Anne Marie Kent v. State of Tennessee ( 2018 )

05/14/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 28, 2018
ANNE MARIE KENT v. STATE OF TENNESSEE
Appeal from the Circuit Court for Lewis County
No. 2015-CR-94 Michael Binkley, Judge
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No. M2017-01532-CCA-R3-PC
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The Petitioner, Anne Marie Kent, was convicted by a Lewis County jury of two counts of
aggravated child neglect or endangerment and two counts of child abuse and received an
effective sentence of twenty-two years. The Petitioner filed a post-conviction petition
alleging that she received ineffective assistance of counsel, which was subsequently
denied by the post-conviction court. On appeal, the Petitioner asserts that trial counsel
was ineffective by (1) failing to file a motion to change venue; (2) advising the Petitioner
not to testify at trial; (3) failing to call a witness; and (4) failing to properly cross-
examine a witness. Upon thorough review of the record and applicable law, we affirm
the judgment of the post-conviction court.
Tenn. R. App. P. Appeal as of Right; Judgment of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and J. Ross Dyer, JJ., joined.
Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Anne Marie Kent.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Kim R. Helper, District Attorney General; and Jennifer Mason, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
Trial
The Petitioner and her husband, Mr. Steven Kent, adopted three children, two boys
and one girl, before moving to Lewis County in 2004. The Petitioner’s convictions arise
from abuse inflicted upon the two boys between the dates of July 1, 2005, and November
10, 2009. The Petitioner was indicted on two counts of aggravated child neglect or
endangerment and two counts of child abuse. The evidence presented at trial is
summarized below.
Both victims testified at trial about the abuse allegations. Victim 11 was born in
1995, and victim 2 was born in 1997. They were adopted by the Kents and moved to
Lewis County in 2004. The victims shared a bedroom, which consisted of two twin size
beds, a dresser, and a closet. They did not have any books or toys in their bedroom.
Victim 2 testified they initially had pictures hanging on their bedroom walls, but the
Petitioner “ripped them all off.” Victim 1 had a fitted sheet on his bed but did not have a
flat sheet, blankets, or pillows, and victim 2’s bed did not have any bedclothes at all.
The victims’ sister had toys and electronics in her bedroom, and she had sheets,
blankets, and pillows on her bed. Victim 2 testified that he and victim 1 were not
allowed in their sister’s room, noting that the Petitioner would “beat” them if they went
into her room. Victim 1 explained that he and his brother had a box of toys that was kept
outside when they first moved to Tennessee. The toys were never replaced if they broke,
and sometimes the Petitioner would break their toys in front of them as a form of
punishment. When the victims received toys as presents from family members, the
Petitioner would take them away, but their sister was allowed to keep her presents. The
victims were not allowed in the basement, and victim 2 stated that the Petitioner “beat
him” because he “snuck down there one day.”
The victims were not allowed to watch television and were not allowed in the
living room except to pass through to access their bedroom. The victims were allowed to
watch one Christmas special on television in 2004. They were not allowed to use the
computer, nor were they allowed to ride in the go-cart. Their sister could watch
television, use the computer, go into the living room, and ride in the go-cart. The victims
could not choose their own clothes, but their sister could pick out her clothes from a store
or order them online. Victim 1 testified that his shoes were often “the cheapest pair you
could find,” that sometimes he would have to wear women’s shoes, and that his jeans
were not long enough. Victim 1 testified that he and victim 2 took baths every two days,
that they were not permitted to take showers, and that Mr. Kent had to supervise them
while they bathed.
1
It is a policy of this court to protect the identities of minors.
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The victims’ bedroom and their sister’s bedroom were connected by a bathroom.
The bi-fold door between the victims’ bedroom and the bathroom was turned backward
so that the victims could not access the bathroom from their bedroom. One year after
moving into the house, the water to the bathroom sink was turned off. The victims could
brush their teeth once a day, but they were not permitted to spit out the toothpaste or rinse
their mouths. The Petitioner gave them a cup of water to be used to rinse their
toothbrushes. They used the same toothbrushes for “three to four years.”
The victims were not allowed to use the bathroom without first obtaining
permission, and the Petitioner would watch them while they used the bathroom. If the
victims tried to use the bathroom without permission, they would get in trouble, which
normally resulted in being whipped with objects such as a “[b]elt, stick, rake handle,
[and] board.” Victim 1 said he was whipped “at least once a day.” The victims also were
prohibited from using the bathroom at night. The Petitioner built a “makeshift alarm,”
which consisted of a box of wooden blocks placed on top of a crate. The crate was
placed against the bathroom door, so “if you push the door in[,] … it knocked [the box]
over.” Victim 1 explained that he had “more than five” accidents in his bed because he
was not allowed to use the bathroom at night. Victim 2 had accidents and vomited in his
bed because he could not access the bathroom. He explained that he would lie in his own
vomit until the Petitioner allowed him to get out of bed the next morning. The victims
had to go to bed around 6:00 or 7:00 p.m., but no later than 8:00 p.m. Victim 2 said that
they were not allowed to get out of their beds in the morning until the Petitioner gave
them permission.
Victim 2 testified that he and victim 1 had to get dressed in the kitchen every
morning because the Petitioner wanted to watch victim 1 put on his pants. If victim 1 lost
his balance or tripped while putting on his pants, the Petitioner made him start over “until
he did it properly ten times.” The victims were given the same breakfast every day: a
bowl of moistened cereal with the milk drained out of it. The victims’ sister got
“pancakes, eggs, bacon, anything she wanted” for breakfast. The Petitioner packed the
victims’ school lunches every day. Victim 1 explained that he had different kinds of
sandwiches and chips during the family’s first year in Tennessee. After that year, the
victims got the same lunch every day. Victim 1 explained that although he got three
meals a day, he still went to bed hungry. The Petitioner determined how much food they
could eat, and they were not allowed to have second servings of food. Their sister could
have seconds, but if the victims asked for seconds, the Petitioner “would laugh and say
no.” If the victims did not finish their food on time or if there was not enough food left
over for seconds, then the Petitioner would give the victims’ food to their sister.
Victim 1 said the Petitioner punished him by forcing him to exercise and do
“write-offs.” He was given forty-five minutes to write sentences on pieces of paper. He
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“normally” had to write “four pages front and back” within the time limit. If he failed to
complete the write-offs in time or if his handwriting was not to the Petitioner’s
satisfaction, he had to exercise. The exercises consisted of running around the family’s
circle driveway and “squat thrusts or jumping jacks or something like that.” After
completing his exercises, he would do more write-offs. He testified that this cycle
repeated “four to five times” on a school day and “ten to fifteen” times on a weekend. He
stated that within a four-year period, his write-offs were considered “good enough” by
the Petitioner on one or two occasions. Victim 1 acknowledged that he and victim 2 had
poor penmanship and that he had to take a class from first through fourth grade to
improve his handwriting.
