        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs June 2, 2010

              STATE OF TENNESSEE v. EDWARD L. HOOD, JR.

             Direct Appeal from the Circuit Court for Henderson County
                        No. 08059-3    Roger A. Page, Judge


               No. W2009-02501-CCA-R3-CD - Filed December 6, 2010


The Defendant-Appellant, Edward L. Hood, Jr., was convicted by a Henderson County
Circuit Court jury of two counts of rape of a child, a Class A felony, and two counts of
incest, a Class C felony. He received consecutive sentences of twenty-three years and
twenty-five years for the rape of a child convictions, and concurrent five-year sentences for
each of the incest convictions, for an effective sentence of forty-eight years in the Tennessee
Department of Correction. On appeal, Hood argues: (1) the evidence was insufficient to
support his convictions; (2) his right to a fair trial was violated when trial counsel announced
that Hood was pleading guilty at the start of trial; (3) the trial court erred in preventing the
victim’s sister from testifying for the defense at trial; and (4) the trial court erred by failing
to grant a new trial on the basis of newly discovered evidence. Upon review, we affirm the
judgments of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D AVID H. W ELLES
and J OHN E VERETT W ILLIAMS, JJ., joined.

Bradley Glenn Kirk (at trial), Lexington, Tennessee; Jerry M. (Mike) Mosier (on appeal),
Jackson, Tennessee, for the Defendant-Appellant, Edward L. Hood, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Angela R. Scott, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                           OPINION

        Trial. C.L., the victim in this case, testified that she was eleven years old when the
first crime in this case occurred. She stated that on February 24, 2007, her father, Hood,
entered her room and took off his clothes. He then walked over to her bed, took her pajamas
off, got on top of her, and penetrated her vagina with his penis. Before leaving her room,
Hood told the victim, “If you say anything[,] I’m going to hurt you.” The victim stated that
she remembered the crime occurring on February 24 because it was close to her mother’s
birthday on February 23.

       On July 28, 2007, the victim stated that her father had sexual intercourse with her in
the same manner as on February 24, 2007. She remembered the date that this second crime
occurred because it was close to her birthday on July 20. She said she later told her mother
about these crimes, but she and her mother did not immediately report these crimes to the
police. The victim said that she and her mother reported the crimes to the police some time
in December when her father was no longer living with them. The victim said that she did
not immediately tell her mother about the February 24, 2007 crime because she was scared.
She could not explain why she and her mother did not contact the police regarding the crimes
sooner. On cross-examination, the victim denied allowing boys into her room through her
window.

        Landon Delaney testified that he was a correctional officer at the Henderson County
Jail in 2007. On December 26, 2007, during a random search of Hood’s cell, Delaney found
a note written by Hood, which stated, “I, Ed Hood, fingered and [f-----] my youngest child,
[the victim], and said some sex-related things to [the victim’s] friend, [K.B.]. She and [the
victim] were talking about sex and having a threesome. I said I wanted to see that. Signed,
Ed Hood.” Delaney said that he removed the note from Hood’s cell and gave it to the jail
sergeant, Lelani Murphy. Although Hood never reported a fight while he was in jail,
Delaney remembered Hood having a black eye at some point during his incarceration. He
said Hood never disclosed who had given him the black eye and never wanted to answer any
questions about it. Delaney stated that it was unusual for inmates to write confessions and
that Hood’s note was the only confession that he had ever found at the jail.

        Justin Wallace, an investigator with the Henderson County Sheriff’s Department,
testified that Hood asked to speak with him on December 26, 2007, regarding the note that
was found in his cell. Investigator Wallace gave Hood his Miranda rights, Hood signed a
written waiver of these rights, and then Hood gave the following statement:

       I, Ed Hood, did advise Investigator Wallace that there was a possibility that
       while I was messed up on pills that I could have had sexual relations with my
       daughter, [the victim]. I also advised him that while my daughter was on the
       phone with [K.B.] I overheard them talking about having a threesome. I
       advised [K.B.] that I would like to see that when she was eighteen.



