            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     March 26, 2013 Session

             STATE OF TENNESSEE v. PHILIP TREVOR1 LENOIR

              Direct Appeal from the Criminal Court for Monroe County
      No. 10-006     Amy A. Reedy, Judge (Trial) and Rex Henry Ogle, Judge by
                   Interchange (Sentencing and New Trial Hearing)


                     No. E2012-01257-CCA-R3-CD - Filed July 3, 2013


A Monroe County jury found the Defendant, Phillip Trevor Lenoir, guilty of aggravated child
neglect. Thereafter, the trial court judge recused herself and a successor judge was
appointed. The successor judge sentenced the Defendant as a Range I offender to serve
twenty-five years in the Department of Correction. The Defendant appeals claiming: (1) the
successor judge failed to engage in the proper analysis as the thirteenth juror; (2) the trial
court erred when it denied the Defendant’s motion for a continuance; (3) the State was
statutorily required to make an election between aggravated child abuse and aggravated child
neglect; (4) the evidence is insufficient to support his convictions; (5) the trial court failed
to require the jury to announce the fines imposed; (6) the trial court failed to instruct the jury
on “third-party culpability;” and (7) the trial court erred when it did not allow the Defendant
to offer “reliable hearsay” in his defense. After a thorough review of the record and relevant
law, we conclude that because the successor judge was unable to properly approve the verdict
as “thirteenth juror,” a new trial must be granted. Accordingly, the judgment of the trial
court is reversed and this case is remanded for a new trial.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of Criminal Court Reversed and
                        Case Remanded for a New Trial

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

Charles G. Currier, Knoxville, Tennessee, for the appellant, Phillip Trevor Lenoir.



        1
          The indictment names the Defendant as “Philip Trevor Lenoir.” All other documents in the record
reference the Defendant as “Phillip Trevyn Lenoir.” For purposes of this opinion, we use the name appearing
on the indictment.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Steven Bebb, District Attorney General; and Krista Oswalt, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                                 OPINION
                                                  I. Facts

       This case arises from the victim’s severe head injury which occurred while she was
under the care of the Defendant. A Monroe County grand jury indicted the Defendant for
aggravated child abuse and aggravated child neglect or endangerment to a child of age six
years or less.

                                                   A. Trial

       At the Defendant’s trial, the parties presented the following evidence: Dr. Rick Popp,
an emergency room physician at Woods Memorial Hospital, testified as an expert in the field
of emergency care. Dr. Popp recalled treating the two-year old victim, J.T.,2 on January 6,
2010. He said she was “basically unconscious” and, upon further evaluation, he determined
she had some type of closed head injury requiring trauma care. Dr. Popp said that, due to the
nature of her injury, he arranged transport to UT hospital in Knoxville, Tennessee for further
treatment.

        Dr. Popp testified that he took a history from “Mr. Philip Lenoir,” although he could
not identify the Defendant in court. He said that the Defendant told him that he had been
riding a four-wheeler when the victim stepped out from behind a vehicle and he ran over the
victim. After the victim was injured, “they just kind of waited to see” if she would improve
and when she did not, the Defendant brought the victim to the hospital approximately an hour
after the injury occurred. Dr. Popp said that he frequently treated injuries sustained from
four-wheelers and he did not believe the injuries were consistent with being hit with a four-
wheeler.

       Joanie Price, an emergency room nurse at Woods Memorial Hospital, testified that
on January 5, 2010, one of the intake clerks motioned for her to come over. Price
approached and saw a woman holding the victim, who Price described as “lifeless.” Priced
asked the woman what had happened and the woman said that the victim had been run over
by a four-wheeler. The man who accompanied the woman said that the accident occurred
over an hour before. Price asked the man why he had waited so long to bring the victim in


        2
         In the interest of protecting the victim’s privacy, we will refer in this opinion to certain persons and
witnesses by their initials.

                                                      -2-
and he explained that the victim’s mother was at work while he was alone at home with
additional children and was unable to bring the victim any sooner.