Starting in 2006, victim 1 was required to run around the driveway every day until
the Petitioner told him he could stop. If he was not running quickly enough, the
Petitioner would chase him either on foot or on a four-wheeler. She sometimes would hit
him with a stick if he did not run faster. Victim 1 saw victim 2 walk or run around the
driveway “once or twice maybe.” Victim 1 had to run in the cold, heat, and snow. He
was allowed to go inside if it was raining but was required to do “squat thrusts or
jumping jacks” until the Petitioner said he could stop. Victim 2 testified that they had to
do “[j]umping jacks, squats, push-ups, [and] sit[]-ups” when it was raining outside.
Victim 2 also testified that he once saw the Petitioner chasing victim 1 with a stick, that
somebody pulled into the driveway and asked what was going on, and that the Petitioner
responded that “she was not going to beat him. [She was] going to kill him with it.”
On the typical school day, the victims rode the bus home from school, drank the
small amount of water given to them in empty yogurt cups, changed out of their school
clothes and shoes, and went outside where victim 1 would begin his write-offs. After
arriving home from school, the victims were permitted to sit to change their shoes but
were required to remain standing for the rest of the day until bedtime. Once the victims
were outside, the Petitioner locked the door to the house and would not allow the victims
to go inside. They remained outside until it was time for dinner. Victim 1 explained that
he had to have his shoes untied before dinner began. If he did not have his shoes untied
quickly enough, the Petitioner fed his dinner to the dog.
During dinner, the children were all separated from each other, and the victims
had to remain standing while they ate. The Petitioner did not allow victim 1 to look at
her, and he was whipped if he did so. If the victims did not finish their food by the time
everyone else had finished or if they were eating too quickly, their food was taken away
and fed to the dog. The victims were not allowed to access the refrigerator or have any
snacks. Victim 2 testified that sometimes the Petitioner blended his meal together for
him to eat. He said that he would sometimes throw up his dinner and that the Petitioner
would “put soap in it and make [him] eat it again.” He recalled being forced to eat his
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vomit on multiple occasions while the Petitioner laughed. Victim 2 also testified that the
Petitioner poured dish soap and chili powder down his throat.
At school, the victims were not allowed to participate in any class parties or field
trips. Victim 1 went on one field trip not long after moving to Tennessee but was not
allowed on any other trips during a five-year period. The victims were also not allowed
to have any food or drinks during class parties, nor could they watch television or movies
at school. Victim 2 noted that although he was allowed to attend school book fairs, the
Petitioner did not let him buy any items.
The victims were not allowed to get a drink of water by themselves. Victim 1
explained that the Petitioner would allow them to have about six ounces of water,
provided to them in an empty yogurt container, every “hour, hour and a half.” Victim 2
described the yogurt containers and added that they had to drink out of “sippy cups.” The
victims’ sister had free access to water. Victim 1 said he sometimes felt thirsty and
dizzy, so he would try to find water to drink from a “water hose or one of the livestock
buckets.” Victim 2 said that they would drink water from the water hose or horse troughs
and that the Petitioner would hit them and make them run laps if they were caught. The
Petitioner put locks on the water spigots to prevent the victims from drinking out of them.
Victim 1 testified that he did not have any birthday parties and was not permitted
to attend anyone else’s parties. He and victim 2 were not allowed to go to church, but
their sister could go. The family lived on a farm and put on a pumpkin patch festival
each year starting in either 2006 or 2007. Schools would come to the festival, but victim
1 explained that he was not allowed to participate in any of the activities. He was once
allowed to go on a hayride after everyone had left for the day, while his sister was
allowed to participate in activities.
During the summer of 2009, the Petitioner required victim 1 to stay outside from
8:00 or 8:30 a.m. until 6:00 p.m. He was required to do write-offs and run laps around
the driveway. The victims were only allowed inside the house if it was raining, but their
sister could remain inside the house at any time. While the Petitioner raked the goat and
horse barns every day, she required the victims to stand inside separate stalls. The
victims had to face the corners of the stalls for about an hour each time. If they “even
looked up or talked, [the Petitioner would] hit [them] with a rake.” Victim 1 explained
that the Petitioner put them in the horse stalls because they had “tried to run away a
couple of times.”
The Petitioner forced victim 1 to wear a diaper during the summer of 2009, when
he was thirteen years old. Victim 1 explained that he wet himself since he was not
allowed to use the bathroom when he needed to go. One day, the Duncan family was
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dropping the victims’ sister off after church and saw victim 1 in a diaper. Two weeks
before school started, the Petitioner made victim 1 wear his diaper, shoes, and shirt, drove
him to the Walmart parking lot, and threatened to make him get out of the vehicle. The
Petitioner made him wear a diaper under his jeans to school “[a] couple times.” When
asked why he did not throw his diaper away once he arrived at school, he explained that
the Petitioner would whip him for it. In July 2009, victim 1 was locked into what he
described as a pigpen made out of dog kennel panels. The Petitioner tied the door shut so
he could not get out and left him in the pen from “[e]arly afternoon to late in the
evening.” Victim 2 said that victim 1 could not get out of the pen because the Petitioner
had put a padlock on the gate.
Victim 1 testified that the objects with which the Petitioner hit him “got bigger
over time.” He explained that he would “get in trouble for almost anything,” including
“for not standing in the same spot [he] was standing in before.” He testified that the
Petitioner would call him names such as “retarded” and “gay.” When victim 1 expressed
his desire to join the military, the Petitioner told him that he would never succeed, that
“they don’t allow gays in the military,” and that “[t]hey don’t allow people on
medication” in the military. She also sometimes called victim 2 “stupid.” Victim 1
explained that if he “stepped out of line,” the Petitioner would hit him across the back
with the rakes she used to clean the barns. He testified that on “at least two or three
occasions,” the Petitioner broke a rake handle by hitting him with it. He also saw victim
2 being hit with rakes and recalled the handle breaking on one occasion. Victim 1
described these beatings as painful but said that he never bled as a result.
Victim 2 said that he saw the Petitioner hit victim 1 with “a stick, rake, belt, riding
crop and a metal horse brush with spikes at the end.” He testified that he saw the
Petitioner break at least seven rakes while hitting victim 1. Victim 2 said that he was hit
with a “soap [sic] belt, the riding crop, the spiked horse brush, a board, a stick, and a
rake,” explaining that the Petitioner broke eight rakes while hitting him. He was never
cut, but he did have bruises and was sore. Victim 2 said the Petitioner called him “[g]ood
for nothing” and “a loser.” She told victim 2 that he would never get a date and would
never take a girl to a dance. He said that the Petitioner would hit them in whatever
position they were in at the time and that sometimes they would “collapse after being hit
so many times.” He believed the Petitioner had fun when punishing them because she
would smile and laugh while doing so.
