The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1997
FILED
CHRIS KENDAL TIPTON, ) October 9, 1997
) No. 02C01-9607-CC-00240
Appellant ) Cecil Crowson, Jr.
) HENRY COUNTY Appellate C ourt Clerk
vs. )
) Hon. JULIAN P. GUINN, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
For the Appellant: For the Appellee:
VICTORIA L. DiBONAVENTURA CHARLES W. BURSON
P. O. Box 1231 Attorney General and Reporter
Paris, TN 38242
DEBORAH A. TULLIS
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
ROBERT "GUS" RADFORD
District Attorney General
Post Office Box 686
Huntington, TN 38344
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Chris Kendal Tipton, appeals the Henry County Circuit
Court's dismissal of his petition for post-conviction relief. On November 18,
1992, a jury found the appellant guilty of one count of aggravated rape.1
Following the sentencing hearing, the trial court imposed a sentence of twenty
years in the Department of Correction. His conviction and sentence were
affirmed by this court on direct appeal. See State v. Tipton, No. 02C01-9305-
CC-00099 (Tenn. Crim. App. at Jackson, May 4, 1994), perm. to appeal
denied, (Tenn. Sept. 12, 1994). An amended petition for post-conviction relief
was filed on November 27, 1995. Subsequently, an evidentiary hearing was
held and, on April 16, 1996, the post-conviction court dismissed the petition
finding that the appellant's claims were previously determined by this court on
direct appeal and that the record is void of an abridgement of any constitutional
right. In this appeal, the appellant alleges that he was denied his constitutional
right to the effective assistance of trial counsel. As evidence of his claim, the
appellant specifically contends that:
I. Counsel failed to inspect the State's evidence until the day
prior to the trial;
II. Counsel failed to file pretrial motions in compliance with local
court rules;
III. Counsel failed to object to testimony relating to the
aggravated assault upon the victim;
IV. Counsel failed to move for a judgment of acquittal at the
1
In February, 1992, after an evening at a friend's house of partying which involved the use
of alcoh ol and dru gs, the ap pellant, the vic tim, and Kevin Cr aig reloca ted to Cra ig's hous e to
con tinue their s ocia lizing. A ppa rently, e ach me mb er of the g roup was intox icate d, an d Cra ig
eventually "passed out." The appellant began "touching" the victim, whose pleas for help from the
"passed-out" Craig were fruitless. At this point, Craig's sister, Kelli Maczalla arrived at the
residence. Still angered from a previous incident, Maczalla hit the victim twice with a board and
the two struggled. The appellant held the victim's hands while Maczalla brutally hit her in the face
and he ad with a w rench. T he app ellant then d isrobed the victim and pen etrated h er vagina lly.
Throu ghout the rape, M aczalla stoo d overh ead thre atening th e victim w ith more physical ha rm. In
a join t indic tme nt, the appe llant w as c harg ed w ith the aggr avate d rap e of th e victim resu lting in
bodily injury, while his co-defendant, Maczalla, was charged with aggravated a ssault. However,
their trials were severed with Maczalla ultimately pleading guilty to aggravated assault. At the
appellant's trial, the appellant relied upon the defense of consent and called Maczalla to support
this position .
2
close of the State's case in chief; and
V. Counsel failed to challenge the sufficiency of the indictment
on the grounds that it failed to allege a mens rea and is devoid of
any factual allegation.
Following a thorough review of the record, we affirm the trial court's
dismissal of the appellant's petition.2
I. Analysis
In post-conviction proceedings, the appellant bears the burden of
proving the allegations in his petition by a preponderance of the evidence.
Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995). Moreover, this court is
bound by the trial court's findings of fact unless the evidence preponderates
against those findings. Id.
When a claim of ineffective assistance of counsel is raised, the
appellant bears the burden of showing that the services rendered by trial
counsel were deficient, i.e., whether counsel's performance was within the
range of competence demanded of attorneys in criminal cases, Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975), and that the deficient performance was
prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064
(1984); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).
A. Failure to Inspect Evidence
2
Although we affirm the trial court's denial of relief on other grounds, we accredit the
State's po sition that the appellant h as waive d his claim s due to h is failure to inclu de app ropriate
referen ces to the record in his argum ent. See Tenn . R. App. P . 27(g); see also State v.
Killebrew, 760 S.W .2d 228 (Tenn. Crim . App. 1988).
