State of Tennessee v. Tony Lee Crowe

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 19, 2010 Session

STATE OF TENNESSEE v. TONY LEE CROWE

Appeal from the Criminal Court for Putnam County

No. 06-0304 Leon Burns, Judge

No. M2009-02194-CCA-R3-CD - Filed July 16, 2010

The Defendant, Tony Lee Crowe, was convicted by a Putnam County Jury of two counts of

rape of a child and two counts of aggravated sexual battery. As a result, he was sentenced

to sixteen years incarceration, to be served at 100%. On appeal, he alleges that the trial court

improperly denied his motion for new trial based on newly discovered impeachment evidence

and recanted testimony. After a review of the record, we affirm the judgment of the trial

court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J ERRY L. S MITH and

R OBERT W. W EDEMEYER, JJ., joined.

H. Marshall Judd, Assistant Public Defender, Cookeville, Tennessee, for the appellant, Tony

Lee Crowe.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; William E. Gibson, District Attorney General; and Beth Willis, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

The Defendant was convicted by a jury of two counts of rape of a child and two

counts of aggravated sexual battery.1 He received an effective sentence of sixteen years, to

be served at 100%.

The facts upon which the Defendant was convicted are set out in the opinion of this

Court on the original direct appeal of the convictions:

At trial, the State presented several witnesses including Dorothy Sevier,

Sue Ross, M.M.,2 and M.S., the victim. Dorothy Sevier, the victim’s mother,

testified that the victim was under 13 years of age during the time listed in the

indictment. She explained that their home was close to Crowe’s, that her

family “spent a whole lot of time” with Crowe’s family, and that she

considered them to be friends. Sevier allowed the victim to visit Crowe’s

family without her supervision when the victim was older. She stated the

victim would visit Crowe’s home “almost everyday” to “[play] on the

computer, and [do] some homework.” Sevier also testified that the victim told

her she went to Crowe's house because “[she had] to have something to do.”

Sevier stated that before Crowe and his family moved away, “the victim

wanted [her] to tell [Crowe] that she had went [sic] to [Sevier’s] niece’s

house” when in reality the victim “stayed hid [sic] in [Sevier’s] house, and [

] didn’t want to take no [sic] phone calls or anything.” When Crowe

eventually moved away, Sevier was concerned because he would repeatedly

call the victim. Sevier testified that Crowe sent the victim a birthday card with

a handwritten note which stated, “I love you and miss you.” Sevier read the

card, which was addressed to the victim, and later provided it to the police.

After reading the card, Sevier was “upset” because “it didn’t really sound

right.” Consequently, Sevier telephoned the parents of M.M., the victim’s

friend, who she later understood was “involved too.”

1

The trial court merged the two counts of aggravated sexual battery.

2

This witness is a minor who is noted in the record as a victim in a related case. Thus, we will refer

to this witness by initials only.

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Sevier also testified that Crowe sent the victim a Christmas card. After

receiving the Christmas card, Sevier contacted the police. Crowe continued

to call the victim’s home so much they were forced to get a new phone

number. On cross-examination, Sevier admitted that after the Crowe family

moved away, she and the victim traveled to Sevierville to visit them. Crowe

and his family rented cabins in the Smokey Mountains for the victim and her

family. Sevier and the victim stayed in a cabin with Crowe’s mother while the

victim’s father stayed in a cabin with Crowe. Sevier also admitted that the

families loaned each other money. She stated that Crowe “would always buy

[the victim] stuff.” He would specifically buy her wolf figurines and burn

songs onto CD’s for her to play at home. Sevier explained “it kind of bothered

[them] . . . but [Crowe] kind of insisted on doing it.” She knew that Crowe

had some health problems and that he was on a breathing machine at home.

She further testified that during the time period listed in the indictment she was

not working and was at home “almost every day.”

Between 2002 and 2005, Sevier stated that the victim’s pediatrician was

Dr. Christopher Climaco. In 2005, she switched doctors and took the victim

to Cookeville Medical Center. Although the victim at one point expressed an

interest in moving to an apartment in Sevierville, Sevier testified that the

victim later begged her not to move.

Sue Ross, an employee at Our Kids Center in Nashville, testified that

Our Kids Center is an out-patient facility of Metro Nashville General Hospital.

