WPC,}};IntlForce tokenSigma? WP_TV07805377WP6)sportsntterxsIWPTVWPC2 y?DialogRecord.aDefItem _DISPOSEMENU2 resPreload__IncludingSysErr__@ PBDTAddAPPL$PBGetEOF$ R{WP}10{WP}01Times{WP}12Mll   M{WP}11   8{WP}22PWP 6.0 captionM{WP}16 \UN>(9 Z 6Times New Roman Regular %X6 0(($HU:,  AZ"Arial RegularNw@ EEE+eӀ "44n~<$H3|x  0W(8(2$ !  X X `   0  5'  !"   XXXX #X X   Ad FILED XX #   August26,1998  CecilCrowson,Jr. X XAppellateCourtClerk R 0D(#$  0  HU:J,cAZ"Arial Regular_ AQ !"#%C<< C݃Level 1Level 2Level 3Level 4Level 5R 0D(3$ !  R 0D(3$ !  R 0D +($$   1  = D/ o''' dxd+ B  d+ B P PdA D3 &&&&'dxd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4R3.5.2'3.5.2, 1996 Corel Corporation Limited,R3.5.2Created with WordPerfect 3.5.2.0nb }Corel WordPerfectxHH(FG(HH(d'h}};VA^PSetBPJobNStylZwp60versWDatSTR PtPtVլVդ r (X ~T g XMa A+ 2  9VՈ Vt Vx V| 7Vp VՀ Vl V jVT VՔ VX EV _V$ V(! V8" V<# FV@% VD& VP'  V,( ;V QV\ VTVT V@{WP}10{WP}12{WP}11{WP}22WP 6.0 caption{WP}16{WP}01"Hl' '" y?{WP}10 <<KK ..,,..,, y?Times۪HHlHЫ y? Helvetica(d(   ٬A 7eSXXdXXd7A  y?  Times Э      y?l h s;'$' y?{WP}10 <<KK  y?Times y?g{WP}22 y? Helvetica $Y@Y@Y@FILED$ 0$' '0F$$2' '$August 26, 199802@22' '0F@N Cecil Crowson, Jr.$N\'  '$  Appellate Court Clerk     y? y? y?0' '0 y?"IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE0' '0*AT JACKSON*88FJULY 1998 SESSIONFTTbbp$  p~' '$ANTHONY J. ROBINSON,5)0  ~~~' '0)"NO. 02C019707CR002750  ' '0$Appellant,{)$  ' '$)"SHELBY COUNTY0  ' '0VS.)0' '0)"HON. W. FRED AXLEY,0' '0STATE OF TENNESSEE,8)"JUDGE0' '0)$Appellee.~)"(PostConviction)  5&6y' '5ܪ6y  ЫFOR THE APPELLANT:0&4&&' '04BBARBARA D. MACINTOSH$BP' '$474 Perkins Extended, Suite 2050P^PP' '0Memphis, TN 381173803R^l ^^l ' 'RFOR THE APPELLEE:0&4&&' '0$4B' '$JOHN KNOX WALKUP0BPBB' '0Attorney General and ReporterP^$^l' '$MARVIN E. CLEMENTS, JR.0 lzll' '0Assistant Attorney General!zCordell Hull Building, 2nd Floor"425 Fifth Avenue North#Nashville, TN 372430493$$%' '$WILLIAM L. GIBBONS0&' '0District Attorney General'$(' '$C. ALANDA HORNE0)' '0Assistant District AttorneyGeneral*201 Poplar Ave, Suite 301+"Memphis, TN 381031947 ""(" G&&||(@@G 6y6y,"N-N\.\j/jxJ0x xx HJܿ  y? y? y? y?OPINION FILED:  ÿ0 ' '0!"#AFFIRMED$%&'JOE G. RILEY, (JUDGEV )" ~ )" H' 'V y?ͪ  Ы y? y?   y?OPINION0*2M2' '0 y?ͪЫ y? y? y?0+MhM' '0$The petitioner, Anthony J. Robinson, appeals the trial courts denial of hispetition for postconviction relief. Having been originally convicted by a ShelbyCounty jury of aggravated rape, he now contends in his postconviction petitionthat he was afforded ineffective assistance of counsel at his trial. The judgmentof the trial court is AFFIRMED.0h$1 ' '$ y?ͪЫ y? y? y?I.02 % ' '0 y?ͪЫ y? y? y?03%@%' '0$The petitioner was convicted of aggravated rape and sentenced to thirty  seven (37) years. The conviction was affirmed on direct appeal. State v.Anthony J. Robinson, C.C.A. No. 02C019210CR00245, Shelby County (Tenn.' 'Crim. App. filed July 14, 1993, at Jackson). The petitioner subsequently filed a_' 'pro se petition for postconviction relief. Counsel was appointed and anz' 'amended petition filed. After a hearing, the trial court denied the petition forpostconviction relief, making extensive findings of fact and conclusions of law. This appeal followed.;@$<3' '$ y?ͪЫ y? y? y?II.0 =3N3' '0 y?ͪЫ y? y? y?0 >NiN' '0$The trial judge's findings of fact on postconviction hearings areconclusive on appeal unless the evidence preponderates otherwise. Butler v.6 R@i H6State, 789 S.W.2d 898, 899 (Tenn. 1990); Adkins v. State, 911 S.W.2d 334, 341(Tenn. Crim. App. 1995). The trial courts findings of fact are afforded theweight of a jury verdict, and this Court is bound by the trial courts findingsunless the evidence in the record preponderates against those findings. Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d138, 147 (Tenn. Crim. App. 1997); Dixon v. State, 934 S.W.2d 69, 72 (Tenn.Crim. App. 1996). This Court may not reweigh or reevaluate the evidence, norsubstitute its inferences for those drawn by the trial judge. Henley v. State, 960S.W.2d at 57879; Massey v. State, 929 S.W.2d 399, 403 (Tenn. Crim. App.1996); Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Questions concerning the credibility of witnesses and the weight and value tobe given to their testimony are resolved by the trial court, not this court. Henleyv. State, 960 S.W.2d at 579; Black v. State, 794 S.W.2d at 755. The burden ofestablishing that the evidence preponderates otherwise is on petitioner. Henleyv. State, 960 S.W.2d at 579; Black v. State, 794 S.W.2d at 755.OiD$PD_' '$ y?ͪЫ y? y? y?III.0Q_z_' '0 y?ͪЫ y? y? y?0Rzz' '0 The petitioner raises five issues concerning his claim of ineffectiveassistance of counsel. They are as follows:$T' '$ y?ͪ  Ы y? y?   y?BUl' 'B y?ͪlHЫ y? y? y?(1) trial counsel was inexperienced;VW(2) counsel did not sufficiently confer with petitionerprior to trial;J Y TY HJܿZ!/(3) counsel failed to interview witnesses thepetitioner provided;\/K]KY(4) counsel failed to adequately investigate the case;and_Yu`u(5) counsel failed to discover the victims medicalreports.b6cl' '6 y?ͪlH  Ы y? y? y? y? y? y? y? y? y? y?lH   y?0d' '0$This Court reviews a claim of ineffective assistance of counsel under thestandards 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). Thepetitioner has the burden to prove that (1) the attorneys performance wasdeficient, and (2) the deficient performance resulted in prejudice to thedefendant 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); k  Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d at899. m  n $In reviewing counsel's conduct, a "fair assessment . . . requires that everyeffort be made to eliminate the distorting effects of hindsight, to reconstruct thecircumstances of counsel's challenged conduct, and to evaluate the conductfrom counsel's perspective at the time." Strickland v. Washington, 466 U.S. at689, 104 S.Ct. at 2065. The fact that a particular strategy or tactic failed or hurtthe defense, does not, standing alone, establish unreasonable representation.However, deference to matters of strategy and tactical choices applies only if6 xWu H6the choices are informed ones based upon adequate preparation. Goad v.State, 938 S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Alleyv. State, 958 S.W.2d at 149; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.App. 1992). y $z  *' '$р y?ͪЫ y? y? y?A.0{ * E *' '0 y?ͪЫ y? y? y?0| E ` E' '0$The petitioner claims counsels lack of trial experience constitutedineffective assistance. The trial court noted the petitioner claimed, butpresented no evidence, that his was the first trial that counsel conducted. Further, the trial court noted that inexperience, in itself, does not equate toineffective assistance. We concur. The petitioner must identify specific acts andomissions to support the claim. The petitioner does not; therefore, this issue iswithout merit. ` $  8' '$р y?ͪЫ y? y? y?B.0 8 S 8' '0 y?ͪЫ y? y? y? S n$The next allegation is that counsel failed to adequately confer with thepetitioner prior to trial. The trial court found counsel visited the petitionernumerous times prior to trial, and the petitioner admitted that he had reviewedthe evidence with counsel. Contrary to the petitioners contention, the trial courtfurther found that cocounsel also met with the petitioner on two (2) separateoccasions. There is no evidence the petitioner did not have the opportunity to6 R + H6fully explain his version of the facts to counsel. This issue is without merit. n ;$ ; V' '$ y?ͪЫ y? y? y?C.0 V q V6' '0 q  y?ͪЫ y? y? y?$Petitioners third issue is that counsel failed to interview and presentwitnesses provided by petitioner; namely: Leslie Johnson, Anthony Coleman,and Brian Maxwell. Counsel testified the petitioner only gave him the names ofLeslie Johnson and Yamika Coleman. Counsel testified that he was unable tofind Leslie Johnson, and Yamika Coleman testified for the state. Counselfurther testified that he did not remember being given the name of AnthonyColeman, and that Brian Maxwells name was only brought to his attention atthe close of proof at trial.  