        Price testified that the initial examination revealed that the victim was semi-conscious
and her left eye was swollen. The victim had blood around her mouth. Price recalled that
it was 12 degrees that day and the victim wore only a t-shirt, a diaper, and socks. Based upon
the victim’s dress and the temperature, Price felt “that something wasn’t right” with the
Defendant’s story about being outside. Price noticed multiple bruising on the victim’s arms,
chest, and face. She said that some of the bruising appeared “older” while other bruises were
“fresh bruises.”

       Price described the victim’s mother as “unemotional” and “staring.” Price said that
she thought the man who accompanied the mother and victim was the child’s father. She
said that he kept repeating that the four-wheeler was “big.” She said that the man was more
emotional than the victim’s mother and described him as “upset.” Upon questioning, the
mother said that the man had called her to come home from work and then the two had
brought the victim to the hospital.

       After the victim was transported to the UT Trauma Unit, the Sheriff’s Department and
Child Protective Services were contacted in reference to suspicions that arose during the
victim’s treatment. Price said that she also conveyed her suspicions to the UT Trauma Unit.

       On cross-examination, Price identified paperwork the victim’s mother filled out at the
hospital. The paperwork listed “Philip Hensley” as the father. Price asked the man
accompanying the victim and her mother if he was the victim’s father and he answered,
“yes.”

       Brenda Smith, an emergency room nurse at Woods Memorial Hospital, testified about
the victim’s treatment on January 6, 2010. Smith recalled that the child was brought to the
emergency room by a man who said that the victim had been run over by a “very large four
wheeler.” She said the victim, who was “not doing very well” was taken to the trauma room
and stabilized before transport to UT hospital for trauma treatment. Smith said the victim
was accompanied by her mother and the mother’s “live-in boyfriend,” who was caring for
the child at the time of the injury.

       Smith described her observations of the victim as follows:

       She was semi-conscious, she had multiple abrasions and bruises from about
       nipple line up, nothing from the waist down. We expected to have neck, back,
       chest and abdomen injuries if the child had been run over by a four wheeler.

                                              -3-
       There was a lot of bruising. There was no, it was kind of weird because there
       was no dirt, there were no leaves, there were no rocks, there was nothing that
       you would correlate with an outdoor injury [due to] a four wheeler, which is
       kind of a dirty machine. We also didn’t see any cuts. Most injuries which we
       saw, which is just an initial assessment, w[ere] more like impact injuries rather
       than crush injuries. We would expect a crush injury from a four wheeler. Also
       the child was not dressed appropriately for the weather. You know, it was very
       cold. The child had on minimal clothing and we were kind of concerned, you
       know, if the child had been outside, hit by a four wheeler, why was she not
       dressed appropriate for weather, and probably not even appropriate for indoor
       environment during the winter. The child was not very conscious, opened her
       eyes once in awhile, did not respond, some response to pain.

        Smith testified that she recalled that the man had been home alone with the child when
the injury occurred and the mother had been at work. After the accident, the man took the
child into the house and laid her on the couch. When she did not improve, they brought the
victim in for treatment. He said it had been in excess of an hour since the injury. Smith
described the victim’s mother as “almost in denial” and having a “flat affect.”

       The victim’s mother (“TM”) testified that she had three children. She recalled that
on the morning of January 6, 2012, she got ready for work, gave the victim a snack and drink,
and then left for work. According to TM, the victim was in her play pen watching television.
TM said that the victim had a bruise on her forehead but did not know of any other abrasions
or bruises on the victim’s face that morning. The other two children were at school and the
victim and her boyfriend, the Defendant, were at home that day.

       TM testified that she worked at her Grandfather’s business in Vonore. Her hours were
usually from 8:00 or 9:00 a.m. to 5:00 or 5:30 p.m. At approximately 10:30 a.m., TM
received a text requesting she call home. When TM called home, the Defendant told her that
he was concerned because the victim would not sit up or talk. He said he did not know
whether the victim was “playing,” but asked TM to come home to see if the victim was
“okay.”

