        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 14, 2013

           STATE OF TENNESSEE v. KEVIN LAMONT CHURCH

                   Appeal from the Criminal Court for Davidson County
                        No. 2008-D-3395 Monte Watkins, Judge

                          ___________________________________

                  No. M2012-02519-CCA-R3-CD - Filed February 4, 2014
                        ___________________________________

A Davidson County Jury convicted Appellant, Kevin Lamont Church, of kidnapping and
simple assault. The trial court sentenced him to twelve years as a Range III, persistent
offender. The judgments were entered January 6, 2010. A motion for new trial was never
filed. On July 6, 2011, Appellant filed a post-conviction petition requesting a delayed appeal.
The trial court granted the request on October 7, 2011, and Appellant filed a motion for new
trial on November 8, 2011. At the hearing on the motion for new trial, the State conceded
that the simple assault conviction should be merged into the kidnapping conviction. The trial
court agreed and dismissed count two for assault. The trial court denied the remaining
arguments included in the motion on October 10, 2012. Appellant subsequently filed a notice
of appeal on November 13, 2012. On appeal, Appellant argues that the evidence was
insufficient to support his conviction for kidnapping. The State argues that Appellant did not
file a timely notice of appeal, and this Court should dismiss the appeal. Although we agree
with the State that the notice of appeal is untimely, we have decided to waive the timely
notice of appeal in the interest of justice and address Appellant’s claim that the evidence was
insufficient to support his conviction of kidnapping on the merits. We have thoroughly
reviewed the record on appeal and conclude that the evidence was sufficient to support
Appellant’s conviction.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and R OBERT W. W EDEMEYER, JJ., joined.

Isaac T. Conner, Nashville, Tennessee, for the appellant, Kevin Lamont Church.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant
Attorney General; Victor S. Johnson, District Attorney General, and Roger Moore, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background


        In August 2008, Appellant and the victim were in a romantic relationship. The victim
testified that she was at her cousin’s house in Springfield when Appellant arrived with her
daughter and her mother. He asserted that the man with whom the victim was in the house
was not her cousin. The victim’s daughter stated that it was the victim’s cousin. The victim
admitted that she had had a drug problem prior to the incident at hand and that there are often
drugs present at her cousin’s house. She stated that she did not go to her cousin’s house with
the intention of using drugs.

       The victim stated that after Appellant confronted her, she got into her car with her
daughter and her daughter’s friend to return to Nashville. Appellant got into his car and also
proceeded to Nashville. When they arrived in Nashville, Appellant asked the victim to speak
with him. She got into his car, and he drove to an alley behind his house.

        At this point, Appellant pulled out his penis and demanded that the victim perform
fellatio. She refused. In response, Appellant hit the victim. He got out of the car, ran around
to the passenger-side of the car, and dragged her out of the car. The victim estimated that he
dragged her fifteen feet from the car to a shed. Appellant was choking the victim. He picked
her up by the neck and threw her into the door of the shed which cracked the door. She
stated that he choked her three times throughout the day.

       At one point during their argument, the victim was pressed up against a truck in
Appellant’s backyard. Appellant told her to pull down her pants so that he could smell her
private parts to determine if she had been cheating on him. After that, Appellant went to his
car and threw the victim’s purse out of his car.

        The victim was yelling for help throughout the altercation. A man walked down the
alleyway and asked Appellant what he was doing to the victim. Appellant got his gun out
of his car and pointed it at the man in the alley. The victim told the man to leave so he would
not get hurt. Appellant put the gun to the victim’s head. He hit her in the head with the gun
and called her names. Appellant told her to leave. The victim ran to her house which was
down the street from Appellant’s house. The victim called the police.

        In the 911 call, the victim told the 911 operator that a friend down the street had
“beaten [her] up real bad.” The victim stated that Appellant had pulled a gun on her and hit
her in the head with it. The victim told the operator that she was home with her grandmother,

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her mother, and her daughter. The victim sounded very distraught. She stated that she
wanted to take out a warrant so that Appellant could not hit her anymore.

