Cite as 2021 Ark. App. 441 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION III 2023.07.14 11:54:03 -05'00' No. CR-21-91 2023.003.20244
Opinion Delivered November 10, 2021
ANTHONY WARREN APPELLANT APPEAL FROM THE NEVADA COUNTY CIRCUIT COURT V. [NO. 50CR-18-159]
STATE OF ARKANSAS HONORABLE RANDY WRIGHT, APPELLEE JUDGE AFFIRMED
MIKE MURPHY, Judge
The appellant Anthony Warren appeals the order of the Nevada County Circuit
Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.1. On appeal he argues that he was not provided with effective assistance of
counsel because (1) counsel should have objected to witness testimony bolstering the
victim’s credibility and (2) counsel failed to adequately prepare witnesses for trial. We affirm.
The uncorroborated testimony of a rape victim is sufficient to support a conviction
of rape. Brown v. State, 374 Ark. 341, 343, 288 S.W.3d 226, 228–29 (2008). Likewise, a
victim’s testimony alone describing the sexual contact is enough to sustain a sexual-assault
conviction. Worrall v. State, 2020 Ark. App. 1, at 5–6, 593 S.W.3d 491, 494–95. It stands
to reason, then, that issues surrounding the credibility of that witness are of paramount
importance. In fact, we have held that when the outcome of a trial hinges on the credibility
of the victim and the statements made by the victim to third parties, erroneous admission of testimony bolstering that victim’s credibility can be so prejudicial as to warrant reversal.
Purdie v. State, 2010 Ark. App. 658, 379 S.W.3d 541; Cox v. State, 93 Ark. App. 419, 220
S.W.3d 231 (2005). The rationale behind this rule is that such testimony invades the
province of the jury. Buford v. State, 368 Ark. 87, 243 S.W.3d 300. Indeed, the jury alone
determines the credibility of the witnesses and apportions the weight to be given to the
evidence. Id.
In Warren’s trial, there was, unquestionably, testimony elicited by the State that
could be classified as nothing but bolstering. The school counselor was asked directly if she
thought the victim was making the story up; if she told the investigator she believed the
victim; and if she did, in fact, believe the victim. The state police investigator was explicitly
asked if he found the allegations of rape and sexual assault credible and substantiated. A
detective from the local police department was asked if he found the information from the
investigator reliable.
The issue, however, is not that there was impermissive bolstering; the issue is whether
the failure to object to the bolstering warrants a designation of ineffective assistance of
counsel. We will not reverse the denial of postconviction relief unless the circuit court’s
findings are clearly erroneous. Montgomery v. State, 2014 Ark. 122, at 2–3. A finding is clearly
erroneous when, although there is evidence to support it, the appellate court, after reviewing
the entire evidence, is left with the definite and firm conviction that a mistake has been
made. See id. In deciding a claim of ineffective assistance of counsel, this court considers the
totality of the evidence. See id. Our standard of review requires that we assess the
2 effectiveness of counsel under the two-prong standard set forth by the Supreme Court of
the United States in Strickland v. Washington, 466 U.S. 668 (1984).
In asserting ineffective assistance of counsel under Strickland, the petitioner must show
that counsel’s performance was deficient. See Sartin v. State, 2012 Ark. 155, 400 S.W.3d
694. This requires a showing that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the petitioner by the Sixth Amendment. Id. The
reviewing court must indulge in a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance. Id. The defendant claiming ineffective
assistance of counsel has the burden of overcoming that presumption by identifying the acts
and omissions of counsel which, when viewed from counsel’s perspective at the time of
trial, could not have been the result of reasonable professional judgment. Id.
In order to satisfy the second prong of the Strickland test, the petitioner must show
that counsel’s deficient performance prejudiced the defense, which requires a showing that
counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. In doing so,
the petitioner must show that there is a reasonable probability that the fact-finder’s decision
would have been different absent counsel’s errors. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the trial. Id.
The appellant argues that this case is similar to Montgomery v. State, 2014 Ark. 122.
In Montgomery, the defendant had been convicted for the rape of his then six-year-old
granddaughter. Id. His convictions were affirmed on appeal. Id. In his following ineffective-
assistance-of-counsel petition, he asserted that the circuit court erred in its finding that his
trial counsel was not ineffective for failing to object to inadmissible testimony regarding the
3 behaviors of child sexual-abuse victims. Id. The supreme court agreed and explained that it
was probable that the jury’s conclusions might have been different had counsel properly
objected. Id. Montgomery was afforded a new trial.
The facts in Montgomery, however, differ from the facts here in one important regard.
