James Paul Kinard v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 27, 2013

JAMES PAUL KINARD v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County
No. 2008-A-274 Cheryl Blackburn, Judge

No. M2012-01589-CCA-R3-PC - May 6, 2013

The Petitioner, James Paul Kinard, appeals the Davidson County Criminal Court’s denial of
his petition for post-conviction relief from his convictions for three counts of rape of a child
and one count of aggravated sexual battery and resulting effective sentence of seventy-five
years in confinement to be served at 100%. On appeal, the Petitioner contends that he
received the ineffective assistance of trial counsel. Based upon the record and the parties’
briefs, we affirm the judgment of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, James Paul Kinard.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In January 2008, the Davidson County Grand Jury indicted the Petitioner for six
counts of rape of a child, a Class A felony, and one count of aggravated sexual battery, a
Class B felony. On direct appeal, this court gave the following factual account of the crimes:

The defendant was convicted of committing several
sexual crimes against the four-year-old victim, his wife’s niece.
The victim’s aunt, Belinda Henley, testified that the defendant
was married to her sister, Tonya Kinard. She testified that they
helped care for the victim and her siblings. She said that she
and her sister alternated taking care of the children because the
victim’s grandmother was sick.

Ms. Henley testified that in April 2007, the victim did not
want to stay with the defendant. She recalled that the child
acted like she was terrified to go to the defendant’s home.
Based on statements the victim made to her, Ms. Henley phoned
a Department of Children’s Services 1-800 number for child
abuse to make a report. She testified that the victim wore
panties but also wore “pullups” throughout the day and a lot at
night because she was “having a lot of accidents.”

During cross-examination, Ms. Henley testified that she
maintained contact with the victim. She also said that she had
previously caught the victim telling lies. She characterized them
as being told to get the victim out of trouble. She said that the
victim asked about the defendant and said that she wanted to see
and talk to him.

The victim testified that she was six years old and in the
first grade in school. Following a series of questions from the
trial judge, the witness demonstrated that she understood the
truth and agreed to tell the truth. The victim said that she lived
with her “papa” and her siblings. When shown a photograph of
a female body, the victim indicated places that nobody should
touch, including her mouth and her “privates.” She was also
shown a photograph of a male body and indicated places that
nobody should touch, including his mouth and “private.” She
identified the defendant as a person that had touched her
privates. She testified that the defendant touched her privates
with his hand and his privates. She also said he touched her
mouth with his private and that the defendant put his private
inside her mouth. The victim testified that something “yellow”
came out of his private and that it tasted “nasty.” Finally, she
testified that the defendant made her touch his private with her
hand. She said that she told the defendant that she did not want
to touch him in these ways and that he told her if she told

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anybody he would kill her entire family.

The victim testified that the incidents occurred while her
aunt was at work. She said that her aunt, the defendant’s wife,
worked in the office of the hotel where they lived.

Detective David Zoccola testified that he was a
thirty-one-year veteran of the police department and that he had
ten years of experience in the sexual abuse unit. He said he
interviewed the defendant at a hotel on Murfreesboro Road.
The defendant’s wife was also present when they arrived at the
hotel. The interview was conducted in the police car for privacy
purposes. He testified that he sat behind the wheel, the
defendant sat in the passenger seat, and another detective sat in
the backseat. The other detective made an audio recording of
the interview. The defendant was not aware that the interview
was being recorded. The other detective was with him because
he was being trained and had been with the department only six
or seven weeks. There was a problem with the recording, which
caused them to lose several minutes of the interview.

The detective testified that the defendant was aware of
the allegations against him because a family member had
brought it to his attention. He said the defendant said there was
a family member upset with him because he was not willing to
pay an electric bill and prevent the family member’s utilities
from being shut off. The defendant said the allegations were in
retaliation for the electricity being cut off. The detective
testified that he brought the victim to court because none of her
family members were willing to bring her to court. The
defendant acknowledged that he had applied medication to the
victim’s vaginal and anal areas and said that his wife also had
applied medication to those areas.