       TM testified that, when she arrived at home, she sat in her car smoking a cigarette.
The Defendant opened the front door and insisted she come in to check on the victim. TM
ran into the house and found the victim lying on the couch. She recalled that the victim’s
arms and legs were moving, but she would not open her eyes. TM and the Defendant then
took the victim directly to Woods Memorial Hospital for treatment. On the way to the
hospital, TM asked the Defendant what had happened and he told her that the victim walked
out from behind the car and was hit by a four-wheeler. When she was hit, she fell and hit her

                                              -4-
head.

       TM testified that, at the hospital, x-rays were taken, but because of the lack of “proper
equipment,” a helicopter transported the victim to the University of Tennessee Medical
Center for further examination. TM said that she was told that the reason for the victim’s
lack of response was due to a head injury. TM said that the victim “kept biting her tongue.”

       TM testified that she was not allowed in the room with the victim at the UTMC, so
she stayed in the waiting room. At some point, she and the Defendant were taken to separate
rooms where police officers spoke with each of them. She said that the victim remained in
the hospital between a week and two weeks for treatment.

       On cross-examination, TM testified that the Defendant was still asleep when she left
the house on the morning of January 6, 2010. She confirmed that her first contact with the
Defendant that day was the text message he sent her at work requesting that she call home.
TM agreed that the Department of Children’s Services (“DCS”) has contacted her before
about bruising on her children. TM explained that the victim went to visit her father, (“JT”).
JT called TM and told her he was calling DCS because there was a bruise on the victim’s leg.
TM agreed that she had used the term “whipping” when talking with DCS employees in
reference to discipline of her children. She explained that she gave her children the option
between standing in the corner or receiving a “whipping.” She said that she uses a belt or
a switch and whips them three times. TM acknowledged that she was also charged in this
case, and she had pled guilty to neglect. As part of the plea agreement, TM had to testify
truthfully in the trial against the Defendant.

       TM testified that she had never seen the Defendant hit the children. When he had to
discipline TM’s children, he would have the children stand in the corner. TM said that she
never saw the Defendant display anger toward the children. She said that the Defendant had
never been aggressive toward her either. TM testified that, at the time of these events, she
owned two pit bull dogs.

       On recross-examination, TM testified that on the drive to Knoxville to go to the
hospital, the Defendant told her that “the dog” had “done something” to the victim but that
the Defendant did not want “to say” out of fear “they” would kill “the dogs or something.”

        Dr. Marymer Perales, a Child Abuse Pediatrician, testified as an expert witness in the
field of child abuse pediatrics. Dr. Perales described the victim’s condition upon her arrival
to UTMC as “critical.” Dr. Perales said that the victim was not responsive but would cry and
moan due to pain. The victim was treated with morphine for the severity of her pain. There
was a laceration to her left forehead and bruising over her eyelid, her cheek, chin, and around

                                              -5-
her ear. There was additional bruising on her chest and abdomen. Dr. Perales said that the
victim also had petchia, a bruising that occurs when there is constriction such as grabbing
someone’s arm.

       Dr. Perales testified that, after reviewing the CT scan, they found the victim had
bleeding around the brain that was large enough on one side to push the brain to the other
side of her skull. She opined that the bleeding in this case was caused by trauma. The CT
scan also revealed a pelvic fracture and an “old healing humerus fracture” in her arm. The
victim’s liver enzymes were elevated indicating blunt abdominal trauma. As the victim
began to recover, noted weaknesses occurred on the right side of her body.

        Dr. Perales testified that she spoke with the victim’s mother and learned that the
victim had been hit by an all terrain vehicle and fallen backward and hit her head. Dr.
Perales said that the victim’s injuries were not consistent with that type of accident. Dr.
Perales said that, with the extent of the victim’s injuries, one would expect the impact of a
motor vehicle accident. Dr. Perales said that she was told the ATV did not roll over the
victim, but hit or “nicked” the victim, causing her to fall and hit her head. Dr. Perales said
that a pelvic fracture requires “a significant amount of force” such as one might experience
in a car accident. Dr. Perales testified that a dog was never mentioned as a source of the
injuries, and the injuries were not consistent with a dog attack.

