Session Date: July 11, 2017
from the Circuit Court for Madison County No. C-15-318 Roy B.
Morgan, Jr., Judge
Petitioner, Michael Presson, appeals from the Madison County
Circuit Court's denial of his petition for
post-conviction relief. The Petitioner contends (1) that
trial counsel was ineffective for failing to present an
"economic motive" defense and failing to call
witnesses at trial to support that defense; (2) that trial
counsel was ineffective by failing to request a severance for
charges that involved two separate victims; (3) that trial
counsel was ineffective in failing to challenge certain
jurors during voir dire; (4) that trial counsel was
ineffective by failing "to call" the Petitioner as
a witness at trial; (5) that trial counsel was ineffective
for failing to object to the State's references to the
term "pedophile" and to pornography during its
closing argument; (6) that the trial court erred by failing
to instruct the jury on certain lesser-included offenses and
that trial counsel was ineffective in failing to request such
instructions; (7) that trial counsel "was ineffective
for failing to request that the trial court require the State
to make an election of offenses" and "by failing to
object to the trial court judge's election of
offenses"; and (8) that post-conviction relief is
warranted due to cumulative error. Following our review, we
affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
William D. Massey and Chelsea A. Harris, Memphis, Tennessee,
for the appellant, Michael Presson.
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; Jody S.
Pickens, District Attorney General; and Alfred Lynn Earls,
Assistant District Attorney General, for the appellee, State
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
KELLY THOMAS, JR., JUDGE
April 2010, the Petitioner was indicted for numerous offenses
involving two victims, T.B. and S.W. State v. Michael
Presson, No. W2012-00023-CCA-R3-CD, 2014 WL 1669860, at
*1 (Tenn. Crim. App. Apr. 24, 2014), perm. app.
denied (Tenn. Nov. 10, 2014). With respect to T.B., the
Petitioner was indicted "for twenty-two counts of
aggravated sexual battery, sixteen counts of rape of a child,
two counts of sale, loan or exhibition of material harmful to
minors, and one count of indecent exposure."
Id. With respect to S.W., the Petitioner was
indicted for "three counts of sexual battery."
a jury trial, the Petitioner was convicted of "ten
counts of [the lesser-included offense of] attempted
aggravated sexual battery, eleven counts of rape of a child,
and one count of aggravated sexual battery, " all with
respect to T.B. Presson, 2014 WL 1669860, at *9. The
Petitioner "was acquitted of all counts in the
indictment pertaining to S.W., " as well as "five
counts of rape of a child, eleven counts of aggravated sexual
battery, two counts of sale, loan or exhibition of material
harmful to minors, and one count of indecent exposure . . .
[, all] pertaining to T.B." Id. at *9 n.2. The
trial court imposed a total effective sentence of thirty-five
years. Id. at *10.
court affirmed the Petitioner's convictions and sentences
on direct appeal. Presson, 2014 WL 1669860, at *1.
On November 10, 2014, our supreme court declined to review
that decision. On November 6, 2015, the Petitioner, through
counsel, filed a timely petition for post-conviction relief.
Two amended petitions were subsequently filed on the
Petitioner's behalf.  Following an evidentiary hearing, the
post-conviction court entered a written order denying
post-conviction relief on June 3, 2016.
testified at trial that she met the Petitioner "the
summer before her seventh grade year in school."
Presson, 2014 WL 1669860, at *2. T.B.'s mother
"had worked for the [Petitioner]" and he was
considered "a family friend." Id. T.B.
even "referred to the [Petitioner] as
'granddad.'" Id. at *5. T.B. testified
"that she used to see the [Petitioner] 'a
lot.'" Id. at *2. T.B. explained that the
Petitioner would "occasionally" pick her up from
school, that "she and the [Petitioner] would go out to
eat together, " that they would "go hunting
together, " and that "she would 'stay the
night' at his house." Id. "T.B.
estimated that she spent the night at the [Petitioner's]
house 'over a hundred' times" and testified that
"she had full access to the house" and "was
'real familiar' with the inside" of the house.
Id. at *2, 5.
described what would typically happen when she spent the
night at the Petitioner's house as follows:
T.B. testified that she would normally go to the
[Petitioner's] house on a Friday night, and he would
"give [her] a bath, " and she "would have to
sleep in the bed with [the Petitioner]." When giving her
a bath, the [Petitioner] would "wash [her] with a wash
rag" on her "breasts and [her] private area."
T.B. indicated to the jury that her "private area"
was her genital area. When asked how the [Petitioner] would
wash her genital area, T.B. responded "[h]e wouldn't
go inside the hole [of the vagina]; he would go like on the
inside of like the walls" and stated she was referring
to the vaginal lips. T.B. stated that after the [Petitioner]
washed her, they would go lay in bed together, and that the
[Petitioner] would use a razor to shave her legs and her
private area. She recalled that the [Petitioner] told her
that shaving would prevent her from "getting an
T.B. testified that she slept in the same bed as the
[Petitioner]. She stated that the [Petitioner] gave her a
shirt cut off above her waist to wear and that he would wear
underwear. She recalled that there were two bedrooms in the
house, but that she slept in his room because he told her
there had been "break-ins" in the neighborhood.