During cross-examination, the detective testified that he
did not attend the victim’s forensic interview. He had not
spoken to the victim when he interviewed the defendant. The
detective said that he told the defendant that the victim had been
given a medical examination when, in fact, she had not been
examined. He acknowledged that telling the defendant there

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had been an examination was part of a learned technique that
medical evidence might exist. The detective was aware that
there was no medical evidence at the time. The detective also
acknowledged that he set out a “what if” for the defendant
involving medical results from the Tennessee Bureau of
Investigation (TBI), although nothing was ever sent to the TBI
for examination.

Sue Ross, a pediatric nurse practitioner with Our Kids
Center in Nashville, testified that she specialized in conducting
medical evaluations on children who are alleged to be victims of
sexual abuse. She testified that a social worker interviewed the
victim and the victim’s grandmother and received information
consistent with the referral they received from the Department
of Children’s Services. In July of 2007, she performed a
“head-to-toe” examination of the victim, including an anogenital
examination which involves a magnification of the area to be
observed to see that everything is normal. The victim’s
examination was normal and indicated no chronic or lasting
injury to her genitalia. She testified that it is typical to have
normal examinations with children; therefore, the examination
does not provide an answer as to whether sexual abuse occurred.

Tonya Kinard, the defendant’s wife and aunt of the
victim, testified that she had been married to the defendant for
seven years. She said that she had little contact with the victim
when she was born because there was conflict between the
victim’s mother and herself. She took a more active role in the
victim’s life when she reached the ages of three and four, and
she saw the victim once or twice a month and on holidays. She
and the defendant moved to Nashville in 2006, and they began
to share in care giving duties for the victim and her siblings.
She testified that she and her husband were both employed at the
same hotel on Murfreesboro Road. She said that she was an
assistant manager in the office of the hotel but, at the time of the
allegations, she worked part-time at the hotel’s front desk. The
defendant, who was a full-time employee at the hotel, also
worked at the front desk.

The defendant’s wife testified that they lived in a

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 standard room at the hotel with a single king bed in it. Her boss
lived in a house that was attached to the hotel and located
directly behind the hotel office. She testified that the victim and
her siblings spent every other weekend with her at the hotel.
The children often went to the office with her because her boss
had a young son who was a playmate of the children. She said
that the victim would not have been left alone with the
defendant. She testified that she did not allow the girls to be
alone with men because she was raped by her grandfather as a
child. She testified that there was never a time when the victim
would have been alone with the defendant. She did not have
any direct contact with the victim following the defendant’s
arrest. She acknowledged that she had provided support to the
victim’s father, who was the custodial parent of the children, to
assist in paying bills and providing for the children’s needs. The
defendant’s wife testified that she had not tried to discuss the
case with the victim. She said she had caught the victim in a
number of lies. During cross-examination, the defendant’s wife
testified that she trusted her husband with the children because
he had given her no reason not to trust him.

The defendant was convicted of three counts of rape of
a child and sentenced to twenty-five years on each count, to be
served consecutively.1 He was also convicted of one count of
aggravated sexual battery, for which he was sentenced to twelve
years. The aggravated sexual battery conviction was ordered to
be served concurrently with the rape convictions, for an
effective seventy-five-year sentence.

State v. James Paul Kinard, No. M2008-02840-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS
427, at **2-9 (Nashville, May 28, 2010), perm. to appeal denied, (Tenn. 2010).

On direct appeal, the Petitioner claimed that the evidence was insufficient to support
the convictions because the victim was not reliable, that the trial court abused its discretion
in finding that the victim’s prior allegations of abuse by other men were inadmissible, and
that the trial court improperly sentenced him. See id. at *2. Finding no error, this court
affirmed the Petitioner’s convictions and sentences. Id.

1
According to the trial transcript, the State announced after its case-in-chief that it was dismissing
three of the charges for rape of a child.

