Carrington Owens v. State of Tennessee

04/28/2026

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 13, 2026 Session

CARRINGTON OWENS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Montgomery County

No. 2016-CR-497 William R. Goodman, III, Judge

___________________________________

No. M2024-01450-CCA-R3-PC

___________________________________

Carrington Owens, Petitioner, appeals from the denial of post-conviction relief from

Petitioner’s convictions for four counts of rape of a child, twenty-three counts of especially

aggravated sexual exploitation of a minor, and twelve counts of aggravated sexual battery

of a child less than thirteen years of age and his effective thirty-seven-year sentence. On

appeal, Petitioner contends that the post-conviction court erred by denying relief on his

ineffective assistance of counsel claims. Discerning no error, we affirm the judgment of

the post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which TIMOTHY L.

EASTER and JILL BARTEE AYERS, JJ., joined.

Joshua L. Brand, Nashville, Tennessee, for the appellant, Carrington Owens.

Jonathan Skrmetti, Attorney General and Reporter; Lacy E. Wilber, Senior Assistant

Attorney General; Robert J. Nash, District Attorney General, for the appellee, State of

Tennessee.

OPINION

A Montgomery County jury convicted Petitioner of thirty-nine counts of sexual

offenses involving his biological daughter (“the younger victim”) with his fiancée Rachel

and Rachel’s daughter from another relationship (“the older victim”).1 The victim in the

1

It is the policy of this court to protect the identity of minor victims. In furtherance of that policy,

we will use the first name of the minor victims’ mother. We intend no disrespect in doing so.

four counts of rape of a child was the older victim. The other thirty-five counts named

either one or both of the victims. The older victim was fourteen years old when she testified

at the trial about the abuse that began when she was six or seven. The younger victim was

approximately eighteen months old when the abuse began. Rachel was charged as a co-

defendant, but her case was severed, and Petitioner was tried separately.

At the trial, the State introduced thirty-one photographic images that had been

recovered from Petitioner’s computer following the execution of a search warrant at

Petitioner’s apartment. The older victim testified and identified Petitioner in some of the

images. Petitioner’s convictions were affirmed in his direct appeal, in which he did not

challenge the sufficiency of the evidence. State v. Owens, No. M2018-01830-CCA-R3-

CD, 2020 WL 1130667, at *1 (Tenn. Crim. App. Mar. 9, 2020), perm. app. denied (Tenn.

June 3, 2020).

Post-Conviction Petitions

Petitioner filed a timely pro se petition for post-conviction relief and four amended

petitions alleging numerous claims of ineffective assistance of counsel. For purposes of

this appeal, Petitioner preserved three issues for review. He claims that trial counsel failed

to effectively present a defense, failed to request the appropriate jury instruction under

State v. Qualls, 482 S.W.3d 1 (Tenn. 2016), and failed to effectively request a new trial

when he was made aware of text messages that demonstrated two witnesses in the trial

allegedly committed perjury.2

Post-Conviction Hearing

Tennessee Bureau of Investigation (“TBI”) Special Agent Nicholas Christian

testified that he was head of TBI Cyber Com Investigation Squad, which investigates

“transnational cyber-crime organizations.” Agent Christian previously worked as a TBI

digital forensic examiner extracting data from phones, laptops, or other devices. Agent

Christian became involved in Petitioner’s case after the TBI executed a search warrant at

Petitioner’s apartment. The warrant was based on information that the I.P. address

associated with Petitioner’s computer had been used to download “child exploitation

materials.” In Petitioner’s case, he extracted hundreds of images from six devices,

including an HP Pro Book, 4530 laptop computer registered to “Care Bear,” and a Toshiba

internal 2.5-inch hard drive registered to “Rachel.”3 Many of the images depicted

2

Because the stepmother has the same last name as the older victim, we will refer to her as

“stepmother.”

3

The older victim testified that “Care Bear” was a nickname for Petitioner. Rachel was the first

name of her mother.