                                             -2-
        Donna Heatherington, a lieutenant with the Lexington Police Department, testified
that the victim and the victim’s mother initially reported the crimes to her in December 2007.
She then set up a forensic interview for the victim at the Carl Perkins Center. Although she
attempted to talk to Hood about these crimes, he refused to talk to her. She said that she did
not interview the victim’s sister, K.P., because she was not living in the home at the time that
these crimes occurred. Lieutenant Heatherington stated that a rape kit was not conducted on
the victim because so much time had passed since the crimes were committed. Following
Lt. Heatherington’s testimony, the State rested.

       The defense recalled the victim to the stand. During questioning by defense counsel,
the victim acknowledged telling a forensic interviewer that her father had never sexually
abused her. The victim said she told the interviewer that her father was innocent because she
did want her father to get into trouble and because she was afraid of her father. She admitted
that she made this statement regarding her father’s innocence after her father was arrested.

       Robin Reddick, the victim’s aunt and Hood’s sister, stated that the victim had lived
with her for approximately a month and a half. Reddick stated that she did not find the
victim to be an honest, truthful child.

       Victoria Westerfield, the victim’s cousin, testified that the victim told her at a
Christmas party that “she lied about her daddy’s case and misse[d] her daddy.” Westerfield
said that there were no adults present when the victim made this statement to her.

       Lelani Murphy, the jail administrator, testified that incident reports are generated
when a prisoner receives a black eye while incarcerated. She said that she did not recall
Hood having a big black eye but did remember him having a “little bit of a little thing right
here[.]” She stated that the jail records did not contain any incident reports regarding Hood.
Murphy said that there are always two jailers present and that these jailers would be able to
hear an altercation or see an altercation on the cameras, which are set up to monitor the jail
cells.

        Brenda Riley, Hood’s mother and the victim’s grandmother, testified that Hood’s face
was red, he appeared as though he were in pain, and he looked as if someone had “been
hitting him in the face” at his court appearance in early January 2008. Riley opined that the
victim was not a truthful child.

       Hood denied committing the crimes in this case. He stated that the victim was a
“daddy’s girl” when she was younger; however, he stated that not too long ago he had called
the police because C.L had become “unruly.” He said that he sometimes had problems
getting the victim to behave properly.

                                              -3-
        Hood stated that he was assaulted by other inmates while he was incarcerated. He also
stated that the inmates in his cell forced him to write the note that was discovered during the
random search of his cell. He said that these inmates gave him two black eyes, cracked his
ribs, and “busted” his head and lip. Hood said that he reported his injuries to a jail officer
and to the jail nurse.

       Hood stated that he did not recall asking to speak to Investigator Wallace. He said
that he did not know the names of any of the investigators other than Investigator
Heatherington, who investigated his case. He stated that he wrote the note because he “was
already getting beat up on a daily basis” after the other inmates discovered his charges. He
said that these inmates forced him to use the specific words in the note.

       On cross-examination, Hood said that he was surprised to discover that the victim had
no disciplinary problems at school. He also acknowledged that the victim’s grades had
improved since she no longer lived with him. Hood claimed that he yelled for help and
banged on the doors during the inmate assaults, but the jailers in the front never heard him.
Hood said that Officer Meggon was the only jailer that he told about what was happening to
him, but he never told her the names of the individuals who were injuring him. He also told
his family about the assaults. Hood said that although the inmates in his cell threatened to
sexually assault him, they never actually sexually assaulted him.

         Shannon Hood, the victim’s mother, testified that she gave a statement to Lieutenant
Heatherington regarding the crimes Hood committed against her daughter. She stated that
Hood had become slightly more strict with the victim just before the victim made the sexual
abuse allegations against him. During cross-examination by the State, Ms. Hood admitted
that she was aware that Hood was committing these crimes against their daughter but did not
tell the police immediately. However, Ms. Hood said that she told Lieutenant Heatherington
that she failed to contact the police immediately regarding Hood’s crimes. She said that her
failure to immediately contact the police about these crimes was one of the main reasons that
the victim was currently living with a foster family instead of with her. Ms. Hood said that
she knew Hood was committing these crimes because she “heard moaning” when Hood
would go into the victim’s room. She said that Hood would stay in the victim’s room for
thirty minutes to an hour. She claimed that she did not contact the police because she “was
scared.”

