Rickey Allen Hickman v. State of Tennessee ( 2017 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 19, 2016
RICKEY ALLEN HICKMAN v. STATE OF TENNESSEE
Appeal from the Circuit Court for Marshall County
No. 15-CR-90 F. Lee Russell, Judge
No. M2016-00489-CCA-R3-PC – Filed January 24, 2017
_____________________________
A Marshall County jury convicted the Petitioner, Rickey Allen Hickman, of one count of
rape of a child and three counts of aggravated sexual battery. The trial court sentenced
the Petitioner to a total effective sentence of forty-seven years of incarceration. On
appeal, this Court affirmed the Petitioner‟s convictions. State v. Rickey Allan Hickman,
No M2013-02390-CCA-R3-CD, 2014 WL 4557626 (Tenn. Crim. App., at Nashville,
Sept. 16, 2014), perm. app. denied (Tenn. Jan. 16, 2015). The Petitioner filed a petition
for post-conviction relief alleging that his trial counsel had been ineffective. The post-
conviction court held a hearing after which it denied the petition. On appeal, the
Petitioner maintains that his trial counsel was ineffective for failing to present a defense
asserting that the victim was raped by a person other than the Petitioner. After a
thorough review of the record and applicable law, we affirm the post-conviction court‟s
judgment.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.
Matthew D. Wilson, Lewisburg, Tennessee, for the appellant, Rickey Allen Hickman.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Robert J. Carter, District Attorney General; and Weakley Edward Barnard, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts and Procedural History
This case arises from sexual abuse allegations made against the Petitioner by the
victim, his granddaughter. The Marshall County grand jury indicted the Petitioner on
charges of rape of a child and multiple counts of aggravated sexual battery. In his direct
appeal, this Court summarized the evidence presented against the Petitioner at his trial as
follows:
At the [Petitioner‟s] trial, the following evidence was presented:
Joey Kinder testified that he was married to Kimberly Kinder and that she
had three children from a previous relationship. He stated that, in addition
to his two children, Ms. Kinder‟s three children lived with the couple and
that he was close with his step-children, who looked at him “as dad.” He
stated that, before August 2010, he had met Ms. Kinder‟s father, the
[Petitioner], two or three times, and he recalled that the [Petitioner] “gave
Ms. [Kinder] away” at their wedding on June 5, 2010. Mr. Kinder
identified the [Petitioner] in the courtroom.
Mr. Kinder stated that the [Petitioner] visited the Kinder‟s home
during the period of April through August 2010. He stated that the victim,
K.C., was present in the home during that time period. Mr. Kinder testified
that, when the [Petitioner] came to visit the residence at the end of April
2010, K.C. “was like [my] shadow. Everywhere I went she was right there.
I call it clingy. She was very clingy. I could not get away from her any
way.” Mr. Kinder stated that this was “unusual” behavior for K.C.
Mr. Kinder testified that on August 13, 2010, he had a discussion
with the victim. He stated that the victim climbed into his lap and began
telling him about a class she had been in at school with a guidance
counselor. The victim proceeded to tell him “something that [he] thought
was important,” “totally unsolicited,” which prompted Mr. Kinder to speak
with his wife about his conversation with the victim. After telling Ms.
Kinder what the victim had said and speaking together with the victim, the
couple contacted the Marshall County Sheriff‟s Department.
On cross-examination, Mr. Kinder recalled that, during the
[Petitioner‟s] visits to the family‟s home, Mr. Kinder had seen the other
children sit on the [Petitioner‟s] lap, but he had never seen the victim do the
same. Mr. Kinder stated that the [Petitioner] volunteered to keep the
couple‟s children while they went on their honeymoon during the summer
of 2010.
Kimberly Kinder, the [Petitioner‟s] daughter, testified that her
daughter, the victim, was born January 19, 2003, and was one of five
children in the Kinder family. Ms. Kinder recalled a conversation she had
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with the victim on August 13, 2010. The victim told Ms. Kinder that she
had been in a class at school “about not keeping secrets[.]” Ms. Kinder
learned that the victim had told Mr. Kinder her “secret” and stated that the
victim also told her “what her secret was[.]” Ms. Kinder stated that, after
discussing the victim‟s “secret” with her husband, they contacted the
Marshall County Sheriff‟s Department. Ms. Kinder testified that an
investigation by the sheriff‟s department ensued.
