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Oliver v. State

Court of Criminal Appeals of Tennessee, Knoxville

April 25, 2017

DAVID ANDREW OLIVER
v.
STATE OF TENNESSEE

          Assigned on Briefs March 21, 2017

         Appeal from the Criminal Court for Knox County No. 106180 Steven Wayne Sword, Judge

         The Petitioner, David Andrew Oliver, appeals the denial of his petition for post-conviction relief in which he challenged his rape of a child conviction and twenty-five year prison sentence. On appeal, the Petitioner contends that he was denied his right to the effective assistance of counsel, arguing that trial counsel should have advised him to testify at trial. We affirm the post-conviction court's denial of relief.

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

          J. Liddell Kirk, Knoxville, Tennessee, for the appellant, David Andrew Oliver.

          Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Charme Allen, District Attorney General; and Rachel Russell, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Timothy L. Easter and J. Ross Dyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         The Petitioner was convicted of rape of child by a Knox County Criminal Court jury. The trial court sentenced the Petitioner to serve twenty-five years in prison.

         Trial

         On direct appeal, this court summarized the underlying facts of the Petitioner's conviction, as follows:

[I]n October 2011, the victim's aunt and a female cousin were living in a small house on Boone Street in Knoxville. One night near Halloween, the then twelve-year-old victim spent the night there. The [Petitioner], who was dating the victim's cousin, also spent the night. The victim slept on the living room couch but woke to discover the [Petitioner] staring at her. The [Petitioner] forced himself on the victim, penetrated her vagina with his penis, and ejaculated. About one year later, the victim revealed the incident to a counselor and was interviewed at Childhelp. As a result of the Childhelp interview, officers with the Knoxville Police Department (KPD) began investigating the victim's allegations and interviewed the [Petitioner]. During the [Petitioner's] interview, he admitted knowing the victim and spending the night at the home on Boone Street while the victim was there. The officers suggested to the [Petitioner] that the victim became pregnant and had a baby, which was not true. The [Petitioner] told the officers that he forced the victim to have sex with him, that she tried to fight him off, and that he ejaculated. After the interview, the [Petitioner] wrote a letter to the victim in which he apologized for hurting her. He also wrote that, if she had a baby, he wanted a DNA test to determine if he was the father and wanted to see the baby.

State v. David Andrew Oliver, No. E2013-02426-CCA-R3-CD, 2014 WL 12649795, at *1 (Tenn. Crim. App. Nov. 20, 2014), perm. app. denied (Tenn. Mar. 12, 2015). Relevant to the issue before this court, the trial court conducted a hearing pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999). During the hearing, the Petitioner testified that he and trial counsel discussed several times whether he should testify at trial, his Fifth Amendment right to remain silent, his ability to fully decide whether to testify, and the advantages and disadvantages of testifying. The Petitioner decided the following day on the second day of trial not to testify. On direct appeal, the Petitioner challenged the trial ...


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