           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE              FILED
                           FEBRUARY SESSION, 1997         October 31, 1997

                                                      Cecil Crowson, Jr.
STATE OF TENNESSEE,            )    C.C.A. NO. 03C01-9608-CC-00316Clerk
                                                      Appellate C ourt
                               )
      Appellee,                )
                               )
                               )    BLOUNT COUNTY
VS.                            )
                               )    HON. D. KELLY THOMAS, JR.
JIMMY GREENE,                  )    JUDGE
                               )
      Appellant.               )    (Direct Appeal)




FOR THE APPELLANT:                  FOR THE APPELLEE:

JULIE A. MARTIN                     JOHN KNOX WALKUP
P. O. Box 426                       Attorney General and Reporter
Knoxville, TN 37901-0426
                                    SANDY R. COPOUS
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    MIKE FLYNN
                                    District Attorney General

                                    KIRK ANDREWS
                                    Assistant District Attorney
                                    706 Walnut Street
                                    Knoxville, TN 37901



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                            OPINION

        Appellant Jimmy Greene appeals from a jury verd ict rend ered in the Blount

Coun ty Circuit Court finding him guilty of the aggravated rape of a person less

than thirteen years of age. As a Range I standard offender, Appellant received

a sentence of twenty-two years in the Tenn essee Depa rtment o f Correc tions. On

April 10, 1996, Appe llant filed a m otion for a n ew trial allegin g, inter alia , the

existence of newly discovered evidence. The trial court denied this motion on

May 21, 1996. Appellant presents three issues for consideration on this direct

appe al: (1) whe ther the eviden ce wa s sufficie nt to su stain th e con viction for

aggravated rape; (2) whether the prosecution's remarks made during closing

argument were improper and prejudicial; and (3) whether the trial court erred in

denying Appe llant's motion for a new trial based on the alleged existence of

newly discovered evidence.

        After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                 I. FACTUAL BACKGROUND

        The proof shows that on or about June 24, 1991, four-year-old A.L. first

revealed to her paternal grandmother that A.'s stepfather, Appellant Jimmy

Greene, had pe rformed certain se xual acts upon her. 1 At the time of the alleged

incidents, A. reside d with her mothe r and he r stepfathe r, Appella nt herein. On

June 28, 1991, A.'s grandmother took her to the emergency room at Blount

Memorial Hospital for a sexual abuse examination. As a result of the allegations




   1
      Pursuant to the policy of this Court, the minor victim of sexual abuse in this case will be
referred to by her initials rather than her full name.

                                                   -2-
and subsequent investigation of sexual abuse, A.'s grandmother obtained legal

and physical custody of A.

      At trial, the c ourt pe rmitted A. to us e ana tomic ally correct dolls to facilitate

her expla nation of th e sexua l acts to which she was subjected. A. testified that

her stepfather inserted his fingers into her vagina, which she referred to as her

"poopy-c at," and her rectum. A. further testified that Appellant "put his poopy-cat

[penis ] in my mouth and he played with my poopy-cat and bottom." Finally, A.

stated that Appellant inserted his penis into her mouth and "peed" and "made me

swallow it."

      On October 3, 1991, four months subsequent to the last incident of sexual

abuse, Dr. Gerald Blossom examined A. a s part of the investigation into the

allegations of sexual abuse. By the time of the trial, Dr. Blossom was employed

at Children's Ho spital in Knoxville as an e mergen cy pediatrician. At trial, Dr.

Blossom testified that when examining A., he noted some thickening of the

hymenal membrane at approximately the four to five o'clock position. He stated

that the hymenal mem brane is typica lly thin and that the abnormal thickening of

A.'s hymena l memb rane would have been caused b y rubbing an object across

and against the membrane. Dr. Blossom further testified that his examination

also revealed that A.'s hymenal opening measu red one ce ntimeter in diam eter.

Dr. Blossom then proceeded to elaborate on the significance of this abnormal

meas ureme nt. "This is ap proxima tely twice the size you w ould exp ect to see in

a four-year-old girl."   While acknowledging that normal variations exist in the

size, shape, and width of hymena l openings in four-ye ar-old females , Dr.

Blossom also e mph asize d, "Th is is about tw ice the ave rage to maxim um size . .

. . [T]his is much more than you would ever expect to find in a no rmal situa tion."

Dr. Blossom also explained that the only way in which the hymen could be

                                           -3-
stretched to a much larger diameter than normal, as was A.'s, is through direct

and forcible penetration. He further testified that the more times that the hymen

is stretch ed, the less like ly it is that the hym en will return to its normal condition.

Finally, Dr. Blossom opined that A.'s vagina had been forcibly penetrated.