2

Petitioner, Rachel, and the two victims “nude or engaged in sexual activity.” Other images

depicted sexual abuse of unknown children. Most images were created on November 3,

2010, November 13, 2011, and December 31, 2013. Thirty-one images were introduced

as evidence at trial, including images of a nude male, a young female child and an older

female child. Some pictures show the victims in the bathtub touching a penis. Another

picture showed a penis in the older victim’s mouth.

Because the images admitted at trial did not show Petitioner’s face, much of the

examination of Agent Christian at the post-conviction hearing related to Agent Christian’s

trial testimony concerning a penis shown in certain images. Post-conviction counsel asked

Agent Christian if he recalled being asked by trial counsel during cross-examination

“whether or not the penis in some photos was the same penis as in the comparison photos

[of Petitioner].” Agent Christian explained that the State provided the comparison images

so that the trier of fact could “make that determination on their own.” Agent Christian

explained that the comparison images “are not only digitally comparable, but comparable

to the person that’s in the photo or the background of the photo.”

On cross-examination by the State at the post-conviction hearing, Agent Christian

stated that he did not recall opining that the penis shown in the photographs was Petitioner’s

penis. On redirect examination by post-conviction counsel, Agent Christian was asked to

read the following excerpt of trial counsel’s cross-examination at the trial:

TRIAL COUNSEL: Just talk about the [bathtub] pictures for a moment. You

don’t know whose penis it is in those bathtub pictures, correct?

AGENT CHRISTIAN: Well, using the comparison images that’s my

assumption that it is.

TRIAL COUNSEL: So you’re making an assumption that it is [Petitioner]’s

penis in those pictures?

AGENT CHRISTIAN: Well, it is my expert opinion that it is.

Agent Christian agreed that he did not have any specialized training “in the medical

sense or the human anatomy sense” to say, “These two are the same penises.” However,

he explained that “comparing two images or comparing what’s in the images [is what] we

do daily,” especially on child sexual abuse imagery. Agent Christian said that he had

specialized training in how to identify the victims or the people in the photographs, where

those photos could have been taken, and when they were taken. He said one comparison

photograph showed a “completely nude male with his penis exposed.” He used the

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comparison images in reaching his opinion that the penis shown in a victim’s hand in one

image and mouth in another image was Petitioner’s.

Agent Christian said several images extracted from Petitioner’s computer showed

Rachel and the victims. In some images the two victims are shown in a bathtub facing each

other and spreading their vagina. Another image showed two adult females exposing their

breasts and a nude juvenile female. One image showed a pre-pubescent female touching

an object to her vagina. He said the pictures of Rachel and the victims were not introduced

at Petitioner’s trial.

Trial counsel testified that he had been practicing law for eighteen years focusing

on criminal law and family law. He said that he had previously represented defendants in

cases involving rape of a child and child pornography. Petitioner retained his services after

the search warrant was executed but before Petitioner was charged by direct presentment.

Based on the search warrant affidavit and Petitioner’s assurance “that there was no child

porn” on any electronic devices, counsel initially thought the case involved downloaded

adult pornography. He said that Petitioner told him the TBI was “not going to find

anything” and that “[t]his is going to go away.” Counsel said that he did not know the

seriousness of the case until the presentment was returned.

Trial counsel said that he knew Rachel and the two children had moved to New

Hampshire and that there was a custody proceeding filed there. He said that Petitioner

brought documents from the custody proceeding for him to review and that he talked with

an attorney in New Hampshire. Counsel learned that the older victim had “made some

admissions to a therapist” in New Hampshire and that authorities there had started an

investigation.

Concerning his trial strategy, trial counsel explained:

[Petitioner’s] only real defense was to keep the pictures from coming into

evidence at trial. [Petitioner] had documented raping these children and kept

it for seven years on a hard drive in his house. He was definitely in

possession of pictures of him raping these children.

So I knew if a jury got to see those pictures that were [o]n his hard

drive, that he would likely get convicted. [Petitioner] knew that.

