State of Tennessee v. Tony Lee Crowe

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 19, 2008 Session

STATE OF TENNESSEE v. TONY LEE CROWE

Direct Appeal from the Criminal Court for Putnam County

No. 06-0304 Leon C. Burns, Jr., Judge

No. M2008-00092-CCA-R3-CD - Filed March 2, 2009

The defendant-appellant, Tony Lee Crowe (hereinafter “Crowe”), was convicted by a jury of two

counts of rape of a child, a Class A felony, and two counts of aggravated sexual battery, a Class B

felony. He received an effective sentence of sixteen years’ imprisonment in the Tennessee

Department of Correction. He now appeals challenging (1) the sufficiency of the evidence, (2)

whether the trial court properly exercised its role as the thirteenth juror, and (3) the denial of his

amended motion for new trial based on new evidence. After reviewing the record and the applicable

authorities, we affirm Crowe’s convictions but remand the case for the sole purpose of considering

the third amended motion for new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed In Part;

Remanded for Consideration of Third Amended Motion for New Trial

CAMILLE R. MCMULLEN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and

JAMES CURWOOD WITT , JR., J., joined.

H. Marshall Judd, Cookeville, Tennessee, for the appellant, Tony Lee Crowe.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;

William Gibson, District Attorney General; and David Patterson and Beth Willis, Assistant District

Attorneys General, for the appellee, State of Tennessee.

OPINION

Trial. On December 15, 2006, Crowe was convicted by a jury of two counts of rape of a

child and two counts of aggravated sexual battery. At trial, the State presented several witnesses

including Dorothy Sevier, Sue Ross, M.M.,1 and M.S.,2 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.”

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.

1

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.

2

In keeping with this Court’s policy regarding victims who are minors, we will refer to the victim in this case

by initials.

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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:

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

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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.

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 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

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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. 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

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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 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

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victim would come to her home, Harris explained that she and 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.”

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.

Based on the foregoing proof, the jury convicted Crowe as charged, and he initially received

a sixteen-year sentence of imprisonment for each of the two counts of rape of a child, to be served

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consecutively, and a nine-year sentence for the aggravated sexual battery conviction,3 to be served

concurrently, for an effective sentence of thirty-two years. Crowe filed a motion for new trial on

February 27, 2007, arguing the insufficiency of the evidence, and filed an amended motion for new

trial on April 17, 2007, arguing the trial court erred in imposing consecutive sentences. On July 13,

2007, the trial court conducted a hearing on the above motion as amended wherein it denied Crowe’s

motion for judgment of acquittal but modified his sentences for the two counts of rape of a child to

run concurrently. Crowe filed a third amended motion for new trial on September 17, 2007, and

attached an affidavit from defense counsel stating, among other things, that he had interviewed M.M.

and that she had provided false testimony at trial. The trial court entered a written order denying the

motion for new trial which was entered on December 5, 2007, nunc pro tunc to July 13, 2007.

Crowe filed his notice of appeal on January 3, 2008.

ANALYSIS

I. Jurisdiction. As an initial matter, we must first address whether Crowe timely filed his

notice of appeal. A notice of appeal must be filed within thirty days of the judgment from which the

appeal is taken or from the entry of an order denying a motion for new trial. Tenn. R. App. P. 4(a),

(c); see Crittenden v. State, 978 S.W.2d 929, 932 (Tenn. 1998). However, the appellate court in a

criminal case may waive the timely filing of a notice of appeal “in the interest of justice.” Tenn. R.

App. P. 4(a), (c). Here, Crowe filed his notice of appeal almost five months after the trial court held

a hearing and orally denied in part his motion for new trial. Even though the trial court did not enter

an order memorializing the denial, the trial court’s determination is clearly reflected in the transcript

of the matter on July 13, 2007. The trial court further entered an amended judgment on July 17,

2007, noting, “This amended judgment reflects . . . during the defendant’s motion for new trial, the

judge ruled based on the record as a whole, that counts 1 and 2 shall be concurrent instead of

consecutive.” See State v. Perry A. March, No. M2006-02732-CCA-R3-CD, 2008 WL 2743752,

at *2 (Tenn. Crim. App., at Knoxville, July 15, 2008) (providing that minute entries or judgments

“are ‘principal records’ establishing a court’s actions through its orders.”) (citation omitted).

