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Hickman v. State

Court of Criminal Appeals of Tennessee, Nashville

January 24, 2017


          Assigned on Briefs October 19, 2016

         Appeal from the Circuit Court for Marshall County No. 15-CR-90 F. Lee Russell, Judge

         A 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.

         Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          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 Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the Court, in which John Everett Williams and Norma McGee Ogle, JJ., joined.



         I. Facts and Procedural History

         This 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 K.C.
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 ...

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