                                      ANALYSIS

       I. Sufficiency of the Evidence. Hood argues that the evidence in this case was
insufficient to support his convictions because it lacked credibility. First, Hood argues that
although the victim testified that he committed these offenses against her, she also admitting

                                              -4-
telling counselors at the Carl Perkins Abuse Center that he never sexually abused her. In
addition, he asserts that the evidence admitted at trial showed that the victim told other
individuals that Hood was innocent. Second, he argues that there was no “independent
forensic evidence” obtained in this case and no “medical examination of the alleged victim”
to determine whether she had ever had sexual intercourse. Third, he contends that his written
statement admitting guilt was untrustworthy because the evidence at trial showed that he was
assaulted by other inmates and forced to write the statement under duress. In response, the
State contends that it was the jury’s prerogative to make these credibility determinations
regarding the witnesses, that the evidence was legally sufficient to support the convictions,
and that Hood is not entitled to relief. We agree with the State.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing 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). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case
where there is direct evidence, circumstantial evidence, or a combination of the two. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551
S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The
trier of fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and must reconcile all conflicts in the evidence. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the
evidence, this court shall not “reweigh or reevaluate the evidence.” Matthews, 805 S.W.2d
at 779 (citation omitted). This court has often stated that “[a] guilty verdict by the jury,
approved by the trial court, 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. 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. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

        Rape of a child is defined as “the unlawful sexual penetration of a victim by the
defendant or the defendant by a victim, if the victim is more than three (3) years of age but
less than thirteen (13) years of age.” T.C.A. § 39-13-522(a) (2006). The crime of incest is
committed when a person “engages in sexual penetration as defined in § 39-13-501, with a
person, knowing the person to be, without regard to legitimacy . . . [t]he person’s natural

                                                -5-
parent, child, grandparent, grandchild, uncle, aunt, nephew, niece, stepparent, stepchild,
adoptive parent, adoptive child[.] T.C.A. § 39-15-302(a)(1) (2006).

        Here, the victim testified that Hood raped her on February 24, 2007 and July 28, 2007.
Although the victim acknowledged telling a forensic interviewer that her father had never
had sexual intercourse with her, she explained at trial that she told the interviewer her father
was innocent because she did not want her father to get into trouble and because she was
afraid of her father. Hood’s wife and the victim’s mother, Shannon Hood, testified that she
knew Hood was committing these crimes against the victim because she “heard moaning”
when Hood would go into the victim’s room. Moreover, Hood confessed his guilt in both
the handwritten statement found in his cell and in the statement he made to Investigator
Wallace on December 26, 2007. Although Hood argued at trial that inmates forced him to
write the confession found in his cell, this defense was rejected by the jury. As we
previously stated, we will not “re-weigh or re-evaluate the evidence.” See Bland, 958
S.W.2d at 659. We conclude that the evidence was sufficient to support the convictions in
this case. Accordingly, Hood is not entitled to relief on this issue.

        II. Trial Counsel’s Announcement of Guilty. Hood argues that the trial court erred
in failing to declare a mistrial when his attorney mistakenly announced that Hood was
pleading guilty to all of the charges in the indictment at the beginning of trial. He contends
that this mistake prejudiced him and violated his Sixth Amendment right to counsel. Finally,
he asserts that this court should reverse and remand his case for a new trial.

        In response, the State contends that Hood has waived this issue for failing to include
the transcript from the motion for new trial hearing in the record on appeal. The State also
argues that Hood is only entitled to a fair trial, not a perfect trial. It further contends that
even if counsel was deficient in making this inadvertent announcement, the error was
harmless because the court instructed the jury that statements of counsel were not to be
considered as evidence and because there was substantial evidence of Hood’s guilt. We
agree with the State.

