for their honeymoon after the ceremony. She
testified that she shared an apartment with her mother prior to her marriage to the Petitioner
and that the Petitioner moved into that three-bedroom apartment following the marriage.
The Petitioner’s wife’s son from an earlier relationship also lived there. The Petitioner’s
wife confirmed that her mother moved from the apartment in September 2013. Thereafter,
the couple had a child in June 2014.

The [Petitioner’s] wife confirmed that the victim and [the victim’s
baby brother] shared a bedroom in their apartment. The [Petitioner’s] wife
testified that [her son] “was a very fussy and clingy newborn,” who did not
sleep well and was up “every two to three hours.” The [Petitioner’s] wife
also testified that she had no indication that there was anything “unusual
going on” at their apartment.

Cooper, 2019 WL 2185219, at *2.

On redirect, the Petitioner’s wife was asked “how did [the victim] take [her baby
brother’s] birth.” The Petitioner’s wife replied that the victim “was slightly upset.”

-8-
“The [Petitioner’s] mother-in-law, who lived with the [Petitioner] and his wife in
their apartment for several months, testified that she never noticed anything unusual when
she lived with them.” Id.

On direct examination, “[t]he [Petitioner] denied touching the victim
‘inappropriately’” and “denied ever penetrating the victim’s vagina or engaging in any sex
acts with her.” Id. On cross-examination, “[t]he [Petitioner] claimed that the victim never
slept in his bedroom when he lived at his parent’s house. The [Petitioner] also claimed that
he had never been alone with the victim, except for possibly being in a car alone.” Id.
When the Petitioner was asked about his statement to Inv. Sakovich that he never changed
the victim’s diaper, the Petitioner explained, “I respected the mother’s position as the
caretaker of the child. I was raised that the mother changes the diaper of a baby based on
gender.” The Petitioner clarified he might have changed the victim’s diaper a few times
but only did so in emergency situations. The Petitioner also confirmed he told Inv.
Sakovich that he never kissed the victim on the lips. When asked if he had told Inv.
Sakovich that he had probably not spent “a hundred hours in the past year” with the victim,
the Petitioner replied that he could not provide “a ballpark figure” but affirmed that he had
not spent very much time with the victim over the past year.

In addition, the Petitioner affirmed that he spoke with his wife prior to her ever
being questioned by law enforcement. The Petitioner confirmed that he often had lunch
with his parents on Sundays, but he averred, “I did not talk to every single one of these
people.” He agreed that he had spoken to his witnesses prior to trial.

At the conclusion of the defense proof, trial counsel renewed his motion for
judgment of acquittal, revisiting the issue of the victim’s credibility as it pertained to the
timing of her allegations. However, this motion was denied, and the parties proceeded with
closing arguments.

In the State’s initial closing argument, the prosecutor asserted that credibility was
the central issue in this case, saying that it would “come down to whether or not” the jurors
believed the victim or the Petitioner. The prosecutor, discussing why the jurors should
believe the young victim, noted that the victim “didn’t get five minutes into that direct”
before she started to cry, the “emotion on her face” was visible, and there was “sincerity in
the story she told[.]” The prosecutor affirmed that “[s]he was very sincere[,]” noting the
victim’s “body language, her demeanor, [and] the vivid nature of her description.”

As to the issue of “potential corroboration” of the victim’s story, the prosecutor
said the victim’s mother had “no motive to . . . lie about this.” The prosecutor then
described the “change[]” in the victim’s demeanor as observed by the victim’s mother:

-9-
“She wasn’t playing with her . . . stepbrothers in the car like she would normally be when
they were driving back to their house. Instead, she was withdrawn. She was upset.”

The prosecutor next contended the Petitioner had testified to “some amazing
things.” The prosecutor submitted that after the Petitioner spoke with Inv. Sakovich, he
then spoke “to every single person from his immediate family” prior to their being
interviewed by law enforcement. According to the prosecutor, “they had an opportunity to
collaborate” and “to try to get their stories straight,” and the defense witnesses testified
consistently with this preplanned story.

The prosecutor claimed the Petitioner tried “to minimize any contact that he had
with his daughter” when questioned by Inv. Sakovich, noting that the Petitioner “wanted
to impress upon” Inv. Sakovich that he had “never once” changed the victim’s diaper,
“never spent any time alone with” the victim, and spent less than “a hundred hours with
her for the past year.” The prosecutor commented that “when [he] listened to that
interview[,] [he] thought, that’s weird.” The prosecutor asked, “Why would the
[Petitioner] go to such great, almost ridiculous, lengths to minimize the contact he had with
his daughter?” The prosecutor then told the jurors, “I would submit to you that that’s
because he was scared” knowing “this story was finally coming out,” and the Petitioner
needed to “create some separation between he and [the victim].”

The prosecutor also pointed out that the Petitioner’s father said the victim was “an
honest little girl” and a “truthful young lady.” The prosecutor surmised, “Members of the
jury, [the victim] did not lie about this. She didn’t make this up. . . . She described in great
detail the first time something happened between she and her dad.” The prosecutor
concluded, “And I’m confident that by the close of proof you will be convinced by any
reasonable doubt that [the victim] is not lying about these things[.]”

Trial counsel started closing argument by stating, “So you have to decide who you
believe.” Trial counsel asserted that it was “inaccurate to say [the victim testified] in great
detail” and that it was not “borne out” by the proof that the Petitioner’s family was “a bunch
of liars.” According to trial counsel, there was nothing “sinister” about the Petitioner’s
talking with his family after he was approached by Inv. Sakovich.

As to the allegations in the apartment, trial counsel recounted that the victim’s baby
brother was “a fussy baby” and that the victim’s story about the Petitioner’s removing the
baby from the room and then returning the baby to the room without waking the baby “just
[did not] make sense.” Trial counsel said the jurors could judge the veracity of that story
“based on [their] own life experiences” and their “own common sense.”

- 10 -
Trial counsel maintained that the jurors were likely wondering why the victim
would be “lying on her father.” He continued, “It’s always a difficult question. But think
of what you heard.” Trial counsel observed the Petitioner’s admission that he had spent
little time with the victim during the period covering these allegations. Trial counsel noted
that the Petitioner had remarried and had a new baby, which left the victim “feeling pushed
out by the new family, by the new baby.” Trial counsel also noted the victim’s mother had
taken a vacation to Florida and left the victim behind. He contended the victim was upset
for these reasons, so she made up these allegations, and it was “too late” for the victim to
recant because she was in “too deep.”

Trial counsel commented that it was the jurors’ responsibility to “judge the
credibility of these witnesses” based upon what they saw in court. Trial counsel said that
the jurors should not discount the defense witnesses’ testimony simply because they were
the Petitioner’s family members. Trial counsel asserted, “His father can be an honest man.
Would you lie for your child accused of raping your grandchild?”

Trial counsel pleaded with the jurors to ask themselves, “Does this make sense?”,
and “Am I sure?” Trial counsel further urged the jurors to respect the reasonable doubt
standard of proof and not to give in “out of sympathy” for the victim or to respond based
upon emotion.

The prosecutor then began his rebuttal argument by noting that “the big question”
in this case was whether the victim was lying and, if so, why would she lie. The prosecutor
commented that the victim had not admitted to being upset about her new baby brother and
that the victim’s mother indicated the missed vacation happened after the allegations
against the Petitioner had already been made. The prosecutor asserted that the Petitioner
had admitted to talking “to every single person that testified,” giving them the opportunity
to collaborate.

In discussing the allegations that occurred at the victim’s grandparents’ house, the
prosecutor asked the jurors, “What I’m telling you is what [the victim] said. I’m asking
that you listen to [the victim] and that you believe in what [the victim] said[.]” The
prosecutor explained, “[T]he reason why I’m telling you that is because you are the
ultimate deciders of who’s telling the truth. You’re the ones who get to make that decision
. . . . You get to make the decision about who was telling the truth.” He suggested that the
victim was able to testify “in great detail about things” because these events “that [were]
forever burned into her mind took place.”

The prosecutor also acknowledged the victim had testified inconsistently regarding
the timing of the sexual abuse but claimed she only did so because she was “nervous” and

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“upset.” The prosecutor maintained that the victim was young and “that sometimes kids
don’t remember little details[.]” The prosecutor observed that the victim clarified the
timing on redirect. In conclusion, the prosecutor said,

This little girl did not make up the fact that her dad got on top of her,
took his clothes off, and put his penis inside of her vagina when she was 10
years old, and then when . . . he was done, put ejaculate on her belly. She
didn’t make that up. She didn’t make it up. She did not make up the fact
that her dad, his head was at the top of the headboard and that he told her to
put his penis in her mouth. She didn’t make that up. And then at same time
during the same session, he then said, “You move to the top of the bed and
I’m going to kiss your private.” And he started to do this. She didn’t make
that up. That is absolute baloney, not true. These things happened to this
little girl, and what she said and the story that she told you is the truth.

Thereafter, the jury convicted the Petitioner of the allegations occurring at the
Country Oaks apartment—one count of aggravated sexual battery, three counts of incest,
and three counts of rape of a child. Cooper, 2019 WL 2185219, at *1-2. The Petitioner
was acquitted of the remaining charges that occurred at the victim’s grandparents’ house.
Id. The trial court later imposed a total effective sentence of fifty years.

B. Direct Appeal

The Petitioner filed a direct appeal to this court challenging his convictions, wherein
he challenged the sufficiency of the evidence and raised an additional issue with Inv.
Sakovich’s testimony that is not relevant to this appeal. See Cooper, 2019 WL 2185219,
at *1. Relative to the sufficiency of the evidence, the Petitioner assailed the victim’s
credibility, noting that the jury rejected the victim’s “story regarding the events at her
grandparents’ house,” and submitting that the victim was inconsistent in her statements
about when the last incident occurred and that her testimony about the Petitioner’s taking
her baby brother out of the bedroom prior to sexually abusing her “strains belief.” Id. at
*2. This court concluded that sufficient evidence supported the Petitioner’s convictions,
observing that the testimony of a victim, by itself, was sufficient to support a conviction;
that the jury was free to reject some portions of the victim’s testimony while accepting
others; and that issues of witness credibility, conflicts in testimony, and the weight and
value to be given to evidence were resolved by the jury. Id. at *4. Ultimately, this court
affirmed the Petitioner’s convictions. Id. at *5.