3
The appellant contends that trial counsel was ineffective for failure to
inspect evidence of photographs of the victim until the day prior to trial. We
note that the appellant has waived review of this issue because he has failed to
make any argument regarding this claim in his brief. See Tenn. R. App. P.
27(a)(7). Notwithstanding waiver, however, the appellant concedes that these
pictures were unavailable to counsel until the day prior to the trial. Indeed, the
appellant admits that the late inspection of these photographs was not due to
neglect of trial counsel. Thus, there is no merit to this claim.
B. Late Filing of Motion in Limine
The appellant next contends that trial counsel was ineffective for waiting
until the day of trial to file pretrial motions. At the post-conviction evidentiary
hearing, trial counsel testified that he waited to file his motion to exclude all
photographs depicting the victim's injuries until the day of the trial in order to
protect his defense strategy. Specifically, he stated that the State had charged
the appellant "with aggravated rape and not aggravated assault and the
photographs depicted the injuries that [the victim] had to her face and other
parts of her body." The trial court denied this motion on the ground that it was
late filed in violation of local court rules. However, during the trial, counsel did
object to the introduction of each photograph on the ground that these
photographs were "irrelevan[t] to the charge." His objections were overruled.
On direct appeal, a panel of this court upheld the admission of these
photographs. See Tipton, No. 02C01-9305-CC-00099. This court will not
relitigate claims of error raised and determined previously by a court of
competent jurisdiction although now couched in terms of ineffective assistance
of counsel. See Swanson v. State, 749 S.W.2d 731, 833 (Tenn. 1988); State
v. McClintock, 732 S.W.2d 268, 272 (Tenn. 1987); see also Tenn. Code Ann.
§ 40-30-206(h) (1995 Supp.). Accordingly, this issue is without merit.
4
C. Failure to Object to Testimony Regarding the Assault and Failure to
Move for Judgment of Acquittal
The appellant asserts that trial counsel erroneously interpreted the
court's ruling denying his pretrial motion, supra, as "effectively" amending the
indictment to include Tenn. Code Ann. § 39-13-502(a)(3), that the appellant
was "aided or abetted by another," and that counsel proceeded to trial based
upon this misinterpretation. Specifically, he contends that, due to this
misconception, trial counsel failed to object to testimony of the aggravated
assault, which established that a weapon was used by the co-defendant,
Maczalla. Thus, he argues, that had counsel objected to this testimony,
counsel could have moved for a judgment of acquittal at the close of the
State's case-in-chief based upon the State's failure to prove that a weapon was
used by the appellant as required by the indictment. This argument is flawed
because the use of a weapon is not an element of the indicted offense.
Initially, we note that comprehension of the appellant's already circuitous
argument is compounded by the fact that apparently both trial counsel and
post-conviction counsel erroneously share the belief that the State was
required to prove both (1) force and a deadly weapon and (2) bodily injury to
the victim in order to secure a conviction for aggravated rape. See Tenn.
Code Ann. § 39-13-502(a)(1), -502(a)(2). The wording of the indictment,
however, clearly shows the State's prosecution for aggravated rape was based
upon the element of "bodily injury" to the victim. The indictment charging the
appellant with aggravated rape reads:
. . . Chris Kendal Tipton. . .commit aggravated rape by having
unlawful sexual penetration by force or coercion of one, Trina
Blazer, causing bodily injury, in violation of Tenn. Code Ann. §
39-13-502(a)(1) and (2).
(emphasis added). Tenn. Code Ann. §39-13-502 (1990) defines aggravated
rape as the:
5
. . .unlawful sexual penetration of a victim by the defendant. . . accompanied by
any of the following circumstances:
(1) Force or coercion is used to accomplish the act and the
defendant is armed with a weapon. . .;
(2) The defendant causes bodily injury to the victim;
(3) The defendant is aided or abetted by one or more other
persons. . . .
(emphasis added). Thus, we conclude that the language of the indictment was
sufficient to give the appellant notice of the crime with which he was charged.
Moreover, the recitation of a code section in a charging instrument is mere
surplusage and not fatal thereto. State v. Bowers, 673 S.W.2d 887, 888 (Tenn.
Crim. App. 1984). The State, in order to elevate the offense from rape to
aggravated rape, was only required to show that the victim suffered bodily
injury. Accordingly, the appellant's interpretation of the charging instrument is
unfounded.