Victim 2 said that Mr. Kent “spanked [him] every now and then against [Mr.
Kent’s] will,” explaining that Mr. Kent tried to talk to the victims rather than hitting
them. Mr. Kent would hit them with his hand and would only hit them three times. He
said that Mr. Kent would cry after hitting them and that he would hit them when the
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Petitioner told him to do so. Victim 2 testified that Mr. Kent was not around to see the
Petitioner “beat” them.
Victim 1 testified that beginning in either 2007 or 2008, he was required to clean
the toilet every night before dinner because sometimes he would “miss the commode.”
He explained that he missed because he was uncomfortable with the Petitioner standing
behind him and watching. During the summer of 2009, victim 1 tried to commit suicide
by consuming the toilet cleaner. When he drank the cleaner, the Petitioner sent him
outside to run laps, did not call 9-1-1, and did not appear panicked or concerned.
The victims’ sister testified that she was the biological half-sister of the victims,
that she was adopted by the Petitioner and Mr. Kent, and that the family moved to
Tennessee when she was in preschool. Her testimony was consistent with the victims’
testimony regarding the abuse allegations. She also noted that if victim 1 looked at the
Petitioner during dinner, then the Petitioner “would open the microwave door in his
face.” She stated that when the victims were forced to get dressed in the kitchen every
morning, she noticed bruises on their backs and shoulders. She heard the Petitioner call
the victims “useless” and tell them that they would never get married, get jobs, or be
successful. She also said, “Anytime [the Petitioner] did not like what they were doing,
she would hit them with a belt, a wet built [sic], a rake, or open board.”
The State presented the testimony of twelve additional witnesses, including two
expert witnesses. Mr. Eddie Duncan and Mrs. Kathy Duncan testified that they saw
victim 1 on August 9, 2009, walking outside wearing only a diaper. The Duncans also
corroborated the victims’ testimony that they had to do write-offs, that their clothes were
too small, and that they had to drink from “sippy cups.”
Four of victim 2’s teachers each testified about victim 2’s clothing not fitting
properly, his lack of cleanliness, his dietary restrictions, and his restrictions against
participating in class parties and watching class movies. The school guidance counselor
testified that she reported the children to the Department of Children’s Services (“DCS”)
after having a discussion with victim 1 about his home life. Victim 1 made a statement
the guidance counselor believed meant that he did not want to go on living, and she
estimated, based on her own physical observation, that he had lost thirty to forty pounds
within one year.
Mr. Ralph Tackett testified that the three children lived with him and his wife for
approximately a month and a half after they were removed from the Petitioner’s home.
He testified that the children’s clothes were ill-fitting and dirty, that the children lacked
basic knowledge of proper hygiene, and that the victims told him about the abuse
allegations that occurred in the Kent home.
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Ms. Stephanie Dunn, who worked for DCS, received a referral on August 25,
2009, reporting “nutritional neglect and psychological harm” of victim 1. In response,
Ms. Dunn and another DCS worker visited the Kent home that evening, and during the
home visit, Ms. Dunn saw the victims’ sparse bedroom and the backwards bi-fold door to
the bathroom. She also observed the victims in bed, without any bedclothes, and with
victim 1 wearing only a diaper. She described victim 1 as “very slender” and as having
“absolutely no body fat.” She asked the Petitioner about the diaper, and she explained
that victim 1 had trouble going the bathroom and missed the toilet. The Petitioner also
explained that she had cut victim 1’s underwear because he kept having accidents, that
the victims were not allowed to get out of bed unless given permission, that she
determined the victims’ portion sizes for every meal, and that victim 1 had to do timed
write-offs and was disciplined if he did not timely complete them. Ms. Dunn continued
her investigation by interviewing school staff, the principal, the guidance counselor, and
several teachers; however, none of them indicated any behavioral issues with either
victim.
Ms. Dunn received a second referral on September 4, 2009, regarding physical
abuse of the victims. Ms. Dunn conducted multiple visits to the school, during which she
spoke with the children. Victim 1 was reluctant to speak with Ms. Dunn about the
situation, and neither victim would allow Ms. Dunn to look at their bodies. She noticed
that the victims’ clothes were too small and torn, while their sister was well-dressed. On
November 3, 2009, Ms. Dunn visited the Kent home again and spoke with each child
individually. The Petitioner told Ms. Dunn that victim 1 was a sociopath, a liar,
narcissistic, and had a syndrome where he tried to get people to do things for him. The
Petitioner insisted that victim 1 needed to wear his diaper at night and on the weekends
but admitted that victim 1 had not had any accidents since Ms. Dunn became involved.
The Petitioner also informed Ms. Dunn that victim 1 had tried to run away on multiple
occasions and that the children were lying if they claimed they were being physically
abused.
The next day, Mr. Kent went to Ms. Dunn’s office and spoke to her. Based on the
information he provided, she again visited the school to speak with the children, the
guidance counselor, and additional teachers. The children were more open with her after
her conversation with Mr. Kent. On November 10, 2009, Ms. Dunn had a meeting with
the Petitioner and Mr. Kent. During the meeting, the Petitioner admitted to many of the
allegations. As a result of this meeting, the children were removed from the Kent home.
While the children were living with the Tacketts, the victims allowed Ms. Dunn to
observe their bodies and photograph the bruises on them. Victim 1 had bruises on his
buttocks, which she described as “purple linear lines.” Victim 2 had bruises on his side
and his back. Ms. Dunn also testified that Mr. Kent was charged in connection with the
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allegations and, prior to the Petitioner’s trial, pleaded guilty to facilitation of aggravated
child abuse and neglect, receiving four and one-half years of probation.
On cross-examination, Ms. Dunn explained that she reported to a doctor that
victim 1 had lost fifty pounds because it was part of the information she received in a
referral. She noted that when she sets an appointment for a child to have a psychological
evaluation, she gives all of the information she has gathered about the child. She
acknowledged that she requested a full skeletal survey and a well-being check-up to be
conducted on both victims. However, the skeletal survey was never conducted. She
acknowledged that after the victims were examined by a doctor, no follow-up was
required. She agreed that she never observed any broken bones or cuts on the children.
She acknowledged that the medical records she reviewed during her investigation did not
document the victims’ weights, but she noted that the victims’ weights steadily increased
after they were removed from the Kent home. The victims met with a licensed clinical
social worker, and as a result of this evaluation, DCS set up further psychological
evaluations and a medical evaluation. The victims were also enrolled in counseling.