       Here, the State read all four counts of the indictment. Then the following exchange
occurred between the trial court, the State, and defense counsel:

       The Court:                   [Defense counsel], you may enter your client’s
                                    plea as to each count.

       [Defense Counsel]:           Your Honor, my client pleads guilty to each
                                    count.



                                              -6-
       [The State]:                 You mean –

       The Court:                   You mean – you mean not guilty?

       [Defense Counsel]:           Not guilty. I’m sorry.

       The Court:                   Okay. All right. Whenever you’re ready for your
                                    opening statements, go ahead.

Following the State’s opening, the trial court asked that the State and defense counsel
approach the bench. The court told counsel that it had never had a situation like this occur.
It added, “I don’t know whether I should tell the jury you misspoke [sic] and not put any
weight on that or just let you tell them when you do your opening.” Ultimately, the court, the
State, and defense counsel determined that it was best for defense counsel to be the one to
say something about the misstatement. During his opening statement, defense counsel
explained his inadvertent announcement of guilty following the reading of the indictment by
stating, “As you can imagine, situations like this are very nerve-wracking for the lawyer,
they’re nerve-wracking for everybody. A while ago I entered a plea – I entered a plea of
guilty. I meant to say not guilty, so please don’t hold that against my client.” At the end of
trial, the court gave the following instruction to the jury: “Statements, arguments, and
remarks of counsel are intended to help you in . . . understanding the evidence and applying
the law, but they are not evidence.”

       We agree with the State that Hood has waived this issue for failing to include the
transcript from the motion for new trial hearing in the record on appeal. The appellant has
a duty to prepare a record that conveys “a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b);
see also Tenn. R. App. P. 27(a)(7) (A brief shall contain “[a]n argument . . . setting forth the
contentions of the appellant with respect to the issues presented, and the reasons therefor,
including the reasons why the contentions require appellate relief, with citations to the
authorities and appropriate references to the record . . . relied on.”). Moreover, a trial court
should declare a mistrial “only upon a showing of manifest necessity.” Id. (citing State v.
Saylor, 117 S.W.3d 239, 250-51 (Tenn. 2003)). Here, defense counsel addressed his mistake
during opening statements, and the court instructed the jury that statements of counsel were
not evidence. We conclude that this “occurrence fell far short of the standard of ‘manifest
necessity’ for a mistrial to authorize the trial judge to order a mistrial sua sponte.” State v.
Mabon, 648 S.W.2d 271, 278 (Tenn. Crim. App. 1982) (citing State v. Barton, 626 S.W.2d
296, 298 (Tenn. Crim. App. 1981)). Accordingly, Hood is not entitled to relief on this issue.




                                              -7-
       III. Refusal to Allow the Defense to Call the Victim’s Sister to Testify. Hood
argues that his right to present witnesses in his own behalf was violated when the trial court
refused to allow the victim’s sister, K.P., to testify for the defense. He contends that because
there was no voir dire regarding K.P.’s competency, the trial court was unable to make an
informed decision regarding this issue.

       In response, the State contends that Hood has waived this issue because there was no
offer of proof made at trial or at the motion for new trial hearing regarding K.P.’s
competency to testify. Waiver notwithstanding, the State asserts that the exclusion of K.P.’s
testimony was harmless in light of the substantial proof of Hood’s guilt at trial. We agree
with the State.

       Following Reddick’s testimony at trial, defense counsel stated that it was calling K.P.,
Hood’s other daughter, to testify for the defense. The State requested a bench conference,
expressed its concerns that K.P. was not capable of testifying because she was mentally
incompetent, and requested a jury-out hearing prior to her testimony. When the trial court
asked defense counsel about the purpose of K.P.’s testimony during the jury-out hearing,
defense counsel stated that K.P. would impeach the victim’s testimony that she did not allow
boys to sneak into her bedroom through her window. The State responded:

               Your Honor, I’m going to object to any testimony about boys sneaking
       in the window. We had a [Rule] 412 [hearing regarding evidence of a victim’s
       sexual behavior]. I had a discussion about this, about a 412 hearing, and I
       think we had it three times on there. There was no indication. I asked several
       times if [the defense] intended to introduce any evidence of prior sexual
       conduct at all. I was told they were not going to [introduce such evidence].