Ms. Kinder testified that at some point during the time period of
September 1, 2009, through October 31, 2009, there was a party at the
Kinder‟s house and that the [Petitioner] was in attendance. The [Petitioner]
was asked to go out and buy ice, and the victim asked to accompany him on
the errand. Ms. Kinder recalled that the [Petitioner] took the victim in his
van to buy the ice. Ms. Kinder learned later during the sheriff‟s
department‟s 2010 investigation that an “incident” occurred while the
[Petitioner] and the victim were in the van that day. Ms. Kinder stated that
one day, when she and the victim were riding around town, they came to an
old warehouse, and the victim “got upset” and told her mother what had
happened there. Ms. Kinder reported to the sheriff‟s department what the
victim said that day.
Ms. Kinder testified that during the time period of December 2,
2009, through December 11, 2009, she had surgery and the [Petitioner]
offered to take care of her children while she recovered. She stated that the
[Petitioner] had opportunities to be alone with the victim during that time.
Ms. Kinder testified that during the time period of December 1,
2009, through December 31, 2009, she moved with her children into a new
house to live with Mr. Kinder, and the [Petitioner] visited the family at this
new residence.
On cross-examination, Ms. Kinder stated that she was getting along
well with the [Petitioner] during the summer of 2010. She agreed that the
[Petitioner] and the victim were “pretty close” during that time. She stated
that, when the [Petitioner] was around, the victim would not sit in his lap or
talk to the [Petitioner] as much as her other children. Ms. Kinder stated that
she asked the [Petitioner] to watch the children while she and Mr. Kinder
went on their honeymoon for a couple of days in 2010.
K.C., the victim, testified that she was in the fifth grade at the time
of trial and that Kimberly Kinder was her mom and Joey Kinder was her
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dad. K.C. testified that she had three older siblings and one younger sibling
and that the [Petitioner] was her “grandpa.” She agreed that he was “not
[her] grandpa anymore[,]” because “he did some things” to her. She stated
that the [Petitioner] “touched” her three times and that the first time was in
the [Petitioner‟s] van outside a warehouse. She stated that she and the
[Petitioner] were getting ice for a family party, and she rode with him in the
front seat of his van. She stated that they bought the ice but did not go
straight home after that. K.C. recalled that the [Petitioner] parked his van
behind a tree beside the warehouse and turned off the engine. He told K.C.
to close her eyes, and then he reached in her pants “where the button is” on
the front. She stated that the [Petitioner‟s] hands went all the way inside
her pants. She recalled that she had underwear on and that his hand went
inside of her underwear and touched her “private area.” K.C. indicated for
the jury that the [Petitioner] touched her “pubic area.” K.C. stated that she
did not want the [Petitioner] to touch her. She said that his hand touched
near the opening of her vagina and that “part” of his hand went inside of the
opening. K.C. said it felt “weird.”
K.C. testified that the [Petitioner] then put her hand inside of his
pants on the inside of his underwear. She said it felt “hairy” inside his
underwear. K.C. stated that the [Petitioner] took her hand out of his pants,
and then they drove in the van back to the family party. She stated that the
[Petitioner] gave the ice he had bought to Ms. Kinder. K.C. recalled that
the [Petitioner] told her, “don‟t tell or you will go to the devil[,]” and made
her “pinky swear” that she would not tell anyone. She said it scared her
that she would “go to the devil.” K.C. testified that she did not tell her
mother what had happened because she was scared of the [Petitioner].
After the touching incident, K.C. said she did not want to be around the
[Petitioner] and that she stopped hugging him and sitting on his lap.
K.C. testified that the second time the [Petitioner] touched her was in
her bedroom, during the time her mother was recovering from surgery.
K.C. recalled that she got “sent to bed” for something that she did. The
[Petitioner] came into her bedroom and said she could leave if she did a
“favor” for him. The [Petitioner] told K.C. to close her eyes and reached
his hand into her pants. She stated that she was wearing shorts and a tank
top, or possibly pajama pants. K.C. stated that the [Petitioner] put his hand
inside her underwear and touched her “private[,]” in the pubic area she had
previously indicated to the jury. She recalled that his hand touched the
opening to her vagina. K.C. stated that the [Petitioner] put her hand inside
his pants and inside of his underwear and that it felt “hairy.” K.C. stated
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that the [Petitioner] told her not to tell and again said that she would “go to
the devil” if she told anyone and that they did another “pinky swear.” K.C.
said she did not tell her mother about this incident because she was afraid
of the [Petitioner].
K.C. testified that the third time the [Petitioner] touched her was in
the bedroom of the new house her family had moved into in December
2009. She stated that she was cleaning her bedroom with her sister when
the [Petitioner] came in the room and told her sister to leave. She said the
[Petitioner] shut the door when he came into the room and that her sister
was too little to reach the door knob, so she stayed in the room. With her
little sister watching, the [Petitioner] told K.C. to close her eyes and he put
his hands inside K.C.‟s pants and underwear. K.C. stated that he touched
her “private area” but said his hand did not go inside her vaginal opening.