Dr. Lottie Walker, a licensed medical doctor with a subspecialty in child
psychiatry, treated the victims while they were living with the Petitioner. She testified
that she first meet with the victims in 2004; that victim 1 had been previously diagnosed
with attention deficit hyperactivity disorder and autism spectrum disorder; and that victim
2 had been previously diagnosed with bipolar disorder, attention deficit hyperactivity
disorder, and autism spectrum disorder. The Petitioner did the majority of the talking
during the victims’ appointments, and Dr. Lottie Walker adjusted the victims’
medications based on information provided by the Petitioner.
Dr. Mary Cox, a doctor of psychology, provided expert testimony regarding her
treatment of the victims. She began treating victim 1 in September 2009, and although
victim 1 discussed the abuse allegations, he did not report that the Petitioner beat him.
Dr. Cox began treating victim 2 in March 2010, and she believed that, based on his
limitations, he would not be able to maintain a consistent lie over a long period of time.
Dr. Stephen Montgomery, a forensic psychiatrist, provided expert testimony
regarding his evaluations of the victims. He diagnosed victim 2 with post-traumatic
stress disorder (“PTSD”) and concluded that the mental health and welfare of both
victims were adversely affected by the trauma inflicted by the Petitioner.
The defense presented the testimony of fourteen witnesses, including one expert
witness. Victim 2’s educational assistant in 2005 testified that he was “impulsive,” that
his clothes were “fine,” and that she never observed any bruising on him. Victim 2’s
second grader teacher stated that he was well-dressed and always had a lunch. A teacher
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who taught both victims stated that they always had a lunch but that they did not have
clean clothes and appeared dirty. The middle school principal testified about the
children’s appearance and behavior after they had been removed from the Kent home.
The special education director at the middle school testified that the Petitioner attended
parent-teacher conferences even after the children had been removed from the home, that
the director did not get along well with Mr. Kent, and that he tried to make her miserable
when he interacted with her.
Two witnesses testified that they supervised some of the Petitioner’s visitations
with the children after they had been removed from the home and that the children
appeared affectionate toward the Petitioner and showed no signs of fear. One of these
witnesses also taught parenting education classes to the Petitioner, during which the
Petitioner admitted to taking victim 1 to the Walmart parking lot in his diaper, putting
soap on victim 2’s zippers and sleeves to prevent him from chewing on his clothes,
making the victims face away from each other during dinner, limiting the time the
victims had to eat, and giving any food scraps to the dog.
The defense presented the testimony of six other witnesses who testified that they
did not observe any of the abuse allegations during their interactions with the Kent
family. Three of the witnesses, however, testified that they observed the victims running
around outside with pen and paper in their hands.
Dr. James Walker, a forensic neuropsychologist, provided expert testimony
regarding his psychological evaluations of the victims. He said that both victims denied
any symptoms of PTSD and were defensive. He did not believe victim 2 had any
appreciation of the allegations against the Petitioner, noting that victim 2 had a tendency
to exaggerate. He concluded that, based on his testing, neither victim had PTSD. He
agreed, based on the allegations he could verify through outside sources, that both
victims’ mental health and welfare were adversely affected by the Petitioner’s actions.
The defense also introduced multiple photographs into evidence, including a
photograph of victim 2 and his teacher when he received an award, four photographs of
victim 2 at the pumpkin patch festival, and a photograph of the Petitioner and victim 2
together.
Ms. Michelle Delk testified on behalf of the State on rebuttal that she worked for
DCS and that she was involved in a meeting on November 10, 2009, wherein the
Petitioner admitted to many of the abuse allegations.
The jury returned guilty verdicts for all four counts as charged. The Petitioner was
sentenced to eleven years for Count 1, aggravated child neglect or endangerment of
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victim 1; eleven years for Count 2, aggravated child neglect or endangerment of victim 2;
eleven months and twenty-nine days for Count 3, child abuse of victim 1; and eleven
months and twenty-nine days for Count 4, child abuse of victim 2. The sentence for
Count 2 ran consecutively to Count 1 while the sentences for Counts 3 and 4 ran
concurrently to Counts 1 and 2, respectively, for an effective sentence of twenty-two
years.
The Petitioner appealed with the assistance of new appellate counsel and pursuant
to this court’s granting of the Petitioner’s motion to accept a late-filed notice of appeal.
Appellate counsel failed to timely file a brief after this court granted multiple extensions,
and the appeal was involuntarily dismissed. See State v. Anne Kent, No. M2013-02874-
CCA-R3-CD (Tenn. Crim. App. May 1, 2015) (order), perm app. denied (Tenn. Aug. 12,
2015). The Petitioner, while still represented by appellate counsel, filed a timely petition
for post-conviction relief wherein she alleged she received ineffective assistance of trial
counsel. The post-conviction court determined that the Petitioner may have a colorable
claim of ineffective assistance of appellate counsel and decided that the Petitioner could
not waive such a conflict. The post-conviction court appointed new post-conviction
counsel, who then filed an amended post-conviction petition.
Post-Conviction Hearing
During the post-conviction hearing, Mrs. Amy Tackett testified that she and her
husband fostered the three children after they were removed from the Kent home. She
stated she had posted messages regarding the children on an online forum called Lewis
County Talk, which was defunct by the time of the hearing. Only members who had a
username and password could access the forum, and she did not know how many
members were on the forum. Messages could be sent privately from one member to
another or posted where any member could see it. When shown some of the messages
she had posted regarding the Kent family, she identified two of the messages as privately
sent to another member, but she could not determine if the other messages were private
messages or posted where all the members could see them.
Ms. Dunn testified at the post-conviction hearing that she was “fairly certain” trial
counsel cross-examined her at trial with the case recording summary she had prepared
summarizing the progress of the DCS investigation and the final decisions. She further
testified consistently with her trial testimony concerning some of the abuse allegations
from her investigation. Ms. Dunn explained that it is not uncommon for children not to
initially disclose everything in the beginning of a case. She said the victims did not begin
speaking freely about the abuse until Mr. Kent told them it was fine for them to do so.
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Ms. Dunn testified that Mr. Kent indicated he wanted to speak with her alone
following one of her home visits. She was unaware that the Kents were getting divorced
at that time. Mr. Kent sent four or five emails about the circumstances in the home. His
first few emails described what he had observed within the home, while the last few
emails stated he wanted to get help for the children. Ms. Dunn testified that although she
received information from Mr. Kent, she based her investigation on the disclosures made
by the children. She did not trust Mr. Kent, stating, “I felt like, as a parent, he was in that
home. He watched this abuse and allowed it.” She stated that the more conversations she
had with the children, the more information the children disclosed. Ms. Dunn also
received additional referrals that prompted further discussions with the children.