Trial counsel stated that there were no pictures of the victims’ being raped that

clearly showed Petitioner’s face. Counsel explained that the predicament he faced at the

suppression hearing and at trial was basically arguing that Rachel “had somebody else rape

her children, took pictures of it, put it on [Petitioner’s] hard drive, and [Petitioner] kept it

4

for four or five years[.]” Counsel also said his strategy was limited because Petitioner

“never once . . . said, ‘That’s not me raping these children.’”

After the trial court denied the motion to suppress, trial counsel was forced to change

his trial strategy to attempt to show that Rachel had somehow “manipulated” the older

victim’s testimony. He hoped to create doubt that Petitioner was the person shown raping

the older victim. Trial counsel thought he had no choice but to admit in his opening

statement that the victims had been raped or sexually abused to maintain his credibility

with the jury.

Trial counsel explained that during cross-examination, Agent Christian, in a

nonresponsive answer to a leading question, stated that he was assuming the penis in an

image was Petitioner’s penis. He said that, rather than object, he asked the agent a follow-

up question to clarify that Agent Christian was only assuming that it was Petitioner’s penis

and that Agent Christian responded that it was his expert opinion that it was Petitioner’s

penis. Trial counsel stated that the older victim testified that the penis in the images was

Petitioner’s penis.

Trial counsel acknowledged that some of the images on Petitioner’s computer had

been taken by Rachel and that her face could be seen in some of the photographs. In some

images a pre-pubescent female can be seen grabbing a woman’s breast. In another image,

a pre-pubescent female can be seen with her mouth on the woman’s breast. Counsel said

that he decided not to introduce those photographs or images of child pornography

involving these unknown victims that were found on Petitioner’s computer because he felt

they could be harmful to Petitioner’s defense.

Trial counsel said that he questioned the older victim about whether Rachel had

molested her. He said that he expected the victim to tell the truth and answer, “yes,” but

she testified, “no.” The older victim also denied having contact with Rachel. Counsel

believed that the victim’s “credibility was hurt” when she lied about Rachel’s involvement.

Counsel called the older victim’s stepmother to establish that Rachel had unauthorized

contact with the victim, but the stepmother lied and denied knowing about any contact.

Counsel hoped that the jury would decide the testimony was untrue and that it undermined

the older victim’s and the stepmother’s testimony.

Trial counsel testified that the State introduced a photograph to coincide and

corroborate each count of the indictment. He said that four photographs showed Petitioner

raping the older victim.

Post-conviction counsel showed trial counsel a series of text messages between

Rachel and the stepmother sent between November 2017 and July 2018. A few of the

5

messages appear to be from the older victim, basically telling Rachel that she loves her and

misses her. Trial counsel said that he did not believe he had the text prior to trial or before

the hearing on the motion for new trial. After reviewing the text messages, he said that it

looked as if Rachel was telling the victim to tell the truth at trial and assuring the victim

that she was not in trouble.

Our review reflects that many of the text messages show that the older victim was

scared about having to testify at Petitioner’s trial and that Rachel wanted the stepmother to

assure her that “she won’t get in trouble” and to explain that “all she has to do is tell the

truth.” In other texts, Rachel discusses meeting the older victim at the YMCA and wanting

to see the older victim at Thanksgiving. In several texts, the stepmother asks Rachel to

bring money. In other texts, the stepmother says the older victim was not coping well, was

complaining about doing household chores, and had been lying to her.

Trial counsel said the State offered a twenty-five-year plea deal at 100% service.

He said he tried to talk Petitioner into taking the offer, but Petitioner refused, stating that

the sentence was too long and that he would die in prison if he accepted the agreement.

