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Russ v. State

Court of Criminal Appeals of Tennessee, Jackson

September 8, 2017

EVERETT RUSS
v.
STATE OF TENNESSEE

          Assigned on Briefs August 1, 2017

         Appeal from the Criminal Court for Shelby County No. W2017-00133-CCA-R3-PC 10-07456 Chris Craft, Judge.

          Sharon Fortner, Memphis, Tennessee, for the appellant, Everett Russ.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Melanie Cox, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE.

         The petitioner, Everett Russ, appeals the denial of his petition for post-conviction relief from his 2012 Shelby County Criminal Court jury convictions of two counts of aggravated sexual battery. Discerning no error, we affirm the denial of post-conviction relief.

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

         A Shelby County Criminal Court jury convicted the petitioner of two counts of aggravated sexual battery for acts of sexual abuse perpetrated against his minor daughter.

Regarding the first count, the record reflects that the [petitioner] lived down the street from the victim, who lived with her mother, and that the [petitioner] visited the victim's house on April 11, 2010. The victim was sleeping when the [petitioner] came to her bedroom, pulled her panties below her knees, rubbed her vagina on the outside with his fingers, and licked her "private part." The [petitioner] stopped when the victim's brother entered the room. He saw the [petitioner] on his knees between the victim's legs and saw the victim only wore panties, which were pulled to her knees. When her brother asked her if the [petitioner] licked her, she was too scared to tell him but then admitted the [petitioner] licked her. He sent his uncle a text message that said, "My dad is licking my private part, " but called his uncle to clarify that the [petitioner] was licking the victim. The uncle told the victim's brother to tell his mother what he saw, and he did. The victim's mother woke the [petitioner], and they argued. The victim's brother called 9-1-1 during the argument.
Regarding the second count, the record reflects that a second incident involving the [petitioner] and the victim occurred when the victim was eight years old before the April 11, 2010 incident. The victim was lying on the [petitioner]'s couch at his house and watching Charlotte's Web when the [petitioner] licked her private part. No one else was at the [petitioner]'s house at the time.

State v. Everett Russ, No. W2012-00461-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim. App., Jackson, Dec. 9, 2013), perm. app granted (Tenn. May 14, 2014). This court affirmed the petitioner's convictions, see id., slip op. at 8, and, following a remand for reconsideration by our supreme court, affirmed the petitioner's sentences, see State v. Everett Russ, No. W2012-00461-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Jackson, July 14, 2014) (Russ II).

         The petitioner filed a timely petition for post-conviction relief on April 21, 2015, arguing, among other things, that he was deprived of the effective assistance of counsel. In an amended petition for post-conviction relief, the petitioner alleged that his counsel performed deficiently by failing to interview potential witnesses, failing to present the victim's mother as a witness at trial, failing to adequately question the victim's credibility at trial, failing to "make relevant objections, " failing to properly investigate the case, failing to adequately prepare the petitioner for trial, failing to "act as a zealous advocate at trial, " failing to keep his communications with the petitioner confidential, failing to properly prepare the petitioner's mother to testify at trial, and failing to object to the jury instructions on the lesser included offenses. He claimed that trial counsel's sundry failures inured to his prejudice, thereby entitling him to post-conviction relief.

         At the October 21, 2016 hearing on the petition, the petitioner's brother, Sunil Sharma, testified that at the time of the offenses, he lived with the petitioner and their mother and that he had never witnessed anything unusual between the petitioner and the victim. He said that the petitioner's counsel did not contact him prior to the petitioner's trial. Mr. Sharma testified that he was often present when the victim came to the residence he shared with the ...


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