J. ROSS DYER, J.
The petitioner, Richard Bryant Long, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.
In 2015, a Lawrence County jury convicted the petitioner of the Class A felony of rape of a child for which he is currently serving a twenty-five-year sentence in the Tennessee Department of Correction. On direct appeal, the petitioner challenged the trial court's admission into evidence of a video recording of the victim's forensic interview. In denying his challenge, this Court affirmed the petitioner's conviction and, in doing so, provided the following summary of the underlying facts:
State v. Richard Bryant Long, No. M2015-02093-CCA-R3-CD, 2016 WL 4487953, at *1-4 (Tenn. Crim. App. Aug. 25, 2016), perm. app. denied (Dec. 15, 2016) (internal footnote omitted).
After the denial of his direct appeal, the petitioner filed a timely petition for post-conviction relief. In the petition, the petitioner alleged he received ineffective assistance at trial because trial counsel "failed to introduce evidence that the victim maintained, and the State of Tennessee originally maintained, that there was no allegation, much less proof, of penetration." The petitioner also alleged trial counsel "failed to object to the admission of the victim's forensic interview, even though the forensic interviewer had not complied with the requirements of T[ennessee] C[ode] A[nnotated] [section] 24-7-123," which outlines the requirements that must be met before a video recording of a forensic interview of a child regarding sexual contact may be introduced at trial. The post-conviction court held an evidentiary hearing during which the social worker who conducted the forensic interview of the victim, Katie Brazier, and trial counsel both testified.
Ms. Brazier stated she worked as a forensic interviewer at A Kid's Place for six and a half years beginning in August of 2006. During her employment, she conducted the interview of the victim concerning the allegations made against the petitioner. Regarding the requirements of Tennessee Code Annotated section 24-7-123, Ms. Brazier confirmed she received at least eight hours of supervision by a qualified forensic interviewer of children prior to handling the victim's forensic interview, she participated in a peer review system while employed at A Kid's Place, and she obtained at least fifteen hours of continuing education each year. See Tenn. Code Ann. § 24-7-123 (b)(3)(D), (E), (H).
Trial counsel then testified, stating he represented the petitioner after being appointed to the case in 2010. At trial, he was satisfied with Ms. Brazier's qualifications under Tennessee Code Annotated section 24-7-123. Though trial counsel believed Ms. Brazier satisfied the statutory requirements necessary to admit the forensic interview into evidence, he preserved his objection to its admission for appeal.
Trial counsel reviewed a certified copy of a Petition to Adjudicate Dependency and Neglect filed on July 24, 2012 in Lawrence County juvenile court by Dawn Bradley of DCS. The petition detailed the victim's allegations against the petitioner, noted she was a victim of severe abuse, and sought a restraining order against the petitioner. Trial counsel acknowledged that within the sworn petition, Ms. Bradley detailed the petitioner's abuse of the victim, noting: "[The victim] denies [the petitioner] putting his penis in her mouth or any penetration." Because the victim testified to penetration at trial, trial counsel admitted that pointing out the victim's denial of the same in the dependency and neglect petition would have benefitted the petitioner's defense. However, trial counsel "just forgot" about the petition during trial. As such, the petition was not admitted into evidence or used during the cross-examinations of Ms. Bradley or the victim. Trial counsel believed his failure to utilize the dependency and neglect petition "[fell] below the Strickland standard." See Strickland v. Washington, 466 U.S. 668, 687 (1984).
During cross-examination, trial counsel explained he successfully suppressed portions of the petitioner's statement at trial. Specifically, the trial court "suppressed the part of [the statement] where they asked [the petitioner] had he ever put his finger in the child's mouth and run it around in a circle. [The petitioner] indicated that he had." Based upon this portion of the petitioner's statement, the petitioner and trial counsel "agreed that if that statement came in, it was going to hurt him."
Trial counsel cross-examined the victim about the issue of penetration at trial. He remembered the victim testified that something penetrated her mouth. Trial counsel explained:
Trial counsel again admitted, "the fact that [the victim] had initially, when she reported this, [said] that she hadn't been penetrated was something that should have been relayed to the jury."
During re-direct examination, trial counsel acknowledged two additional discrepancies between the victim's initial allegations detailed in the dependency and neglect petition and her testimony at trial. Specifically, trial counsel noted in the petition, the victim did not mention "green goo" or that she felt something like a balloon in her mouth, both of which were discussed during the victim's trial testimony. Trial counsel believed it would have been helpful to cross-examine the victim, Ms. Bradley, and Ms. Brazier about the discrepancies in the victim's story. However, though he did not ask about these discrepancies in particular, trial counsel stated he did cross-examine the victim and Ms. Brazier about whether or not the petitioner penetrated the victim. Further, trial counsel stated he questioned the victim and Ms. Brazier about the inconsistencies that emerged during trial.
After its review of the evidence presented, the post-conviction court denied the petition. This timely appeal followed.
On appeal, the petitioner argues trial counsel was ineffective for not addressing the discrepancies between the victim's trial testimony and her initial description of abuse found in the dependency and neglect petition. Specifically, the petitioner asserts trial counsel failed to utilize the dependency and neglect petition to cross-examine the victim or Dawn Bradley, the DCS case manager who filed the petition, regarding the issue of penetration. The State contends the post-conviction court properly denied the post-conviction petition because the petitioner "failed to prove by clear and convincing evidence that cross-examining the victim and Ms. Bradley about her statement [from] the [dependency and neglect] petition was prejudicial." Following our review of the record and submissions of the parties, we agree with the State and affirm the judgment of the post-conviction court.