Former Judge Mark Fishburn was qualified as an expert in criminal trial practice

and criminal advocacy. Judge Fishburn opined that trial counsel had a “reasonable” trial

strategy by attempting to show that the older victim was lying and that Rachel “was

manipulating and controlling this thing.” Judge Fishburn testified that, under the

circumstances, there were not “a whole lot of other avenues to pursue.” Judge Fishburn

stated that “having a strategy” and having a “plan to effectuate it are two entirely different

things.” He opined that trial counsel was not prepared to attack the older victim’s

credibility and characterized trial counsel’s cross-examination of the older victim as “tip

toeing [sic] through the tulips.” Judge Fishburn opined that trial counsel was deficient in

his cross-examination of the older victim.

Based on the older victim’s pretrial forensic interview, Judge Fishburn said that trial

counsel should have anticipated and been prepared for the older victim not to implicate

Rachel. He said that trial counsel should have obtained a certified copy of the guardian ad

litem letter from New Hampshire to use to impeach the older victim’s testimony by

showing that the older victim had been in contact with Rachel. Judge Fishburn opined that

because trial counsel did not adequately prepare for the trial, there was no evidence

introduced as to “the possible motive” for the older victim to lie and no evidence to show

the older victim was manipulated by Rachel.

Judge Fishburn also opined that trial counsel was deficient in his cross-examination

of Agent Christian. He characterized counsel’s question about what Agent Christian

assumed as “open-ended” and said counsel should have been more careful in his

6

questioning or at least been prepared to object if Agent Christian tried to give an expert

opinion about whose penis was shown in the images.

Judge Fishburn explained that Qualls provides:

that in those situations where you’re going to have testimony that’s very

nebulous as to time, and place, and things of this nature, that you can have

the modified unanimity of a verdict, in which the jury simply has to find

beyond a reasonable doubt that all of the acts alleged occurred within the

time frame stated in the indictment.

Judge Fishburn opined that the Qualls instruction was important to show that the

victims were not with Petitioner during some of the time period covered by the indictment.

He also stated that the instruction was important because the photographs did not show

when the depicted events occurred.

Judge Fishburn opined that trial counsel was deficient for failing to introduce

“sexually graphic photographs” of the victims with Rachel because the photographs would

have gone to the older victim’s credibility. Judge Fishburn noted that Agent Christian had

testified that there was a photograph of the nude older victim grabbing a woman’s breast

and another photograph with the older victim’s mouth on the woman’s breast.

Judge Fishburn said the “text messages were gold” because they undermined the

credibility of the older victim and the stepmother. He said that they showed “a conspiracy”

of the older victim, Rachel, and the stepmother communicating with each other and hiding

it from Petitioner. He said that trial counsel’s “lack of effort put in to support the strategy

that he employed is where the deficiency lies.”

Assistant District Attorney Kimberly Lund, the prosecutor in Petitioner’s trial, was

called as a witness by Petitioner. Post-conviction counsel asked General Lund to review a

binder marked “text messages.” After looking at the messages, General Lund

acknowledged they were found by post-conviction counsel in her file but that she did “not

know where they came from,” “who gave them to [her],” or “when they were given to

[her].” She said that “[t]hey were in the box” and that she did not “know when they were

given to [her] and put in the box.”

In the examination by the State, General Lund was asked about “the Qualls

discussion.” She said that she “brought up the Qualls issue” with the trial court “because

she was not sure whether the victim would be able to provide a timeframe.” General Lund

said that the older victim testified that the abuse happened while they were living in

Clarksville and that it “started when she was approximately six years old, and it continued

7

until she moved to New Hampshire.” General Lund said that Rachel and the two victims

moved out of the residence in November 2012. The older victim testified that “the abuse

“happened a little bit before [Petitioner] was deployed, mostly when he came back.”

General Lund said that because she “had that timeframe and a venue,” she did not “feel

like it was necessary to have a blended instruction anymore.”

General Lund testified that the older victim never implicated Rachel during her

forensic interview, at trial, or at any time of which she was aware. She said that the older

victim denied that she had been abused by a boyfriend of Rachel, a neighbor, or a relative.

Concerning the abuse, General Lund testified the older victim said that “[m]y mom didn’t

do anything. She didn’t touch me.” When asked if she was worried about the older victim

committing perjury or suborning perjury herself, General Lund answered:

No, I’m not suborning perjury. [Petitioner] was on trial and the

questions are: “Whose penis is in your mouth? Whose penis is in your hand?