Ross began working in the nursing field in 1968. She received her nursing

diploma from St. Thomas School of Nursing in Nashville; her bachelor’s

degree in nursing from the University of Tennessee Center for Health Sciences

in Memphis, where she also went through the pediatric nurse practitioner

program; and her master’s degree in nursing from Vanderbilt University in

Child and Adolescent Health.

Ross stated that she had previously testified numerous times in criminal

and civil cases. She had personally examined “around 3800” children that had

been the victims of sexual assault. Ross explained the normal protocol under

which a child is examined by Our Kids Center and confirmed that the victim

was seen at the Our Kids Center on March 21, 2006. Ross testified that she

medically examined the victim and prepared a report. Ross’s examination of

the victim revealed the following:

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From the non-genital standpoint, a normal exam. A child

that had, clearly was going through, or at least in puberty, based

on tanner (spelled phonetically) staging of her breasts. For the

genital area, what I found was, again, a child who was pubertal.

I found an estrogenized hymen.

Ross was unable to confirm or deny any type of sexual abuse to the victim.

However, Ross explained that her findings were not inconsistent with the

victim’s complaint because the hymen does not always tear when digital,

genital, or penile genital penetration occurs. On cross-examination, defense

counsel asked, “But if you were talking about rape, you might find signs of

injury, a doctor or a nurse might find signs of injury, or bruising, or something

like that, wouldn’t they?” Ross replied:

You might. The greater odds are, you will not. The vast

majority of children that we see non-acutely, like we saw with

[the victim], and even acutely, when we see them in the

emergency room hours to a couple of days after their assaults,

ordinarily have virtually no physical findings. That’s the rule.

It’s the exception that there are tears in the hymen.

The victim, M.S., testified and confirmed that she was less than thirteen

years old during the period listed in the indictment. She identified Crowe at

trial. She said that she met Crowe when she was three years old and that he

was a “family friend.” She stated that she would go to Crowe’s house to play

video games on the computer in Crowe’s room. Her house was within walking

distance of Crowe’s, and sometimes her parents would allow her to go to

Crowe’s house without them.

When the victim was nine years old, she was in Crowe’s room playing

a video game. Crowe’s mother was in the kitchen doing dishes. The victim

testified that Crowe’s mother briefly came into Crowe’s bedroom, but she left.

At some point, Crowe closed the door to the room and “something bad

happened.” Crowe told the victim to take her pants off and go by his bed. The

victim took her pants and panties off. Crowe did not have on any pants or

underwear. Crowe told the victim to “bend [her] legs up,” and he held her legs

at her shoulders and touched her “private part and [her] breasts.” The victim

was asked what she meant when she said “private part,” and she explained,

“My vagina? I don’t know.” The victim testified that Crowe put his penis all

the way inside her vagina and that it hurt.

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During the above incident, the victim stated that Crowe had a weapon

in the room. She was shown a photograph of a weapon and confirmed that it

was the same weapon that she saw in Crowe’s room. The picture was entered

into evidence as Exhibit 3. The victim stated Crowe held the weapon to her

throat and told her if she told anyone about what he had done to her, he would

kill her family in front of her and then kill her. The victim testified that she

believed him.

Sometime between September 2004 and October 2004, another incident

occurred. The victim recalled she was working on a school science project and

asked Crowe if she could use his computer. She stated that M.M., “a really

close friend” from her neighborhood, went with her to Crowe’s house. Crowe

and his mother were at his home. The victim testified that she finished her

school project, but at some point, she found herself in Crowe’s room with

M.M. Crowe closed the door and told her to take her pants and panties off.

The victim further testified that Crowe touched her breasts and her vagina with

his fingers. However, Crowe did not threaten her. The victim stated Crowe

“practically done [sic] the same thing he done [sic] the first time.”

Another incident occurred around the end of June 2005, prior to

Crowe’s moving away. The victim stated that she was in Crowe’s room, and

that “[Crowe] forced her again to do the same thing that he’d done for the

other two times.” Crowe touched the victim’s breasts and penetrated her

vagina with his penis. It was only after the third incident that the victim told

someone what was happening. The victim was afraid to tell anyone because

she believed that Crowe would kill her parents and her family. The victim also

confirmed that Crowe (1) sent her two cards, (2) would buy her gifts, (3) told

her he loved her, (4) talked about marrying her, and (5) telephoned her

incessantly.