Defense counsel said he was “not asking anyone about sex.” The State countered that K.P.’s
testimony was irrelevant and highly prejudicial. Then the following exchange occurred:

       The Court:                   [Defense counsel], as far as sneaking people in
                                    and out of the window, there’s been no 412
                                    Motion made here. I suppose you could argue it
                                    goes to the credibility of witnesses – the witness
                                    and the victim.

                                    But I’m going to find under Rule 403 any
                                    probative value [is] substantially outweigh[ed]
                                    [by] unfair prejudice, and I’m not going to let you
                                    get into it.

                                              -8-
                                   Now, do you have anything else to talk to her
                                   about?

       [Defense counsel]:          I was going to ask her about her father’s conduct
                                   with her.

       [The State]:                Again, objection. The State objects on relevance,
                                   Your Honor.

       The Court:                  I know that in this case there’s been some
                                   allegations there was misconduct with [K.P.],
                                   also.

       [The State]:                Yes, Your Honor.

       The Court:                  And with all due respect, it’s obvious that she
                                   may have problems relating what happened. I’m
                                   extremely concerned about her saying something
                                   in front of the jury that’s inadmissible.

                                   When you say father’s conduct, you mean how he
                                   treated her or what?

       [Defense counsel]:          Yes, was there any sexual contact between my
                                   client –

       The Court:                  I’m not going to allow that, [Defense counsel].

       [Defense counsel]:          Thank you, Your Honor.

       The Court:                  Is that all?

       [Defense counsel]:          Okay. Thank you.

       Later, during in camera proceedings, the trial court made the following statement on
the record regarding its decision not to allow K.P. to testify for the defense:

               On [K.P.], I guess I – For the Court of Criminal Appeals I ought to say
       that I observed [K.P.] and, you know, when she was asked to raise her hand

                                             -9-
       she could barely do that. And after observing her and looking at what, you
       know – I guess statements that she – There was some allegation of a prior
       misconduct of [Hood] with this witness, I as much decided she couldn’t testify
       for the Defense as for the State, so that’s just for the record.

        We agree with the State that Hood waived this issue when he failed to make an offer
of proof. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring
relief to be granted to a party responsible for an error or who failed to take whatever action
was reasonably available to prevent or nullify the harmful effect of an error.”); see also State
v. Sims, 45 S.W.3d 1, 15 (Tenn. 2001). The record shows that upon the trial court’s
exclusion of K.P. as a witness, Hood failed to make an offer of proof regarding K.P.’s
competency or the substance of her testimony. Once a trial court rules to exclude evidence,
a party may not challenge the exclusion on appeal unless “the substance of the evidence and
the specific evidentiary basis supporting admission were made known to the court by offer
or were apparent from the context.” Tenn. R. Evid. 103(a)(2). The Tennessee Supreme
Court has explained that offers of proof are necessary for appellate review:

                In order for an appellate court to review a record of excluded evidence,
       it is fundamental that such evidence be placed in the record in some manner.
       When it is a document or exhibit, this is done simply by having the exhibit
       marked for identification only and not otherwise introduced. When, however,
       it consists of oral testimony, it is essential that a proper offer of proof be made
       in order that the appellate court can determine whether or not exclusion was
       reversible.

State v. Goad, 707 S.W.2d 846, 852-53 (Tenn. 1986) (emphasis added). Consequently,
Hood’s failure to make an offer of proof regarding K.P.’s competency and the substance of
her testimony results in a waiver of this issue. Waiver notwithstanding, we note that “the
competency of a witness is a matter entrusted to the sound discretion of the trial judge, who
has the opportunity to observe the witness firsthand.” State v. Carroll, 36 S.W.3d 854, 866
(Tenn. Crim. App. 1999). After reviewing the record, we conclude that the trial court did not
abuse its discretion in preventing K.P. from testifying for the defense. Accordingly, Hood
is not entitled to relief on this issue.