The [Petitioner] made K.C. promise not to tell and again warned her that
she would “go to the devil” if she told anyone about the incident.
After those incidents, K.C. said that, when the [Petitioner] came to
her house she would “stand by [her] dad the whole entire time” because she
was afraid of the [Petitioner]. She stated that she watched a video at school
about secrets and that the video “gave me a hint not to keep [the
Petitioner‟s] secret no more.” K.C. said she went home from school and
told Mr. Kinder about the secret that the [Petitioner] had been putting his
hand down her pants and touching her. She stated that her mother “freaked
out” when K.C. told her the secret and then took her to the police
department.
K.C. testified that she was driving with her mother when she saw the
warehouse where the [Petitioner] had taken her and touched her inside the
van. K.C. identified a picture of the warehouse and the picture was entered
into evidence.
On cross-examination, K.C. stated that when the [Petitioner] touched
her inside the van, his hand did not go inside her vagina but was “just like
beside” her vagina. She clarified that “he didn‟t go in it[.]”
Bob Johnson testified that he was a Captain with the Marshall
County Sheriff‟s Department and was the investigator assigned to this case.
He stated that patrol officers took the initial incident report on August 13,
2010, and he coordinated an interview with the victim through the
Department of Children‟s Services (“DCS”), which occurred on August 31,
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2010. Captain Johnson stated that he never learned what happened in the
interview because the DCS caseworker who conducted the interview left
the Department. He stated that he spoke with the victim‟s mother on
August 18, 2010, and spoke with the [Petitioner] on August 30, 2010.
Captain Johnson said that he went to the [Petitioner‟s] residence in
Murfreesboro, which was a moveable RV, and advised him that he was the
subject of the investigation. Captain Johnson later learned from the
[Petitioner‟s] daughter that the [Petitioner] had moved at the end of 2010.
Captain Johnson stated that another interview was set up with the
victim to be conducted by a DCS worker on January 8, 2011. He stated
that he watched the interview live on a television monitor and stated that
the victim disclosed that the [Petitioner] had touched her three times,
consistent with her trial testimony. Captain Johnson stated that in February
2011, he found the [Petitioner] in an RV park in Shelbyville and told the
[Petitioner] he was a suspect in the case. Two weeks later, the [Petitioner]
moved again and, when the captain was unable to locate the [Petitioner] by
March 2011, he took a warrant out for the [Petitioner‟s] arrest. He stated
that the [Petitioner] was not arrested until December 14, 2012, in
Manchester, Tennessee.
Captain Johnson stated that the victim‟s mother was able to provide
a time frame for when the touching occurred based on events that the victim
could remember, such as picking up ice for the family party or Ms.
Kinder‟s surgery.
Janice Hickman, the [Petitioner‟s] wife, testified that she was with
the [Petitioner] and the victim on the day of the first incident when they
drove to a store to buy ice for the family party. She stated that she was with
the [Petitioner] and the victim the entire time. Ms. Hickman recalled being
at the Kinder‟s home and that K.C. acted happy around the [Petitioner] and
hugged him and sat in his lap.
The [Petitioner] testified that his wife was present on the day of the
first incident when K.C. went with him to buy ice for the party. He stated
that they drove straight home after going to the store, and he said he did not
take K.C. to a warehouse. He testified that he never touched the victim
inside of her clothes around the time of her mother‟s surgery, and he stated
that he did not go into the bedroom where K.C. was cleaning up. He
testified that he did not know what a “pinky swear” was and that he had
never told K.C. not to tell anyone about anything. He stated that he had
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never touched her and that he would never harm a child. The [Petitioner]
explained that he moved during the investigation because the landlord did
not want an accused child rapist living in the RV park. The [Petitioner]
agreed that he did not show up for his scheduled meeting with Captain
Johnson, but he stated that he did not know there was an ongoing
investigation.
Based upon this evidence, the jury convicted the [Petitioner] of one
count of rape of a child and three counts of aggravated sexual battery.
Hickman, 2014 4557626, at *1-5 (footnote omitted). On appeal, this Court affirmed the
Petitioner‟s convictions. Id. at *1. The Tennessee Supreme Court denied his request for
permission to appeal. Id.