On cross-examination, Ms. Dunn explained that even though Mr. Kent “gave the
green light” for the children to freely speak with Ms. Dunn, she still had to build a
rapport with the children before they would trust her and discuss the abuse with her. She
gathered information from teachers, Dr. Lottie Walker, and Dr. Cox, and she then asked
the children about this information. That was when victim 2 began to open up about the
abuse that victim 1 had endured. These interviews were followed by a team meeting,
during which Mr. Kent and the Petitioner began confirming the allegations. Ms. Dunn
explained that Mr. Kent and the Petitioner “c[a]me to blows” during the meeting and
began discussing “what’s really been happening.” The Petitioner admitted to some of the
allegations, which confirmed what the victims had already told Ms. Dunn. Some of the
other allegations had been verified through Ms. Dunn’s conversations with neighbors,
teachers, and counselors. She noted that the Petitioner maintained that she had a
justification for many of the allegations. After the meeting, the children were removed
from the Kent home.
The victims’ uncle testified that he was the brother of Mr. Kent and that he moved
to Tennessee from New York in June 2010. He became aware of the allegations against
the Petitioner between October and December 2009. He had visited the Kents for a few
days in October 2009, but he did not notice anything indicative of abuse at that time. He
spent a few hours at the Kent farm during his visit. He also stated that victim 2 lived with
him from June to October of 2016. He explained that victim 2 struggled with daily living
skills such as personal hygiene and doing laundry. He noted that victim 2 would not
always tell the truth and explained that he was not sure if victim 2 was lying to him or if
he just did not understand reality. The uncle stated that he did not have as much
experience with victim 1 and that victim 1 had been living with Mr. Kent. He testified
that Mr. Kent was put in a nursing home prior to the hearing and that he had power of
attorney over Mr. Kent.
The uncle was shown multiple photographs, which showed the children opening
Christmas presents, decorating a Christmas tree, playing on a jungle gym, riding in a go-
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cart, and riding horses. There were photographs of a cake that said, “Happy 10th
Birthday, [victim 1],” and another cake that said, “Happy 8th Birthday, [victim 2].” He
explained that he found these photographs on Mr. Kent’s computer after he had obtained
power of attorney. He believed he did not have access to these photographs until after
the Petitioner’s trial had concluded. He believed that trial counsel had talked to him on
one occasion and that trial counsel’s wife or secretary had interviewed him before trial.
He said he was subpoenaed as a witness, was not allowed in the courtroom during the
trial, but was never called to testify.
On cross-examination, he did not recall whether Mr. Kent was in a nursing home
during the Petitioner’s trial. He acknowledged he did not have possession of the
photographs before Mr. Kent entered the nursing home. He agreed the photographs of
the victims’ birthday cakes would have been taken in 2005 when the victims were turning
ten and eight, respectively. He acknowledged that he did not know when the remaining
photographs were taken and stated that he was unable to determine the ages of the
children based on how they appeared in the photographs. He acknowledged that when he
visited the Kent farm in 2009, he did not look through the refrigerator or kitchen cabinets,
nor did he look in any of the bedrooms. He explained that he did not spend much time
with the children in 2009 because he was living in New York. When asked if he had a
close enough relationship with the victims at the time of the trial to testify about their
credibility and truthfulness, he responded, “I don’t know how truthful — I don’t know if
I knew that or not.” When asked if he had the same opinion of the victims at the time of
trial as he had at the time of the post-conviction hearing, he responded that he would have
had the same opinion about victim 2 but that he was not around victim 1 enough to
determine that. He stated that victim 2’s “perspective [wa]s off,” but he did not consider
victim 2 to be a liar.
The Petitioner testified that she lived in New York for her entire life until she
moved to Tennessee on July 22, 2004. She and Mr. Kent cared for the victims as foster
children before formally adopting them in 2001. Prior to adopting the children, they
completed a ten-week training program, and after adopting the victims, she joined a
foster parent support group. She explained that Mr. Kent was diagnosed with multiple
sclerosis in 2008 and that he became “very angry and bitter” after being diagnosed. She
asked Mr. Kent for a divorce in May or June of 2009. He initially said he would grant
her a divorce as long as she did not hire a lawyer. He also agreed to let her stay on the
farm with the children. She waited for a divorce without anything happening until Ms.
Dunn showed up at their house on August 25, 2009.
The Petitioner denied that she restricted the victims from using the bathroom, that
she watched the victims use the bathroom, that victim 1 drank toilet cleaner, that she
chased the victims with a stick, that she broke a rake over the victims’ backs, that she hit
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the victims with any objects other than a piece of wood built by Mr. Kent, that she called
the victims names, that she broke the victims’ toys in front of them, that victim 1 had any
dietary restriction, and that she withheld water from the victims. She explained that the
victims did not get invited to their friends’ houses, that the victims were allowed to play
on the family’s jungle gym until it broke, that she put victim 1 in the alpaca pen because
he was attacking victim 2, that victim 1 put himself in the barn stalls when he began to
fight with victim 2, that she separated the children during dinner because they would
fight and throw food, and that Mr. Kent made victim 1 take his clothes off on the day the
Duncans saw him because he had gotten his clothes wet. She also explained that victim 1
was required to do write-offs because he “purposely miss[ed] the toilet” or used the
bathroom in the bathtub and because he did not like writing. She said she took the
victims’ bedclothes away because victim 2 was wrapping the sheets around his neck to be
like “Superman.” She stated that only the water to the bathroom sink was turned off but
that she did now know why it was off.
The Petitioner stated that she was ready to testify during the trial but that trial
counsel advised her it would be better if he addressed the issues in closing argument. She
agreed that she told the trial court she understood her right to testify and chose not to
testify. She said she decided not to testify based on trial counsel’s advice. On cross-
examination, the Petitioner did not recall whether she was under oath when she told the
court she was waiving her right to testify. She acknowledged that she was advised by
trial counsel that the decision whether to testify was her decision to make.
Trial counsel testified that he was licensed in another state from 1990 through
2001 and that he was licensed in Tennessee since 2006. He described his practice at the
time of trial as eighty to ninety percent criminal defense. He believed he was hired by the
Petitioner in December 2010. He stated that he considered filing a motion for a change
of venue. After “hundreds of pages of research,” he could not find a credible basis for
filing the motion. He stated that he had some print-outs of posts on Lewis County Talk
prior to trial. When shown the posts entered as exhibits at the post-conviction hearing, he
stated that he had “at least some of them” prior to trial. He explained that at the time of
trial, there was controversy as to whether online postings of this type would constitute
publicity since the posts were not disseminated to the public. He believed he had a
“better chance” arguing that the posts constituted jury contamination. He said that he
“repeatedly” asked the prospective jurors during voir dire about Lewis County Talk and
that he believed he was successful in removing any prospective jurors with any prior
knowledge about the case. He did not have any reason to believe the jurors lied about
their prior knowledge.