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C. Post-Conviction Proceedings

1. Relevant Procedure

The Petitioner’s pro se petition for post-conviction relief was filed on September
17, 2020, and post-conviction counsel3 was appointed to represent the Petitioner on January
25, 2021. Thereafter, post-conviction counsel filed six documents titled “Status Report
and Request for Extension of Time,” sequentially, on February 23, 2021; April 27, 2021;
June 25, 2021; September 7, 2021; November 5, 2021; and February 14, 2022.

In the sixth “Status Report and Request for Extension of Time,” post-conviction
counsel averred that since the last status report, he had continued working with an
investigator to locate and interview the remaining possible witnesses and had also engaged
in legal research relating to this case. Post-conviction counsel noted that he was filing
several accompanying motions “seeking additional information or documentation that
could be relevant to claims in the pro se petition or in any amended petition” and requesting
more time for the purpose “of resolving these pending motions.” The accompanying
motions included (1) a motion for preparation of transcripts of jury selection, opening
statements, and closing argument; (2) a motion for discovery of any information in the
possession of the State relating to the charges against the Petitioner and the claims made in
the pro se petition for post-conviction relief, specifically requesting any information related
to the disclosure the victim had engaged in sexual activity with her stepbrother, the way
the disclosure came to light, how this revelation was treated within the family, and any
subsequent developments relating to the disclosure that occurred prior to the trial in this
case; and (3) and a motion pursuant to Pennsylvania v. Ritchie, 480 U.S. 39 (1987), for the
post-conviction court to inspect the DCS records of the victim and her stepbrother, who
was two years older than the victim, for material, exculpatory information pertaining to
any sexual activity between the two, such as when this activity began, how often it
occurred, any connection between this activity and the allegations against the Petitioner,
how this activity came to light, and any punishment imposed. Following a hearing, the
Petitioner’s motions were granted, and the motion for discovery was “complied with by
the State.”

The post-conviction court ultimately received the records from DCS and reviewed
them. Thereafter, on May 19, 2022, the post-conviction court ruled that portions of the
DCS records “contain[ed] potential exculpatory material” and that a copy of those portions
would be provided to the defense subject to a protective order. Those records included
DCS documents relating to certain sexual incidents involving the victim and her
3
The Petitioner was represented by two assistant public defenders in these post-conviction
proceedings. We will refer to them collectively as post-conviction counsel.

- 13 -
stepbrother, as well as documents relating to DCS’s involvement with the family in the
aftermath of these allegations. The post-conviction court retained the remaining records
under seal.

The records provided to the post-conviction defense are included in the record on
appeal. One document titled “Tennessee Department of Children’s Services Collateral
Contact” includes details of the victim’s forensic interview. It was noted therein that DCS
investigator, Ms. Karen Orsulak, informed the victim’s mother that due to the victim’s
disclosure in the interview, “another hotline call” would be placed regarding the victim’s
“new allegation” of sexual contact with her stepbrother and that the victim’s mother “was
[in] agreement.” Also included was a DCS “Case Recording Summary” detailing the
victim’s stepbrother’s forensic interview that occurred on January 15, 2016. In the
interview, the victim’s stepbrother said the victim “approached him asking to see him
naked and then asking to perform oral sex.” He indicated this had happened “a couple of
times closer to the beginning of the school year[,]” but it had not happened since then. He
also indicated the victim had “a problem with constantly having ‘urges’ and wanting to
masturbate.”

Post-conviction counsel filed a second motion pursuant to Ritchie for the post-
conviction court to inspect the forensic interview of the victim’s stepbrother, a copy of
which was believed to be in the custody of the Union County Juvenile Court. The
post-conviction court entered an order requesting the Union County Juvenile Court to
provide a copy of the interview, if one existed, under seal to the post-conviction court.

On September 13, 2022, post-conviction counsel filed another Ritchie motion
asking the post-conviction court to perform an in-camera inspection of the DCS records
relating to the victim and for the post-conviction court to then disclose the information that
related to the allegations of sexual abuse levied against the Petitioner. Post-conviction
counsel noted that there was a claim of ineffective assistance of counsel tied to the DCS
records based upon trial counsel’s failure to obtain these records and that the Petitioner
would be required to establish prejudice. Accordingly, post-conviction counsel requested
that, following the post-conviction court’s review of the pertinent records and its
determination of which records related to the allegations of sexual abuse at the hands of
the Petitioner, the Petitioner be allowed to review those records in camera in their entirety.
The basis for this request was that trial counsel failed to ask for such a review and that the
DCS records would contain references relating to the allegations; would disclose the course
of the investigation of the case by DCS, including the timing and content of the initial
referral, the identity of witnesses and their statements, and actions taken by the
investigators.

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However, the post-conviction court denied the Petitioner’s request to review the
DCS records pertaining to the victim in their entirety, finding that the Petitioner was not
entitled to such review of confidential DCS records. In its September 19, 2022 order, the
post-conviction court said that it had conducted “a further review of the records for
potentially exculpatory information relating [to] the [P]etitioner’s case” and that “[s]aid
review revealed no exculpatory information.”

Post-conviction counsel filed the first amended petition for post-conviction relief
under seal on September 21, 2022. Shortly thereafter, on September 28, 2022, post-
conviction counsel filed a motion to continue the evidentiary hearing, which was scheduled
for October 6, 2022. In the motion, post-conviction counsel averred that he had discovered
“two facts of potential relevance to the petition”: (1) that the victim’s mother did not
initially report to law enforcement any allegation from the victim involving vaginal
intercourse with the Petitioner, only oral sex, and (2) that the victim had undergone a
forensic medical evaluation that indicated there was no injury to either her hymen or
vagina. According to post-conviction counsel, it was believed that neither was known by
trial counsel at the time of trial, but at minimum, it was clear that neither was used by trial
counsel during the Petitioner’s trial. Post-conviction counsel argued that he had
insufficient time to explore this new information and to discuss it with the Petitioner.

On October 3, 2022, the post-conviction court held a hearing on the Petitioner’s
motion to continue the evidentiary hearing. At the outset of the motion hearing,
post-conviction counsel reviewed the motion with the post-conviction court and asked for
a continuance due to recent discoveries found in “last-minute preparations” for the
evidentiary hearing.

Post-conviction counsel’s request for a continuance first involved receipt of
“information regarding the initial report that was made to the DCS hotline by a police
officer . . . based on information provided by the [victim’s] mother.” According to
post-conviction counsel, this “information differed in one significant way from the
[victim’s] testimony at trial, in that there was no mention of intercourse, only of oral sex,”
and “[i]t also indicated that the mother, when she first contacted DCS, not only failed to
mention the other issue with the stepbrother, but, in fact, affirmatively asserted that the
[victim] had not provided any other similar information.” Post-conviction counsel asserted
that this evidence could have impeached the victim’s and her mother’s testimony.
Post-conviction counsel requested additional time to investigate whether there was a
recording of that DCS hotline call and to determine the specific police officer who was
initially contacted by the victim’s mother and relayed the information to DCS.

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As a second reason for a continuance, post-conviction counsel observed that “last
week,” they learned the victim received a forensic medical examination following her
report of sexual abuse at the hands of the Petitioner. According to the report from the
medical examination, “there were no injuries to the vagina or the hymen that were
observed.” Post-conviction counsel opined, “It may be, ultimately, that this would not have
been hugely probative, but I’m not a doctor. I’m not in [a] position, really, to rule that out
at this point.” Post-conviction counsel noted that the State did not mention the information
contained in the report at trial and submitted that “even if it wasn’t immensely probative,
the defense could potentially have used this to at least tell the jury, you’re not getting the
full story because the State’s only telling you the things that help them.”

In conclusion, post-conviction counsel asserted this “was a very close case” because
the victim’s testimony was “largely[] uncorroborated.” Post-conviction counsel observed
that the allegations in this case involved two different timeframes and locations and that
the jury found the Petitioner not guilty of one set of offenses. According to post-conviction
counsel, “even a relatively small piece of information, relatively small decision that [trial]
counsel took, relatively small Brady matter could actually have changed the outcome of
the case.”

The prosecutor asked that the evidentiary hearing go forward as planned. The
prosecutor opined that none of this information was new because he had the same
“open-file policy” with trial counsel as he did with post-conviction counsel. The
prosecutor indicated that post-conviction counsel had apparently seen this information their
“second time through” the State’s file and now believed it to be important; however,
post-conviction counsel had been provided with prior access to these records. Furthermore,
the prosecutor asserted that there was nothing material or exculpatory in these records and
that there was no reason for an additional continuance.

The post-conviction court denied the Petitioner’s motion to continue, noting the
length of time the post-conviction petition had been pending. Specifically, the
post-conviction court reasoned,

I think, in a case like this, as we keep digging, there’s always
something new to discover. And I think if we continue it again and set it out
six more months, you’re probably going to find more things. But I think,
based upon what’s been brought before the [c]ourt now, it’s not grounds for
a continuance on a case that’s been pending post-conviction for sometime
now, . . . almost two years.

- 16 -
The Petitioner’s second amended petition for post-conviction relief was filed under
seal that same day, October 3, 2022.

2. Issues Raised in the Petitions

In his various petitions, the Petitioner raised a number of claims for relief.
Specifically, of relevance to the issues presented in this appeal, the Petitioner argued the
following. First, the Petitioner argued that he was denied the effective assistance of counsel
due to trial counsel’s failure to file a pretrial Rule 412 motion seeking to introduce evidence
the victim had engaged in sexual activity with her stepbrother. According to the Petitioner,
such activity was admissible pursuant to Rule 412 and the Tennessee and federal
constitutions on the questions of (a) the victim’s knowledge of sexual matters and (b) the
victim’s motivation to fabricate allegations against the Petitioner, given that said
allegations were made contemporaneously with the revelation of her sexual activity with
her stepbrother and with her mother’s imposition of discipline for that activity. The
Petitioner submitted that because of trial counsel’s failure in this regard, he was precluded
from (1) using the victim’s forensic interview to establish facts relating to the sexual
activity with her stepbrother; (2) presenting evidence and arguing that the victim’s
knowledge of sexual matters derived from her sexual activity with her stepbrother, rather
than from the Petitioner, and that the discovery of her sexual activity with her stepbrother
provided a motive for her to fabricate the allegations against the Petitioner; (3) arguing that
the reason the victim was depressed when returning home from the Petitioner’s residence
was not because of any abuse she suffered at the hands of the Petitioner while away, but
rather, because she was returning to a home where she was either being abused by her
stepbrother or in a relationship that she feared would be discovered; and (4) attacking the
victim’s testimony that she had been at her mother’s house ever since reporting the
allegations.

