Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs October 19, 2016
from the Circuit Court for Marshall County No. 15-CR-90 F.
Lee Russell, Judge
Marshall County jury convicted the Petitioner, Rickey Allen
Hickman, of one count of rape of a child and three counts of
aggravated sexual battery. The trial court sentenced the
Petitioner to a total effective sentence of forty-seven years
of incarceration. On appeal, this Court affirmed the
Petitioner's convictions. State v. Rickey Allan
Hickman, No M2013-02390-CCA-R3-CD, 2014 WL 4557626
(Tenn. Crim. App., at Nashville, Sept. 16, 2014), perm.
app. denied (Tenn. Jan. 16, 2015). The Petitioner filed
a petition for post-conviction relief alleging that his trial
counsel had been ineffective. The postconviction court held a
hearing after which it denied the petition. On appeal, the
Petitioner maintains that his trial counsel was ineffective
for failing to present a defense asserting that the victim
was raped by a person other than the Petitioner. After a
thorough review of the record and applicable law, we affirm
the post-conviction court's judgment.
R. App. 3 Appeal as of Right; Judgment of the Circuit Court
Matthew D. Wilson, Lewisburg, Tennessee, for the appellant,
Rickey Allen Hickman.
Herbert H. Slatery III, Attorney General and Reporter; Brent
C. Cherry, Senior Counsel; Robert J. Carter, District
Attorney General; and Weakley Edward Barnard, Assistant
District Attorney General, for the appellee, State of
W. Wedemeyer, J., delivered the opinion of the Court, in
which John Everett Williams and Norma McGee Ogle, JJ.,
W. WEDEMEYER, JUDGE
Facts and Procedural History
case arises from sexual abuse allegations made against the
Petitioner by the victim, his granddaughter. The Marshall
County grand jury indicted the Petitioner on charges of rape
of a child and multiple counts of aggravated sexual battery.
In his direct appeal, this Court summarized the evidence
presented against the Petitioner at his trial as follows:
At the [Petitioner's] trial, the following evidence was
presented: Joey Kinder testified that he was married to
Kimberly Kinder and that she had three children from a
previous relationship. He stated that, in addition to his two
children, Ms. Kinder's three children lived with the
couple and that he was close with his step-children, who
looked at him "as dad." He stated that, before
August 2010, he had met Ms. Kinder's father, the
[Petitioner], two or three times, and he recalled that the
[Petitioner] "gave Ms. [Kinder] away" at their
wedding on June 5, 2010. Mr. Kinder identified the
[Petitioner] in the courtroom.
Mr. Kinder stated that the [Petitioner] visited the
Kinder's home during the period of April through August
2010. He stated that the victim, K.C., was present in the
home during that time period. Mr. Kinder testified that, when
the [Petitioner] came to visit the residence at the end of
April 2010, K.C. "was like [my] shadow. Everywhere I
went she was right there. I call it clingy. She was very
clingy. I could not get away from her any way." Mr.
Kinder stated that this was "unusual" behavior for
Mr. Kinder testified that on August 13, 2010, he had a
discussion with the victim. He stated that the victim climbed
into his lap and began telling him about a class she had been
in at school with a guidance counselor. The victim proceeded
to tell him "something that [he] thought was important,
" "totally unsolicited, " which prompted Mr.
Kinder to speak with his wife about his conversation with the
victim. After telling Ms. Kinder what the victim had said and
speaking together with the victim, the couple contacted the
Marshall County Sheriff's Department.
On cross-examination, Mr. Kinder recalled that, during the
[Petitioner's] visits to the family's home, Mr.
Kinder had seen the other children sit on the
[Petitioner's] lap, but he had never seen the victim do
the same. Mr. Kinder stated that the [Petitioner] volunteered
to keep the couple's children while they went on their
honeymoon during the summer of 2010.
Kimberly Kinder, the [Petitioner's] daughter, testified
that her daughter, the victim, was born January 19, 2003, and
was one of five children in the Kinder family. Ms. Kinder
recalled a conversation she had with the victim on August 13,
2010. The victim told Ms. Kinder that she had been in a class
at school "about not keeping secrets[.]" Ms. Kinder
learned that the victim had told Mr. Kinder her
"secret" and stated that the victim also told her
"what her secret was[.]" Ms. Kinder stated that,
after discussing the victim's "secret" with her
husband, they contacted the Marshall County Sheriff's
Department. Ms. Kinder testified that an investigation by the
sheriff's department ensued.
Ms. Kinder testified that at some point during the time
period of September 1, 2009, through October 31, 2009, there
was a party at the Kinder's house and that the
[Petitioner] was in attendance. The [Petitioner] was asked to
go out and buy ice, and the victim asked to accompany him on
the errand. Ms. Kinder recalled that the [Petitioner] took
the victim in his van to buy the ice. Ms. Kinder learned
later during the sheriff's department's 2010
investigation that an "incident" occurred while the
[Petitioner] and the victim were in the van that day. Ms.
Kinder stated that one day, when she and the victim were
riding around town, they came to an old warehouse, and ...