On cross-examination, the victim admitted that before the incidents she

had visited Crowe’s home almost every day to do her homework. The victim

described Crowe’s home as a small, two bedroom apartment with a living

room, bathroom, and kitchen. When asked why she took her pants off, the

victim replied, “Because he had threatened me with the gun first.” The victim

explained that she continued to go back to Crowe’s house after the first

incident “[b]ecause he told [her] to.” She stated that she did not yell or scream

while Crowe penetrated her even though it hurt. She further confirmed that

Crowe’s mother was in the apartment when each incident occurred. She stated

that she would make telephone calls to Crowe “[s]ometimes.” She agreed that

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Crowe would give her money and that her family would go to his apartment

for dinner and to watch television.

M.M., the victim’s friend, testified that she went to Crowe’s house,

along with the victim, to work on a school project. At some point, she and the

victim were in Crowe’s room with the door closed. Crowe’s mother was either

in the kitchen or her room. M.M. testified that Crowe told the victim to take

her clothes off and then touched the victim with his finger. When pressed by

the prosecutor about specifics, M.M. only replied affirmatively to Crowe

touching the victim “where she goes to the bathroom” and on her “boobies.”

On cross-examination, M.M. explained that it was both the victim’s and her

idea to go to Crowe’s house the day this incident occurred. She saw a gun the

day of the incident but did not tell anyone about it “[b]ecause [she] got

scared.”

Yvette Deming, a sergeant with the Cookeville City Police

Department's Criminal Investigation Division, testified that she spoke with

Crowe regarding the allegations in this case. Sergeant Deming stated that

Crowe was cooperative and confirmed that the victim visited his home “just

about every day” and had been in his bedroom “a number of times.” He

admitted to previously calling the victim’s home “15 or 18 times” a day

because her family was not answering his calls. He called the police

department to perform a “welfare check” on the family to ensure they were

safe. Sergeant Deming asked Crowe if he had any weapons in the home, and

Crowe told her that he kept a number of weapons locked in a gun cabinet.

Sergeant Deming also asked Crowe’s mother if there were any other weapons

in the home, and Crowe’s mother showed her a rifle wrapped in camouflage

tape that she had placed under a blanket on her bed. Sergeant Deming was

shown Exhibit 3 and confirmed that it was the same rifle she recovered from

Crowe’s home. Crowe also admitted to Sergeant Deming that in October of

2005, he sent the victim a birthday card and wrote, “I love and miss you very

much, [M.S.]” on the envelope. The handwritten letter inside the card stated

the following:

[M.S.], I’m still waiting on your answer[,] and you know

that I love you more than anything in this whole world, and it’s

killing me being away from you and not being able to spend any

time with you, because you’re the light of my life and the only

happiness I’ve ever know [sic]. And since you’re not here with

me, it feels like my whole world has been taken away from me.

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I don’t know why you don’t bother to take the time to call me

even for a few minutes when you know how much I love and

miss you. I hurt every day that I can’t be with you, or hear your

voice to know that you’re all right and no one is hurting you or

worse. I worry about you all the time, and I think about you all

the time. I’ve never let anyone as close to my heart as I have

you, and I’ve never let myself love anyone as much as I love

you. I’m sorry that I’m not there on your twelfth birthday, but

you never bothered to care enough to even ask me to come, so

I sent you my love in this card.

The letter was signed, “Love always and forever, [Crowe]. Call me. [Crowe’s

phone number] My number. Don’t lose it. Write it down .”

In the Christmas card sent to the victim that was postmarked December

24, 2005, Crowe wrote:

[The victim’s name], I love and miss you very much, and

I don’t know why you’re treating me the way you are and doing

the things that you’re doing when you know how much I love

and care about you. I do not like your silence that you are

giving me, but I will respect your decision to shut me out of

your life if that’s what you really want, because that’s how much

I love and care about you. I’ve shown you nothing but love and

kindness. If you no longer want my love and friendship, I have

no choice but to do what I have to do, because everyone’s fate

is sealed by the choices that they make. I want to wish you a

very Merry Christmas and a Happy New Year, and if I don’t

hear from you soon, I will know what your answer is. Your

silence to me means you want nothing to do with me anymore,

or you calling me means that you do, but either way, I’ll know

for sure. Love, [Crowe] P.S. Remember, I have always loved

you and always will.