Next, the Petitioner claimed that trial counsel was ineffective for failing to object to
multiple different statements made by the prosecutor during closing argument. The
Petitioner cited numerous statements as improper, among other things, that: (1) the victim
was “very sincere”; (2) the Petitioner “wanted to impress” upon Inv. Sakovich that he never
changed the victim’s diaper and spent limited time alone with her; (3) the Petitioner’s
statements to Inv. Sakovich were “weird”; (4) the Petitioner’s explanations of the limits of
his relationship with the victim were “ridiculous”; (5) the victim “did not lie about this”
and “didn’t make this up”; and (6) “She didn’t make that up. That is absolute baloney, not
true. These things happened to this little girl, and what she said and the story that she told
you is the truth.” According to the Petitioner, these comments were improper because they
constituted vouching for the victim’s credibility by the prosecutor, interjected the

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prosecutor’s personal opinions into the case, or were inconsistent with the evidence.

The Petitioner also complained that trial counsel provided ineffective assistance
regarding venue. He contended that trial counsel was ineffective for failing to argue—in
his motion for judgment of acquittal, in the motion for new trial, or on appeal (regardless
of whether it had been argued below)—that the State did not establish venue for the
offenses alleged to have taken place at the Petitioner’s apartment in Country Oaks
Apartments. In a similar vein, the Petitioner argued that, given the State’s failure to
establish venue, trial counsel was ineffective in asking the Petitioner’s father where the
Petitioner lived after getting married and eliciting the answer that the Petitioner lived in an
apartment in the Pond Gap area, thus, potentially providing evidence of venue.

Citing Brady v. Maryland, 373 U.S. 83, 87 (1963), the Petitioner also argued that
the State violated his due process rights by failing to disclose material, exculpatory
evidence. Specifically, the Petitioner referenced a December 2015 report following a
forensic medical evaluation of the victim, wherein it was stated that no injuries to the
victim’s vagina or hymen were observed.

Finally, the Petitioner asserted that he was “denied the effective assistance of
counsel by the cumulative effect of the errors and omissions” he had described. The
evidentiary hearing took place as scheduled on October 6, 2022.

3. Evidentiary Hearing

a. Exhibits

At the outset of the hearing, the Petitioner introduced an agreed-upon stipulation
regarding what the victim’s testimony would have been had she testified at the hearing.
The stipulation provided that the victim was the subject of a November 12, 2015 forensic
interview conducted by Nicole Mullinax at the ChildHelp Children’s Center of East
Tennessee in Knox County. “During that interview, the victim was questioned in part
about a sexual incident or incidents that occurred with her stepbrother.” The stipulation
specified that an approximate thirteen-minute portion of the forensic interview would be
introduced as an exhibit to the post-conviction hearing and that, if the victim were called
to testify at the evidentiary hearing, her testimony would be consistent with her statements
in that portion of the interview. It was also stated therein that, if the victim had been asked
“what answers she would have given at any pretrial hearing or at the trial in this case had
she been asked relevant questions, [then] her testimony would [have been] consistent with
her statements in [that] portion of the interview.”

- 18 -
In the approximate thirteen-minute portion of the forensic interview introduced at
the hearing, the victim was first asked “if anyone else besides her dad had ever done that?”
The victim replied that her stepbrother had done so before. The victim indicated that it was
“both” of their ideas to engage in this sexual activity.

Initially, the victim indicated that the sexual behavior started only recently after they
had completed playing a game of “Truth or Dare.” However, she later said that the sexual
contact with her stepbrother began around the time she was nine years old. When the
victim was asked to provide details of their behavior, she said that her stepbrother would
“like do the same thing that happened with [her] dad.” The victim relayed that her
stepbrother would touch her “privates” with his hand. She indicated that this took place in
her stepbrother’s bedroom and that it happened two or three times in total. She then relayed
that she touched him also.

At first, the victim stated that the touching was always on top of their clothes. Later,
the victim explained that, once in her stepbrother’s room, they would lock the door, and
her stepbrother would pull down her shorts, and she would pull down his clothes as well.
She would then “touch his and he would touch” hers. She explained the sexual contact
first began on top of their clothes, which was why she had said that originally, but
acknowledged it progressed during subsequent encounters.

The interviewer asked the victim whether there was any “licking or sucking or
anything like that” with her stepbrother, to which she assented. When pressed for more
details, the victim said during the “last time” with her stepbrother, they touched each other,
and then she “sucked it like she did [her] dad.” During that time, her stepbrother was
touching her. The victim indicated that she was around ten years old when this occurred.

The victim was asked if “white stuff” ever came out of her stepbrother’s body on
any of these occasions, and she responded affirmatively. The interviewer inquired what
was taking place when the “white stuff” came out, and the victim answered, “He would do
what my dad does, like squeeze it like that,” while making a hand motion.

According to the victim, no one ever saw or walked in on them while she was
engaging in this behavior with her stepbrother. The victim maintained that her stepbrother
had not participated in this type of behavior with anyone else. The victim also indicated
that the sexual activity with the Petitioner started prior to any of the incidents with her
stepbrother.

The victim indicated that both her mother and stepfather knew of this “sucking” and
“licking” behavior between the two children. The victim indicated that after being asked

- 19 -
questions by her stepfather, she and her stepbrother disclosed their behavior. The victim
relayed to the interviewer that she first divulged to her parents the abuse with her
stepbrother before revealing the abuse by the Petitioner. The victim stated that she and her
stepbrother were grounded for three weeks as a consequence and that they were still
grounded at the time of the interview. The victim explained that her mother expressed the
belief the victim had engaged in this behavior with her stepbrother because the Petitioner
“had done that” to the victim and the victim was “curious” and wanted to try it with
someone her “own size.”

Various DCS records were exhibited to the hearing. One such document was a
“Tennessee Child Abuse Hotline Summary,” which indicated that the victim “gave no other
information” besides the allegations that the Petitioner had “been touching her private area,
kissing her in [the] mouth, and wanting [her] to perform oral sex on him.”

The DCS records also included a December 11, 2015 forensic summary prepared
by sexual assault nurse examiner Gail Clift (“SANE nurse”) following her examination of
the eleven-year-old victim. In the report, the SANE nurse stated that the victim’s mother
had informed her that the victim’s stepfather caught the victim and the victim’s stepbrother
“touching each other without their clothes on” and that “[a]fter this, [the victim] disclosed
. . . what was happening with [the Petitioner].” The victim was interviewed alone regarding
the allegations involving both the Petitioner and the victim’s stepbrother, and the SANE
nurse relayed in the report the details the victim provided during that interview. After
providing those details, the SANE nurse reported that the victim “had a complete physical
exam including examination of her genitalia using the colposcope” and that photographs
were taken during the examination. According to the SANE nurse’s findings that followed,
the victim’s “genital exam revealed a Tanner 2-3 female”; “[n]o dermatitis was present”;
“[t]he labia had no injury”; the victim’s “hymen was visualized and there were no injuries”;
“[t]here was early estrogen effect of the hymen”; the victim’s “anal exam revealed normal
anal tone”; “[n]o anal injuries were noted”; the victim “had laboratory testing for HIV,
Hepatitis B and C and syphilis”; “[a] urinalysis and a urine test for gonorrhea and
chlamydia were completed”; and the victim’s “exam findings were consistent with the
history provided.”

Another document was a “Child Protective Services Investigation Summary and
Classification Decision of Child Abuse/Neglect Referral.” It was noted in the document
that the victim was interviewed at ChildHelp on November 12, 2015, and that she “gave a
very detailed disclosure of the sexual abuse she endure[d] at the hands of [the Petitioner].”
The victim disclosed having oral sex with the Petitioner where he “licked her,” she “sucked
him,” she rubbed him “up and down,” and “[i]t came out rubbery and warm[.]” The victim
said that when the Petitioner was finished, he would “hold it at the end until hot, white,

- 20 -
chunky stuff” came out on her stomach. She also said that he put his penis “in and out of
her.” The Petitioner instructed her not to tell anyone. The victim was able “to describe
how her body reacted to the touches . . . as well.” According to the victim, the abuse went
on for over two years, and she finally told her mother because she wanted it to stop. It was
also noted that the victim received a December 2015 forensic medical examination that
was performed by the SANE nurse at ChildHelp.

The victim’s forensic interview was also detailed in a “Case Recording Summary”
prepared by Ms. Orsulak on December 27, 2015. Further details of the interview were
provided. The victim said that she “finally felt comfortable” having sex with the Petitioner
because they “had done it so much.” According to the victim, they had engaged in
intercourse at least ten or more times. A “Case Recording Summary” prepared by Ms.
Orsulak in January 2016 also noted that the victim received a forensic medical examination
by SANE nurse at ChildHelp in December 2015. Another one, also prepared by Ms.
Orsulak in January 2016, established that Ms. Orsulak went to the victim’s school in Union
County and spoke with the victim there.

Also, three separate orders from the Union County Juvenile Court were introduced.
Those orders indicated that on February 16, 2016, the victim was placed in the custody of
relatives. On March 22, 2016, the victim was removed from her relatives’ home, as it was
determined to be contrary to her welfare to stay in the home, and she was placed in foster
care. A May 17, 2016 order indicated that the victim would remain in foster care until at
least the next hearing in August of 2016.

b. Testimony

Trial counsel was the first to testify. He stated that he was licensed to practice law
in 2006; that since that time, he had tried approximately forty-six jury trials as lead counsel
in both state and federal courts; and that he almost exclusively practiced criminal defense
work. He said that, prior to the Petitioner’s trial, he had maybe tried two or three jury trials
in child sex abuse cases.