Trial counsel stated that the charges were not based on allegations made by the
children but, instead, were based on the investigation conducted by Ms. Dunn. He
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explained that he filed five motions challenging Ms. Dunn’s qualifications and
competence in her investigation. When asked if the credibility of the victims was a key
issue in the case, he explained that “it was not that simple.” He said that the State
incorrectly asserted in its opening statement that the Petitioner had denied all of the
allegations. He said the case was not a matter of having the Petitioner testify and deny
the allegations or even a matter of shifting the blame to Mr. Kent; instead, he determined
that attacking Ms. Dunn’s investigation was important because he believed it was
“contaminated.” He explained the “most disturbing” part of the case was that the
children’s “statements were amazingly consistent.” In response to this, he had an expert
analyze whether the children were malingering.
Trial counsel summarized his ultimate strategy as mitigating so that the jury’s
option was limited to finding the Petitioner guilty of a misdemeanor rather than a felony.
He acknowledged that challenging the victims’ credibility was part of the strategy but
clarified that he could not rely on credibility alone. When asked how much of his trial
strategy focused on showing that Mr. Kent had made the allegations against the Petitioner
in an effort to gain leverage in the divorce proceedings, he explained that he made that a
central point in his opening statement, which he considered “not … the smartest thing to
do.” He explained that the trial court “limited [his] attack upon the forensic training of
[Ms.] Dunn” and that “[Mr.] Kent’s allegations really had very little to do with the jury’s
consideration.”
Trial counsel testified that prior to trial, he reviewed the DCS case recording
summary and the DCS reports, which “took up nearly a banker’s box.” He recalled
cross-examining Ms. Dunn at trial but did not recall the specifics of his questions. He
disagreed that the primary purpose of his cross-examination was to focus on the weight
loss allegation and the lack of evidence of physical abuse. When asked if he recalled
going through the case recording summary with Ms. Dunn, he replied, “I think my cross-
examination was thorough…. I’m not sure.”
Trial counsel stated that he received family photographs prior to trial and that he
entered some into evidence during the trial. He reviewed the photographs that were
entered as exhibits at the post-conviction hearing and stated that he had seen some of the
photographs before. When asked why he would not have introduced all of the
photographs at trial, he said they were “remote in time.”
The Petitioner had asked trial counsel whether he recommended her to testify or
not, and he did not recommend her to do so. The Petitioner “tended not to answer
questions directly,” “tended to be less than clear,” and “very often failed to see her own
actions from the perspective that other people seem to perceive [them].” He told the
Petitioner that whether she testified was her decision to make.
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On cross-examination, trial counsel agreed that he filed over twenty pretrial
motions. He stated that his motion for a bill of particulars was granted and that receiving
the bill of particulars provided an outline of the allegations the State intended to raise at
trial. He noted that he filed a motion to sever the counts in the indictment because he
believed a jury would be more inclined to understand the Petitioner’s justifications and
explanations for her behavior when looking at specific incidents or when listening to only
one victim’s testimony. He testified that the family photographs he entered during the
trial were obtained from the Petitioner. He did not believe the photographs entered
during the post-conviction hearing were from the same timeframe as those introduced
during the trial.
Trial counsel agreed that he used the DCS records to cross-examine both victims,
as well as Ms. Dunn. He stated that he subpoenaed the victims’ uncle as a witness but
that the uncle “was beyond frustrated” that he was subpoenaed. During each telephone
interview with the uncle, he said he did not have anything helpful to tell because he was
not around during the time period at issue. Trial counsel acknowledged that he called
fourteen witnesses on behalf of the defense, which included one expert witness.
Trial counsel stated that he was not aware of any publicity about the case except
for the Lewis County Talk posts, a newspaper article that reported the Kents had filed for
divorce, and an article that said charges had been filed against the Petitioner and that
there had been a bond hearing. He said he was “affirmatively convinced” these articles
and posts did not contaminate the jury pool. He believed the jury that was selected was
not biased. He “[e]xtensively” questioned the prospective jurors in voir dire about any
prior knowledge of the case.
Trial counsel said it was “absolutely” the Petitioner’s decision not to testify at
trial. He asked her to “sleep on it overnight” before deciding whether to testify because
of the number of witnesses they had heard on behalf of the State. He also had concerns
about the allegations to which she admitted when being interviewed by Dr. James
Walker.
Two of the jurors on the case testified on behalf of the State. One of the jurors
was dismissed before jury deliberations began due to a family emergency. The other
juror was elected as the jury foreperson. Both jurors testified that they had no knowledge
about the case before the trial began, neither had read anything online or in the
newspaper, and neither had heard anything about the case from the community. The jury
foreperson testified that during jury selection she overheard a man saying that the case
involved child abuse and that he knew the Petitioner. The man was dismissed, and the
jury foreperson testified that overhearing the conversation did not change her opinion of
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the case because she initially did not know to which case the man was referring and she
forgot about the comments once the trial began.
The post-conviction court denied relief in a written order, making detailed findings
that the Petitioner failed to establish either deficiency or prejudice as to each claim of
ineffective assistance. The Petitioner now appeals.
ANALYSIS
On appeal, the Petitioner claims counsel was ineffective by failing to file a motion
for change of venue, advising the Petitioner not to testify at trial, failing to call the
victims’ uncle as a witness at trial, and failing to properly cross-examine Ms. Dunn. The
State responds that the Petitioner has not met her burden of proving deficiency and
prejudice for each allegation.
To be granted post-conviction relief, a petitioner must establish that his conviction
or sentence is void or voidable due to the abridgement of any constitutional right. T.C.A.
§ 40-30-103. The petitioner has the burden of proving the allegations of fact by clear and
convincing evidence. Id. § 40-30-110(f); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009). “‘Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.’” Grindstaff, 297
S.W.3d at 216 (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)).
Factual findings by the post-conviction court are conclusive on appeal unless the
evidence preponderates against them. Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010).
This court may not substitute its inferences for those drawn by the trial judge, and
“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.” Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997).
The Sixth Amendment to the United States Constitution and article I, section 9 of
the Tennessee Constitution guarantees the accused the right to effective assistance of
counsel. To prevail on a claim for ineffective assistance, a petitioner must prove “that
counsel’s performance was deficient and that the deficiency prejudiced the defense.”
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)).
To demonstrate deficiency, a petitioner must show “‘that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment.’” Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (quoting
Strickland, 466 U.S. at 687). A petitioner “‘must show that counsel’s representation fell
below an objective standard of reasonableness’ guided by ‘professional norms’ prevailing
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at the time of trial.” Id. (quoting Strickland, 466 U.S. at 688) (internal quotations
omitted). On review, counsel’s performance is not to be measured by “20-20 hindsight.”
Id. at 277. Instead, there is a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. (citing State v. Burns, 6 S.W.3d
453, 462 (Tenn. 1999)). The court must presume that counsel’s acts might be “‘sound
trial strategy,’” and strategic decisions are “‘virtually unchallengeable’” when made after
a thorough investigation. Id. (quoting Strickland, 466 U.S. at 689).