        Douglas Brannon, a Monroe County Sheriff’s detective, testified that, after speaking
briefly with medical personnel at the hospital, he spoke with the Defendant about the victim’s
injuries. The Defendant said he had been at home caring for the child. At one point, he had
been outside with his brother and two other children riding a four-wheeler. The Defendant
related that the victim stepped out in front of the four-wheeler and he struck the victim with
the four-wheeler. The Defendant told detectives that he carried the victim inside and texted
the victim’s mother. The Defendant described the victim as “unresponsive.”

       Detective Brannon said that, at that point, he viewed his interaction with the
Defendant as a “conversation,” not an “interrogation.” The Defendant was, however, “very
defensive” and said that he would not go to jail freely. Detective Brannon recalled that while
he was in the room with the Defendant, a DCS worker was asking “standard DCS question[s]
of a care giver” and that the Defendant was “very ugly to her.” When Detective Brannon
advised the Defendant of his Miranda rights, the Defendant was defensive and arrogant. He
would repeatedly say, “I’ve heard these before,” and the Defendant read the rights back to
the detective as he was reading them to the Defendant.

       Detective Brannon said the Defendant told him that there were two four-wheelers on
the property: one on the front porch and one to the left rear side of the house. Detective

                                             -6-
Brown said that this statement raised his suspicion because when he received the initial call
on this case, he and Detective Jones went to the residence, and he noticed a four-wheeler on
the porch that was inoperative. Another four-wheeler was “off to the side” and also in a
“state of disrepair.” Detective Brannon also noted that there were no tracks in the snow
consistent with the Defendant’s story that he was riding a four-wheeler around the yard.
When Detective Brannon confronted the Defendant with what the detective had seen at the
house, the Defendant said that, while he waited for the victim’s mother to come home, he
went back outside and worked on the four-wheeler.

        Detective Brian Jones, a Monroe County Sheriff’s Department detective, gave
testimony about the interview with the Defendant that was consistent with Detective
Brannon’s testimony. Detective Jones said that during the interview, he stepped out of the
room to contact the Defendant’s brother about the incident. The Defendant’s brother denied
having been in Madisonville that day. Detective Jones said that he spoke with the neighbors
and learned that “no four wheelers were being ridden that day on that road.” He also was
able to confirm that TM was at work on January 6, 2010, until she left to check on her child.

       The State rested its case and the Defendant offered the following evidence: Shandra
Morgan testified that she had known the Defendant for approximately fourteen years. She
explained that the Defendant had dated her roommate. During this time, she watched the
Defendant interact with both her roommate’s children and the Defendant’s nieces and
nephews. She said that she never observed the Defendant abusing or neglecting the children.

       Geneva Kilby testified that she had known the Defendant since 1997. She explained
that she dated the Defendant for approximately seven years and had occasion to observe the
Defendant interact with her own children and his nieces and nephews. She said that she
never saw the Defendant hit or discipline a child. When an issue arose requiring discipline,
she said the Defendant would notify the parent rather than discipline a child himself.

       Kilby testified that she charged the Defendant with domestic violence in 2000. She
explained that she and the Defendant were arguing when she hit the Defendant and he hit her
back. She said that this made her mad so she notified the police.

        Burton Keller, a friend of the Defendant, testified that he had occasion to observe the
Defendant interact and care for children. He said that the Defendant was good with children
and had never seen the Defendant hit a child. Keller said that he had sent his own children
to stay with the Defendant for two or three days at a time.

       Marlene Keller testified that she had three children. She said that the Defendant was
“a friend of the family” and she often left her youngest child with the Defendant. Keller

                                              -7-
denied ever seeing the Defendant speak harshly to a child or hit a child. She said that her
children were very fond of the Defendant.

