IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST 1997 SESSION
FILED
March 13, 1998
Cecil Crowson, Jr.
REGINALD D. TUTTON, ) Appellate C ourt Clerk
) NO. 02C01-9610-CR-00351
Appellant, )
) SHELBY COUNTY
VS. )
) HON. L. T. LAFFERTY,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
A. C. WHARTON, JR. JOHN KNOX WALKUP
Shelby County Public Defender Attorney General and Reporter
WALKER GWINN (on appeal) CLINTON J. MORGAN
CHARLES D. WRIGHT (at hearing) Assistant Attorney General
Assistant Public Defenders Cordell Hull Building, 2nd Floor
Criminal Justice Complex, Ste. 201 425 Fifth Avenue North
201 Poplar Street Nashville, TN 37243-0493
Memphis, TN 38103-1947
WILLIAM L. GIBBONS
District Attorney General
CHARLES W. BELL, JR.
Assistant District Attorney General
Criminal Justice Complex
Suite 301
201 Poplar Street
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JERRY L. SMITH,
JUDGE
OPINION
The petitioner, Reginald D. Tutton, appeals the denial of his petition for post-
conviction relief by the Criminal Court of Shelby County. Petitioner is serving
consecutive sentences of 35 years and 12 years for the offenses of attempted first
degree murder and rape, respectively. Two (2) issues are presented for our review;
to-wit:
(1) whether the indictment was deficient for failing to
properly allege the mens rea, and
(2) whether petitioner received ineffective assistance of
counsel.
After reviewing the record, we affirm the judgment of the trial court.
I
The first count of the indictment alleged that the defendant committed the
offense of aggravated rape in that he “did unlawfully sexually penetrate and cause
bodily injury to [the victim].” Although convicted by the jury of the charged offense
of aggravated rape, this Court on direct appeal reduced the conviction to simple
rape. See State v. Reginald Tutton, C.C.A. No. 02C01-9210-CR-00238, Shelby
County (Tenn. Crim. App. filed November 3, 1993, at Jackson). The petitioner now
contends the indictment was fatally defective by failing to allege the mens rea of the
offense of aggravated rape.
State v. Hill, 954 S.W.2d 725, 729 (Tenn. 1997), upheld a similarly worded
indictment. Likewise, we hold that the indictment in this case met the constitutional
and statutory requirements of notice. This issue is without merit.
II
Petitioner contends he received ineffective assistance of counsel. In his brief
petitioner primarily complains that trial counsel failed to conduct an adequate pre-
trial investigation. More specifically, he contends trial counsel was unable to locate
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a non-family alibi witness. The trial court found that trial counsel attempted to locate
this witness; petitioner could not point out where the witness lived; nor could
counsel find any address of this person. The trial court found no deficient
performance as a result of counsel’s efforts. Nor do we.
Although not addressed in petitioner’s brief, petitioner alleged in his petition
some fourteen (14) additional instances illustrating ineffective assistance of counsel.
The trial court filed excellent, detailed findings as to each of these allegations. The
trial court concluded, after hearing the testimony of petitioner and his trial counsel,
that none of the allegations had merit. We must agree.
III
The trial judge's findings of fact on post-conviction hearings are conclusive
on appeal unless the evidence preponderates otherwise. Butler v. State, 789
S.W.2d 898, 899-900 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 354 (Tenn.
Crim. App. 1995). The trial court’s findings of fact are afforded the weight of a jury
verdict, and this Court is bound by the trial court’s findings unless the evidence in
the record preponderates against those findings. Henley v. State, S.W.2d
(Tenn. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn. Crim. App. 1996). This
Court may not reweigh or reevaluate the evidence, nor substitute its inferences for
those drawn by the trial judge. Henley v. State, S.W.2d at ; Massey v. State,
929 S.W.2d 399, 403 (Tenn. Crim. App. 1996); Black v. State, 794 S.W.2d 752, 755
(Tenn. Crim. App. 1990). Questions concerning the credibility of witnesses and the
weight and value to be given to their testimony are resolved by the trial court, not
this Court. Henley v. State, S.W.2d at ; Black v. State, 794 S.W.2d at 755.
The burden of establishing that the evidence preponderates otherwise is on
petitioner. Henley v. State, S.W.2d at ; Black v. State, 794 S.W.2d at 755.
This Court reviews a claim of ineffective assistance of counsel under the
standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner
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has the burden to prove that (1) the attorney’s performance was deficient, and (2)
the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064;
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State, 874 S.W.2d
6, 11 (Tenn. 1994).
IV
Based upon the record, we concur fully in the findings and conclusions of the
trial court. The petitioner has not met his burden of establishing that the evidence
preponderates against those findings and conclusions.
The judgment of the trial court is AFFIRMED.
_____________________________
JERRY L. SMITH, JUDGE
CONCUR:
______________________________
DAVID G. HAYES, JUDGE
______________________________
THOMAS T. WOODALL, JUDGE
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