                      II. SUFFICIENCY OF THE EVIDENCE

       Appe llant's first contention on this direct appeal is that the evidence was

insufficient to sustain a conviction for aggravated rape. We disagree.

       This Court is o bliged to re view cha llenges to the sufficiency of the

convicting evidenc e acco rding to certain we ll-settled princ iples. A verdict of gu ilty

by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's

witnesses and res olves all co nflicts in the tes timony in favor of the State. State

v. Cazes, 875 S.W.2d 253, 259 (Tenn . 1994); State v. Harris , 839 S.W.2d 54, 75

(Tenn. 1992). Although an accused is originally cloaked with a presumption of

innocence, a jury verdict removes this presumption and replaces it with one of

guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the

burden of proof re sts with Appellant to demonstrate the insufficiency of the

convicting evidenc e. Id. On appeal, "the [S]tate is entitled to the strongest

legitimate view of the evidenc e as well as all reasonable and legitim ate

inferences that may be drawn therefrom ." Id. (citing State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978)).           Where the sufficie ncy of th e evide nce is

contested on appe al, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reaso nable d oubt.         Harris , 839 S.W .2d at 75; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

conducting our evaluation of the convicting evidence, this Court is precluded from

                                           -4-
reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences "for those

drawn by the trier of fact from circu mstan tial evidenc e." Matthews, 805 S.W.2d

at 779. Fina lly, T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal

actions wheth er by th e trial co urt or jur y shall b e set a side if th e evide nce is

insufficient to support the findings by the trier of fact of guilt b eyond a reas onab le

doubt." See also Matthews, 805 S.W.2d at 780.

       W e stated in Matthews that "A criminal offense may be established

exclus ively by circumstantial evidence. However, before an accused may be

convicted of a criminal offense based upon circumstantial evidence alone, the

facts and circumstances `must be so strong and cogent as to exclude every other

reasonable hypothesis save the guilt of the defendant.'" 805 S.W.2d at 779-80

(quoting State v. Crawfo rd, 470 S.W .2d 610, 612 (Tenn. 197 1)).

       Viewing the evidence in light of the above-stated criteria, we ho ld that a

rational trier of fact could have concluded beyond a reasonable doubt that

Appellant comm itted aggravated rape.            First, the jury heard the compelling

testimony of young A.L., age eight at the time of the trial in December 1995. A.

precis ely described for the jury what had occurre d betwe en hers elf and A ppellant.

Moreover, she acknowledged that she could readily distinguish between a "good

touch" and a "bad tou ch." Clear ly, a ration al trier of fa ct cou ld reas onab ly credit

A.'s testimony.

       Second, the prosecution presented the testimony of Dr. Gerald Blossom,

the physician who examined A. Dr. Blossom testified that although A.'s hymenal

opening was in tac t at the time of the e xamin ation, th e diam eter ac ross A .'s

hymen measured one centimeter--twice the size which one would expect to find

                                           -5-
in a typical fou r-year-old g irl. Furtherm ore, Dr. B lossom testified that his

examination of A. revealed some thickening in her hymen at approximately the

four to five o'clock position. After explaining that the usual appearance of the

hymen is that of a very thin membrane, Dr. Blossom opined that the thickening

of A.'s hymen was caused by the repeated rubbing of an object against her

hymenal membrane.

      Finally, the State introduce d the testimony of A.'s paternal gran dmothe r.

She related the manner in which A. first disclosed to her the sexual interactions

betwee n A. and Appella nt.

      In urging this Court to hold that the evidence is insuff icient to susta in his

conviction, Appellant places great emphasis on the fact that A. was acquainted

with three men whose names were James: A.'s biological father, James (called

"Jimbo"); her stepfather, James (called "Jimm y") Greene; an d her grand father,

James L. Appellant's primary contention is that A. was confused about who

perpetrated the sexual acts upon her and thus wrongly accused Appellant.

However, the reco rd is clear th at A. unfa ilingly referred to her step father as

"Jimm y". Furtherm ore, whe n show n photo graphs of her family mem bers by a

police detective, A. positively identified Appellant as the pe rpetrator. Given the

foregoing, the jury w as m ore tha n justifie d in co nclud ing Ap pellant was the

perpetrator of the rapes.



 III. ALLEGED IMPROPRIETY OF PROSECUTION'S REMARKS DURING

CLOSING ARGUMENT

      Appellant urges this Court to find that certain remarks made by Assistant

Attorney General Kirk Andrews so prejudiced the outcome of Appellant's trial as

to rise to th e level o f revers ible error. First, Appellant objects to Ms. Andrews'

                                         -6-
statement that, as the victim of a childhood rape, A. always would be "serving

her time" and that the facts could lead the jury only "to the emotio n of outra ge."