       Tammy Murphy testified she had been the victim’s daycare teacher. Murphy
described an occasion where the victim refused to sit. She thought that the victim might be
refusing to sit due to a dirty diaper. When Murphy changed the victim’s diaper, she noticed
bruising from the top of her back to her “lower behind cheeks.” She said that the marks were
perfectly straight like the victim had been hit with a child’s school ruler. The director of the
daycare facility instructed her to contact DCS about the bruising, and she did so.

       Approximately a month later, in August 2009, T.M. brought the victim to daycare in
the morning. The victim complained that her arm was hurting, so T.M. took the victim with
her and left. Murphy described T.M. as “upset” and said that the victim never returned after
that day.

        A.M., the victim’s nine-year old sister, testified the Defendant “was spending some
nights” at her house. She said that the Defendant would take care of her and her siblings.
She denied that the Defendant ever hit her, her brother or the victim. She said that when she
got into trouble, her mother punished her. If her mother was not present and she misbehaved,
the Defendant would “take away the TV.” A.M. testified that she knew the victim broke her
arm but did not know how the victim broke it.

       I.M., the victim’s seven-year old brother, testified that the Defendant would care for
him during the day when his mother was not there. He denied that the Defendant ever hit or
shouted at him but said that the Defendant would raise his voice “[a] little bit.” I.M. said that
he did not ever see the Defendant hit either of his sisters.

        Tammy Walker, a Forensic Interviewer for the 10 th Judicial District’s Children
Advocacy Center, testified that she conducted forensic interviews required for investigation
of severe child abuse allegations. DCS requested an interview in this case, and Walker met
with the victim on February 8, 2010. Walker recalled that the victim made no disclosures
during the interview about abuse. Walker said that the victim was three and a half years old
at the time and described her as “very young for her age.” Walker said she believed there
were delays in the victim’s conversational skills. During the interview, Walker asked the
victim if she had ever had a “boo-boo” or if anything scared her, but Walker was unable to
understand the victim’s responses.

      Jessica Capps, who was dating the Defendant’s cousin, testified that she was at
Thanksgiving and Christmas dinners at the Defendant’s father’s house. The Defendant, T.M.
and her children were also present. Capps said that she observed bruising on the victim’s

                                               -8-
face on both occasions. Capps also had occasion to see the victim in early January 2010.
The victim was playing in Capps bedroom and Capps observed bruising on the victim’s face
and that her lip was swollen.

        Crystal Jones, testified that the Defendant was her brother3 and that she observed
bruising on the victim at her step-father’s house on Thanksgiving 2009. The week of
December 18, 2009, Jones again saw the victim at her step-father’s house. This time Jones
noticed significant bruising to the victim’s face. Jones recalled that one side of the victim’s
face was “black” and her lip had “dried up blood on it.” After observing the victim walk
across the room, Jones commented that there was something wrong with the victim’s leg.
She told her brother and T.M. that they needed to take the victim to the doctor. She stated
that these injuries were the same injuries the victim was arrested for on January 6, 2010.

       Jones testified that the Defendant had watched her child before. Whenever her child
would act up the Defendant would call Jones to notify her. Jones would tell the Defendant
to spank the child but the Defendant refused. Jones said that she had never seen the
Defendant hit a child.

        The Defendant testified that he had previous arrests and convictions. He agreed that
he was convicted of: evading arrest and two counts of possession of marijuana in December
1999, vandalism under $500.00 and driving on a suspended license in April 2000, theft under
$500.00 in July 2002, robbery in April 2003, and felony possession of marijuana in April
2010. The Defendant testified that he heard Kilby testify about the events surrounding his
arrest for domestic assault and agreed that her account was accurate.        The Defendant
testified that he pled guilty in each of these cases because he was, in fact, guilty. He
explained that he would not plead guilty in the instant case because he did not harm the
victim.