Trial counsel was retained to represent the Petitioner when “[t]he investigation was,
essentially, concluded and [the case] was ready for trial.” Trial counsel indicated that he
was aware at the time he was retained there had been some prior juvenile court proceedings
involving the victim and her stepbrother. Upon being retained, trial counsel filed motions
for and received discovery materials from the State. Trial counsel confirmed that he had
received a copy of, and had watched, the victim’s forensic interview at ChildHelp “early
on in the case.” In watching the video, trial counsel ascertained details about inappropriate
sexual contact between the victim and her stepbrother. Trial counsel believed that the

- 21 -
sexual contact between the two children was what prompted the juvenile court proceedings
in Union County and resulted in their being removed from the home for a time. Trial
counsel relayed that he also had discussions with the Petitioner about the victim’s sexual
behavior with her stepbrother.

Trial counsel testified that he had never filed a motion pursuant to Tennessee Rule
of Evidence 412 prior to the Petitioner’s trial and that he did not recall doing any legal
research regarding Rule 412 in connection with this trial. He explained that, as he
understood it, “the [stepbrother] question, as a prior inconsistent statement or as a prior
statement to indicate that she had made a prior report, was not itself sexual activity”
covered by Rule 412. Trial counsel asserted that, if he had it to do over again, he “certainly,
without question, would have filed a 412 notice.” Trial counsel claimed that his failure to
file such a motion was not a strategic decision, given that he “genuinely believed that this
evidence was going to be admitted on the question of prior claim, right, a prior accusation.”
Trial counsel affirmed his understanding of the law proved incorrect in light of the court’s
ruling at trial.

Trial counsel believed using this information at trial about the victim and her
stepbrother was “important strategically” to the case. According to trial counsel, “the
overall defense strategy” was to challenge the victim’s story given “its numerous
inconsistencies” regarding the timeline and to assert that she had “a reason to make up a
story about her father, because of this issue with [her stepbrother], . . . in [an] effort to
deflect attention” away from them. Relative to the victim’s motive to lie, trial counsel
explained: “[Y]ou can’t say that someone’s lying unless you can also explain why they
would[.] . . . [A] jury will not accept . . . that someone’s a liar unless they have a reason.”
He articulated how this insinuated a motive to lie for the victim: “That everybody’s all
upset about her and [her stepbrother], and she makes the allegation against her father and
now everybody’s all upset about her father and has forgotten to be upset with her about
[her stepbrother].” Additionally, trial counsel noted another goal of introducing this
evidence at trial was to establish the victim’s basis of sexual knowledge:

[I]f you have a young child who is on the witness stand describing sexual
activity, there’s sort of this assumption that they would not be able to do that
if they had not been the victim of something, right? . . . And if there can be
. . . an explanation that that knowledge came as a result of something
someone else did, not [the Petitioner], then that impacts it.

Trial counsel opined that there was no inconsistency between pursuing the issue involving
the victim’s stepbrother and also pointing out the inaccuracies in the victim’s timeline.

- 22 -
Trial counsel was also asked about the potential use of evidence as it related to the
victim’s mother’s testimony at trial. He said that, through admission of this evidence, he
would have been able to provide “an alternative explanation” as to why the victim was
“sullen and withdrawn” upon returning from her visits with the Petitioner—because her
stepbrother was abusing her.

Trial counsel noted that the jury was persuaded by some of the defense’s argument
because it acquitted the Petitioner of the charges at the victim’s grandparents’ house. He
further opined that this additional argument regarding the victim’s stepbrother “could only
have been positive” because it would have provided “a little more ammunition and [the
defense] might have won the day.” According to trial counsel, he would have utilized this
evidence during closing argument and argued the following to jury:

[T]he issue with [the victim’s stepbrother] is the reason why we’re here; that
this is an effort to draw away from this; and that whatever she knows, she
learned from what’s going on with [her stepbrother] and not from her father.
. . . [W]e don’t think she’s being honest about what happened at the house,
and that should inform your view of her honesty about what happened at the
apartment. And all of this is because of this [stepbrother] question, this is all
just a problem with [the stepbrother].

Trial counsel confirmed that he did not impeach the victim on cross-examination
with her statement in the forensic interview that the act of intercourse occurred at the end
of summer 2015. When trial counsel attempted to establish the victim’s statement during
cross-examination of Inv. Sakovich, the State objected on hearsay grounds, and the
objection was sustained. The trial court then suggested that, rather than recalling the
victim, the parties enter into a stipulation reflecting what the victim’s testimony would
have been had she been asked. Trial counsel confirmed that the parties ultimately entered
into this stipulation. Trial counsel opined that the stipulation was “less effective in terms
of impact on the jury” because a stipulation “is kind of dry[,]” whereas “[i]mpeachment
can be dramatic[.]”

Trial counsel affirmed that there were several other inconsistencies in the victim’s
trial testimony versus statements she made during the forensic interview, such as whether
the Petitioner called her to him before performing the sexual acts and if she recalled how
she cleaned off the ejaculate on her stomach. Trial counsel said he did not recognize these
statements as being inconsistent during the trial. Moreover, he did not recall forming a
strategic reason not to impeach the victim on these topics.

- 23 -
Trial counsel was asked if he could have used the victim’s forensic interview “to
confront her as part of impeaching her testimony[.]” While trial counsel agreed that he
could have used the forensic interview as an impeachment tool, he cautioned, “You always
run the risk that the victim says, well, I was talking about a different time. Right? And
now you’ve got . . . an extra incident.” He further cautioned that there was also “a very
real possibility that the prosecutor [would] just press play and [they would] listen to the
whole thing.”

Next, trial counsel reviewed the orders from the Union County Juvenile Court. He
stated that, although he did not recall having these specific orders in his possession at the
time of trial, he did recall having similar information. Trial counsel agreed that, based
upon the information contained in these orders, it was fair to say that the victim did not live
in the home with her mother and stepfather from February until at least August of 2016.

Trial counsel affirmed that the victim’s testimony she had remained at her mother’s
house ever since the forensic interview amounted to a “point of possible impeachment,
because [the defense] knew that that was not so.” Trial counsel noted that when he
attempted to ask the victim on cross-examination about her living situation, he was
prohibited from doing so because of the trial court’s 412 ruling. Had trial counsel been
allowed to explore this topic, he would have used this information as an additional attack
on the victim’s credibility.

Trial counsel was asked about possible information at trial that reflected on the
victim’s mother’s “credibility or bias.” Trial counsel replied that there was potential “ill
will” because the victim’s mother and the Petitioner were no longer together, and the
victim’s mother was now in a relationship with the father of the victim’s stepbrother. Trial
counsel opined that this made the victim’s mother “more inclined to preserve” her current
relationship, meaning that “she’s going to have a preference to put [the Petitioner] in
trouble and not her stepson.” He cited, for example, that the victim’s mother called and
reported the allegations against the Petitioner, but she did not mention the allegations
regarding the victim’s stepbrother. He testified that, in preparation for trial, he was unsure
if he even knew the specifics of the victim’s mother’s report to law enforcement, but he
affirmed that he “intended to argue that the [the Petitioner] angle saves [the stepbrother] or
gets attention away from [the stepbrother].” He reiterated that he could not make such an
argument because of the trial court’s Rule 412 ruling.

Trial counsel testified that he was aware of case law providing limits on appropriate
closing arguments by the State. Trial counsel confirmed that, although the prosecutor
stated he had listened to the Petitioner’s interview and thought it was “weird,” the
Petitioner’s actual interview was never admitted into evidence. He thought this was the

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“prosecutor’s personal belief of the testimony[,]” which was improper. Referencing the
prosecutor’s statements that the victim was not “making things up,” trial counsel opined
those statements amounted to improper witness vouching. Trial counsel said that there was
no point during the State’s closing argument he withheld any objections for strategic
reasons, however, he also noted that the main issue in this case was the victim’s credibility
and that the State had “to put forward some form of this argument[.]” Trial counsel
clarified that objections must be chosen wisely and that it might be better to forego some
valid objections so as not to emphasize certain information with the jury.

Relative to any issue of venue, trial counsel testified that he understood the legal
concept, as well as that the State had the burden of establishing venue to avoid dismissal.
Trial counsel confirmed that venue was established for the first five counts of the
indictment with direct testimony reflecting the victim’s grandparents’ house was located
in Knox County. He thought at the time of trial the State had met its burden of establishing
venue with regard to the offenses that occurred in Country Oaks Apartments, counts 6
through 12, but by the time of the post-conviction hearing, he believed it was questionable
in retrospect. Trial counsel confirmed that Inv. Sakovich was asked, “And did all these
events take place here in Knox County?” to which Inv. Sakovich replied, “Yes, they did.”
Trial counsel opined that Inv. Sakovich’s response related to the actions he took during his
investigation, such as whom he talked with and where he went; but at trial, trial counsel
assumed that Inv. Sakovich’s response meant “all of everything” relating to the case. Trial
counsel observed no one testified at trial that Country Oaks Apartments was located in
Knox County. Trial counsel also did not think that “any resident of Knox County” would
necessarily know where Country Oak Apartments was located, stating that it was not a
“notorious and well-known” location.

Trial counsel confirmed that he did not have any discussions with the defense
witnesses about issues relating to venue or provide them with any guidance to avoid
volunteering information about venue. Trial counsel did not think about his question to
the Petitioner’s father regarding where the Petitioner and his new wife would live when
they returned from their honeymoon as potentially eliciting evidence to support venue; trial
counsel thought the State had established venue by that time. He testified that he did not
raise the issue of venue in any post-trial pleadings or on appeal because, at those times, he
persisted in his belief the State had established venue.

Finally, trial counsel testified regarding the discovery letter he sent to the State. In
that letter, which was filed on July 19, 2016, trial counsel requested “all results or reports
of physical or mental examinations.” The State sent a discovery response on August 3,
2016, in which it stated, “No examinations or tests known to the State at this time.” Trial
counsel also indicated that he received “a number of discs” in this case: “There was the

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911 call, I think, and [the Petitioner’s] statement[.]” According to trial counsel, he met
with the prosecutor, they “went through” the prosecutor’s file, and they agreed trial counsel
had “what was available.”