Whose penis is in your sister’s hand?”

It’s [Petitioner’s]. It’s Care Bear. It’s Carrie.4 I was six years old. I’m in

Clarksville. My mom is not around. There’s no other dude. It’s him.

Concerning the older victim’s testimony, General Lund stated that her “experience

with crimes against children is [that] no matter what a parent does to a kid, it doesn’t matter

how bad it is, they always love . . . their parent.” General Lund explained that the older

victim “thought she was disclosing sex abuse by a man,” but we “swoop in and we’re like,

‘Oh, by the way, we think your mom did it too. Now you can’t have contact with her.’”

General Lund explained that the older victim “loved [Rachel] and would have done

anything to be with [Rachel], because that’s the only person she had.” General Lund stated

that the older victim’s “whole world was shattered because she disclosed that she had been

a victim.”

Order Denying Post-Conviction Relief

The post-conviction court issued an extensive written order addressing the

following issues:5

4

Carrie was another nickname for Petitioner. Carrie is the spelling used in the trial transcript, and

we will use that spelling in this opinion even though in the trial court’s order it is spelled Cary.

5

Only Issues 3, 5, 6, and 7 were raised on appeal and Issues 3 and 5 were consolidated into one

issue on appeal.

8

1. Trial counsel was ineffective by failing to adequately and properly

challenge the search warrant used to collect much of the evidence in the case,

specifically as it relates to the insufficient probable cause contained in the

search warrant.

2. Trial counsel was ineffective for failing to allow Petitioner to personally

review the discovery in this case.

3. Trial Counsel was ineffective for failing to thoroughly and effectively

cross-examine the victim-witness in the case, including by failing to utilize

available impeachment evidence.

4. Trial counsel failed to object to hearsay from Detective Lambert and [by]

allowing him to testify to material, inadmissible evidence.

5. Trial counsel improperly and negligently elicited testimony from Special

Agent Nicholas Christian that in his opinion it was Petitioner’s penis that

appeared in certain photos.

6. Trial counsel was ineffective for failing to object to improper jury

instructions under State v. Qualls, 482 S.W.3d 1 (Tenn. 20[1]6), that require

a modified unanimity instruction if there is no election of offenses.

7. Petitioner’s Due Process Rights under the U.S. Constitution and Tennessee

Constitution were violated for failure to disclose exculpatory evidence

relating to communications between . . . Rachel . . . and [the stepmother] that

would have provided significant impeachment evidence, as well as

substantiated Petitioner’s defense.

Concerning the claim that trial counsel was deficient in his cross-examination of the

older victim (Issue 3), the post-conviction court noted that the older victim was admonished

by the State during direct examination to tell the truth. The older victim testified “that

Petitioner started touching her inappropriately when she was around five or six, touching

her in what she described as her ‘girl spot.’” The older victim identified a photograph

“introduced at trial as exhibit 22, in which she identified herself holding a male’s penis,

exhibit 25 in which she is nude, and exhibit 27, in which she is nude with her mouth in the

groin area of a male she identifies a ‘Carr[ie].’” The court found that, when the older victim

was asked about Rachel, she said that she was not allowed to see Rachel but that “she

would see her at the ‘Y.’” She testified that “she loved [Rachel] and that she missed her .

. . .” She denied that Rachel told “her what to say or to make up any of the things.” The

court found while trial counsel was very polite in his examination of the older victim, trial

9

counsel did inquire about key points. He questioned the older victim about whether Rachel

had boyfriends over to her home during the time when Petitioner was deployed and whether

anyone else took photographs of her. In response to trial counsel’s questions, the older

victim denied that Rachel would have boyfriends come to the house. She also denied that

Rachel “took any of the photos.” The older victim testified that she moved back to New

Hampshire in 2012, that she continued to live with Rachel until 2016, and that she

continued to have contact with Rachel “until her dad found out.” She “denied talking with

[Rachel] about the case.” The court noted that trial counsel asked the older victim if she

had been told that, if she testified against Petitioner, “the charges against [Rachel] would

be dismissed,” to which the victim responded, “There was nothing ever discussed about

court.”