 Additio nally, A ppella nt take s issue with the Assis tant At torney Gen eral’s

comment that the jury's responsibility was to "relieve a little girl's mind" of

remembering what Appellant had done to her and to "put a final legal seal on a

little girl's pain and suffering."    Appellant also asserts that the prosecutor

conducted herself impro perly by imploring the jury to give Appellant "his just

desse rts."   Lastly, Appellant urges this Court to c onclu de tha t the Sta te's

assertion made during closing argument that as a child sex abuse sp ecialist, Dr.

Gera ld Blossom was "the definitive doctor... to make the definitive examination"

constitute d impro per pros ecutorial c onduc t.

      Rather than contemporaneously objecting to any purportedly improper

remarks made during the State's closing argum ent, Ap pellan t's couns el opted to

raise all objections to the foregoing remarks at the conc lusion of the S tate's

rebuttal argument. The trial court then issued curative instructions to the jury,

informing them that "argu ments are not evidence," bu t that they merely are

arguments based upon the evidence. The court further instructed the jury that

the arguments of counsel also contain reasonable inferences which may be

drawn fro m the e vidence .

       Appellant has waived his right to rais e this iss ue on appe al due to his

failure to contem porane ously ob ject to the prosecution's allegedly improper

remar ks at trial. See State v. Byerley, 658 S.W.2d 134, 139 (Tenn. Crim. App.

1983) (citing State v. Sutton, 562 S.W .2d. 820, 825 (T enn. 1978 )).

      Nevertheless, we will b riefly examine the merits of Appellant's complaints.

In Ten ness ee, it is well-settled that in reviewing allegations of prosecutorial

misco nduct, the test to be applied by the appellate court is to ascertain "whether

                                          -7-
such condu ct could h ave affec ted the ve rdict to the p rejudice o f the defen dant."

State v. Smith, 803 S.W .2d 709, 710 (Tenn. Crim. App. 1990) (citing Judge v.

State, 539 S.W .2d 340, 344 (Tenn. Crim. App. 1976)). In Judge v. State, 539

S.W.2d at 344, this Cou rt articulated five factors to be utilized by appe llate courts

when evaluating claims o f prosecu torial misc onduc t during clo sing argu ment.

The Tennessee Supreme Court approved of and adop ted this five-fac tor ana lysis

in State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984). These five factors include:

"`(1) the cond uct com plained o f viewed in c ontext an d in light of the facts and

circumstances of the case; (2) the c urative meas ures unde rtaken by the co urt

and the prosecution; (3) the intent of the prosecutor in making the improper

statem ent; (4) the cumulative effect of the imprope r conduct an d any other erro rs

in the record; and (5) the relative strength or weakness of the cas e.'" Id. (quoting

Judge v. State, 539 S.W .2d at 344).

       In Coke r v. State, this Court explained that "Trial courts have substantial

discretionary autho rity in determining the propriety of final argument. Although

counsel is generally given wide latitude, courts must restrict any improper

comm entary." 911 S.W .2d 357, 368 (Tenn. Crim. App. 1995) (citing Sparks v.

State, 563 S.W.2d 564 (Tenn. Crim. App. 1978)). The broad discretion accorded

to trial cou rts in co ntrolling the arg ume nt of co unse l "will not be reviewed absent

abuse of that discre tion." Smith v. S tate, 527 S.W .2d 737 , 739 (Tenn . 1975).

See also State v. Payton, 782 S.W .2d 490, 496 (Tenn. Crim . App. 1989 ).

       In the case sub judice, the offending rem arks were ne ither length y nor

repeated. Second, once Appellant's counsel made known to the court her

objections to certain portions o f the State's closing a rgumen t, the trial court

issued curative instructions to the jury to rectify any perceived impropriety. Third,

nothin g in the record indicates that these remarks were made maliciously in an

                                           -8-
attempt to und uly pre judice the jury.         Fourth, the cumulative effect of the

purported prosecutorial improprieties do not rise to the level of reversible error.

The trial court prudently gave curative instructions to the ju ry in which it described

the meaning and significance of closing arguments. Finally, the testimony of the

victim, her grandmother, and the medical proof form the basis of a compelling

case against Appellant. Under the circumstances, we find no reversible error

with respect to this issue.



                     IV. NEWLY DISCOVERED EVIDENCE

       Finally, Appellant argu es that the trial court abuse d its discretion in denying

his motion for a new trial on the basis of newly d iscovere d eviden ce.            We

disagree.