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 Subsequently, the Petitioner filed a timely petition for post-conviction relief, arguing
that he received the ineffective assistance of trial counsel. The post-conviction court
appointed counsel to represent the Petitioner, and counsel filed an amended petition, arguing
that trial counsel was ineffective because counsel failed to consult with the Petitioner, failed
to investigate his case and prepare for trial adequately, failed to file appropriate pretrial
motions, and failed to ask the victim “a single question on cross examination about who may
have touched her inappropriately in the past, or even concerning the incident the Defendant
was on trial for. [Counsel] simply asked the victim questions about his house and her house,
there was nothing substantive about her abuse at all.”

At the evidentiary hearing, the Petitioner testified that he first met counsel shortly after
his arrest, which was six to eight months before trial. During that time, counsel met with the
Petitioner only twice. At their first meeting, counsel showed the Petitioner the victim’s
video-recorded forensic interview. They discussed the interview and listened to Detective
Zoccola’s audio-recorded interview of the Petitioner. The Petitioner said that he told counsel
about the victim’s sexual abuse allegations against a man named Calvin Brown and that
counsel “got the record . . . showing where she accused Calvin of touching her and stuff.”
However, the Petitioner did not know if counsel investigated the victim’s allegations against
Brown, and counsel did not subpoena Brown for trial. The Petitioner also told counsel that
the victim’s aunts, Amanda and Robin Henley, would testify about the victim’s being a
habitual liar. Counsel told the Petitioner that he would talk with the victim’s aunts, but the
Petitioner did not think counsel did. The Petitioner said that he knew of only one pretrial
motion counsel filed and that the motion “was something . . . to do with my record [in] South
Carolina.” The Petitioner said that counsel should have had an expert testify at trial about
“how someone could lead [children] into telling stories or put accusations in their mind and
stuff.” Counsel also did not sufficiently cross-examine the victim or discuss the case with
the Petitioner. The Petitioner did not know how to prepare himself for trial.

On cross-examination, the Petitioner acknowledged that the victim’s video-recorded
interview and his audio-recorded interview informed him about the State’s case. He said it
would have been beneficial for the jury to have heard that the victim accused Brown of abuse
but later changed her story. The Petitioner acknowledged that the trial court ruled such
evidence was inadmissible. An expert’s testimony would have been helpful at trial because
the Petitioner thought the victim’s mother was trying to get back at him for his and his wife’s
attempting to obtain custody of the victim. In the victim’s video-recorded interview, she said
that the appellant made her bleed. Counsel did not question the victim at trial about the
bleeding, which would have been significant because no physical evidence supported the
claim.

Trial counsel testified for the Petitioner that he was appointed in this case and

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remained the Petitioner’s attorney until the trial court denied the Petitioner’s motion for new
trial. Counsel did not know of any experts in Tennessee who could testify about how
children could be influenced to make false accusations of sexual abuse. Counsel did not file
a pretrial motion based on Tennessee Rule of Evidence 412, the rule that limits evidence of
a victim’s sexual behavior, because he did not think the Rule applied in this case. Post-
conviction counsel asked trial counsel why he did not question the victim “about how and
where and why” the Petitioner touched her, and trial counsel answered, “I thought that it was
relatively clear from her testimony as to how she said that he had touched her.” Counsel also
stated, “I did not expect to get an affirmative answer that would have assisted [the
Petitioner’s] defense from her.”

On cross-examination, trial counsel testified that he became licensed to practice law
in 1976, worked in the public defender’s office, and “[r]outinely” handled child sex abuse
cases. According to counsel’s notes, he met with the Petitioner eleven times before trial and
three times after trial. Counsel said he and the Petitioner also exchanged a couple of letters.
Counsel had documentation about the victim’s prior allegations of sexual abuse and planned
to question Detective Zoccola about the victim’s prior allegations against Calvin Brown and
another man. However, the trial court ruled that such evidence was inadmissible under
Tennessee Rule of Evidence 412. The Petitioner’s defense was that it was impossible for
him to have committed the crimes because he was never alone with the victim. Therefore,
counsel did not think an expert’s testimony about influencing a child to make false
accusations of sexual abuse had “particular pertinence,” and counsel made no attempt to hire
an expert. Counsel said he was concerned that if the Petitioner testified at trial, he or the
Petitioner would “open the door” to the Petitioner’s having a South Carolina conviction for
a sexual offense involving a child.