Crowe told Sergeant Deming that the two aforementioned letters were written

in the same context as a father writing a letter or sending a card to his

daughter.

The defense proof consisted of Dr. Christopher Climaco, Shirley Harris,

Debra Davidson, and the defendant-appellant. Dr. Christopher Climaco, the

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victim’s pediatrician, testified that he went to medical school in the Philippines

and was a board-certified medical doctor. He completed a three-year pediatric

residency in New York City. He further testified that he had been a doctor for

the past eleven years. The defense offered Dr. Climaco as an expert without

identifying a specific area of expertise. He was admitted as an expert without

objection from the State. Dr. Climaco testified that the victim was one of his

patients from August 2000 to November 28, 2005. On July 11, 2002, Dr.

Climaco “checked the victim for sexual abuse.” His examination revealed “no

evidence of sexual physical abuse, and the vagina was normal, without any

signs of trauma.” Dr. Climaco stated the victim told him “nothing happened,”

and he had written “‘nothing happened’ according to patient” in quotation

marks in his notes. Additionally, according to Dr. Climaco’s records, he did

not perform another examination for sexual abuse in 2002. Dr. Climaco

further testified that he saw the victim on October 8, 2004, October 26, 2004,

November 9, 2004, February 7, 2005, September 22, 2005, and November 28,

2005. Dr. Climaco treated the victim on these dates for a variety of things,

none of which were related to sexual abuse. However, on May 26, 2005, the

victim had a physical exam of her genitalia which was normal. Dr. Climaco

explained that a finding of “normal female genitalia” meant that he did not

“see any discharges, . . . signs of trauma, or any signs of inflammation.” His

records did not indicate whether the victim’s hymen was intact during this

examination. Dr. Climaco testified that he had examined thousands of children

and “[w]ith full penetration, the hymen should not be intact.”

On cross-examination, Dr. Climaco agreed it would be difficult for a

child to tell him about sexual abuse. Although he received training regarding

sexual abuse during his residency, Dr. Climaco had not attended any “updated

classes, or continuing education each year about sexual abuse[.]” Dr. Climaco

explained that whether the hymen is torn by digital penetration of a child’s

vagina depends on how far the finger is inserted. When questioned about his

testimony during direct examination that the hymen could not be intact with

full penetration, he stated he did not know if a child’s age, particular genetic

make-up, or the elasticity of the hymen would make a difference.

Shirley J. Harris, Crowe’s mother, testified that both she and her son

were disabled and received Social Security. She stated that Crowe was

thirty-eight years old, had lived with her since he was born, and had “a lot of

medical problems.” She first met the victim and her family when the victim

was three years old. Harris emphasized that her apartment was “really small.”

When the victim would come to her home, Harris explained that she and

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Crowe would help her with her homework. According to Harris, the victim

never went into Crowe’s room without her because the victim followed Harris

around “like a little chick.” If the victim did go into Crowe’s room, Harris

testified that the door would remain open. Harris stated that Crowe had a

shotgun that he kept locked in a gun cabinet, and she had a rifle. Both

weapons were obtained “strictly for [] home protection.” Harris stated the

victim knew about both weapons.

Harris recalled the day that M.M. and the victim came to visit her home

to work on a school project. Harris testified Crowe went into his bedroom and

retrieved some information from the computer. He came into the living room

and gave it to the victim and M.M. Harris watched the victim and M.M. work

on the project until they were finished. She stated neither the victim nor M.M.

ever went into Crowe’s room alone. On cross-examination, Harris maintained

that the victim was never in Crowe’s room without her.

Debra Davidson, Crowe’s sister, also testified that Harris and Crowe

moved to Sevierville to be near her in May of 2005. Prior to moving to

Sevierville, Davidson lived in Cookeville and frequently visited Harris’

apartment because they were very close. She also confirmed that the victim

often visited Harris’ apartment. She stated the only time the victim would be

in Crowe’s room was when a group of them were playing a video game

together. In response to being asked whether she had seen anything

inappropriate happen to the victim, Davidson stated the victim had just come

from home and told her, “My butt hurts.” Davidson testified that the victim

would cry and “throw a fit” whenever her father wanted her to come home.

