11/02/2021 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs October 19, 2021 JOSE ORTIZ, JR. v. STATE OF TENNESSEE Appeal from the Circuit Court for Montgomery County No. 41301368 Jill Bartee Ayers, Judge No. M2020-01642-CCA-R3-PC The petitioner, Jose Ortiz, Jr., appeals the denial of his petition for post-conviction relief, which petition challenged his convictions of child abuse and aggravated sexual battery, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief. Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined. Gregory D. Smith (on appeal), and H. Reid Poland, III (at hearing), Clarksville, Tennessee, for the appellant, Jose Ortiz, Jr. Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Arthur F. Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION In March 2018, a Montgomery County jury convicted the petitioner of child abuse and aggravated sexual battery for offenses against his 11-year-old step-daughter, and the trial court imposed an effective eight-year sentence. State v. Jose Ortiz, No. M2016- 02457-CCA-R3-CD, 2018 WL 378402, at *1 (Tenn. Crim. App., Nashville, Aug. 6, 2018). In affirming the petitioner’s convictions on direct appeal, this court summarized the trial evidence: The proof adduced at trial, taken in the light most favorable to the State, revealed that upon returning home after taking the victim’s mother to work, the victim’s siblings went into the living room to watch television, and the victim went into the kitchen. As the victim was making a sandwich, the [petitioner] stood behind her and touched her front and back private areas. The victim took the sandwich to her room and later returned the empty plate to the kitchen. While she was walking back to her room, the [petitioner] pushed her into her mother’s bedroom and onto the bed. He kissed and sucked on her neck, causing hickies, then he pulled down her sweatpants and underwear. He touched “[k]ind of both” the inside and outside of her front private part, “like almost there but like not really into there.” Later that evening, the [petitioner] took the victim and her siblings to Walmart and bought makeup to conceal the marks on her neck. After the victim told her mother about the incident, the victim was examined by . . . a pediatric nurse at Our Kids. [The nurse] took a swab from the victim’s neck, which tested positive for the [petitioner’s] saliva. Id. at *9. With the assistance of counsel, the petitioner filed a timely petition for post- conviction relief, arguing that trial counsel failed to call the petitioner’s wife as a trial witness, failed to adequately cross-examine the victim, and failed to seek the services of a DNA expert. At the October 2020 evidentiary hearing, …
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