         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 December 18, 2007 Session

              STATE OF TENNESSEE v. DEBRA ELAINE MOORE

                   Direct Appeal from the Circuit Court for Cocke County
                           No. 9080    Ben W. Hooper, II, Judge



                      No. E2007-00533-CCA-R3-CD Filed June 23, 2008


The defendant, Debra Elaine Moore, was convicted of criminally negligent homicide(Class E felony)
and aggravated child abuse (Class A felony). She was sentenced to two years for the Class E felony
and twenty-five years for the Class A felony, with the sentences to run concurrently for an effective
sentence of twenty-five years. The defendant raises four issues on appeal including whether the
evidence was sufficient to support the finding of guilt. Because the defendant did not file either a
timely motion for new trial or notice of appeal, this court declines to review the subsequently waived
issues. However, we do review her issue of sufficiency of the evidence and conclude that the
evidence was sufficient to support the guilty verdicts. Therefore, the judgments from the trial court
are affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
J.C. MCLIN , JJ., joined.

Edward C. Miller, District Public Defender, and Keith E. Haas, Assistant Public Defender, for the
appellant, Debra Elaine Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
James B. (Jimmy) Dunn, District Attorney General; and Amanda H. Inman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        A motion for a new trial must be filed within thirty days from the date the order of sentence
is entered. Tenn. R. Crim. P. 33(b). This provision is mandatory, and the time for the filing cannot
be extended. Tenn. R. Crim. P. 45(b). A trial judge does not have jurisdiction to hear and determine
the merits of a motion for a new trial that has not been timely filed. State v. Dodson, 780 S.W.2d
778, 780 (Tenn. Crim. App. 1989); State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App. 1981);
Massey v. State, 592 S.W.2d 333, 334-35 (Tenn. Crim. App. 1979). The trial judge’s erroneous
consideration of ruling on a motion for new trial not timely filed, as in this case, does not validate
the motion. Dodson, 780 S.W.2d at 780.

        Here, the defendant was convicted and sentenced on September 25, 2006. She filed her
motion for new trial on November 7, 2006, which was more than thirty days after the date the order
of sentence was entered. The motion was denied, and she filed an untimely notice of appeal on
December 6, 2006.

        Failure to file a written motion for new trial within the required thirty days not only results
in the appellant losing the right to have a hearing on the motion, but it also deprives the appellant
of the opportunity to argue on appeal any issues that were or should have been presented in the
motion for new trial. Dodson, 780 S.W.2d at 780; Givhan, 616 S.W.2d at 613; Massey, 592 S.W.2d
at 333.

         This court has the authority to review the record for apparent errors to prevent needless
litigation, injury to the interest of the public, and prejudice to the judicial process under the
provisions of Tennessee Rule of Appellate Procedure 13(b). Moreover, we may take notice at any
time, within our discretion, of an error that affects a substantial right of an accused, even though not
raised in a motion for new trial, where it may be necessary to do substantial justice. Tenn. R. Crim.
P. 52. We decline to exercise our discretion in this case. Accordingly, the evidentiary issues raised
by the defendant are deemed waived.

        It is the obligation of the defendant to perfect her appeal properly and to demonstrate that the
interests of justice merit waiver of a late-filed notice of appeal. Here, she has offered no explanation
for her untimely notice of appeal or how the interest of justice would necessitate waiver of the
timeliness requirement. However, in this case, we will waive the timely filing of the notice of
appeal.

        Failure to file a motion for new trial does not result in a waiver of issues concerning
sufficiency of the evidence. State v. Patterson, 966 S.W.2d 435, 440 (Tenn. Crim. App. 1997).
Here, the defendant challenges the sufficiency of the evidence, and this issue is not waived.

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient “to support the finding
by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim.
App. 1996).

       In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the


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State the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Elkins, 102 S.W.3d 578,
581 (Tenn. 2003).

        The trier of fact, not this court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence, as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court 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 theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973).

        Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Grace, 493 S.W.2d at 476.

        Aggravated child abuse is committed if a person commits the offense of child abuse or
neglect and the act of abuse or neglect results in serious bodily injury to the child. Tenn. Code Ann.
§ 39-15-402(a)(1). The offense of aggravated child abuse is a Class A felony if the victim is six
years of age or less. Tenn. Code Ann. § 39-15-402(b). The offense of child abuse or neglect is
committed by any person who knowingly, other than by accidental means, treats a child under
eighteen (18) years of age in such a manner as to inflict injury or neglects such a child so as to
adversely affect the child’s health and welfare. Tenn. Code Ann. § 39-15-401(a).

        The evidence presented during trial reflects that the defendant purchased Oxycontin pills on
July 22, 2002. The victim’s father crushed the pills in their residence, and he and the defendant
ingested the drug. Later that evening, the three-month-old victim awoke and would not go back to
sleep. The defendant told police that she tried to get him to go back to sleep but was unsuccessful.
Therefore, she rubbed the victim’s wet pacifier in the crumbs of the crushed drugs and put the
pacifier back in the child’s mouth. The child then went back to sleep. The victim’s father woke the
defendant the next morning because he was screaming that the baby was not breathing. They called
9-1-1, and the victim was taken to the hospital after paramedics were unsuccessful in reviving the
child. The victim died two days later. The medical examiner noted severe damage to the victim’s
kidneys and brain consistent with the ingestion of Oxycontin.

         The defendant argues that the evidence and trial testimony are inconsistent. Specifically, she
contends that the State’s theory of cause of death is not supported by the evidence presented.
However, after review of the record as a whole, we conclude that the evidence was sufficient to
support the finding of guilt. Here, the defendant provided a statement to police about her actions
regarding the child. She told the detective that the baby would not go back to sleep so she took his
pacifier to where the Oxycontin had been crushed up. The pacifier was wet from the baby’s mouth
and she “stuck it in the dust and crumbs” before putting the pacifier back into the baby’s mouth. The
medical examiner testified that the autopsy of the child revealed severe changes in the victim’s brain
and kidneys, which appeared to be caused by a toxic substance. The medical examiner further
testified that a test of the victim’s blood detected the presence of oxycodone, the registered name for

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Oxycontin, which is consistent with the defendant’s statement. As a result of the blood testing, the
medical examiner amended her autopsy report to reflect that the cause of the victim’s death was
oxycodone toxicity.

        Because 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 theory of the State, we conclude
that the evidence was sufficient to support the finding of guilt.

                                             Conclusion

         Based on the foregoing and the record as a whole, we affirm the judgments from the trial
court.




                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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