The post-conviction court, quoting from the Judge Fishburn’s report, noted “that the

defense of child sex cases prove[s] to be particularly challenging for several reasons.” The

court discussed that the report went on to state, “More importantly, the State had possession

of a trove of sexually explicit photographs which would only serve to heighten the already

accepted credibility of [the older victim] and add to the emotional impact [the older

victim’s] story would have on a jury.” Quoting from Hellard v. State, 629 S.W.2d 4, 9-10

(Tenn. 1982) (internal citations omitted), the post-conviction court stated:

It cannot be said that incompetent representation has occurred merely

because other lawyers, judging from hindsight, could have made a better

choice of tactics. As former trial lawyers, we know that a criminal trial is a

very dramatic, vibrant and tense contest involving many variables and that

counsel must make quick and difficult decisions respecting strategy and

tactics which appear proper at the time but which, later, may appear to others,

or even to the trial lawyer himself, to have been ill considered.

The post-conviction court found that the assistance provided by trial counsel in his

examination of the older victim was not ineffective. The court found this issue was without

merit.

Concerning the claim that trial counsel was deficient in his cross-examination of

Agent Christian (Issue 5), the post-conviction court found that trial counsel “brought to the

attention of the jury that []Petitioner’s face was not visible” in the photographs to identify

Petitioner. The court found that, while Agent Christian’s opinion identifying the penis as

Petitioner’s penis “might not have been the response that trial counsel had hoped to

receive,” the court “does not find the performance of defense counsel in this aspect of the

case to be deficient to such an extent so as to have prejudiced the defense of []Petitioner

based on the standards of Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996).” The court

10

found that Petitioner failed to prove that trial counsel provided ineffective assistance of

counsel and concluded this issue was without merit.

Concerning trial counsel’s failure to ensure that a Qualls instruction was given to

the jury (Issue 6), the post-conviction court found that “the photographs of the alleged

criminal acts of [] Petitioner are ‘non-generic evidence’ and that the omission of a request

by trial counsel for a jury instruction relating election of offenses would not constitute

ineffective assistance of counsel.” The court further found that there was not “a reasonable

probability that the result of the trial would have been any different even if an ‘election’

instruction had been given.” The court found this issue was without merit.

Concerning the claim that trial counsel was deficient in not seeking a new trial after

he discovered the text messages between Rachel and the stepmother (Issue 7), the post-

conviction court found that the older victim denied that Rachel “had sexually assaulted her

and taken sexually explicit photographs of her.” The court noted that the older victim

“acknowledged that, after [Rachel] lost custody of her, she continued to visit [Rachel]

secretly until her father found out[.]” The court found that the older victim denied that she

and Rachel “discussed the criminal case” and denied that Rachel told her to “blame

everything” on Petitioner so the charges against Rachel would be dismissed. The court

concluded that Petitioner failed to prove that there was a reasonable probability that the

result of the trial would have been any different if the text messages had been introduced

as evidence. The court determined that Issue 7 was without merit.

The post-conviction court denied the petition, and Petitioner timely appeals.

Analysis

On appeal, Petitioner raises three issues. He claims that he received ineffective

assistance of counsel because trial counsel failed to effectively present a defense, failed to

request the appropriate jury instruction under Qualls, 482 S.W.3d at 1, and failed to

effectively request a new trial when he was made aware of text messages that demonstrated

two witnesses in the trial allegedly committed perjury.6

The State argues that Petitioner abandoned the claim that trial counsel failed to

effectively present a defense. The State also argues that the post-conviction court properly

6

We determine that all other claims that were raised in Petitioner’s post-conviction petition

and asserted by Petitioner at the post-conviction hearing are waived. Tenn. R. App. P. 27(a)(7);

see Logan v. State, No. M2018-01786-CCA-R3-PC, 2020 WL 918607, at *2 (Tenn. Crim. App.