In a written order, the post-conviction court denied the petition for post-conviction
relief. Regarding the Petitioner’s claim that counsel failed to meet with him or communicate
with him adequately, the post-conviction court specifically accredited trial counsel’s
testimony that he met with the Petitioner eleven times. In any event, the court concluded that
even if counsel met with the Petitioner only twice, the Petitioner failed to show that he
received the ineffective assistance of counsel because he conceded that he knew of the
State’s primary evidence against him. Regarding counsel’s failure to file pretrial motions,
the court noted that it ruled during the Petitioner’s trial that evidence about the victim’s prior
allegations was inadmissible and that this court affirmed the trial court on direct appeal.
Regarding counsel’s failure to question the victim about bleeding, the post-conviction court
noted that the lack of medical evidence was addressed at trial and found that counsel’s
“method of cross-examining the victim to be part of his trial strategy.” Finally, as to
counsel’s failure to call an expert witness to testify about influencing children to make false
accusations of sexual abuse, the court accredited counsel’s testimony that he did not consider

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such an expert to be pertinent to the case and found that, regardless, the Petitioner failed to
have an expert testify at the evidentiary hearing.

II. Analysis

On appeal, the Petitioner contends that he received the ineffective assistance of
counsel because trial counsel met with him only twice before trial, failed to subpoena
witnesses, failed to “recruit an expert to offer testimony regarding the victim’s potential
inclination to make false accusations regarding sexual molestation,” and failed to cross-
examine the victim adequately. The State argues that the post-conviction court properly
denied the petition. We agree with the State.

To be successful in a claim for post-conviction relief, a petitioner must prove factual
allegations contained in the post-conviction petition by clear and convincing evidence. See
Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means evidence in which
there is no serious or substantial doubt about the correctness of the conclusions drawn from
the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Issues regarding the
credibility of witnesses, the weight and value to be accorded their testimony, and the factual
questions raised by the evidence adduced at trial are to be resolved by the post-conviction
court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore,
the post-conviction court’s findings of fact are entitled to substantial deference on appeal
unless the evidence preponderates against those findings. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields, 40
S.W.3d at 458. However, we will review the post-conviction court’s conclusions of law
purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both 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 establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient

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to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,

[b]ecause a petitioner must establish both prongs of the test, a
failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes an
insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

Regarding the Petitioner’s claim that counsel met with him only twice before trial, the
post-conviction court specifically accredited counsel’s testimony that he met with the
Petitioner eleven times. Moreover, the court determined that the Petitioner failed to
demonstrate the ineffective assistance of counsel because he acknowledged that he was
aware of the State’s evidence against him. As to the Petitioner’s claim that he received the
ineffective assistance of counsel because counsel failed to subpoena witnesses or have an
expert testify on his behalf at trial, the Petitioner failed to present those witnesses at the
evidentiary hearing. Generally, “[w]hen a petitioner contends that trial counsel failed to
discover, interview, or present witnesses in support of his defense, these witnesses should
be presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752,
757 (Tenn. Crim. App. 1990). We may not speculate on what benefit the witnesses might
have offered to the petitioner’s case. Finally, as to the Petitioner’s argument that counsel
failed to cross-examine the victim adequately, the Petitioner has failed to explain on appeal
what questions counsel should have asked the victim. At the evidentiary hearing, the
Petitioner testified that counsel should have questioned the victim about her stating during
her forensic interview that the Petitioner made her bleed. However, neither party questioned
counsel about his failure to cross-examine the victim regarding bleeding. Moreover, the
Petitioner has failed to show that informing the jury about the victim’s bleeding claim would
have helped, let alone changed the outcome of, his case. Therefore, we agree with the post-
conviction court that the Petitioner has failed to show that he received the ineffective
assistance of trial counsel.

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

_________________________________
NORMA McGEE OGLE, JUDGE

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