To establish prejudice, “a petitioner must establish ‘a reasonable probability that,
but for counsel’s unprofessional errors, the results of the proceeding would have been
different.’” Id. (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. A petitioner must
show that counsel’s performance was so deficient that it deprived the petitioner “of a fair
trial and called into question the reliability of the outcome.” Finch v. State, 226 S.W.3d
307, 316 (Tenn. 2007) (citing Burns, 6 S.W.3d at 463).
Claims of ineffective assistance of counsel in post-conviction petitions are
regarded as mixed questions of law and fact. Grindstaff, 297 S.W.3d at 216. Thus, our
review is de novo with no presumption of correctness. Pylant v. State, 263 S.W.3d 854,
867-68 (Tenn. 2008) (citing Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007)). “Failure
to establish either deficient performance or prejudice necessarily precludes relief.” Felts,
354 S.W.3d at 276.
I. Motion to Change Venue
The Petitioner argues that trial counsel was ineffective by failing to file a motion
to change venue and that there is a reasonable probability the outcome of the trial would
have been different had the jury not been exposed to “inflammatory online comments.”
Venue may be changed “when a fair trial is unlikely because of undue excitement
against the defendant in the county where the offense was committed or for any other
cause.” Tenn. R. Crim. P. 21(a). “The ultimate test is whether the jurors who actually sat
and rendered verdicts were prejudiced by the pretrial publicity.” State v. Kyger, 787
S.W.2d 13, 18-19 (Tenn. Crim. App. 1989). “The mere fact that jurors have been
exposed to pre-trial publicity will not warrant a change of venue.” State v. Mann, 959
S.W.2d 503, 532 (Tenn. 1997); see also Keith Whited v. State, No. M2012-02294-CCA-
R3-PC, 2014 WL 1832962, at *12 (Tenn. Crim. App. May 7, 2014) (“Prejudice will not
be presumed by a mere showing that there was considerable pretrial publicity.”). Instead,
a “defendant must demonstrate that the jurors who actually sat were biased or prejudiced
against him.” State v. Evans, 383 S.W.2d 185, 192 (Tenn. 1992).
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In its written order, the post-conviction court found that the posts on the Lewis
County Talk forum did not rise to the level of causing undue excitement and that the
posts did not permeate the area from which the jury was drawn. The court noted that the
trial court was aware of the posts and carefully questioned the prospective jurors during
voir dire, which resulted in a jury without any prior knowledge of the underlying facts of
the case. The evidence does not preponderate against the post-conviction court’s
findings. See Ward, 315 S.W.3d 465. Trial counsel testified he considered filing a
motion for a change of venue but, after further researching the issue, determined that
there was no credible basis for filing the motion. Our review of the record shows that the
prospective jurors were questioned about their knowledge of the allegations, parties,
victims, and witnesses in the case. The prospective jurors who indicated they had prior
knowledge or knew anyone involved in the case were dismissed. Moreover, the
Petitioner did not present any evidence of actual bias or prejudice in the selected jury.
See Evans, 383 S.W.2d at 192. We, thus, conclude that the Petitioner has not shown trial
counsel was deficient or any resulting prejudice.
II. Right to Testify
The Petitioner asserts that counsel was ineffective by advising her not to testify at
trial. This court has previously considered five factors that tend to indicate whether trial
counsel’s advice that a defendant not testify constitutes ineffective assistance:
(1) only the victim and the defendant were present when the offense was
committed;
(2) only the defendant could present a “full version of [his] theory of the
facts”;
(3) the defendant’s testimony could not be impeached by prior criminal
convictions;
(4) the defendant could give an account of the relationship with the victim;
and
(5) the attorney had let in objectionable, prejudicial testimony with the
intention of clarifying it with the testimony of the defendant.
Bates v. State, 973 S.W.2d 615, 636 (Tenn. Crim. App. 1997) (citing State v.
Zimmerman, 823 S.W.2d 220, 227 (Tenn. Crim. App. 1991)). To overcome the strong
presumption that trial counsel’s performance fell within the wide range of reasonable
professional assistance, “the petitioner must show that the alleged deficiency was
unsound trial strategy.” Id. (citing Strickland, 466 U.S. at 689; Hartman v. State, 896
S.W.2d 94, 104 (Tenn. 1995)).
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The Petitioner asserts that the factors in Bates weigh in favor of finding ineffective
assistance of counsel because she and the victims were the only ones present when most
of the abuse occurred, only the Petitioner could present her full version of the story, the
Petitioner did not have any prior convictions that could be used for impeachment
purposes, and the Petitioner could explain her relationship with the victims and the
difficulties of parenting that led to her strict policies.
In its order denying relief, the post-conviction court noted that trial counsel
advised the Petitioner of the benefits and detriments of testifying and explained the
decision was for the Petitioner to make. The court also stated that the Petitioner testified
at a jury-out hearing that she was waiving her right to testify and that it was her decision
to do so. The court determined the allegations involved multiple actions over a span of
years of abuse. The court acknowledged that although the Petitioner and victims were
sometimes the only ones present through the abuse, Mr. Kent and the victims’ sister were
sometimes present, and Ms. Dunn witnessed some of the abuse allegations. The court
noted the Petitioner was likely the only person who could explain her disciplinary
methods and her relationship with the victims. The court stated that the Petitioner
expressed “little to no remorse for her actions and appeared to find her parenting methods
were validated,” noting that her testimony “likely would have opened her up to more
pitfalls on cross-examination.” The court found that the Petitioner decided not to testify
“after receiving careful and thorough advice from [trial counsel].”
The post-conviction court was correct in determining that although some of the
Bates factors listed above are applicable, the Petitioner made her own decision not to
testify based on the strategic recommendation of trial counsel. Trial counsel stated that
he advised the Petitioner against testifying because she tended not to answer questions
directly and failed to see her actions from the perspective of others. Trial counsel also
had concerns about the allegations to which the Petitioner admitted in her interview with
Dr. James Walker. The Petitioner was advised that the decision to testify was for her to
make and that she should “sleep on it” before making her final decision. The Petitioner
acknowledged that she told the trial court she understood her right to testify and chose to
waive it. We conclude that the Petitioner made her own decision not to testify and that
trial counsel’s recommendation was based on reasonable trial strategy, which we will not
review with the benefit of hindsight. See Felts, 354 S.W.3d at 276; Bates, 973 S.W.2d at
636. The Petitioner has not established that trial counsel was deficient and is accordingly
not entitled to relief on this ground.
III. Failure to Call a Witness
The Petitioner maintains that counsel was ineffective by failing to call the victims’
uncle as a witness because he could testify about the truthfulness of the victims and could
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present photographs that show the victims celebrating holidays and participating in fun
activities. The Petitioner specifically asserts in her brief that the uncle’s testimony would
have been both admissible and material “to paint a different picture of life in the Kent
home and to challenge the credibility of the children.”