However, we recognize that the trial court did not enter a written order denying the motion

for new trial until December 5, 2007, nunc pro tunc to July 13, 2007. Crowe’s notice of appeal was

timely filed from the entry of the December 5, 2007 written order. This court has previously stated:

Although Tennessee Rule of Criminal Procedure 33 . . . does not by its terms

require the trial court to enter a written order disposing of the motion for new trial,

Tennessee Rule of Appellate Procedure 4(c) clearly keys the time for filing the notice

of appeal to the “entry of the order denying a new trial.” Thus, although no written

findings of fact are required, the trial court must rule on the motion and enter an order

to start the clock for any appellate proceedings.

3

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

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State v. Eric Condrell O’Neal, No. M2007-02885-CCA-R3-CD, 2008 WL 4756459, at *1 (Tenn.

Crim. App., at Nashville, Oct. 28, 2008) (emphasis in original) (internal citations omitted). The

State does not challenge the timeliness of the notice of appeal based on the December 5, 2007 entry

of the order. We will, therefore, consider the merits of this appeal.

II. Sufficiency of the Evidence. Crowe challenges the sufficiency of the convicting

evidence, and argues, as he did before the jury and the trial court, that there was no proof

corroborating the victim’s testimony that she had been raped. He additionally contends the trial

court erred by not granting him a new trial as the thirteenth juror based on the same lack of proof.

The State counters that the convicting evidence supports every element of Crowe’s convictions, and

the accuracy of the trial court’s thirteenth juror determination is not proper for appellate review. We

agree with the State.

When the defendant challenges the sufficiency of the convicting evidence, we must consider

“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e) (2006)

(“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the finding by the trier of fact of guilt beyond a reasonable

doubt.”). This standard applies to convictions based upon direct, circumstantial, or a combination

of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.

Crim. App. 1999) (citation omitted). The State, on appeal, is entitled to the strongest legitimate view

of the evidence and all legitimate or reasonable inferences which may be drawn from that evidence.

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). All questions involving the credibility of

witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the

trier of fact, and this court will not reweigh or reevaluate the evidence. State v. Sutton, 166 S.W.3d

686, 689-90 (Tenn. 2005). This court has often stated that “[a] guilty verdict by the jury, approved

by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659 (citation omitted). A guilty verdict

also “removes the presumption of innocence and replaces it with a presumption of guilt, and the

defendant has the burden of illustrating why the evidence is insufficient to support the jury’s

verdict.” Id. (citation omitted).

In order to sustain Crowe’s two convictions for rape of a child, the State was required to

prove beyond a reasonable doubt that Crowe sexually penetrated the victim and that the victim was

more than three (3) years of age but less than thirteen (13) years of age. T.C.A. § 39-13-522 (a).

“Sexual penetration” means “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other

intrusion, however slight, of any part of a person’s body or of any object into the genital or anal

openings of the victim’s, the defendant’s, or any other person’s body, but emission of semen is not

required.” T.C.A. § 39-13-501(7).

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Similarly, in order to sustain Crowe’s aggravated sexual battery conviction, the State was

required to prove “unlawful sexual contact with a victim by the defendant or the defendant by a

victim accompanied by any of the following circumstances: [t]he victim is less than thirteen (13)

years of age.” T.C.A. § 39-13-504(a)(4). “Sexual contact” is “the intentional touching of the

victim’s, the defendant’s, or any other person’s intimate parts, . . . if that intentional touching can

be reasonably construed as being for the purpose of sexual arousal or gratification.” T.C.A. §

39-13-501(6). Additionally, “‘[i]ntimate parts’ includes the primary genital area, groin, inner thigh,

buttock or breast of a human being.” T.C.A. § 39-13-501(2).

In this case, the victim testified that Crowe put his penis inside her vagina on two different

occasions. She also testified that sometime between September 2004 and October 2004, Crowe

touched her breasts and her vagina with his fingers and “practically done [sic] the same thing he done

[sic] the first time.” These incidents corresponded to the dates of the indictment, and the victim

confirmed that she was less than thirteen years old at the time that these incidents occurred. Our

supreme court has determined that the testimony of a child victim, alone, is sufficient to uphold a

conviction for child rape. State v. Elkins, 102 S.W.3d 578, 582-83 (Tenn. 2003); see also State v.