In Montgomery, counsel explained that his failure to object to the bolstering was because he
had misunderstood an earlier ruling by the court. Here, however, at the Rule 37 hearing,
trial counsel explained that there was “a very specific strategy behind” his decision to
challenge the testimony of the school counselor, the investigator, and the officer on cross-
examination rather than by objection. He was aware he could object to the bolstering;
instead, he chose to demonstrate on cross-examination that the witnesses “just blindly
believed [the victim] without any foundation or any basis for doing so.” He said that this
strategy had worked for him in a similar case just the week before.
Under the two-prong standard set forth in Strickland, supra, there is a wide range of
reasonable professional assistance in which counsel’s conduct may fall. To succeed on a Rule
37 petition, the petitioner must identify acts and omissions that, when viewed from counsel's
perspective at the time of trial, could not have been the result of reasonable professional
judgment. Feuget v. State, 2015 Ark. 43, at 4, 454 S.W.3d 734, 738. Matters of trial strategy
and tactics, even if arguably improvident, fall within the realm of counsel’s professional
judgment and are not grounds for a finding of ineffective assistance of counsel. Noel v. State,
342 Ark. 35, 41–42, 26 S.W.3d 123, 127 (2000). Accordingly, while this case is factually
similar to Montgomery, because trial counsel explained that his decision to not object was
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Cite as 2021 Ark. App. 441 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION III 2023.07.14 11:54:03 -05'00' No. CR-21-91 2023.003.20244
Opinion Delivered November 10, 2021
ANTHONY WARREN APPELLANT APPEAL FROM THE NEVADA COUNTY CIRCUIT COURT V. [NO. 50CR-18-159]
STATE OF ARKANSAS HONORABLE RANDY WRIGHT, APPELLEE JUDGE AFFIRMED
MIKE MURPHY, Judge
The appellant Anthony Warren appeals the order of the Nevada County Circuit
Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.1. On appeal he argues that he was not provided with effective assistance of
counsel because (1) counsel should have objected to witness testimony bolstering the
victim’s credibility and (2) counsel failed to adequately prepare witnesses for trial. We affirm.
The uncorroborated testimony of a rape victim is sufficient to support a conviction
of rape. Brown v. State, 374 Ark. 341, 343, 288 S.W.3d 226, 228–29 (2008). Likewise, a
victim’s testimony alone describing the sexual contact is enough to sustain a sexual-assault
conviction. Worrall v. State, 2020 Ark. App. 1, at 5–6, 593 S.W.3d 491, 494–95. It stands
to reason, then, that issues surrounding the credibility of that witness are of paramount
importance. In fact, we have held that when the outcome of a trial hinges on the credibility
of the victim and the statements made by the victim to third parties, erroneous admission of testimony bolstering that victim’s credibility can be so prejudicial as to warrant reversal.
Purdie v. State, 2010 Ark. App. 658, 379 S.W.3d 541; Cox v. State, 93 Ark. App. 419, 220
S.W.3d 231 (2005). The rationale behind this rule is that such testimony invades the
province of the jury. Buford v. State, 368 Ark. 87, 243 S.W.3d 300. Indeed, the jury alone
determines the credibility of the witnesses and apportions the weight to be given to the
evidence. Id.
In Warren’s trial, there was, unquestionably, testimony elicited by the State that
could be classified as nothing but bolstering. The school counselor was asked directly if she
thought the victim was making the story up; if she told the investigator she believed the
victim; and if she did, in fact, believe the victim. The state police investigator was explicitly
asked if he found the allegations of rape and sexual assault credible and substantiated. A
detective from the local police department was asked if he found the information from the
investigator reliable.
The issue, however, is not that there was impermissive bolstering; the issue is whether
the failure to object to the bolstering warrants a designation of ineffective assistance of
counsel. We will not reverse the denial of postconviction relief unless the circuit court’s
findings are clearly erroneous. Montgomery v. State, 2014 Ark. 122, at 2–3. A finding is clearly
erroneous when, although there is evidence to support it, the appellate court, after reviewing
the entire evidence, is left with the definite and firm conviction that a mistake has been
made. See id. In deciding a claim of ineffective assistance of counsel, this court considers the
totality of the evidence. See id. Our standard of review requires that we assess the
2 effectiveness of counsel under the two-prong standard set forth by the Supreme Court of
the United States in Strickland v. Washington, 466 U.S. 668 (1984).
In asserting ineffective assistance of counsel under Strickland, the petitioner must show
that counsel’s performance was deficient. See Sartin v. State, 2012 Ark. 155, 400 S.W.3d
694. This requires a showing that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the petitioner by the Sixth Amendment. Id. The
reviewing court must indulge in a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance. Id. The defendant claiming ineffective
assistance of counsel has the burden of overcoming that presumption by identifying the acts
and omissions of counsel which, when viewed from counsel’s perspective at the time of
trial, could not have been the result of reasonable professional judgment. Id.