Feb. 26, 2020), perm. app. denied (Tenn. July 20, 2020).

11

determined that trial counsel was not deficient in failing to ensure that a Qualls instruction

was given or failing request a new trial when he was made aware of the texts.

Effective Assistance of Counsel

Post-conviction relief “shall be granted when the 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

right to effective assistance of counsel is safeguarded by the Constitutions of both the

United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const. art. I, § 9.

In order to receive post-conviction relief for ineffective assistance of counsel, a petitioner

must prove: (1) that counsel’s performance was deficient; and (2) that the deficiency

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v.

Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same standard for

ineffective assistance of counsel applies in both federal and Tennessee cases). Both factors

must be proven for the court to grant post-conviction relief. Strickland, 466 U.S. at 687;

Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997); Goad, 938 S.W.2d at, 370 .

Accordingly, if we determine that either factor is not satisfied, there is no need to consider

the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (citing Carpenter v.

State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of counsel’s performance

“requires that every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time.” Strickland, 466 U.S. at 689; see also Henley, 960

S.W.2d at 579. We will not second-guess a reasonable trial strategy, and we will not grant

relief based on a sound, yet ultimately unsuccessful, tactical decision. Granderson v. State,

197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel’s performance is effective

if the advice given or the services rendered are within the range of competence demanded

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that

counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions

were so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see

also Baxter, 523 S.W.2d at 936.

Even if counsel’s performance is deficient, the deficiency must have resulted in

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong of

the Strickland analysis, the petitioner “must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

12

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks omitted).

Failure to Effectively Present a Defense

The claim that trial counsel was ineffective because he failed to effectively present

a defense was raised as an issue in Petitioner’s pro se petition. Because that claim was

neither specifically raised in nor incorporated into any of the four amended petitions, the

State argues that Petitioner abandoned that issue. As a result of the trial counsel’s failure

to present a defense not being raised as an issue in the amended petitions, the post-

conviction court did not address that issue, and we will not directly address that issue. See

Lane v. State, 316 S.W.3d 555, 561-62 (Tenn. 2010) (Issues not raised in the post-

conviction court will generally not be addressed on appeal).

However, in Petitioner’s brief under the issue of trial counsel’s failure to effectively

present a defense, Petitioner addresses his claim raised in all five petitions that trial counsel

rendered ineffective assistance in his cross-examinations of Agent Christian and the older

victim. Trial counsel testified that he initially formulated a strategy based on suppressing

hundreds of images extracted from the computer and hard drive discovered after law

enforcement executed a search warrant at Petitioner’s apartment. When the trial court

denied the motion to suppress, counsel was forced to adopt a new strategy of trying to

create doubt that the man whose penis, but not face, was shown in the images was

Petitioner.

During cross-examination, trial counsel asked Agent Christian: “You don’t know

whose penis it is in those bathtub pictures, correct?” Agent Christian responded that it was

his “assumption” that it was Petitioner’s penis. Counsel said that, rather than object to the

answer, counsel decided to emphasize that Agent Christian was only assuming the man in

the images was Petitioner. Trial counsel testified that Agent Christian then gave a non-

responsive answer stating that, based on comparison photographs, it was his opinion that

the man was Petitioner. Trial counsel then asked Agent Christian questions emphasizing

that Petitioner’s face was not visible in the photographs. The post-conviction court

determined that, while trial counsel “may have desired a different answer to the question,

[the] court does not find the performance of defense counsel in this aspect of the case to be

deficient to such an extent so as to have prejudiced the defense of []Petitioner[.]”

Concerning trial counsel’s cross-examination of the older victim, the post-

conviction court noted that the older victim identified an image showing herself nude and

holding a male’s penis and another photograph in which she is nude with her mouth in the

groin area of a male she identifies as ‘Carr[ie].’” The court found that trial counsel

questioned the older victim about “the time when Petitioner was deployed,” about whether

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Rachel had boyfriends in her house, about whether she had contact with Rachel in New

Hampshire, and whether Rachel took any of the photographs introduced at trial.