dd$When a petitioner contends that trial counsel failed to discover, interview,or present witnesses in support of his defense, these witnesses should bepresented by the petitioner at the evidentiary hearing. Black v. State, 794' 'S.W.2d at 757; see also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App.' '1996). As a general rule, this is the only way the petitioner can establish that (a)a material witness existed and the witness could have been discovered but forcounsels neglect in his investigation of the case, (b) a known witness was notinterviewed, (c) the failure to discover or interview a witness inured to hisprejudice, and (d) the failure to have a known witness present or call thewitness to the stand resulted in the denial of critical evidence which inured to6 rR H6the prejudice of the petitioner. Black, 794 S.W.2d at 757. Neither the trial courtnor this Court can speculate on what a witness testimony might have been ifintroduced by counsel. Id.  $Neither Leslie Johnson nor Anthony Coleman appeared at the post  conviction hearing; thus, any allegation based upon their alleged testimony isspeculative and without merit. Counsel testified that he was only made awareof Brian Maxwells testimony at the close of proof, and that Maxwell gaveevasive answers upon being interviewed by counsel. The trial courtcharacterized counsels decision not to present the testimony of Maxwell as sound trial strategy. We agree. This issue is without merit. $' '$ y?ͪЫ y? y? y?D.0D' '0 y?ͪЫ y? y? y?0_' '0$The petitioners fourth assignment of error is that counsel failed to make areasonable investigation of the facts. The trial court found there was noevidence that counsel failed to adequately investigate the case. Counseltestified that there was an adequate investigation. The evidence supports thepostconviction courts finding in this regard. Further, there was no showing asto any beneficial information that further investigation would reveal. This issueis without merit.$' '$р y?ͪЫ y? y? y?E.b  R R H' 'b y?ͪЫ y? y? y?Ϳ05' '0$Finally, the petitioner alleges counsel was ineffective for failing todiscover medical reports concerning the victim. Petitioner contends this failureprevented counsel from fully investigating the prior sexual history of the victim. 5$The trial court noted counsel filed two (2) pretrial motions seeking todiscover information about the victims sexual history. These motions weredenied by the trial court. The trial transcript reveals that counsel was aware ofthe medical reports prior to trial. Furthermore, there was medical testimony attrial indicating prior sexual activity of the victim. The petitioner does not specifywhat information counsel failed to discover that would have been helpful to thepetitioners defense. The petitioner, therefore, has failed to prove that counsel ^provided deficient performance or that he was prejudiced. This issue is withoutmerit. y? y? y? y?$^' '$ y?ͪЫ y? y? y?CONCLUSION0z' '0 y? y? y? y?0' '0 y?ͪЫ y? y? y?$The record in this case reflects model findings of fact and conclusions oflaw by Judge W. Fred Axley. His findings addressed all grounds for reliefalleged by the petitioner. Those factual findings are contrary to petitionerscontentions and, for all practical purposes, foreclose any relief by this Court. The trial judge was in a much better position than this Court to determine thecredibility of the witnesses. We yield to the trial judges determination as tocredibility.J lR  HJܿ$The petitioner has failed to meet the burden for establishing ineffective' 'assistance of counsel as mandated by Strickland v. Washington, supra. The6' 'trial court found that counsels performance was within the range of acceptableprofessional assistance. Further, petitioner has failed to demonstrate that hewas prejudiced as the result of counsels performance.99T$Accordingly, the judgment of the trial court is AFFIRMED.Too$' '$ y?ͪ  Ы y? y?   y?0' '0     ##11??MM[[i$iw' '$$$$$$$_________________________0ww' '0$$$$$$JOE G. RILEY, JUDGE$' '$CONCUR:0B' '0J P"  HJܿ!!//=_________________________$=K' '$ y? y? y? y?CURWOOD WITT, JUDGE0KYKF' '0Yggu u  _________________________ ROBERT W. WEDEMEYER, SPECIAL JUDGE$' '$ y? y? y? y?