“When a petitioner presents at the post-conviction hearing a witness he claims
should have been called at trial, the post-conviction court must determine whether the
testimony would have been (1) admissible at trial and (2) material to the defense.” Pylant
v. State, 263 S.W.3d 854, 869 (Tenn. 2008). The post-conviction court can find that trial
counsel was not deficient where it finds the proffered testimony either would have been
inadmissible or “would not have materially aided the petitioner’s defense at trial.” Id. If,
however, the court finds the testimony admissible and material, the court must then
determine whether the witness was credible. Id. at 869-70.
The Petitioner asserts the victims’ uncle could have challenged the credibility of
the victims’ testimony at trial. The post-conviction court concluded in its written order
that the uncle’s testimony would have been admissible at trial. The court further
concluded, however, that his testimony was not material to the Petitioner’s defense
because he did not spend much time with the victims when the abuse occurred. The post-
conviction court also relied upon the fact that the victims’ uncle stated that he did not
know if he could have testified about the victims’ truthfulness. We agree with the post-
conviction court that the uncle’s testimony would not have been material to the
Petitioner’s defense. When asked whether he could have testified about the victim’s
credibility and truthfulness at the time of trial, the victims’ uncle responded, “I don’t
know how truthful — I don’t know if I knew that or not.” He did not believe he was
around victim 1 enough prior to trial to have had an opinion as to his credibility at that
time. He believed his opinion of victim 2 would have been the same at trial as it was at
the post-conviction hearing, stating victim 2’s “perspective [wa]s off” and that sometimes
he was unsure whether victim 2 was lying to him or just did not understand reality. Trial
counsel stated that the uncle was adamant prior to trial that he did not have anything
helpful to say and that the uncle “was beyond frustrated” he was even subpoenaed. Trial
counsel called fourteen witnesses, many of which testified about their personal
experiences with the victims. Trial counsel also presented the expert testimony of Dr.
James Walker, who was specifically asked to evaluate whether the victims were
malingering.
The Petitioner also asserts that the photographs provided by the victims’ uncle
would have shown a different perspective on life in the Kent household. The post-
conviction court determined that the photographs, though likely admissible, were not in
the uncle’s possession at the time of trial and were not material because they depict
events occurring before 2008 and 2009. The victims’ uncle testified that he did not have
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possession of the photographs until granted power of attorney when Mr. Kent went into a
nursing home, which the uncle believed was after the trial had already concluded. Trial
counsel testified that he believed he had seen some of the photographs prior to trial but
that he would not have admitted them at trial because he considered them to be remote in
time. Although the Petitioner was indicted for abuse between 2005 and 2009, the victims
were clear in their testimony that the abuse worsened over the years, with much of the
trial focusing on events that occurred in 2009. Trial counsel admitted into evidence
similar photographs that depicted the victims participating in fun activities on the Kent
farm. Accordingly, we conclude that trial counsel was not deficient and that the
Petitioner, therefore, is not entitled to relief.
IV. Failure to Effectively Cross-Examine a Witness
The Petitioner argues that trial counsel should have cross-examined Ms. Dunn
with the DCS case recording summary and that an effective cross-examination would
have revealed the abuse allegations became more serious after Mr. Kent began
communicating with Ms. Dunn. “[C]ross-examination is a strategic and tactical decision
of trial counsel, which is not to be measured by hindsight.” State v. Kerley, 820 S.W.2d
753, 756 (Tenn. Crim. App. 1991). “[S]trategic decisions during cross-examination are
judged from counsel’s perspective at the point of time they were made in light of the facts
and circumstances at that time.” Johnnie W. Reeves v. State, No. M2004-02642-CCA-
R3-PC, 2006 WL 360380, at *10 (Tenn. Crim. App. Feb. 16, 2006) (citing Strickland,
466 U.S. at 690). “Allegations of ineffective assistance of counsel relating to matters of
trial strategy or tactics do not provide a basis for post-conviction relief.” Taylor v. State,
814 S.W.2d 374, 378 (Tenn. Crim. App. 1991).
In denying relief, the post-conviction court found that trial counsel thoroughly
questioned Ms. Dunn about the allegations regarding nutritional neglect. The court also
noted that trial counsel attempted to get Ms. Dunn to elaborate on her analysis in the DCS
case recording summary both to attack the weight-loss allegations and to combat other
medical reports. The court further found that trial counsel appeared to have made a
tactical decision by not further expanding on the nature and timing of the allegations.
We first note that the Petitioner fails to indicate in her brief which parts of the 148
pages of the DCS case recording summary that trial counsel should have questioned Ms.
Dunn about during cross-examination. Instead, the Petitioner asserts that a proper cross-
examination would have shown that after Mr. Kent became involved with the
investigation, the allegations became more serious and severe physical abuse allegations
arose. Our review of the record, however, shows that Ms. Dunn testified at trial that she
received a second referral which alleged physical abuse on September 4, 2009. She
continued her investigation, and on November 3, 2009, she conducted her second visit to
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the Kent home. The following day, which was two months after Ms. Dunn received the
referral regarding physical abuse of the victims, Mr. Kent visited Ms. Dunn. After this
visit, Ms. Dunn continued her investigation by further interviewing the children, the
guidance counselor, and additional school teachers. Although Ms. Dunn stated during
the post-conviction hearing that she also received four or five emails from Mr. Kent, she
explained that she did not trust Mr. Kent, that his communications only prompted her to
continue her investigation, and that she built her case based on the disclosures made by
the children.
Moreover, trial counsel testified at the post-conviction hearing that he reviewed
the DCS case recording summary and the extensive DCS records prior to trial. His
strategy was to show Ms. Dunn’s investigation was “contaminated,” and he filed five
pretrial motions challenging Ms. Dunn’s qualifications and competence. He stated that
the trial court limited his attack on Ms. Dunn’s forensic training. He believed that Mr.
Kent’s allegations “had little to do with the jury’s consideration.” Although he did not
recall the specifics of his cross-examination of Ms. Dunn, he later testified that he used
the case recording summary to cross-examine Ms. Dunn as well as both victims. The
post-conviction court credited trial counsel’s testimony and concluded that trial counsel
made tactical decisions in his cross-examination of Ms. Dunn. We agree with the post-
conviction court that trial counsel made reasonable strategic decisions, and we will not
second-guess such decisions, especially where the Petitioner fails to allege in her brief
which portions of the case recording summary should have been used on cross-
examination. See Felts, 354 S.W.3d at 277. We conclude that the Petitioner has failed to
show that the post-conviction court erred in denying relief on this ground.
CONCLUSION
Based on the foregoing reasons, the judgment of the post-conviction court is
affirmed.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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