The post-conviction court stated in the Order Denying Post-Conviction Relief:

Often lawyers may reach the conclusion that other tactics, questions or

approaches might have yielded a different result[;] this is not the standard in

determining if a party was rendered ineffective assistance of counsel. [The]

court does not find that trial counsel provided ineffective assistance of

counsel in [its examination of the older victim], therefore this issue is found

to be without merit.

The post-conviction court’s findings of fact are “entitled to substantial deference on

appeal unless the evidence preponderates against those findings.” Fields v. State, 40

S.W.3d 450, 456 (Tenn. 2001). The evidence does not preponderate against the post-

conviction court’s finding that trial counsel was not deficient in his questioning of Agent

Christian or the older victim. More significantly, the evidence does not preponderate

against the court’s finding that, even if counsel’s examination of Agent Christian was

deficient, Petitioner failed to show that there was a reasonable probability that the jury’s

determination of guilt would have been different had such evidence been presented.

“[T]he fact that a particular strategy or tactic failed or even hurt the defense does

not, alone, support a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521,

528 (Tenn. Crim. App. 1992). Petitioner has not demonstrated that any deficiency in the

cross-examination of Agent Christian affected the outcome of the trial. In addition to the

testimony of Agent Christian, the jury had the comparison photographs to assist in the

identification of the man; Petitioner kept the images on his computer for years; and the

older victim identified Petitioner in several photographs. We affirm the post-conviction

court’s conclusion that Petitioner failed to show that trial counsel was deficient in his

examination of Agent Christian and the older victim or that he was prejudiced.

Qualls Jury Instruction

In Qualls, our supreme court held that, “where a prosecution is based on such

nonspecific or ‘generic’ evidence, requiring the prosecution to elect a single specific

incident is not possible.” Qualls, 482 S.W.3d at 2. In such situations, “the trial court must

give a modified unanimity instruction which informs the jury that it must unanimously

agree the defendant committed all the acts described by the victim in order to convict the

defendant.” Id.

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The post-conviction court noted that counsel for the State and trial counsel agreed

that, in consideration “of photographs which would be argued as representative of each

count as alleged in the indictment,” the Qualls instruction would not be given. Because

such photographs were not generic, the State was able to elect a specific incident for each

count of the indictment. We agree with the post-conviction court “that the omission of a

request by trial counsel for a jury instruction relating election of offenses would not

constitute ineffective assistance of counsel.” We also agree with the court’s finding that

there was not a reasonable probability that the result of the trial would have been any

different even if a Qualls instruction had been given. We find the issue without merit.

Motion for New Trial

Petitioner claims that trial counsel was made aware of the text messages between

the older victim and her stepmother before he filed the motion for new trial. According to

Petitioner, the text messages show that the older victim was communicating with Rachel

and that her stepmother was acting as an intermediary in arranging meetings. Petitioner

argues that text messages showed that the older victim and her stepmother lied during their

trial testimony about the communications. Petitioner claims that the older victim’s

credibility “was at the core of the case” and that trial counsel was ineffective by failing to

raise this matter before the trial court.

The State argues that “[t]here is no indication of who sent the text messages or how

they were printed out, so [P]etitioner would have been unable to lay a foundation” as to

their authenticity. The State also argues that the older victim did not author the texts and

that she testified at trial that she and Rachel had been in contact. The post-conviction court

determined that the copies of the text messages were not authenticated, the text messages

did not reference Petitioner, and the messages would not have affected the outcome of the

trial. The evidence does not preponderate against the court’s findings; accordingly,

Petitioner is not entitled to post-conviction relief on this basis.

Conclusion

We affirm the judgment denying post-conviction relief.

s/Robert L. Holloway, Jr.

ROBERT L. HOLLOWAY, JR., JUDGE

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