       IV. Newly Discovered Evidence. Hood argues that the trial court erred in denying
his motion for new trial on the basis that the newly discovered evidence was not sufficiently
credible. The newly discovered evidence was outlined in an affidavit signed by Brenda
Smith, the victim’s former foster parent, which was attached to Hood’s amended motion for
new trial. In the affidavit, Smith asserted that the victim informed her that she had told her
cousin that Hood did not commit the offenses for which he was convicted. The affidavit

                                              -10-
stated that this information was contrary to the victim’s testimony at trial and that Hood had
learned of this information after trial. Although Hood admits that his newly discovered
evidence was in the nature of impeachment evidence, he contends that the evidence was
material because “the testimony, were it heard by a jury, could give said jury a reliable
lynchpin upon which to resolve the differences in the credibility of the alleged victim and
Victoria Westerfield and afford the Defendant the full and complete hearing to which he is
entitled.”

        In response, the State argues that Hood has waived this issue because he failed to
include the transcript from the motion for new trial hearing in the record on appeal. In any
event, the State contends that Hood is not entitled to relief on this issue because the trial court
determined that Brenda Smith was not credible and because the impeachment evidence was
not “so strong and convincing” that it would have resulted in Hood’s acquittal. See State v.
Rogers, 703 S.W.2d 166, 169 (Tenn. Crim. App. 1985). We agree with the State.

        This issue is waived because of Hood’s failure to include the transcript from the
motion for new trial hearing in the record on appeal. See Tenn. R. App. P. 24(b); see also
Tenn. R. App. P. 27(a)(7). Moreover, Hood has failed to prove that he is entitled to a new
trial on the basis of this newly discovered evidence. In order to obtain a new trial on the
basis of newly discovered evidence, the defendant must show: “(1) reasonable diligence in
seeking the newly discovered evidence; (2) materiality of the evidence; and (3) that the
evidence will likely change the result of the trial.” State v. Nichols, 877 S.W.2d 722, 737
(Tenn. 1994) (citing State v. Goswick, 656 S.W.2d 355, 358-60 (Tenn. 1983)). Additionally,
“[w]hether the trial court grants or denies a new trial on the basis of newly discovered
evidence rests within the sound discretion of the trial judge.” State v. Caldwell, 977 S.W.2d
110, 117 (Tenn. Crim. App. 1997) (citing Hawkins v. State, 417 S.W.2d 774, 778 (Tenn.
1967)). Typically, a petitioner will not be granted a new trial where the newly discovered
evidence “merely contradicts or attempts to impeach” a witness’s testimony at trial. State v.
Sheffield, 676 S.W.2d 542, 554 (Tenn. 1984). However, “if the impeaching evidence is so
crucial to the defendant’s guilt or innocence that its admission will probably result in an
acquittal, a new trial may be ordered.” State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993)
(citing Rogers, 703 S.W.2d at 169; Rosenthal v. State, 292 S.W.2d 1, 4-5 (Tenn. 1956);
Evans v. State, 557 S.W.2d 927, 938 (Tenn. Crim. App. 1977)). Here, in the amended order
denying the motion for new trial, the court found that “[t]he newly discovered evidence
alleged by the defendant to support his Motion for New Trial does not rise to the level of
credible evidence which would support a new hearing on this matter.” The record shows that
Hood was not entitled to a new trial because Smith’s testimony was not credible. Therefore,
waiver notwithstanding, we conclude that the trial court did not abuse its discretion in
denying the motion for new trial based on this newly discovered evidence.



                                               -11-
                             CONCLUSION

Upon review, we affirm the trial court’s judgments.




                                          ______________________________
                                          CAMILLE R. McMULLEN, JUDGE




                                   -12-