       The Defendant recounted the events leading up to the victim’s injuries. The
Defendant testified that on the night of January 5, he stayed out late selling marijuana. When
he arrived back at TM’s home at 4:30 or 5:00 a.m., he went to bed. The Defendant recalled
that TM normally woke him up when she left in the mornings. That morning, however, she
did not, and instead he received a phone call that woke him up after TM had left the house.
The call was from someone wanting to buy marijuana, so the Defendant got up and showered
and dressed. The Defendant went to the kitchen and noticed the victim in her playpen. He
asked her if she wanted to eat. When the victim did not respond, the Defendant went to the


        3
          Jones testified at the sentencing hearing that she was the Defendant’s step-sister. As we have no
way of knowing the true familial relationship, we recount her trial testimony that the Defendant was her
“brother.”

                                                   -9-
playpen to check on the victim. He said the victim was just lying in the playpen with her
eyes “rolled in her head.” He picked the victim up and placed her on the couch. He began
to say her name thinking the victim was “playing” like she didn’t hear him. When the victim
remained non-responsive, he texted TM and demanded she come home to check on the
victim. Fifteen minutes later, TM arrived and they took the victim to the hospital.

       The Defendant testified that when they arrived at the hospital, he dropped off TM and
the victim and parked the car before going into the hospital. He denied speaking with any
medical personnel and said that he only gave “the woman” medical cards and social security
cards. The Defendant and TM drove to UTMC. During the drive, the Defendant learned of
“the four wheeler story.” He maintained that he never told anyone at Woods Memorial
Hospital that he had hit the victim with a four-wheeler. He explained that TM had told
medical personnel about a four-wheeler. The Defendant recalled that he and TM smoked
two “blunts” on the drive to Knoxville. The Defendant said that TM instructed him to tell
“them” that his brother and his brother’s children were present because DCS would not “say
nothing about it because there was other kids around.” The Defendant agreed to tell the lie
because he did not want TM’s children to be “split up.”

       The Defendant testified that at UTMC he explained to the doctor about the four-
wheeler accident after being asked. He also told police detectives the same story. He said
that he realized he was lying to police but he “didn’t know what else to do because it was
already told.” Once the detectives put together that the Defendant was lying to them, they
arrested him. The Defendant testified that at this point he tried to tell the truth, but the
detectives would not listen. When asked why he lied to police he said, “It wasn’t me, [TM]
had already told the lie and I was stuck in it.”

       Based upon this evidence, the jury convicted the Defendant of aggravated child
neglect. Thereafter, the judge who presided over the trial recused herself and a successor
judge was appointed. The successor judge sentenced the Defendant as a Range I standard
offender to serve twenty-five years in the Department of Correction.

                                          II. Analysis

        The Defendant appeals, claiming: (1) he was prejudiced by the original trial judge’s
failure to act as the thirteenth juror; (2) the trial court erred when it denied the Defendant’s
motion for a continuance; (3) the State was statutorily required to make an election between
aggravated child abuse and aggravated child neglect; (4) the evidence is insufficient to
support his convictions; (5) the trial court failed to require the jury to announce the fines
imposed; (6) the trial court failed to instruct the jury on “third-party culpability;” and (7) the
trial court erred when it did not allow the Defendant to offer “reliable hearsay” in his

                                              -10-
defense.

        As we have determined that the first issue is dispositive in this case, we address only
the Defendant’s contention that because the original trial judge failed to act as the thirteenth
juror he is entitled to a new trial. Tennessee Rule of Criminal Procedure 33(d) imposes a
mandatory duty on the trial judge to serve as the thirteenth juror in every criminal case. State
v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995). Rule 33(d) does not require the trial judge to
make an explicit statement on the record. Instead, when the trial judge simply overrules a
motion for new trial, an appellate court may presume that the trial judge has served as the
thirteenth juror and approved the jury’s verdict. Id. 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 concludes 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).

        The original trial judge did not expressly approve the jury verdict as thirteenth juror
in this case. See State v. Carter, 896 S.W.2d 119, 122 (Tenn.1995) (holding that Rule 33 of
the Tennessee Rules of Criminal Procedure imposes a mandatory duty upon a trial judge to
serve as the thirteenth juror in every criminal case). In situations where the original trial
judge is unable to perform post-verdict duties, Tennessee Rule of Criminal Procedure 25(b)
provides:

       (b) After Verdict of Guilt. -

            (1) In General. - After a verdict of guilty, any judge regularly presiding in or who
            is assigned to a court may complete the court’s duties if the judge before whom
            the trial began cannot proceed because of absence.