       To receive a new trial on the ground of newly discovered evidence,

Appellant must demonstrate "(1) reasonable diligen ce in se eking the ne wly

discovered evidence; (2) materiality of the evidence"; and (3) that the evidence

will likely change the outcome of the trial. State v. Nicho ls, 877 S.W.2d 722, 737

(Tenn. 1994) (citing State v. Goswick, 656 S.W .2d 355, 358 -60 (Tenn . 1983)).

The trial cou rt is accorded broad discretion in deciding whether to grant or deny

a motion for a new trial predica ted on n ewly disco vered ev idence . State v.

Walker, 910 S.W.2d 381, 395 (Tenn. 1995 ).              More over, th e trial co urt is

authorized to ascertain the credibility of newly discovered evidence for which the

new trial is desired, and the motion should be denied unless the court has

assured itself that the testimon y would b e worthy o f belief by the jury. Id. (quoting

Rose nthal V. S tate, 292 S.W .2d 1, 5, cert. denied, 352 U.S. 934, 77 S.Ct. 222,

1 L.Ed.2d 160 (19 56)). As a general rule, "newly discovered impeachment

evidence will not constitute grounds for a new trial.         But if the impeaching

                                          -9-
evidence is so cruc ial to the defen dant's guilt or in noce nce th at its ad miss ion will

proba bly result in an acquittal, a new trial may be ordered ." State v. Singleton,

853 S.W.2d 490, 496 (Tenn. 1993) (citing State V. Ro gers, 703 S.W.2d 166, 169

(Tenn. Crim. A pp. 198 5); Rose nthal v. Sta te, 292 S.W.2d at 4-5; Evans v. State,

557 S.W .2d 927, 938 (Tenn. Crim . App. 1977 )).

       At the hearing on the motion for n ew trial, Appellant pro ffered as newly

discovered evidence the testimony of two witnesses, Kevin Shepherd and Vilma

Mimi Lane y.

       Shephe rd is an attorney who had repre sented Appellant initially when

Shephe rd worked at the Public Defender's Office. Mr. Shepherd testified that he

had attem pted u nsuc cess fully to co ntact V ilma M imi La ney at a telephone

numb er which he had discover ed while e ndeavo ring to loca te witness es.

       Ms. Lane y, a frien d of A.'s mother., testified that shortly after Appellant was

indicted in 1991, she accompanied A.'s mother to the Department of Human

Services to visit A. During that visit, Ms. Laney allegedly overheard A. tell her

mother "that her [the mother's] Jimmy didn't do it."         Ms. Laney explained that

although she resided ne xt to Appe llant and A .'s mothe r in 1991 , she m oved to

another residence in Blount County in 1992. She further stated that she had

resided at app roxim ately five different residences, all being w ithin Bloun t Coun ty

save one, between 1991 and 1996 and that she had neglected to m aintain

continuous telephone service during this time. Additionally, Ms. Laney indicated

that she was unaware that Appellant's trial had been scheduled for December

1995 but manifested her willingness to testify as to the conversation between A.

and her m other if a new tria l were granted. When the State asked Ms. Laney

whether she had reported this information to anyone at the time, she responded:




                                           -10-
"No. I just didn't think to, you know, at the time, and everything. I didn't think

anything was--at th e time, I did n't report it."

       The trial court correctly found this was not newly discovered evidence

because Appellant's attorney was aware o f it before the trial. The ap propriate

remedy for a miss ing witn ess is a continuance. Appellant failed to seek such a

continuance and ca nnot no w be he ard to co mplain . See State v. Dorning, 682

S.W.2d 221, 22 3 (Ten n. Crim. App. 1984 ) (holdin g that th e trial co urt pro perly

denied a motion for new trial on the basis of the alleged newly discovered

evidence of an unavailable witness where no du e diligenc e was exercis ed in

procuring witness and denying relief on appeal where Appellant failed to file a

motion for continu ance); King v. Sta te, No. 01C01-9603-CR-00086, slip op., 1,

7 (Tenn. Crim. App. June 6, 1997) (holding that "Continuances may be granted

for the pu rpose of sec uring th e pres ence of iden tifiable w itness es if the ir

testim ony is material and admissible.").In any event, there appears to be a lack

of due diligence in ende avorin g to loc ate M s. Lan ey. A fe w telep hone calls ha rdly

satisfies this criterion. Second, the evidence is at most impeachment mate rial in

the nature of a prior inconsistent statement. Under these circumstances, the trial

court prope rly den ied Ap pellan t a new trial on the ba sis of alle gedly n ewly

discovered evidence.

       Accordingly, the judgment of the trial court is affirmed.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE




                                           -11-
CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                             -12-
