Assigned on Briefs August 1, 2017
from the Criminal Court for Shelby County No.
W2017-00133-CCA-R3-PC 10-07456 Chris Craft, Judge.
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
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
CURWOOD WITT, JR., JUDGE.
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
R. App. P. 3; Judgment of the Criminal Court
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
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).
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
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 ...