T.B. stated that, while lying in bed, the [Petitioner] would
"wrap his arm around [her], " and he would touch
Presson, 2014 WL 1669860, at *2
("Defendant" altered to "Petitioner"; all
other alterations in original).
testified that incidents similar to what were described above
occurred sixteen times between August 2007 and March 2009.
Presson, 2014 WL 1669860, at *2. T.B. also testified
about an incident when the Petitioner "showed her
Playboy magazines and a vibrator." Id. at *3.
T.B. recalled that the Petitioner "had the Playboy
magazines on his headboard by his bed" and that "he
pulled the vibrator out of a dresser drawer and asked [her]
if she wanted to see it." Id. T.B. testified
about another incident when the Petitioner "put his lips
on her buttocks to suck out a bee sting." Id.
at *3, 5. T.B. further testified that the Petitioner showed
her "a pornography [television] channel" while she
and the Petitioner were at a cabin belonging to one of the
Petitioner's friends. Id. at *3.
claimed "that she did not tell anyone about the
incidents until she told her mother the summer before her
eighth grade year." Presson, 2014 WL 1669860,
at *3. T.B. recalled that after she told her mother,
"they went over to S.W.'s house and talked to a law
enforcement officer." Id. at *4. T.B. then gave
statements to an investigator on July 29, 2009, and August 1,
2009. Id. T.B. testified that she told her mother
because she knew the Petitioner would "begin picking her
up from school again" when the school year started and
that "she 'didn't want to be around him
anymore.'" Id. at *3.
testified that "during her seventh grade year, "
she told her boyfriend that "she 'had been touched
by somebody.'" Presson, 2014 WL 1669860, at
*3. T.B.'s boyfriend "told his mother, who went to
[T.B's] principal." Id. T.B. told her
principal that "a person named 'Daniel' had
raped her, but [she claimed] it was a 'random' name
she had picked 'out of the air.'" Id.
at *4. T.B. eventually told her principal "that she had
'[done] this to get attention and sympathy'" and
that she "'was fine about it so that everything
would be dropped'" and she "'wouldn't
get in any trouble.'" Id. at *3-4
(alteration in original).
admitted that she told the investigator that the Petitioner
"did not 'try to put his finger or anything else
inside of [her].'" Presson, 2014 WL
1669860, at *4 (alteration in original). T.B. explained that
she was confused when she spoke to the investigator and that
she did not realize that penetration included the
Petitioner's having "put his fingers 'inside the
lip [of her vagina]'" because "the genital area
was hard for a twelve-year-old to understand and
describe." Id. (alteration in original). T.B.
also admitted that prior to having come "forward with
her allegations against the [Petitioner], " she told a
doctor in April 2009 that "she was not 'active
sexually.'" Id. at *5.
admitted to an incident when she threw her cell phone
"across the room" at the Petitioner's house.
Presson, 2014 WL 1669860, at *3. T.B. testified that
she was "grounded for the summer" because of the
incident, that she had her cell phone "taken away,
" and that she had "to forego a concert she wanted
to attend." Id. at *5. T.B. further testified
that "it was within one or two days of being grounded .
. . that she told her mother about the incidents involving
physical contact with the [Petitioner]." Id.
a search of the Petitioner's home, police officers found
"a vibrator, a white shirt that had cutoff sleeves and
was cutoff on the bottom, some Playboy magazines, three blue
disposable razors, [and] an electric razor."
Presson, 2014 WL 1669860, at *6. The vibrator and
the t-shirt "were found in a dresser near the master
bedroom." Id. The Playboy magazines "were
found in the headboard of the bed in the master
bedroom." Id. On the whole, the items seized
during the search "were found in places T.B. had
indicated" in her statements to the investigator.
Id. Subsequent forensic testing revealed "a DNA
profile partially matching that of T.B.'s" on one of
the disposable razors seized from the Petitioner's house.
Id. at *7.
Lisa Piercy, "a child abuse pediatrician" who
"worked primarily at the Child Advocacy Center in
Jackson, Tennessee, " testified that she interviewed and
examined T.B. Presson, 2014 WL 1669860, at *6. When
asked about what had occurred with T.B.'s principal, Dr.
Piercy responded "that T.B.'s accusation of rape and
the subsequent recant was consistent with the behavior of a
sexually abused child." Id. Dr. Piercy
testified that T.B. had previously been diagnosed with
"oppositional defiant disorder ('ODD')" and
that it was "'possible' for a child with ODD to
falsely accuse someone of rape." Id. at *6-7.
However, Dr. Piercy also testified that "she had seen
children who had been sexually abused display behaviors
consistent with those attributed to ODD." Id.
Petitioner's friend who owned the cabin where T.B.
claimed that the Petitioner had shown her a pornographic
television channel testified that the channel was
"'supposed to be locked out.'"