            ....

            (2) Granting a New Trial. - The successor judge may grant a new trial when that
            judge concludes that he or she cannot perform those duties because of the failure
            to preside at the trial or for any other reason.

Therefore, as required by Rule 25(b)(2) of the Tennessee Rules of Criminal Procedure, the
successor judge must consider whether it can perform the thirteenth-juror review. See State
v. Brown, 53 S.W.3d 264, 275 (Tenn. Crim. App. 2000). A successor judge, assessing

                                              -11-
whether he or she is able to act as thirteenth juror, must “determine the extent to which
witness credibility was a factor in the case and the extent to which he had sufficient
knowledge or records before him in order to decide whether the credible evidence, as viewed
by the judge, adequately supported the verdict.” Brown, 53 S.W.3d at 275. “When witness
credibility is the primary issue raised in the motion for new trial, the successor judge may not
approve the judgment and must grant a new trial.” State v. Biggs, 218 S.W.3d 643, 654
(Tenn. Crim. App. 2006) (citing Brown, 53 S.W.3d at 275).

       In the present case, the original trial judge did not approve the jury’s verdict after it
was announced. Before sentencing, the original trial judge recused herself and the successor
judge was appointed. The successor judge presided over both the sentencing hearing and the
hearing on the motion for new trial. In his motion for new trial, the Defendant asserted that
he was entitled to a new trial because the original trial judge failed to act as the thirteenth
juror. During argument on the motion, the following exchange occurred between the
Defendant’s attorney (“Counsel”) and the successor judge:

       Counsel:       I believe that that brings into play the whole question of the
                      thirteenth juror rule, and there I have scoured the transcript, as
                      I’m sure the Court has, and there was no finding by Her Honor
                      as thirteenth juror. The problem caused by the fact that she
                      recused herself may be proffered as the reason for that, but also
                      perhaps . . . the - other than my motion for a judgment
                      notwithstanding the verdict is - that’s there. The factual
                      questions that we have brought in did not therefore get Her
                      Honor’s passage on that, and I respectfully note that Your
                      Honor, of course, was not at the trial.

       Court:         Correct.

       Counsel:       And I don’t think that you can be the thirteenth juror.

       Court:         As it relates to some issues, I think you’re right on, on, on that,
                      on, on some of them, on some issues.

(Emphasis added). After further discussion on other issues, the successor judge overruled
the Defendant’s motion and, specific to the issue of the thirteenth juror rule, made the
following finding:

       The Court notes again, having read the transcript, that there is more than
       enough evidence, which if believed by the jury who, who determines credibility

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       of the witnesses, that would sustain his conviction. The part about who did
       what is totally circumstantial. There, there’s - you know, your client was the
       one that made the call. There was no direct testimony of anybody who saw
       the, the injuries inflicted; no question about that. But, but circumstantially, if
       the jury believed certain witnesses, which they obviously did, there was more
       than sufficient evidence from which they could have found him guilty.

(Emphasis added).

       The State correctly notes that the successor judge did not specifically state the extent
to which witness credibility was a factor in the case or use the terminology “overriding
issue.” However, in our view, his statements clearly indicate his belief that witness
credibility was an overriding issue that prevented him from acting as thirteenth juror. The
successor judge clearly identifies the credibility of the witnesses as a key issue in determining
whether there was sufficient evidence for the jury to convict. He further concedes that there
are some issues upon which he can not rule because he was not present during the trial.
Based on these statements, the successor judge effectively concluded that witness credibility
was an overriding issue at trial, thus precluding the successor judge from determining
whether the evidence supported the verdict. Therefore, the successor judge erred when it
denied the Defendant’s for a new trial. As such, the Defendant is entitled to a new trial in
this matter.

                                       III. Conclusion

       Based on the foregoing, we remand this case for further proceedings consistent with
this opinion.


                                                     _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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