Trial counsel indicated that, if he had known the victim had undergone a forensic
medical examination one month after her forensic interview that reflected there were no
injuries to the victim’s vagina or hymen, he would certainly have been interested in that
information and would have investigated further. He explained his potential use of the
report at trial: “[I]f she’s alleging that he had inserted his penis and had intercourse with
her and a medical provider is saying that her hymen is intact, I think I . . . certainly would
have wanted the jury to hear that.” Likewise, trial counsel would have been interested in
information that when this matter was first reported to law enforcement, only an allegation
of oral sex was levied. However, he was not sure what benefit this information would have
provided because it was not necessarily “a contradiction[,]” but rather, an omission. Trial
counsel did not recall seeing or receiving any DCS records from the State.

The victim’s mother was next to testify. She stated that she contacted the
Maynardville Police Department in November 2015 to report the victim’s claim of
inappropriate sexual contact with the Petitioner, which included that the Petitioner had
“touched [the victim’s] private area” and had “kissed [the victim] on the mouth[.]” Though
the victim’s mother did not remember the entire details of her report to the police, she
affirmed that she told both law enforcement and DCS about what happened between the
victim and her stepbrother, in addition to reporting the allegations against the Petitioner.
She confirmed that, after DCS began an investigation into the allegations of sexual
behavior between the victim and her stepbrother, the victim was removed from the family
home and placed into foster care. She could not recall the exact date the victim was
removed from their home but believed the victim was away for “almost a year.”

Karen Orsulak testified that she had worked as a DCS investigator for Knox County
in 2015. This case was referred to her after a hotline call was placed in November 2015
reporting allegations of sexual abuse that involved the victim and Petitioner. According to
Ms. Orsulak, no other allegations were made during the hotline call. However, she did not
personally take the hotline call; rather, it went through a reporting system in Nashville.
Ms. Orsulak explained that not all allegations of sexual contact result in an investigation if
they do not meet certain criteria for child abuse. She opined that an age difference of less
than two years between the two individuals involved may not meet such criteria.

Ms. Orsulak said that she devised a plan with Inv. Sakovich, after he was also
assigned to the case, to speak with the victim and interview the Petitioner. Ms. Orsulak
also had several conversations with the victim’s mother following the hotline call. Later,

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a forensic interview for the victim was arranged with ChildHelp, during which the victim
disclosed sexual contact between her and her stepbrother. Ms. Orsulak testified that this
was the first instance she became aware of this information. Ms. Orsulak affirmed that the
victim’s mother had never mentioned in any of their prior conversations this sexual contact
involving the stepbrother, although the two women did discuss it after the forensic
interview. When Ms. Orsulak learned of the sexual contact involving the victim’s
stepbrother, she “took the steps that needed to be taken on the case.”

c. Arguments and Proposed Findings

At the conclusion of the evidentiary hearing, post-conviction counsel indicated that
he desired to file a brief setting forth argument on the issues presented. The post-conviction
court granted this request and indicated that post-conviction counsel had until “week after
next” to get something filed. On October 17, 2022, post-conviction counsel filed a
“Proposed Post-Hearing Findings of Fact and Conclusions of Law.”

4. Post-Conviction Court’s Order

The post-conviction court filed its initial order denying relief on December 13,
2022, and entered a corrected order the following day. 4 In the order, the post-conviction
court first noted that the Petitioner did not testify at the post-conviction hearing.
Accordingly, if any of the Petitioner’s issues involved substantial issues of fact, the
Petitioner had failed to meet his burden. See Tenn. Code Ann. § 40-30-110(a) (“The
petitioner shall appear and give testimony at the evidentiary hearing if the petition raises
substantial questions of fact as to events in which the petitioner participated[.]”).

The post-conviction court then addressed the Petitioner’s various allegations of
ineffective assistance of counsel. First, the post-conviction court discussed the Petitioner’s
allegation that trial counsel failed to file a written motion prior to trial pursuant to Rule 412
for the purposes of introducing evidence of the victim’s sexual behavior with her
stepbrother. The post-conviction court determined that trial counsel was deficient for
failing to file said motion, noting trial counsel’s testimony that though he was aware of
Rule 412, he mistakenly believed the evidence was admissible under other evidentiary
rules. The post-conviction court found that, had trial counsel filed a Rule 412 motion, “the
evidence would have likely been admissible to explain knowledge of sexual matters and,

4
The corrected order modified one line to accurately reflect the post-conviction court’s
determination that trial counsel’s performance during closing argument was not deficient.

- 27 -
perhaps,[5] to show a motive for the victim to lie[,]” and “the probative value would have
outweighed the danger of unfair prejudice to the victim.”

Addressing whether trial counsel’s deficiency was prejudicial due to the omission
of this evidence to explain knowledge of sexual matters, the post-conviction court noted
that the victim was twelve years old when she testified at trial and that she would have been
approximately eleven years old when she spoke to law enforcement about the allegations
of sexual abuse. Though the victim’s “knowledge of sexual matters could certainly be
questioned due to her age[,]” the post-conviction court determined that the Petitioner was
not prejudiced. The post-conviction court reasoned the prosecutor never contended during
closing argument that, “but for the abuse of the Petitioner, [the victim] would not have
[had] knowledge of these sexual matters[,]” and therefore, “[t]he issue contemplated by
Rule 412 was really not an issue argued by the State or raised during the trial in this case.”

Relative to whether the omission of this evidence was prejudicial due to the
Petitioner’s inability to establish a motive for the victim to lie, the post-conviction court
noted that “[t]here was evidence presented at trial regarding how the family dynamics were
affecting the victim” and that trial counsel argued to the jury “that the victim was lying
because of the changes that had occurred in the family that resulted in the victim[’s] feeling
left out or neglected.” According to the post-conviction court, “[i]t would not [have been]
reasonable to argue both the desire for attention and the desire to get out of trouble for her
behavior with [her stepbrother,]” given that these two theories were “contradictory in
nature.” The post-conviction court also noted the jurors heard both the victim and the
Petitioner testify at trial and were able to judge their credibility. Finally, the post-
conviction observed,

The Petitioner presented no evidence during the post-conviction hearing that
the victim was in trouble for her behavior with [her stepbrother] when this
behavior allegedly occurred, when it was discovered by the family in relation
to the allegations against the Petitioner, or what if any punishment the victim
was subjected to because of the behavior with [her stepbrother].

For these reasons, the post-conviction court determined “the Petitioner ha[d] failed to
establish by clear and convincing evidence that proof of the victim’s behavior with [her

5
In this regard, the post-conviction court stated in a footnote,

Whether or not the evidence would be admissible to establish a motive to lie is a
close call. It is not a permissible purpose under Rule 412. However, it might qualify as
evidence which is required by the Constitution in order to be able to present a defense. In
any event, the evidence would have been admissible to show knowledge of sexual matters.

- 28 -
stepbrother] would have been a stronger argument for motive to lie than what was
presented to the jury.”

In conclusion, the post-conviction court stated that, “[a]fter considering all of the
arguments made by the defense regarding the failure to file a Rule 412 motion, . . . the
reliability of the verdict [was] not called into question.” Therefore, the Petitioner had failed
to establish prejudice with regard to trial counsel’s deficiency.

The post-conviction court also addressed the Petitioner’s argument that trial counsel
was ineffective by failing to object to certain statements made by the prosecutor during
closing arguments. The post-conviction court noted trial counsel’s testimony that,
generally, it is important to make objections wisely and that the State had to make some
form of argument about the victim’s credibility, given that was the primary issue at trial.
The post-conviction court then stated that it had reviewed the challenged statements made
by the prosecutor and determined that they did “not involve any egregious behavior” and
that, “[a]lthough some of the arguments could have been worded more artfully, they [were]
not obviously objectional.” The post-conviction court reasoned that “it was clear that the
prosecutor was appealing to reason from the facts and not trying to convince the jury to
trust his opinion on the facts or his opinion on the credibility of the witnesses.” In sum,
the post-conviction court concluded the Petitioner had failed to establish trial counsel was
deficient in this regard. Moreover, relative to the prejudice prong, the post-conviction court
determined the Petitioner had not shown that, if trial counsel had objected to the arguments
and the court had ordered the jury to disregard the statements, then the outcome of the trial
would likely have been any different.

Relative to the issue of venue, the post-conviction court noted the Petitioner had
argued that trial counsel was ineffective for “asking a question of a witness at trial that
ended up establishing venue[.]” On this issue, the post-conviction court determined that
the Petitioner had failed to establish either prong of ineffective assistance because he
“failed to present any evidence to support” this argument. Additionally, the
post-conviction court concluded “that venue was established at trial by a preponderance of
the evidence and that the evidence was sufficient to support each conviction.”

Finally, the post-conviction court addressed the Petitioner’s Brady claim regarding
the SANE nurse’s report detailing the victim’s medical examination. Addressing the
elements required to establish a Brady violation, see State v. Edgin, 902 S.W.2d 387, 390
(Tenn. 1995), as amended on rehearing (Tenn. July 10, 1995), the post-conviction court
found that (1) the defense requested discovery including reports by experts; (2) “[a]lthough
apparently not in possession of the prosecutor, the report was certainly in possession of a
state agency, DCS, and was not provided to the defense”; (3) it was “not apparent from the

- 29 -
report itself that the information was favorable” to the Petitioner; and (4) “[t]he Petitioner
ha[d] not presented any testimony from an expert or other qualified witness that the medical
findings contained in the report were exculpatory.” Relative to favorability, the
post-conviction court observed that, contrary to the Petitioner’s claim, “the report state[d]
that the medical findings were consistent with the victim’s report of sexual assault reported
to the SANE nurse which included the allegation of penile/vaginal penetration.” As for
materiality, the post-conviction court specified that “[w]ith no evidence to the contrary, the
report itself supports the victim’s allegations.” Accordingly, the post-conviction court
concluded that the Petitioner had “failed to establish that he was prejudiced by the absence
of the report during the trial, that the report was favorable to the defense, or that the report
was constitutionally material.”