Presson, 2014 WL 1669860, at *7. He further
testified that, when he arrived at the cabin, the Petitioner
"was unloading groceries" and the television was
not on the pornographic channel. Id. Another of the
Petitioner's friends testified to contradict S.W.'s
Petitioner called T.B.'s boyfriend and the principal of
her school as witnesses. Presson, 2014 WL 1669860,
at *7. T.B.'s boyfriend testified that she told him
"she had been raped by someone at school, " but
"then changed her story and said it was the
[Petitioner]" after their principal was told about the
allegation. Id. T.B.'s boyfriend recalled that
he "showed the principal [the] picture in the
yearbook" of "the student that T.B. had originally
identified as the person who raped her." Id.
T.B.'s boyfriend further testified "she was
'[n]ot that truthful really.'" Id.
(alteration in original). The principal testified that when
he questioned T.B. about the allegation, she "admitted
that she had 'made the story up.'" Id.
He further testified that "based on his dealings with
T.B., he would 'not trust her with the allegations
without following up extensively.'" Id.
Petitioner also called Dr. Tara Pedigo, a pediatrician who
had examined the victim in April 2009. Presson, 2014
WL 1669860, at *8. Dr. Pedigo testified that T.B.
"'denie[d] sexual activity of any kind'"
during the examination. Id. Dr. Pedigo further
testified that T.B. "was taking Zoloft for depression
and ODD, " but that T.B.'s mother stated that
"the treatments were not working." Id.
the Petitioner called Dr. Robert Kennon, a licensed
psychologist, to testify "as an expert witness in the
field of forensic psychology." Presson, 2014 WL
1669860, at *8. Dr. Kennon opined that "he had seen a
lot of false reports of [sexual] abuse" and that such
false reports were "often made to 'gain an
advantage.'" Id. With respect to T.B.:
Dr. Kennon testified that he was in the courtroom when the
victims testified, and he stated that, while he did not
evaluate T.B. personally, the diagnosis for a child with ODD
is the opposite diagnosis to that of a child who has been
sexually abused. He stated that T.B.'s testimony lacked
detail and that she did not testify to several of the factors
related to sexual abuse. He stated that her responses sounded
"rote" and "repetitious" and lacked the
detail he would expect to hear from an abuse victim.
Id. Dr. Kennon further testified that "it would
be 'odd' for [a sexual] abuser to  give a house key
to the parent of a victim." Id. However, Dr.
Kennon admitted that it was possible for details to
"'blur together'" when a child had been
"'repetitiously abused'" and that "it
would be important for an abuser to win trust with a victim
or the victim's parents" to gain "access to the
child." Id. at *8-9.
counsel's testimony was the primary focus of the
post-conviction hearing. Trial counsel testified that he was
retained to represent the Petitioner at trial and that the
Petitioner also retained an outside investigative firm,
Inquisitor, Inc., to investigate the allegations and to serve
as "a jury consultant." Trial counsel further
testified that he filed "numerous" pretrial motions
and that the trial court granted "every pretrial
motion" he filed. Trial counsel recalled that he
"got along great" with the Petitioner and that the
outcome of the trial "made [him] sick." But trial
counsel stated that he "did everything [he] could think
to do" in representing the Petitioner, and he could not
"find anything [he] did" that was ineffective or
contributed to the Petitioner's convictions.
bulk of trial counsel's testimony was spent discussing
the possibility of an "economic motive" defense.
Trial counsel explained that T.B.'s mother, Latosha D.,
"was a part-time bookkeeper" for
the Petitioner. The Petitioner believed that Ms. D. "had
misappropriated . . . [or] had made charges on a company
credit card that he hadn't authorized." Trial
counsel thought that the Petitioner was not "even
aware" of the alleged fraudulent charges until after he
was arrested because the Petitioner was "the type of
person that if he hired you to do something, he expect[ed]
you to do it." Therefore, their theory was that Ms. D.
"[p]reemptively" encouraged T.B. to make false
allegations against the Petitioner to protect Ms. D. from
being prosecuted for fraudulent charges that the Petitioner
had yet to discover.
context, trial counsel testified that the Petitioner's
wife had taken care of the "bookkeeping" for the
Petitioner's sporting goods store until her death. Ms. D.
took over that role after the death of the Petitioner's
wife. Trial counsel testified that this role gave Ms. D.
"[u]nfettered" access to the check book, credit
card, and financial documents for the Petitioner's store.
At some point, one of the Petitioner's employees told the
Petitioner that he was concerned that "the bills
weren't being paid" because "creditors were
calling the business" and Ms. D. was
"flippant" when the employee "fuss[ed] at her
about it." According to trial counsel, Ms. D. "took
the books to her home" after the Petitioner spoke to her
about the issue, and she did not return them until after the
Petitioner was arrested.
counsel testified that Ms. D. also had a key to the
Petitioner's house. Trial counsel recalled that Ms. D,
Ms. D.'s mother, and T.B. "went in [the
Petitioner's] house and looked all around" the
weekend before T.B.'s allegations were reported to the
police. Trial counsel conceded that it was a "[f]air
inference" that they "were looking for something to
use against [the Petitioner] before [the] allegations were
ever made." Trial counsel believed that he
cross-examined T.B. about the fact that she had a key to the
Petitioner's home. Trial counsel recalled that when Ms.
D. returned the Petitioner's "books" and the
key to his home, she also ...