Finally, Davidson stated that whenever she was at Harris’ apartment, she never

observed her brother do anything inappropriate to the victim.

Crowe testified that he completed the ninth grade and then obtained his

GED. He stated he was an oxygen patient and had several medical conditions;

including, sleep apnea, epilepsy, diabetes, and back trouble. On May 1, 2005,

Crowe moved to Sevierville to be with his sister. Before he moved, he lived

close to the victim in a small apartment with his mother. He denied the

allegations as testified to by the victim. Crowe provided a lengthy explanation

as to why he wrote the two aforementioned letters to the victim but confirmed

that he did so because “[he] love[d] her . . . like a child, just like any adult or

any parent would love a child that they had practically raised from a little small

child up.”

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Crowe took the victim and her family to church with him and attended

Sunday School class during the time period he was alleged to have committed

these offenses. He admitted to having weapons but stated they were only for

protection. He denied threatening the victim and testified that he had never

been convicted of a misdemeanor or a felony. He stated that M.M. came to his

home once with the victim and that he helped both of them with a school

project. According to Crowe, neither M.M. nor the victim ever entered his

bedroom that evening.

State v. Tony Lee Crowe, No. M2008-00092-CCA-R3-CD, 2009 WL 507683, at *1-7 (Tenn.

Crim. App., Nashville, Mar. 2, 2009) (footnote in original).

On direct appeal, a panel of this Court affirmed the Defendant’s convictions but

remanded the case to the trial court for consideration of the Defendant’s third amended

motion for new trial, wherein he argued that newly discovered evidence required a new trial.3

See id. at *7-11.

A hearing on the merits of the third amended motion for new trial was held on May

21, 2009. M.M., who had testified at the Defendant’s trial that she was present in the

Defendant’s bedroom when the Defendant sexually assaulted the victim and that she saw a

gun on the day of the incident, was first to testify at the hearing. M.M. testified that she

continued to talk with the victim after the Defendant’s trial. During one visit by the victim

to M.M.’s home, the victim told M.M. that the Defendant did not have a gun and relayed that

she fabricated the rape story. According to M.M., the victim lied because she got mad at the

Defendant for touching her in the “wrong places.” M.M. testified that she informed her step-

father of their conversation.

M.M. confirmed that, after trial, she met with the Defendant’s lawyer and signed an

affidavit. She stated that the contents of that affidavit were true. In the affidavit, M.M.

recanted her testimony that she saw a gun during the sexual assault of the victim. M.M. also

relayed that the victim told her she made up the story about the gun and about having sexual

relations with the Defendant because the victim was mad at the Defendant for touching her

in the “wrong places.”

3

On December 3, 2008, the Defendant filed a petition for coram nobis relief alleging the same issue.

In its order denying the Defendant’s third amended motion for new trial, the trial court also denied the coram

nobis petition. The Defendant filed a motion in this Court to remand this case to the trial court for a hearing

on his petition for a writ or error coram nobis. The motion was denied, noting that the Defendant has been

afforded the opportunity to litigate the question of newly discovered evidence. See Tenn. Code Ann. § 40-

26-105(b) (relief limited to matters that were not litigated on a motion for new trial).

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On cross-examination, M.M. confirmed that both she and the victim were sexually

assaulted while together in the Defendant’s bedroom. When asked if she saw a gun that day,

she stated, “I don’t remember.”

M.M.’s stepfather then testified at the hearing. He stated that, while the victim was

visiting with M.M. after the trial, M.M. came out from her room and told him that the victim

admitted to lying about the Defendant. Specifically, the victim told M.M. that she had made

up the story about the Defendant having a gun and about having a sexual relationship with

the Defendant because the victim was mad at the Defendant. M.M.’s stepfather stated that

he immediately called the Defendant’s lawyer’s office and spoke with counsel. According

to M.M.’s stepfather, the victim had a “tendency to exaggerate.”

On cross-examination, he testified that M.M. and the victim were no longer friends.

He stated that, if M.M. testified at trial that she saw a gun, he would have believed her. He

confirmed that M.M. was shy and not very outgoing.