The Petitioner timely filed a notice of appeal with this court. The case is now before
us for our review.

II. ANALYSIS

Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The
burden in a post-conviction proceeding is on the petitioner to prove allegations of fact by
clear and convincing evidence. Id. § -110(f); see Dellinger v. State, 279 S.W.3d 282, 293-
94 (Tenn. 2009).

A. Motion to Continue Evidentiary Hearing

Before we address the Petitioner’s substantive arguments, we consider his claim that
the post-conviction court erred in denying his motion to continue the evidentiary hearing.
According to the Petitioner, the post-conviction court abused its discretion when it denied
the Petitioner’s “reasonable request for a continuance in order to be able to present
evidence, including medical evidence, regarding the significance of” the SANE nurse’s
medical examination report. He notes the post-conviction court denied relief on the Brady
issue because the Petitioner had not presented any evidence “from an expert or other
qualified witness that the medical findings contained in the report were exculpatory.” The
Petitioner surmises that “[t]he unfairness of this procedure is patent” and that the case, if
relief is not granted on the record as it stands, should be remanded to provide him with
another opportunity to develop this issue. The State contends the post-conviction court
properly exercised its discretion in denying the Petitioner’s motion to continue the
evidentiary hearing.

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The Post-Conviction Procedure Act mandates that a post-conviction court proceed
under certain deadlines. For instance, an evidentiary hearing shall be held within four
months of entry of the post-conviction court’s scheduling order. Tenn. Code
Ann. § 40-30-109(a); Tenn. Sup. Ct. R. 28, § 8(B). That deadline shall not be extended by
agreement of the parties and may only be extended by order of the post-conviction court
finding that unforeseeable circumstances render a continuance a manifest necessity. Tenn.
Code Ann. § 40-30-109(a); Tenn. Sup. Ct. R. 28, § 8(B). But, in no case shall an extension
of the evidentiary hearing exceed sixty days. Tenn. Code Ann. § 40-30-109(a); Tenn. Sup.
Ct. R. 28, § 8(B). The Act further directs that “[t]he court shall rule within sixty (60) days
of conclusion of the proof.” Tenn. Code Ann. § 40-30-111(d). That deadline also “shall
not be extended by agreement, and the deadline may be extended only by order of the court
based upon a finding that unforeseeable circumstances render a continuance a manifest
necessity. An extension shall not exceed thirty (30) days.” Id.

That said, the decision whether to grant a continuance is left to the post-conviction
court’s sound discretion, which will only be overturned on appeal when the post-conviction
court has “clearly” abused its discretion. Teague v. State, 772 S.W.2d 915, 928 (Tenn.
Crim. App. 1988) (citing Moorehead v. State, 409 S.W.2d 357, 358 (Tenn. 1966)),
overruled on other grounds by State v. Mixon, 983 S.W.2d 661, 671 n.13 (Tenn. 1999). An
abuse of discretion is demonstrated by showing that the failure to grant a continuance
denied the Petitioner a fair evidentiary hearing and that the Petitioner was prejudiced as a
result. Harris v. State, 947 S.W.2d 156, 173-74 (Tenn. Crim. App. 1996); Brotherton v.
State, 477 S.W.2d 522, 524 (Tenn. Crim. App. 1971). The burden rests upon the party
seeking the continuance to show how the post-conviction court’s action was in error. See
Harris, 947 S.W.2d at 174.

Post-conviction counsel was appointed on January 25, 2021, and had more than
one-and-a-half years to investigate this case before the evidentiary hearing finally took
place on October 6, 2022. During that time, post-conviction counsel sought and received
six extensions of time, with the last request being filed on February 14, 2022. No motions
had been filed on the Petitioner’s behalf prior to that time, and post-conviction counsel had
been on the case for over a year at that point. However, with the sixth request for an
extension of time filed on February 14, 2022, post-conviction counsel filed three
motions—one, a request for preparation of certain transcripts; another, a discovery motion
seeking any information relating to the Petitioner’s pro se petition filed in September 2020;
and a third, a Ritchie request for an in-camera review of DCS records relating to the
incidents of sexual contact between the victim and her stepbrother. The post-conviction
court granted all three of the Petitioner’s motions and ultimately turned over portions of
the DCS records that “contain[ed] potential exculpatory material” to post-conviction
counsel. The post-conviction court further entertained the two additional Ritchie motions

- 31 -
from post-conviction counsel that followed regarding the victim’s stepbrother’s forensic
interview and post-conviction counsel’s request to review the DCS records, in-camera in
their entirety, that related to the victim’s allegations of sexual abuse levied against the
Petitioner.

After these motions had been dispensed with, post-conviction counsel, nonetheless,
filed a motion on September 28, 2022, to continue the evidentiary hearing, just days before
the hearing was scheduled on October 6, 2022. In that motion, post-conviction counsel
cited two pieces of evidence that had been discovered during “last-minute preparations”
requiring more investigation—(1) that the victim’s mother’s initial report involved only an
allegation of oral sex, not vaginal intercourse, and the defense needed time to obtain a copy
of that hotline call and speak with the police officer who took the mother’s report, if
possible; and (2) that a report detailing the victim’s forensic medical examination was
made, and the defense was unaware prior to that time that an examination had even been
performed and needed more time to speak with medical personnel. The post-conviction
court held a hearing on the Petitioner’s motion on October 3, 2022, ultimately denying the
motion to continue citing the time the case had been pending, and the hearing took place
as scheduled.

On appeal, the Petitioner’s argument focuses only on the post-conviction court’s
denial of his motion to continue as it pertains to the second piece of evidence—the SANE
nurse’s report detailing the victim’s forensic medical examination. At the motion hearing,
the prosecutor indicated that this was post-conviction counsel’s “second time through” the
file, and post-conviction counsel failed to respond to the prosecutor’s allegation that this
evidence had previously been made available to post-conviction counsel. Post-conviction
counsel did little to illuminate why the SANE nurse’s report was not discovered sooner
given the more than one-and-a-half years post-conviction counsel had to prepare for the
evidentiary hearing.

The Petitioner contends that the denial of a continuance prohibited him from
presenting evidence regarding the significance of this report and that for the
post-conviction court to use this against him in rendering its Brady ruling was patently
unfair. However, the Petitioner failed to take any steps to ameliorate any harm from this
denial. There was no evidence that the Petitioner attempted to subpoena the SANE nurse
to the evidentiary hearing or that the Petitioner attempted to contact a medical expert, but
the expert was unavailable. The Petitioner was also allowed to submit a brief following
the hearing, but the denial of the Petitioner’s motion to continue was not mentioned therein.

Mere vagaries and speculation on appeal are insufficient to support a finding that
the post-conviction court abused its discretion in denying the motion to continue. See, e.g.,

- 32 -
Keller v. State, No. W2020-00590-CCA-R3-PC, 2021 WL 2886338, at *7 (Tenn. Crim.
App. July 9, 2021) (affirming post-conviction court’s denial of the petitioner’s motions for
continuances seeking to have an independent DNA test of the ski mask and to allow him
to re-subpoena the State’s DNA expert to testify at the evidentiary hearing because (1) the
ski mask was not critical to the State’s case, (2) the petitioner had ample time to seek
independent DNA testing of the ski mask prior to his evidentiary hearing, and (3) the
expert’s testimony, at most, would cast doubt on the veracity of the State’s DNA testimony
of the ski mask); Alston v. State, No. W2019-00930-CCA-R3-PC, 2020 WL 3639101, at
*8 (Tenn. Crim. App. July 2, 2020) (concluding that the petitioner failed to establish
prejudice on appeal from the denial of his motion for a continuance or bifurcated
proceeding to allow appellate counsel to testify because the petitioner had failed to present
any evidence surrounding the circumstances of appellate counsel’s absence from the
hearing, failed to include any information regarding whether appellate counsel was under
subpoena to testify at the post-conviction hearing, and had been granted two previous
continuances).

Finally, the post-conviction court has a responsibility to ensure the orderly
administration of its dockets and to make sure that post-conviction cases do not linger in
trial courts for years. See Tenn. Code Ann. § 40-30-109(a); Tenn. Sup. Ct. R. 28, § 8(B).
As discussed above, post-conviction counsel had previously been granted six requests for
extensions of time. Also, the post-conviction court held the issue under consideration for
an ample amount of time after the hearing, but the Petitioner never sought to enter any
additional proof. In Teague v. State, a case involving a death-row petitioner’s request for
post-conviction relief and a writ of error coram nobis, this court affirmed the denial of the
petitioner’s motion to continue requesting “a reasonable opportunity to investigate the
grounds alleged in the petition ‘given the limited resources that were available to him.’”
772 S.W.2d at 928. The Teague court reasoned that the petitioner’s family had retained
counsel and a private investigator, who both resided in the city of the petitioner’s
confinement, and that they had more than seven months to investigate his cases. Id. In so
holding, this court noted, “Theoretically, one could continue an investigation into the facts
of a capital case until the person laboring under a death sentence died from natural causes.”
Id. Though not a capital case, a similar sentiment was echoed by the post-conviction court
in this case in its ruling denying the Petitioner’s motion to continue.

Based on the proof presented, the Petitioner has failed to establish he was prejudiced
or denied a fair hearing by the post-conviction court’s denial of his motion to continue
seeking additional time to develop further proof surrounding the medical report. See
Harris, 947 S.W.2d at 173-74. Accordingly, we conclude that the post-conviction court
did not abuse its discretion, and the Petitioner is not entitled to relief from the

- 33 -
post-conviction court’s denial of his motion to continue the evidentiary hearing. We now
turn to the Petitioner’s substantive post-conviction claims.