B. Post-Conviction Facts
The Petitioner filed a timely petition for post-conviction relief in which he alleged
that his trial counsel had been ineffective for failing to present a defense based upon
another person sexually assaulting the victim. He further contested the sufficiency of the
evidence supporting his convictions. The trial court appointed counsel and held a hearing
on the petition, during which the parties presented the following evidence: Brenda
Robison, the Defendant‟s ex-wife, testified that Ms. Kinder was her daughter and that the
victim was her granddaughter. Ms. Robison said that there had been several men who
had lived with Ms. Kinder since the victim was born in 2009. She recalled that Ms.
Kinder and the victim had lived with a man in Springfield, Tennessee when the victim
was “younger.” Ms. Robison said that she never spoke with the Petitioner‟s trial
attorney, Counsel, about any men who had come into contact with the victim previously.
Counsel testified that he attempted to contact several of the prosecution‟s
witnesses but that they refused to speak with him. Counsel agreed that, in this case, there
were three possible scenarios: (1) the Petitioner abused the victim; (2) someone else had
abused the victim; or (3) the victim was not abused at all. Counsel said that he focused
exclusively on the theory that the victim fabricated the allegations of abuse. He said that
he had no information that supported a theory that someone else had molested the victim.
Counsel said that he had interviewed a man named “Mitch” who had lived with the
victim‟s mother for some period of time. “Mitch,” however, denied that he had anything
to do with molesting the victim.
Counsel acknowledged that, at the time of the allegations, the victim was six or
seven years old. She was nine or ten years old at the time of trial. He agreed that she
gave “an awful lot of details, sexual detail when she testified.” Therefore, based upon her
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age and her sexual knowledge, he agreed that she had likely been sexually assaulted. He
agreed that it was clear that “something had happened to the [victim].” He did not,
however, offer a theory at trial that someone other than the Petitioner had molested the
victim. Counsel said that he did not feel confident presenting a theory that “Mitch” had
molested the victim because he had no evidence to support that theory.
Counsel agreed that the victim‟s testimony at trial was “fairly compelling.” He
said that he had viewed the DCS recorded interview of the victim. The victim‟s story
during the interview was consistent with her trial testimony. The only inconsistency that
Counsel noted was that during direct testimony, the victim said that the Petitioner had
penetrated the “slit” to her vagina but that she denied as much on cross-examination.
Counsel agreed that he knew that it would be hard to discredit the victim as a witness.
Counsel again explained that he did not attempt to implicate someone else in this
molestation because he did not have any evidence to support such a theory.
Counsel testified that his “biggest frustration” in this case was that the State had
offered a plea agreement that contemplated that the Petitioner would enter a plea of guilty
to sexual battery in exchange for an eight-year sentence. Counsel said he “tried and
pleaded and begged” the Petitioner to take the offer, but the Petitioner refused, saying he
was not guilty.
During cross-examination, Counsel testified that he interviewed multiple
witnesses before trial, but the victim‟s mother would not allow him to interview the
victim.
Based upon this evidence, the post-conviction court found:
[I]t is indeed a two-prong test. And I am not to determine, and when we‟re
talking about ineffective assistance of counsel, the determination is not
whether a defendant got a perfect defense or . . . whether there was a better
defense available in the abstract, but rather did defense counsel reach the
level of competency required of criminal defense attorneys in this situation.
Did he have a defensible strategy. My belief and my very strong belief is
that [Counsel] did not fall below the applicable standard. That he had, that
he pursued not only a defensible strategy, but the only one he had. I don‟t
see that there was anything else available. I quite agree, as I quipped a
minute ago, that it‟s a safe thing to do and often the thing to do to plead in
the alternative, especially in a civil case. But it is a potentially very
dangerous thing to present alternative theories to a jury, especially when the
alternative that is suggested is not supported by any evidence whatsoever.
And maybe I‟m, maybe I‟m easing on to the second prong too soon, but
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had [Counsel] begun to point fingers at someone, against whom there was
no proof whatsoever, he would have lost all credibility with that jury in my
opinion. So, I don‟t think he had that option. But whether he did or not, he
certainly had a defensible strategy, which was to get this to a sexual battery
as opposed to what was actually indicted. And there‟s just nothing in this
record to suggest that Mitch was the perpetrator. Nothing that [the
Petitioner] should have turned up that he didn‟t. Nothing that he did turn
up that he didn‟t use. I think [Counsel] would have, with all due respect to
him, looked rather foolish to try to shift the blame to somebody that,
against whom there was no proof, whatsoever.
So, number one, I don‟t think his performance fell below the
applicable standard for defense attorneys. And number two, I think there‟s
just a total absence of any proof that but for [Counsel‟s] performance, but
for [Counsel‟s] failure to point a finger at [“]Mitch[”], that there would
have been a different outcome. I believe very strongly that there would not
have been a different outcome. The jury either believed or did not believe
the young lady in this situation. They did believe her. They believed the
part of her testimony on direct examination.