Then, M.M.’s stepfather testified, apparently for the first time and contrary to his

earlier testimony, that he overheard the conversation between the victim and M.M. that M.M.

had relayed to him. He stated that he heard the victim say she lied because she was mad at

the Defendant because he “wouldn’t buy her something . . . .” Specifically, he heard the

victim say that the Defendant did not have a weapon and that sexual relations did not occur.

He acknowledged that the victim and his stepson had been dating, but had an “ugly” breakup.

Following the hearing, the trial court entered an order detailing its findings and

denying the Defendant’s third amended motion for new trial. Subsequently, the Defendant

filed a timely notice of appeal.

Analysis

The Defendant argues on appeal that the trial court improperly denied the motion for

new trial based on newly discovered evidence. Specifically, he contends that the trial court

erred when it found neither witness (M.M. or her stepfather) to be credible.

The usual test for whether a defendant should be granted a new trial based on newly

discovered evidence is: (l) did the defendant act with reasonable diligence to discover the

evidence; (2) is the newly discovered evidence material; and (3) will introducing the

evidence likely change the result if accepted by the jury. State v. Meade, 942 S.W.2d 561,

565 (Tenn. Crim. App. 1996) (citing State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994)).

The test for granting a new trial in cases involving recanted testimony as newly discovered

evidence is based on the following criteria: (1) whether the trial judge is reasonably

well-satisfied that the testimony given by a material witness was false and that the new

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testimony is true; (2) whether the defendant was reasonably diligent in discovering the new

evidence or surprised by false testimony, or was unable to know of the falsity until after the

trial; and (3) whether the jury might have reached a different conclusion had the truth been

told. State v. Housler, 193 S.W.3d 476, 494 (Tenn. 2006) (citing State v. Mixon, 983 S.W.2d

661, 666 (Tenn. 1999)). When the basis for the newly discovered evidence is recanted

testimony, the test should include a determination by the trial judge whether the recanting

witness’ current testimony seems credible. State v. Phillip Lloyd Herndon, No.

03C01-9303-CR-00098, 1994 WL 176969, at *2 (Tenn. Crim. App., Knoxville, May 11,

1994); see also Housler,193 S.W.3d at 494. The decision as to whether to grant a motion for

new trial on the basis of newly discovered evidence lies within the sound discretion of the

trial court. State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997) (citing Hawkins

v. State, 220 Tenn. 383, 417 S.W.2d 774, 778 (Tenn. 1967)).

In this case, the trial judge resolved the issue of whether the post-trial testimony of

M.M. and her stepfather was credible. In the order denying relief, the judge stated:

The testimony of both these witnesses has been carefully reviewed. The

transcripts of the hearing and the trial have been compared. The witnesses

were obviously observed by the [c]ourt and after considering all that has been

said and the circumstances surrounding the testimony given at this hearing, the

[c]ourt has come to the conclusion that it cannot be believed.

....

In the instant case, the [c]ourt is not satisfied that the new testimony is

true or that the testimony by the material witness, [the victim M.S.], was false.

The trial court had the opportunity to observe the witnesses, noting that M.M. was a

“very shy witness” and referring to M.M.’s stepfather’s testimony as “sketchy.” At the

motion for new trial hearing, M.M. did not affirmatively recant her trial testimony that she

saw a gun, stating only that she did not remember if there was a gun. Further, we note that

the primary purpose of the testimony would have been to impeach the victim’s testimony that

she was raped by the Defendant while a weapon was present. A court should not grant a new

trial where it appears that the new evidence can have no other effect than to discredit the

testimony of a witness, contradict a witness’ statements, or impeach a witness, unless the

testimony of the witness who is sought to be impeached was so important to the issue and the

evidence impeaching the witness is so strong and convincing that a different result at trial

would necessarily follow. Rosenthal v. State, 292 SW.2d 1, 4-5 (Tenn. 1956). The trial

court found the testimony not to be credible; in fact, M.M.’s stepfather changed his story

again at the motion for new trial hearing. Moreover, there was other independent proof of

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a weapon inside the Defendant’s home, and the State’s theory was not based upon the use of

a weapon, but the age of the child. Upon review, we conclude that the trial court did not

abuse its discretion in denying the motion for a new trial.

Conclusion

Based upon the foregoing reasoning and authorities, we affirm the judgment of the

trial court denying the Defendant’s motion for new trial.

_________________________________

DAVID H. WELLES, JUDGE

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