           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                     Assigned on Briefs July 18, 2001

                 STATE OF TENNESSEE v. CAYLE WAYNE HARRIS

                              Appeal from the Circuit Court for Giles County
                                Nos. 8641, 8642   Robert L. Jones, Judge



                        No. M2000-02143-CCA-R3-CD - Filed October 12, 2001


The defendant, Cayle Wayne Harris, was convicted of three counts of rape of a child. The jury
assessed a fine of $50,000 for each count and the trial court imposed sentences of twenty-one years
for each offense, two terms to be served concurrently and one to be served consecutively. The
effective sentence is, therefore, forty-two years. In this appeal of right, the defendant contends that
the evidence was insufficient. The judgments are affirmed.

                        Tenn. R. App. 3; Judgments of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee (on appeal); and Robert H. Stovall, Pulaski, Tennessee
(at trial and on appeal), for the appellant, Cayle Wayne Harris.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Mike Bottoms, District Attorney General; and Richard Dunavant, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                       OPINION

         The defendant was the boyfriend of the mother of the two male victims. BT,1 who was born
on November 6, 1987, and RT, who was born on July 31, 1989, lived in a trailer with their mother
and younger brother. Sometimes their older sister resided with them. The defendant occasionally
spent the night at the residence. BT testified that in 1997 he was asleep in his bedroom and awoke
to find the defendant on top of him with “his thing in my butt.” He described the penetration as “a
little ways.” According to BT, his mother entered the room and ordered the defendant to leave. BT
also testified to a second incident, almost identical in circumstances to the first, except that his
mother was not a witness. RT testified that the defendant “stuck his thing in our butt[s]” and that

       1
           It is the policy of this court to withhold the identity of minor victims of sex crimes.
it hurt. On cross-examination, both boys admitted telling different versions of the incidents during
the course of the investigation. Each, however, testified that the defendant had accomplished anal
penetration.

        The defendant was sentenced and judgment was entered on July 13, 2000. The defendant
filed a motion for new trial some ten days beyond the thirty-day time limit provided for by Rule 33
of the Tennessee Rules of Criminal Procedure. Rule 45(b), which provides generally for the
enlargement of time requirements under the rules, expressly prohibits extensions of time for the
filing of a motion for new trial. The state cannot waive the thirty-day requirement. State v. Givhan,
616 S.W.2d 612, 613 (Tenn. Crim. App. 1980). Because Rule 33(b) is mandatory, a trial court does
not have jurisdiction to entertain a late-filed motion for new trial. In our view, the trial court
correctly concluded that it could not consider the grounds asserted for a new trial.

         Because the defendant’s motion for new trial was a nullity, it did not toll the thirty-day period
for filing the notice of appeal. The defendant filed a notice of appeal on the same day as his motion
for new trial. Because the notice was filed more than thirty days after the entry of judgment, it was
also untimely. The timely filing of a notice of appeal is not, however, a prerequisite to the
jurisdiction of this court. This court may waive the requirement in the interest of justice. Tenn. R.
App. P. 4(a). While this court cannot review those grounds upon which a new trial was sought, it
may review those issues which would result in dismissal. Tenn. R. App. P. 3(e); State v. Williams,
675 S.W.2d 499 (Tenn. Crim. App. 1984); see also Givhan, 616 S.W.2d at 613. That means that this
court may only consider whether the evidence is sufficient to support the conviction.

        The defendant, citing State v. Matthews, 888 S.W.2d 446 (Tenn. Crim. App. 1993), argues
that, because each of the victims gave divergent accounts of the incidents during the police
investigation, their testimony should not have been considered by the jury. The state points out that
the rule of cancellation applies only when the contradictory statements are sworn. See Taylor v.
Banner Publishing Company, 573 S.W.2d 476, 482 (Tenn. Ct. App. 1978); State v. Roger Dale
Bennett, No. 01C01-9607-CC-00319 (Tenn. Crim. App., at Nashville, December 3, 1998).

        On appeal the state is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most favorable
to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Williams, 657 S.W.2d at 410 (Tenn. 1983). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn. 298,
286 S.W.2d 856, 859 (1956). Because a verdict of guilt removes the presumption of innocence and
raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the



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evidence was legally insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191
(Tenn. 1992).

        Rape of a child, a Class A felony, is defined as follows:

                (a) Rape of a child is the unlawful sexual penetration of a victim by the
        defendant or the defendant by a victim, if such victim is less than thirteen (13) years
        of age.

Tenn. Code Ann. § 39-13-522(a). Sexual penetration is defined as:

        sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
        however slight, of any part of a person's body or of any object into the genital or anal
        openings of the victim's, the defendant's, or any other person's body, but emission of
        semen is not required

Tenn. Code Ann. § 39-13-501(7).

        Here, the defense attempted to impeach both victims with prior inconsistent statements made
during the course of the investigation, yet none of the prior statements were sworn. The rule of
cancellation is typically limited to circumstances in which the witness has sworn to each statement.
Bowers v. Potts, 617 S.W.2d 149, 154 (Tenn. Ct. App. 1981); Price v. Becker, 812 S.W.2d 597, 598
(Tenn. Ct. App. 1991). A witness’s prior inconsistent statements may raise questions about their
truthfulness; however, it is the duty of the jury to assess the credibility of that witness and determine
the weight to be given their testimony. Liakas, 286 S.W.2d at 859. The jury chose to accredit the
testimony of BT and RT. In our view, the rule of cancellation does not apply.

        BT testified that the defendant had anally penetrated him on two occasions and RT testified
that the defendant anally penetrated him on at least one occasion. In addition to accrediting the
testimony of the victims, the jury rejected the claims of the defendant. That was their prerogative.
Because a rational trier of fact could have found the essential elements of the crime as to each count,
the evidence was legally sufficient to support the convictions. See Jackson v. Virginia, 443 U.S. 307
(1979).

        Accordingly, the judgments are affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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