            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                         AT JACKSON

                           DECEMBER SESSION, 1996
                                                                          FILED
STATE OF TENNESSEE,                  )      C.C.A. NO. 02C01-9507-CC-00204
                                     )                              August 28, 1997
      Appellee,                      )
                                     )                                    Cecil Crowson, Jr.
                                     )      CHESTER COUNTY                Appellate C ourt Clerk
VS.                                  )
                                     )      HON. JOHN FRANKLIN MURCHISON
VAUGHN MIXON,                        )      JUDGE
                                     )
      Appellant.                     )      (Direct Appeal/Writ of Error Coram
                                     )      Nobis)




FOR THE APPELLANT:                          FOR THE APPELLEE:

GEORGE MORTON GOOGE                         JOHN KNOX WALKUP
District Public Defender                    Attorney General and Reporter

PAMELA J. DREWERY                           WILLIAM DAVID BRIDGERS
Assistant District Public Defender          Assistant Attorney General
26th Judicial District                      450 James Robertson Parkway
227 West Baltimore St.                      Nashville, TN 37243
Jackson, TN 38301
                                            JERRY WOODALL
                                            District Attorney General

                                            DON ALLEN
                                            Assistant District Attorney
                                            P. O. Box 2825
                                            Jackson, TN 38301



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                               OPINION



         On November 16, 1994, Appellant Vaughn Mixon was found guilty by a

Chester County Circuit Court jury of attempted rape, attempted incest, sexual

battery, public intoxication, and evading arrest. As a Range II offender,

Appellant was sentenced to ten years for attempted rape, eight years for

attempted incest, four years for sexual battery, thirty days for public

intoxication, and eleven months, twenty-nine days for evading arrest. The trial

court ordered the sentences to be served concurrently. Appellant appealed

his conviction and sentence on April 18, 1995. In addition to his direct appeal,

Appellant filed a petition for a writ of error coram nobis on December 22, 1995,

based on the recanted testimony of the victim.1 The trial court denied the

petition, finding that as a matter of law, recanted testimony could not support

the grant of a petition for a writ of error coram nobis. Ironically, the trial court

also held that if the victim’s recanted testimony had been presented at trial, it

would have resulted in a different judgment. This Court consolidated the

direct appeal and the denial of the petition for a writ of error coram nobis.



         After a review of the record, we remand this cause for further

proceedings.




1
  W e note that although it appears from the record that Appellant’s petition was filed beyond the
one year statute of limitations applicable to writs of error coram nobis, our Tennessee Supreme
Court has indicated that since the sta tute of lim itatio ns is an affirm ative defense, Tennessee Ru le
of C ivil Proce dure 8.03 requ ires that it be spec ifically plead or is de em ed w aived . Sands v. State ,
903 S.W . 2d 297, 299 (Tenn. 1995). Here, the State failed to plead statute of limitations,
therefore this issue is waived.

                                                       -2-
      At trial, Audrey Mixon, Appellant’s fourteen-year-old daughter testified

that on April 16, 1994, she was driving her father back home from a friend’s

house when her father asked her if she had ever seen him naked. Later, he

asked her to pull off the main road, turn down a dirt road and stop. After they

stopped, Appellant turned on the radio, put his hand on her inner thigh and

started sliding it up her leg while making an obscene statement indicating that

he wanted to engage in sex with his daughter. At this point, Ms. Mixon jumped

out of the truck and started running down the road. As she was jumping out of

the truck, Appellant grabbed her clothing and said he was only joking.



      At the hearing on the writ of error coram nobis, Ms. Mixon recanted the

testimony that her father had tried to rape her. She acknowledged her

affidavit which stated that she was upset and tried to run away from her father

because they had been fighting about her boyfriend who her father did not

want her to date. She also stated that she was trying to help her mother “get

rid of” her father because her mother was divorcing her father and her mother

wanted his trailer.



      Tennessee Code Annotated Section 40-26-105 (1990) provides that:

      Upon a showing by the defendant that he was without
      fault in failing to present certain evidence at the proper
      time, a writ of error coram nobis will lie for subsequently
      or newly discovered evidence relating to matters which
      were litigated at the trial if the judge determines that
      such evidence may have resulted in a different
      judgment, had it been presented at the trial.


Before a defendant is entitled to a new trial based on newly discovered

evidence the defendant must show that: 1) he acted with reasonable diligence



                                       -3-
to discover the evidence prior to trial; 2) the newly discovered evidence is

material to the issue of the defendant’s guilt; and 3) the evidence would have

likely changed the jury’s verdict. State v. Goswick, 656 S.W .2d 355, 358-59

(Tenn. 1983). The decision whether to grant or deny a petition for a writ of

error coram nobis rests within the sound discretion of the trial court. State v.

Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).



      Recanted testimony may support the grant of a writ of error coram

nobis, therefore the trial court’s finding to the contrary was erroneous. See id.;

State v. Herndon, No. 03C01-9303-CR-00098, 1994 WL 176969, at *2 (Tenn.

Crim. App. May 11, 1994); State v. Ashby, No. 2, 1985 WL 4227, at *4 (Tenn.

Crim. App. Nov. 27, 1985);. The test for granting a new trial in cases involving

recanted testimony is as follows: 1) the trial judge is reasonably well satisfied

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

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

new evidence or surprised by false testimony, or unable to know of the falsity

until after the trial; and 3) the jury might have reached a different conclusion

had the truth been told. Ashby, 1985 W L 4227, at *5 (Tatum , J., dissenting).

It is clear that before a trial judge rules on a petition for a writ of error coram

nobis, he or she must determ ine the credibility of the witnesses who testify in

support of the accused’s writ. Hart, 911 S.W .2d at 375. In Hart, this Court

remanded the case for a determination of whether a witness’ affidavit was true

or false. Id. Because the trial court erroneously found that recanted testimony

was not a proper basis for writ of error coram nobis relief, because it failed to

make the necessary findings discussed above, and because we are unable to

assess the demeanor and credibility of the affiant, we reverse and remand this

                                         -4-
matter for further proceedings and findings by the trial judge consistent with

this opinion.




                                ____________________________________
                                JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




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