Warren Curnutt, No. M2006-00552-CCA-R3-CD, 2007 WL 1482390, at *11 (Tenn. Crim. App.,

at Nashville, May 22, 2007), perm. to app. denied (Tenn. Sept.17, 2007). Additionally, as previously

stated, the credibility and weight given to witness testimony are matters resolved by the trier of fact,

not this court. Accordingly, we conclude that there was sufficient evidence to convict Crowe of two

counts of rape of a child and one count aggravated sexual battery.

Crowe similarly argues that the trial court failed to properly weigh the evidence in its role

as the thirteenth juror. In response, the State contends this issue is barred from appellate review.

We agree with the State.

Tennessee Rule of Criminal Procedure 33(d), states “The trial court may grant a new trial

following a verdict of guilty if it disagrees with the jury about the weight of the evidence.” Tenn.

R. Crim. P. 33(d); State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995)(holding trial court has a duty

to serve as the thirteenth juror). Only if the record contains statements by the trial judge indicating

disagreement with the jury’s verdict or evidencing the trial judge’s refusal to act as the thirteenth

juror may an appellate court reverse the trial court’s judgment. Id. Otherwise, appellate review is

limited to sufficiency of the evidence pursuant to Rule 13(e) of the Rules of Appellate Procedure.

State v. Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). If the reviewing court finds

that the trial judge has failed to fulfill his or her role as thirteenth juror, the reviewing court must

grant a new trial. State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995).

In this case, the trial court denied the motion for new trial and stated:

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So, the question, I suppose, here today is, there are two questions: the weight

of the evidence, and the sufficiency of the evidence. And as a 13th juror in the case,

and in evaluating the weight of the evidence, I see no reason to discredit the victim

in the case in regards to what she alleged happened. So, as from that point of view,

there is sufficient – there’s weight given to the evidence and [the evidence is] proper

for a conviction.

The record in this case shows the trial court properly fulfilled its role as the thirteenth juror;

accordingly, this issue is not subject to appellate review.

III. Amended Motion for New Trial Based on New Evidence. Crowe argues the trial

court erred because it did not allow an amended motion for new trial based on newly discovered

evidence. In response, the State maintains the trial court properly refused to allow Crowe to amend

his motion based on new evidence.

Rule 33(b) of the Tennessee Rules of Criminal Procedure allows the trial court to “liberally

grant motions to amend the motion for new trial until the day of the hearing on the motion for a new

trial.” Tenn. R. Crim. P. 33(b). A judge may allow, at his or her discretion, an amendment to a

motion for new trial at any time during which the trial judge has jurisdiction. State v. Bough, 152

S.W.3d 453, 461 (Tenn. 2004) (citing State v. Butler, 626 S.W.2d 6, 12 (Tenn.1981); State v.

Washington, 658 S.W.2d 144, 146 (Tenn. Crim. App.1983) (an amendment to a motion for new trial

comes too late when it is filed after the trial judge has ruled upon the merits of the original motion)).

The trial court loses jurisdiction once the notice of appeal is filed. State v. Pendergrass, 937 S.W.2d

834, 837 (Tenn. 1996).

Here, the trial court heard the original motion for new trial and denied Crowe’s motion for

judgment of acquittal or new trial, but modified his sentences for rape of a child on July 13, 2007.

The transcript shows the trial court orally disposed of the motion and entered amended judgments

to reflect its ruling on the same day. Two months later, Crowe filed a third amended motion for new

trial alleging the discovery of new evidence. On December 5, 2007, the trial court entered a written

order denying the motion for new trial from July 13, 2007, nunc pro tunc. The trial court obviously

relied on its oral denial of the original motion for new trial because no ruling on or mention of the

third amended motion for new trial is in the record. On December 17, 2007, Crowe filed a motion

to set aside the trial court’s December 5th written order denying the motion for new trial because no

action had been taken on the third amended motion for new trial. When no action was taken in

response to the motion to set aside the previous order, Crowe filed his notice of appeal. In our view,

the record does not reflect an adequate basis upon which the trial court exercised its discretion to

ignore or reject the third amended motion for new trial. Accordingly, we remand this case for

consideration of the third amended motion for new trial.

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Conclusion. Based on the foregoing, Crowe’s convictions are affirmed but the case is

remanded for consideration of the third amended motion for new trial.

____________________________________

CAMILLE R. McMULLEN, JUDGE

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