Additionally, this court has previously addressed trial counsel's
misinterpretation of the trial court's pretrial ruling. See Tipton, No. 02C01-
9305-CC-00099. On direct appeal, this court concluded that the court's ruling
did not "effectively" amend the indictment. Id. Moreover, this court determined
that, even absent any evidence of the aggravated assault, the proof was
sufficient to find the appellant guilty of aggravated assault as charged in the
indictment.3 Tipton, No. 02C01-9305-CC-00099. Accordingly, we are unable
to conclude that the appellant was prejudiced by trial counsel's misconstrued
interpretation of the trial court's pretrial ruling.
Finally, a motion for a judgment of acquittal at the conclusion of the
State's case is waived when the defendant chooses to offer proof in his own
behalf. Mathis v. State, 590 S.W.2d 449, 453 (Tenn.1979). Trial counsel
3
Specifically, this court found that Dr. Apple's testimony that the victim was bruised in the
thigh and vulva areas established "bodily injury," as defined by Tenn. Code Ann. § 39-11-
106(a)( 2). See Tipton, No. 02C01-9305-CC-00099.
6
testified that the appellant insisted that his co-defendant, Maczalla, testify to
support his contention that the penetration was consensual, and, in fact, this
witness was subpoenaed by defense counsel. Notwithstanding this waiver,
when a trial court is presented with a motion for judgment of acquittal, the only
concern is the legal sufficiency, as opposed to the weight of the evidence.
State v. Blanton, 926 S.W.2d 953, 957 (Tenn. Crim. App. 1996) (citation
omitted). Again, on direct appeal, this court determined that the evidence was
sufficient to sustain a conviction for aggravated rape. See Tipton, No. 02C01-
9305-CC-00099. This issue has been previously determined and is without
merit. See Swanson, supra.
E. Sufficiency of the Indictment
Finally, the appellant contends that trial counsel was ineffective for
failing to challenge the sufficiency of the indictment, based upon the
indictments failure to allege a mens rea. In order for an indictment to satisfy
both constitutional and statutory guidelines, it must contain the material
elements of the offense and must sufficiently apprise the accused of the
offense he is called upon to defend. State v. Tate, 912 S.W.2d 785, 789
(Tenn. Crim. App. 1995); see also Tenn. Code Ann. § 40-13-202 (1990). As
applicable to the present case, aggravated rape is defined as the "unlawful
sexual penetration of a victim by the defendant" and the victim suffers bodily
injury therefrom. Tenn. Code Ann. § 39-13-502(a)(2). No requisite mental
state is included in the definition of the offense. When the legislature fails to
define a specific mental state in the definition of an offense, proof of either
intent, knowledge, or recklessness suffices to establish the culpable mental
state. Tenn. Code Ann. § 39-11-301(c)(1991). Accordingly, the accused's
mental state is not a material element of the offense and need not be included
7
in the indictment. State v. Dison, No. 03C01-9602-CC-00051 (Tenn. Crim.
App. at Knoxville, Jan. 31, 1997). Other panels of this court have upheld the
validity of indictments under similar challenges. See, e.g., Slagle v. State, No.
03C01-9704-CR-00145 (Tenn. Crim. App. at Knoxville, June 25, 1997); State
v. Vann, No. 03C01-9602-CC-00066 (Tenn. Crim. App. at Knoxville, June 10,
1997); State v. James, No. 01C01-9601-CR-00016 (Tenn. Crim. App. at
Nashville, Mar. 27, 1997); State v. Burrell, No. 03C01-9404-CR-00157 (Tenn.
Crim. App. at Knoxville, Feb. 11, 1997). Contrary to the appellant's assertions,
the allegations in the indictment sufficiently apprise the accused of the offense
of aggravated rape by bodily injury. The indictment is valid, and, consequently,
trial counsel was not ineffective for not challenging its validity. This issue is
without merit.
II. Conclusion
The burden rests with the appellant to prove his allegations by a
preponderance of the evidence. Taylor, 875 S.W.2d at 686. The post-
conviction court found that the appellant failed to carry his burden of proof and
that the issues had previously been determined on direct appeal. In
consideration of the foregoing and the record as a whole, we conclude that the
evidence does not preponderate against the trial court's findings which resulted
in a denial of relief. Accordingly, we affirm the trial court's order denying the
appellant post-conviction relief.
___________________________________
DAVID G. HAYES, Judge
8
CONCUR:
_____________________________________
JERRY L. SMITH, Judge
_____________________________________
THOMAS T. W OODALL, Judge
9