To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that his or her "conviction or sentence is void or voidable because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." Tenn. Code Ann. § 40-30-103. The petitioner bears the burden of proving his post-conviction factual allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). The findings of fact established at a post-conviction evidentiary hearing are conclusive on appeal unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). This Court will not reweigh or reevaluate evidence of purely factual issues. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial court's application of the law to the facts is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel presents mixed questions of fact and law. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court reviews the petitioner's post-conviction allegations de novo, affording a presumption of correctness only to the post-conviction court's findings of fact. See id.; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).
To establish a claim of ineffective assistance of counsel, the petitioner must show both that counsel's performance was deficient and that counsel's deficient performance prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that the standard for determining ineffective assistance of counsel applied in federal cases is also applied in Tennessee). The Strickland standard is a two-prong test:
466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the Strickland test must be satisfied. Id. Thus, courts are not required to even "address both components of the inquiry if the defendant makes an insufficient showing on one." Id.; see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that "a failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim").
A petitioner proves a deficiency by showing "counsel's acts or omissions were so serious as to fall below an objective standard of reasonableness under prevailing professional norms." Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the Strickland test is satisfied when the petitioner shows there is a reasonable probability, or "a probability sufficient to undermine confidence in the outcome," that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. However, "[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Here, the petitioner asserts trial counsel was ineffective for failing to use the dependency and neglect petition to establish the differences between the victim's description of abuse found in the petition and her trial testimony. According to the petitioner, at trial, the victim testified the petitioner penetrated her whereas in the petition, "the victim denied [the petitioner] ever put his penis in her mouth or any other type of penetration." The petitioner suggests trial counsel's failure to utilize the dependency and neglect petition rendered his assistance ineffective in that he did not attack the victim's credibility to its full extent. The petitioner also claims trial counsel should have cross-examined Ms. Bradley regarding the dependency and neglect petition. Upon our review of the record, however, it is clear trial counsel adequately attacked the victim's credibility at trial regarding the issue of penetration and no prejudice resulted from his failure to use the dependency and neglect petition to address the same. The petitioner is not entitled to relief.
At the post-conviction hearing, trial counsel stated he forgot to utilize the dependency and neglect petition to identify inconsistencies in the victim's abuse allegations at trial, thus rendering his assistance ineffective. The post-conviction court disagreed and summarized its factual findings as to the discrepancies in the victim's statements as it related to trial counsel's performance, as follows:
Upon our review of trial counsel's performance as a whole, we agree with the post-conviction court's assessment of the petitioner's claims. While trial counsel did not use the dependency and neglect petition during his cross-examination of the victim and Ms. Bradley, trial counsel thoroughly challenged the issue of penetration with both witnesses during cross-examination by questioning them about the differences between the victim's trial testimony and statements made during her forensic interview. A review of the record indicates the victim's statements regarding the petitioner's abuse differed in detail throughout the investigation into the same, however, nothing suggests trial counsel was ineffective in handling the discrepancies in the victim's story at trial.
Throughout the investigation and trial, the victim testified to numerous instances of abuse occurring over a period of multiple years. At trial, the victim stated the abuse consisted of the petitioner "rub[bing] [the victim's] privates in the `front,' her chest, and her `upper lap.' The [petitioner] also `rubbed his private' with his hand, usually after he was finished `messing with' [the victim]. [The victim] testified that she could see [the petitioner's] `private' and that `greenish-white goo' came out of it and onto his hand." Richard Bryant Long, 2016 WL 4487953, at *2. Further, the victim testified the petitioner "put his hand over [the victim's] eyes, and he would put his finger in [the victim's] mouth, and sometimes it would feel like a — balloon." While the victim provided these specifics at trial, the dependency and neglect petition indicates she omitted information about the "greenish-white goo" and the petitioner penetrating her mouth. Additional trial testimony indicates the victim provided different details to the various professionals who participated in the investigation of the petitioner's abuse after it was initially disclosed. As a result, trial counsel attacked the victim's credibility at trial through cross-examination. Though he did not specifically address the dependency and neglect petition, trial counsel was effective during cross-examination in that he elicited an admission from the victim and Ms. Brazier that the victim did not disclose the same details to Ms. Bradly, Ms. Brazier, or the jury at trial. As a result of trial counsel's efforts, the State introduced the forensic interview of the victim in order to rehabilitate her. Thus, the record indicates trial counsel effectively attacked the victim's credibility by identifying the various statements made by the victim in describing the petitioner's abuse. As noted by this Court on direct appeal, though trial counsel attacked the victim's credibility, the jury chose to believe her nonetheless. Richard Bryant Long, 2016 WL 4487953, at *6. Accordingly, we are not persuaded that a specific attack on the victim's credibility through the dependency and neglect petition, which like the forensic interview contradicted and corroborated the victim's trial testimony, would have changed the outcome of the petitioner's trial. The petitioner is not entitled to relief.
The petitioner has not proven trial counsel was ineffective in failing to attack the victim's credibility through the use of the dependency and neglect petition, and the petitioner cannot show how the alleged deficiency of trial counsel prejudiced his trial. Similarly, the petitioner has failed to show how trial counsel's failure to address the dependency and neglect petition during Ms. Bradley's testimony prejudiced his trial. See Strickland, 466 U.S. at 687. The petitioner is not entitled to post-conviction relief for his claim of ineffective assistance of counsel.
Based upon the foregoing authorities and reasoning, the judgment of the post-conviction court is affirmed.