It is from this judgment that the Petitioner now appeals.
II. Analysis
On appeal, the Petitioner contends that Counsel was ineffective. He asserts that
Counsel‟s representation fell “below an objective standard of reasonableness since he
attempted to discredit altogether a witness whom he knew was telling the truth about
being abused instead of discrediting the witness with regard to the identity of her
perpetrator.” The State counters that the post-conviction court properly denied the
petition because Counsel employed a viable defense strategy rather than pursue the
strategy involving “Mitch” because he had no evidence to support it.
In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). Upon review, this Court will not re-weigh or re-evaluate
the evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony, and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997)). A post-
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conviction court‟s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can
be overcome only when a preponderance of the evidence is contrary to the post-
conviction court‟s factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).
A post-conviction court‟s conclusions of law are subject to a purely de novo review by
this Court, with no presumption of correctness. Id. at 457.
The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court‟s evaluation of a claim for ineffectiveness:
First, the [petitioner] must show that counsel‟s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
Amendment. Second, the [petitioner] must show that the deficient
performance prejudiced the defense. This requires showing that counsel‟s
errors were so serious as to deprive the [petitioner] of a fair trial, a trial
whose result is reliable. Unless a [petitioner] makes both showings, it
cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).
In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel‟s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)).
When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney‟s performance within the context of the case as a whole, taking
into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell,
753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should avoid the
“distorting effects of hindsight” and “judge the reasonableness of counsel‟s challenged
conduct on the facts of the particular case, viewed as of the time of counsel‟s conduct.”
Strickland, 466 U.S. at 689-90. In doing so, the reviewing court must be highly
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deferential and “should indulge a strong presumption that counsel‟s conduct falls within
the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462. Finally,
we note that a Petitioner in a criminal case is not entitled to perfect representation, only
constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.
Crim. App. 1996). In other words, “in considering claims of ineffective assistance of
counsel, „we address not what is prudent or appropriate, but only what is constitutionally
compelled.‟” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v.
Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been
ineffective merely because a different procedure or strategy might have produced a
different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).
“The fact that a particular strategy or tactic failed or hurt the defense, does not, standing
alone, establish unreasonable representation. However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate
preparation.” House, 44 S.W.3d at 515 (quoting Goad, 938 S.W.2d at 369).
If the petitioner shows that counsel‟s representation fell below a reasonable
standard, then the petitioner must satisfy the prejudice prong of the Strickland test by
demonstrating “there is a reasonable probability that, but for counsel‟s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability
must be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694; Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).
In the case under submission, we conclude that the Petitioner has failed to show
that trial counsel‟s performance was deficient or that trial counsel‟s performance caused
him to suffer prejudice at trial. Counsel testified that he did not pursue a defense strategy
placing blame for the sexual allegations on “Mitch” because he had no evidence to
support such an allegation. The Petitioner‟s argument is essentially that Counsel was
ineffective for failing to prepare and present a reasonable defense. He asserts that
Counsel failed to present a defense insinuating that the victim was in fact sexually abused
but that it was by someone other than the Petitioner.
We conclude that the Defendant was not deprived of a meaningful defense in this
case. Counsel investigated this case, conducted adequate legal research, and determined
what defense could be developed so as to hold the State to its burden of proof. See
Baxter, 523 S.W.2d at 932-33. Counsel testified that there was no proof against the
Petitioner other than the victim‟s testimony. The State had no fingerprints, no rape exam,
and no other direct proof. Counsel impeached the victim, who changed her testimony
about one of the incidents during cross-examination. The Petitioner had never before
been in legal trouble. Counsel called the Petitioner‟s wife to testify, and she said that she
was with the Petitioner and the victim during the time the victim alleged the first incident
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occurred, and she refuted the victim‟s claims. Counsel then called the Petitioner to
testify, and he said his wife was with him during the first alleged incident and denied that
he ever inappropriately touched the victim. Counsel argued that the victim‟s allegations
were untrue and that the Petitioner had not inappropriately touched her. Counsel did not
pursue a claim that “Mitch” committed this offense because he had no evidence to
support this allegation and felt the jury would not respond well to such a claim. This was
a strategic decision. At the post-conviction hearing, the Petitioner did not offer further
evidence that Mitch committed these offenses. We conclude that the Petitioner was not
denied a meaningful defense and that Counsel‟s representation of him was not
ineffective. The Petitioner is not entitled to relief.
III. Conclusion
In accordance with the foregoing reasoning and authorities, we affirm the
judgment of the post-conviction court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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