In order to satisfy the second prong of the Strickland test, the petitioner must show
that counsel’s deficient performance prejudiced the defense, which requires a showing that
counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. In doing so,
the petitioner must show that there is a reasonable probability that the fact-finder’s decision
would have been different absent counsel’s errors. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the trial. Id.
The appellant argues that this case is similar to Montgomery v. State, 2014 Ark. 122.
In Montgomery, the defendant had been convicted for the rape of his then six-year-old
granddaughter. Id. His convictions were affirmed on appeal. Id. In his following ineffective-
assistance-of-counsel petition, he asserted that the circuit court erred in its finding that his
trial counsel was not ineffective for failing to object to inadmissible testimony regarding the
3 behaviors of child sexual-abuse victims. Id. The supreme court agreed and explained that it
was probable that the jury’s conclusions might have been different had counsel properly
objected. Id. Montgomery was afforded a new trial.
The facts in Montgomery, however, differ from the facts here in one important regard.
In Montgomery, counsel explained that his failure to object to the bolstering was because he
had misunderstood an earlier ruling by the court. Here, however, at the Rule 37 hearing,
trial counsel explained that there was “a very specific strategy behind” his decision to
challenge the testimony of the school counselor, the investigator, and the officer on cross-
examination rather than by objection. He was aware he could object to the bolstering;
instead, he chose to demonstrate on cross-examination that the witnesses “just blindly
believed [the victim] without any foundation or any basis for doing so.” He said that this
strategy had worked for him in a similar case just the week before.
Under the two-prong standard set forth in Strickland, supra, there is a wide range of
reasonable professional assistance in which counsel’s conduct may fall. To succeed on a Rule
37 petition, the petitioner must identify acts and omissions that, when viewed from counsel's
perspective at the time of trial, could not have been the result of reasonable professional
judgment. Feuget v. State, 2015 Ark. 43, at 4, 454 S.W.3d 734, 738. Matters of trial strategy
and tactics, even if arguably improvident, fall within the realm of counsel’s professional
judgment and are not grounds for a finding of ineffective assistance of counsel. Noel v. State,
342 Ark. 35, 41–42, 26 S.W.3d 123, 127 (2000). Accordingly, while this case is factually
similar to Montgomery, because trial counsel explained that his decision to not object was
part of a trial strategy and not some misunderstanding, we affirm the circuit court’s ruling
4 that counsel’s failure to object was based on trial strategy. See Fukunaga v. State, 2016 Ark.
164, at 3, 489 S.W.3d 644, 646.
Next, Warren contends that counsel failed to adequately prepare the witnesses for
trial, and that failure rendered his assistance of counsel ineffective. An ineffective-assistance
claim predicated on an alleged failure to investigate potential witnesses must demonstrate
how a more searching pretrial investigation would have changed the result of the trial. Wertz
v. State, 2014 Ark. 240, at 6, 10, 434 S.W.3d 895, 903–04. A Rule 37 petitioner alleging a
failure to investigate potential witnesses must identify the witnesses, provide a summary of
their anticipated testimony, and establish that the testimony would have been admissible
into evidence. Id. at 10, 434 S.W.3d at 903. The petitioner cannot demonstrate prejudice
from an alleged lack of investigation or witness preparation when the record establishes that
a witness’s testimony would not have changed if the witness had spent more time with trial
counsel. Rhodes v. State, 2011 Ark. 409, at 4. If a petitioner fails to demonstrate prejudice,
his ineffective-assistance claim also fails. Id.
The circuit court found that any alleged deficiency in witness investigation or
preparation did not prejudice Warren. At the Rule 37 hearing, one witness, Tunga
Morrison, said that she would not have added anything to her testimony. Another witness,
Recordo Walker, testified that he had told the truth at trial. Of the remaining three
witnesses, Warren does not identify what testimony further investigation or preparation
would have secured from them. Nor did Warren’s Rule 37 expert identify what additional
information his own investigation uncovered or identify any missing testimony that would
have been key to changing the trial’s outcome.
5 Warren failed to demonstrate inadequacy in trial counsel’s investigation and witness
preparation and failed to establish prejudice from the alleged deficiency. Absent some
showing that further investigation and preparation would have resulted in testimony leading
to a different outcome, the trial court’s finding was not clearly erroneous.
Affirmed.
BARRETT and VAUGHT, JJ., agree.
James D. Stayton, for appellant.
Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.