B. Brady Evidence

The Petitioner argues that the State violated his due process rights by failing to
disclose material, exculpatory evidence prior to trial, specifically, the report from the
SANE nurse detailing the victim’s forensic medical examination. The Petitioner contends
that all four prongs of the Brady test have been established: (1) the material was obviously
exculpatory and, even if it were not, was directly requested by the defense; (2) the
information was suppressed by the State; (3) such information—showing no injuries to the
hymen or labia of the child victim who alleged she was vaginally penetrated by the
Petitioner, an adult male—was obviously favorable because it “was inconsistent with, or
not corroborative of,” the victim’s story, and the defense could have used this information
to argue “that the State was presenting a cherry-picked version of facts to the jury”; and
(4) the evidence was material, given that this “was a very close case” where the jury
acquitted the Petitioner of one series of events, and this information “could have supplied,
in the eyes of one or more jurors, a reasonable doubt as to [the Petitioner’s] guilt.” He also
observes that this was not merely a case of the State’s non-disclosure, but rather, “there
was an affirmative representation in the [d]iscovery [n]otice that the State was not aware
of any examination.”

The State concedes that the Petitioner established the first two prongs in that the
Petitioner requested the information and the State failed to provide the report. However,
the State contends that the Petitioner failed to show that the document at issue was
favorable or material, in which case the post-conviction court properly denied relief.

The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and article I, section 8 of the Tennessee Constitution afford every criminal
defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001). As
a result, the State has a constitutional duty to furnish a defendant with exculpatory evidence
pertaining to his guilt or lack thereof or to the potential punishment faced by a defendant.
See Brady, 373 U.S. at 87.

In Brady, the United States Supreme Court held that any “suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Id. The duty to disclose extends to all “favorable
information” regardless of whether the evidence is admissible at trial. State v. Marshall,
845 S.W.2d 228, 232-33 (Tenn. Crim. App. 1992). However, the State is not required to

- 34 -
disclose information that the accused already possesses or is able to obtain or information
that is not possessed by or under the control of the prosecution or another governmental
agency. Id. at 233.

To prove a Brady violation, a defendant must demonstrate all of the following: (1)
the defendant requested the information (unless the evidence is obviously exculpatory, in
which case the State is obligated to release such evidence regardless of whether it was
requested); (2) the State suppressed the information, (3) the information was favorable to
the defendant; and (4) the information was material. Edgin, 902 S.W.2d at 390. The
defendant bears the burden of proving a Brady violation by a preponderance of the
evidence. State v. Dotson, 450 S.W.3d 1, 94 (Tenn. 2014) (citing Edgin, 902 S.W.2d at
389).

Here, the Petitioner sent a letter to the State in July 2016 requesting discovery
materials, including “all results or reports of physical or mental examinations.” The State
then sent a response, stating that “[n]o examinations or tests [were] known to the State” at
that time, though the victim’s forensic medical examination was performed in December
2015. At the post-conviction hearing, the prosecutor indicated that the same information
available to post-conviction counsel was also available to trial counsel, however, trial
counsel testified that he never saw any medical report from the SANE nurse. Because the
State concedes that the first two Brady factors are met, and the post-conviction concluded
the same, we will focus our analysis on the third and fourth Brady factors, i.e., whether the
information was favorable and material.

Evidence “favorable to the accused” includes both “evidence deemed to be
exculpatory in nature and evidence that could be used to impeach the [S]tate’s witnesses.”
Johnson, 38 S.W.3d at 55-56 (citation omitted). Stated another way, evidence is favorable
if it “provides some significant aid to the defendant’s case, whether it furnishes
corroboration of the defendant’s story, calls into question a material, although not
indispensable, element of the prosecution’s version of the events, or challenges the
credibility of a key prosecution witness.” Id. at 56-57 (quoting Commonwealth v. Ellison,
379 N.E.2d 560, 571 (Mass. 1978)). Additionally, in Johnson, our supreme court cited
with approval a Nevada case stating that evidence is favorable under Brady if “it provides
grounds for the defense to attack the reliability, thoroughness, and good faith of the police
investigation . . . or to bolster the defense case against prosecutorial attacks.” Id. (citing
Mazzan v. Warden, 993 P.2d 25, 37 (Nev. 2000)).

Moreover, the evidence is deemed material if “there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have
been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

- 35 -
The question is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy of
confidence. A “reasonable probability” of a different result is accordingly
shown when the government’s evidentiary suppression “undermines
confidence in the outcome of the trial.”

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678).

Appellate courts review the lower court’s “findings of fact, such as whether the
defendant requested the information or whether the state withheld the information . . . de
novo with a presumption that the findings are correct unless the evidence preponderates
otherwise.” Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004).
“[C]onclusions of law, however, such as whether the information was favorable or
material, are reviewed under a purely de novo standard with no presumption of
correctness.” Id.

For the Petitioner’s convictions for rape of a child and incest to be valid, the jury
needed to be convinced beyond a reasonable doubt that sexual penetration occurred. See
Tenn. Code Ann. §§ 39-13-522(a) (“Rape of a child is the unlawful sexual penetration of
a victim by the defendant or the defendant by a victim, if the victim is more than eight (8)
years of age but less than thirteen (13) years of age.”); -15-302 (“A person commits incest
who engages in sexual penetration . . . with a person, knowing the person to be, without
regard to legitimacy[,] . . . [t]he person’s natural . . . child[.]”). Our Code defines “sexual
penetration” as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other
intrusion, however slight, of any part of a person’s body or of any object into the genital or
anal openings of the victim’s . . . body, but emission of semen is not required.” Id. § 39-
13-501(7) (emphasis added). There is no requirement for the State to prove injury to a
child victim’s vagina or that hymenal rupture occurred for these convictions to be
supported by sufficient evidence. See, e.g., State v. Franklin, 585 S.W.3d 431, 456-59
(Tenn. Crim. App. 2019) (concluding that sufficient evidence supported the defendant’s
convictions for rape of a child, aggravated sexual battery, and child abuse because,
although there was no physical evidence of the sexual offenses, the four-year-old victim
reported the abuse and consistently stated the defendant had sexually penetrated her and
had her perform sexual acts, and the victim’s mother testified the defendant was not acting
normally following the offense); State v. Gibson, 973 S.W.2d 231, 234-39 (Tenn. Crim.
App. 1997) (finding that sufficient evidence supported the defendant’s convictions for rape
of a child involving digital and penile penetration despite the victim’s normal medical test
and intact hymen where expert testimony explained that penetration could have occurred

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consistent with the test results, the victim testified that penetration occurred, the defendant
admitted to sexual contact with the child, and the statute defined sexual penetration as
including intrusion “however slight”).

While there is no requirement that the State prove injury to a child victim’s vagina
or that hymenal rupture occurred to establish penetration, evidence is favorable if it
“provides some significant aid to the defendant’s case, whether it furnishes corroboration
of the defendant’s story, calls into question a material, although not indispensable, element
of the prosecution’s version of the events, or challenges the credibility of a key prosecution
witness.” Johnson, 38 S.W.3d at 56-57 (quotation omitted). Certainly, if the victim’s
medical examination did in fact reveal vaginal injury or hymenal rupture, such would have
been weighty, corroborative proof in support of the victim’s allegations and, thus, bolstered
her credibility. But, depending upon the nature of the allegations, the absence of these
findings may also bear on the victim’s credibility. The SANE nurse’s report could have
provided aid to the Petitioner’s case by calling into question a material, although not
indispensable, element of the prosecution’s version of the events and challenging the
victim’s credibility. Cf. Lingle v. Iowa, 195 F.3d 1023, 1027 (8th Cir. 1999) (noting, in a
child sexual abuse case, that “[p]erhaps, . . . the [victim’s medical] report could have been
used to raise doubts in the jurors’ minds as to [the defendant’s] guilt or innocence”);
Bautista v. State, 474 S.W.3d 770, 779-80 (Tex. App. 2014) (indicating, in a conviction for
continuous sexual abuse of a child, that if the defendant had proven the victim’s medical
records contained information the victim’s hymen remained intact, such would have been
favorable to the defense). Accordingly, we agree with the Petitioner that the evidence was
favorable because it “was inconsistent with, or not corroborative of,” the victim’s story and
conclude that the Petitioner has successfully established the third Brady factor for this
reason.

Turning to our examination of the fourth Brady factor—materiality—we observe
that the report does not conclusively establish whether the victim had or had not been
penetrated prior to the medical examination performed by the SANE nurse. Indeed, the
report itself indicates that, despite the lack of vaginal injury or hymenal rupture, the
victim’s physical examination was consistent with her account of the abuse. The
examination took place sometime after the last incident of intercourse. Moreover, as noted
by the post-conviction court, the Petitioner failed to present any proof that would establish
the exculpatory nature of the report. Again, there was no evidence that the Petitioner
attempted to subpoena the SANE nurse to the evidentiary hearing or that the Petitioner
attempted to contact a medical expert, but the expert was unavailable. In addition, the
Petitioner made no efforts in the two plus months following the evidentiary hearing before
entry of the post-conviction court’s order to place any relevant proof on this issue before
the post-conviction court.

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In this case, the victim consistently reported that the Petitioner raped her, which
included an allegation of penile penetration: to her mother, during the forensic interview,
to the SANE nurse, and at trial. The SANE nurse stated in the report that the victim’s
“exam findings were consistent with the history provided”; a fact emphasized by the post-
conviction court in its Brady ruling. Even if the SANE nurse’s report could have been used
to raise doubts in the jurors’ minds as to the Petitioner’s guilt or innocence, there is a
considerable difference between merely raising doubts and the creation of a “reasonable
probability” that the trial’s “result . . . would have been different” had the prosecutor made
a timely disclosure of this evidence. See Bagley, 473 U.S. at 682; e.g., Ives v. Boone, 101
Fed. Appx. 274, 287 (10th Cir. 2004) (in an incest case, holding that a medical report
stating “the victim’s ‘hymen was thought to be intact’” did “not conclusively establish the
victim had not engaged in sexual intercourse prior to the 1987 examination”; thus, the
petitioner’s Brady claim was “without merit because the report [was] neither exculpatory
nor material”); Lingle, 195 F.3d at 1027 (concluding, in a child sexual abuse case where
the victim alleged digital and penile penetration, that the State’s failure to disclose an
examination report showing the victim’s hymen was intact did not satisfy the fourth Brady
factor because “[t]here is a considerable difference . . . between merely ‘raising doubts’
and the creation of a reasonable probability that the trial’s result would have been different”
(quotation omitted)); Bautista, 474 S.W.3d at 780 (holding, in a conviction for continuous
sexual abuse of a child, that even if the medical records established the victim’s hymen
was still intact, the defendant still failed to prove the victim could not have suffered sexual
abuse and maintained an intact hymen, and “[t]he mere possibility that an item . . . might
have helped the defense or might have affected the outcome of the trial does not establish
‘materiality’ in the constitutional sense) (citation omitted)). While the SANE nurse’s
report was favorable to the Petitioner, it was not material in the sense that there is a
reasonable probability that disclosure before trial would have caused a different result. See
Bagley, 473 U.S. at 682. Accordingly, we conclude that the absence of the SANE nurse’s
report from the Petitioner’s trial does not “destroy confidence” in the reliability of his
convictions. See Kyles, 514 U.S. at 439. We hold the SANE nurse’s report fails to meet
the required constitutional standard of materiality.

In addition, the Petitioner, in discussing materiality, observes that this is not merely
a case of non-disclosure, but one where the State made an affirmative misrepresentation
regarding the report’s existence. However, in Brady, the Supreme Court held that
constitutional due process is violated when a prosecutor suppresses evidence favorable to
a defendant “where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” 373 U.S. at 87 (emphasis added). “The
mere possibility that an item of undisclosed information . . . might have affected the
outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United

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States v. Agurs, 427 U.S. 97, 109-10 (1976). For these reasons, we conclude that the
Petitioner has failed to satisfy the fourth Brady factor, and he is not entitled to relief.

C. Ineffective Assistance of Counsel

In this appeal, the Petitioner asserts that he received the ineffective assistance of
counsel at trial and on direct appeal.6 The Petitioner contends that trial counsel was
ineffective because he (1) failed to file a pretrial motion pursuant to Tennessee Rule of
Evidence 412 seeking to have evidence of the victim’s sexual interactions with her
stepbrother admitted for various purposes, (2) failed to object to the State’s improper
closing argument, and (3) failed to properly address the issue of venue. We will address
each of the Petitioner’s contentions in turn.

On appeal, the Petitioner argues he is entitled to post-conviction relief due to
multiple instances of the ineffective assistance of counsel. Criminal defendants are
constitutionally guaranteed the right to effective assistance of counsel. U.S. Const. amend.
VI; Tenn. Const. art. I, § 9; see Cuyler v. Sullivan, 446 U.S. 335, 344 (1980); Dellinger,
279 S.W.3d at 293. When a claim of ineffective assistance of counsel is made under the
Sixth Amendment to the United States Constitution, the burden is on the petitioner to show
(1) that counsel’s performance was deficient and (2) that the deficiency was
prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). “Because 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.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
The Strickland standard has been applied to the right to counsel under article I, section 9
of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

Deficient performance requires a showing that “counsel’s representation fell below
an objective standard of reasonableness,” and reviewing courts “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 688-89. When a court reviews a lawyer’s
performance, it “must make every effort to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from the
perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006)
(citing Strickland, 466 U.S. at 689). We will not deem counsel to have been ineffective
merely because a different strategy or procedure might have produced a more favorable
result. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991). We recognize,
however, that “deference to tactical choices only applies if the choices are informed ones

6
As noted previously, trial counsel also represented the Petitioner in his direct appeal.

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based upon adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992) (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)).

As to the prejudice prong, the petitioner must establish “a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different[.]”
Vaughn v. State, 202 S.W.3d 106, 119 (Tenn. 2006) (citing Strickland, 466 U.S. at 694).
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. “That is, the petitioner must establish that his
counsel’s deficient performance was of such a degree that it deprived him of a fair trial and
called into question the reliability of the outcome.” Pylant v. State, 263 S.W.3d 854, 869
(Tenn. 2008) (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

“Questions concerning the credibility of the witnesses, the weight and value to be
given their testimony, and the factual issues raised by the evidence are to be resolved” by
the post-conviction court. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). On appeal,
we are bound by the post-conviction court’s findings of fact on appeal unless we conclude
that the evidence in the record preponderates against those findings. Id. Because they
relate to mixed questions of law and fact, the post-conviction court’s conclusions as to
whether counsel’s performance was deficient and whether that deficiency was prejudicial
are reviewed under a de novo standard with no presumption of correctness. Id. at 457.

1. Tennessee Rule of Evidence 412 Motion

The Petitioner argues that “his right to the effective assistance of counsel was
violated when [trial counsel] failed to file a Rule 412 motion and thus was unable to
introduce evidence of the [victim’s] sexual activity with her stepbrother.” The Petitioner
notes trial counsel’s testimony that he was unaware evidence of this sexual behavior was
governed by Rule 412 and that he did not research Rule 412 or file a pretrial motion. We
agree with the Petitioner, and the post-conviction court, that this evidence constitutes
“sexual behavior” governed by Rule 412.

Tennessee’s rape shield rule, which is found in Tennessee Rule of Evidence 412,
“was enacted to reflect the general view that evidence of prior sexual behavior is irrelevant
or, if relevant, has little probative value compared to its prejudicial effect, unless the
evidence is within one of the enumerated exceptions.” State v. Brown, 29 S.W.3d 427,
429-30 (Tenn. 2000). Rule 412 “recognizes that, despite the embarrassing nature of the
proof, sometimes the accused can only have a fair trial if permitted to introduce evidence
of the alleged victim’s sexual history.” Tenn. R. Evid. 412, Advisory Comm’n Cmts. (2005
amendment). The rule’s “purpose is to exclude all evidence regarding the complainant’s

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prior sexual behavior unless the procedural protocol is followed and the evidence conforms
to the specifications” of the rule. Brown, 29 S.W.3d at 430.

Rule 412 defines “sexual behavior” as “sexual activity of the alleged victim other
than the sexual act at issue in the case.” Tenn. R. Evid. 412(a). “This broad definition
‘deals with sexual intercourse as well as every other variety of sexual expression.’” State
v. Wyrick, 62 S.W.3d 751, 770-71 (Tenn. Crim. App. 2001) (quoting State v. Sheline, 955
S.W.2d 42, 47 n.6 (Tenn. 1997)). The provisions of Rule 412(c) provide, in pertinent part,
as follows:

Specific Instances of Conduct. Evidence of specific instances of a
victim’s sexual behavior is inadmissible unless . . . the evidence is:

(1) Required by the Tennessee or United States Constitution, or
(2) Offered by the defendant on the issue of credibility of the
victim, provided the prosecutor or victim has presented evidence as to the
victim’s sexual behavior, and only to the extent needed to rebut the specific
evidence presented by the prosecutor or victim, or
(3) If the sexual behavior was with the accused, on the issue of
consent, or
(4) If the sexual behavior was with persons other than the accused,
[and is offered]
(i) to rebut or explain scientific or medical
evidence, or
(ii) to prove or explain the source of semen, injury,
disease, or knowledge of sexual matters, or
(iii) to prove consent if the evidence is of a pattern of
sexual behavior so distinctive and so closely resembling the
accused’s version of the alleged encounter with the victim that
it tends to prove that the victim consented to the act charged or
behaved in such a manner as to lead the defendant reasonably
to believe that the victim consented.

Relative to the procedure to be followed, Rule 412 provides that if a defendant
intends to offer evidence regarding specific instances of conduct of the victim’s sexual
behavior, then the defense must “file a written motion to offer such evidence.” Tenn. R.
Evid. 412(d)(1). This motion

shall be filed no later than ten days before the date on which the trial is
scheduled to begin, except the court may allow the motion to be made at a

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later date, including during trial, if the court determines either that the
evidence is newly discovered and could not have been obtained earlier
through the exercise of due diligence or that the issue to which such evidence
relates has newly arisen in the case.

Id. (d)(1)(i). In addition, the motion “shall be served on all parties, the prosecuting
attorney, and the victim[,]” and it “shall be accompanied by a written offer of proof,
describing the specific evidence and the purpose for introducing it.” Id. (d)(1)(ii), (iii).
Finally, if the trial court determines that the evidence meets the admissibility requirements
of the rule and that the probative value of the evidence outweighs its unfair prejudice to the
victim, “the evidence shall be admissible in the proceeding to the extent an order made by
the court specifies the evidence which may be offered and areas with respect to which the
alleged victim may be examined or cross-examined.” Id. (d)(4).

a. Multiple Avenues for Admission

To properly frame our analysis of these issues, we find it necessary to discuss how
the Petitioner’s argument was presented in his post-conviction petitions, as opposed to how
it was presented by post-conviction counsel in closing argument at the evidentiary hearing,
in the “Proposed Post-Hearing Findings of Fact and Conclusions of Law” submitted to the
post-conviction court following the evidentiary hearing, and, likewise, on appeal. To do
so, we must set forth some additional procedural background.

In the post-conviction petitions, the Petitioner first argued that trial counsel was
ineffective for failing to file a Rule 412 motion seeking to introduce evidence of the
victim’s sexual activity with her stepbrother, detailing that such activity was admissible to
show the victim’s sexual knowledge and her motive to fabricate allegations against the
Petitioner. Then, as a separate enumerated issue, the Petitioner contended that trial counsel
was ineffective for failing to file a Rule 412 motion seeking admission of this evidence,
thereby, precluding him from arguing

that the reason the [victim] was depressed when returning to the home of [her
mother and stepfather] was not . . . because she had been abused by [the
Petitioner,] but rather[,] because she was returning to a home where she had
been and was being abused by her stepbrother or was in a relationship she
found shameful or embarrassing or was concerned would be discovered.

In another enumerated allegation, the Petitioner submitted that trial counsel’s
ineffectiveness relative to Rule 412 precluded him from “attack[ing] the [victim’s]

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inaccurate testimony that she had been at her mother’s house ever since reporting the
allegation.”

Next, he levied separate ineffective assistance allegations involving trial counsel’s
failure to adequately question the victim’s mother about (1) “her decision to inform DCS
and/or law enforcement that the [victim] had disclosed an allegation against her father but
not to inform DCS and/or law enforcement that the [victim] had disclosed an allegation
against her stepbrother”; and (2

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10581097. Public record. Not legal advice.