       Officer Amy Fulbright with the MetropolitanNashville Police Department responded.
When she arrived, she discovered the victim. Officer Fulbright described the victim as
fearful, frantic, afraid, and crying. Officer Fulbright testified that the victim had visible
injuries, including a busted lip, abrasions on her shoulder, and red eyes. She also noticed that
the victim’s clothes were very dirty. She spent four hours with the victim. After Officer
Fulbright finished interviewing the victim, she went to Appellant’s house, but his parents
said that he was at work. The victim told Officer Fulbright where Appellant worked, so
Officer Fulbright and some other officers proceeded to Appellant’s workplace and arrested
him.

        Detective Jason Orsbon works in the Domestic Violence Division of the Metropolitan
Nashville Police Department. He took photographs of the victim the night of the incident.
Detective Orsbon testified that the victim had red marks on her neck and the back of her ear.
The victim’s chin was red, and she had dried blood on her bottom lip. He noted trauma to
the inside of the victim’s lip. He took a photograph of what appeared to be road rash on the
victim’s shoulder because she told Detective Orsbon that Appellant dragged her. Detective
Orsbon also took photographs of the victim’s eyes which showed petechiae present in both
her left and right eyes. Petechiae is an injury that is consistent with being strangled.

        Appellant also testified at trial. He agreed that he and the victim were dating at the
time in question. He stated that Appellant had a drug problem, and he went to Springfield
to retrieve her from a crackhouse. He stated that the victim’s daughter and mother showed
him the crack house, and he got her and drove back to Nashville. He stated that he took her
to the alley and confronted her about her drug use. He stated that she had a crackpipe and
he tried to get it away from her. He admitted that they began to argue, and they were
“scuffling.” He also denied that he had a gun.

       Appellant was indicted by the Davidson County Grand Jury for one count of
aggravated kidnapping and one count of aggravated assault. Prior to trial, Appellant called
the victim and asked her to not come to court to testify against him. The victim stated that
she had to testify because she had been subpoenaed. Her parole officer told her that she
would violate her parole if she did not appear at court. Appellant asked her not to go to
court. The victim asked him why he had beaten her up. He responded that at the time he
thought that she had been with someone else. Later in the telephone call he said that he was
sorry for what he had done to her.

       On September 21 and 22, 2009, a jury trial was held. At the conclusion of the trial,

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the jury convicted Appellant of kidnapping and simple assault. The trial court sentenced
Appellant as a Range III, persistent offender to twelve years for the kidnapping and eleven
months and twenty-nine days for the assault. The sentences were ordered to be served
concurrently with each other but consecutively to any other prior unexpired sentence. The
trial court entered the judgments on January 6, 2010.

        On February 5, 2010, newly-appointed, second trial counsel filed a “Motion for
Transcripts and Time Extension for Filing [a] Motion for New Trial.” On February 17, 2010,
the trial court granted Appellant’s motion for extension of time. A motion for new trial was
never filed by second trial counsel. On July 6, 2011, Appellant filed a pro se “Application
for Post Conviction Petition for Delayed Appeal.” According to this application, Appellant’s
trial counsel, who filed the motion for extension of time to file the motion for new trial, had
failed to file the motion for new trial. At the conclusion of the petition, Appellant requested
an order granting a delayed appeal. On July 27, 2011, the trial court filed a preliminary order
concluding that there may be a colorable claim in the petition. The trial court appointed
counsel to represent Appellant for his petition for post-conviction relief. On August 31,
2011, appellate counsel filed a motion for extension of time to file an amended motion for
post-conviction relief. On October 7, 2011, this motion was granted. The trial court minutes
also state that the petition was granted and that appellate counsel was “appointed as counsel
for motion for new trial.” On November 8, 2011, post-conviction counsel filed a Motion for
New Trial. The motion for new trial was heard on October 10, 2012. At the conclusion of
the hearing, the trial court dismissed count two, the assault conviction. Otherwise, the
motion for new trial was denied. There is no written order included in the technical record.
Appellant filed a notice of appeal on November 13, 2012.

                                         ANALYSIS

       The State argues that this appeal should be dismissed because Appellant failed to file
a timely notice of appeal. Appellant argues only that the evidence was insufficient to support
his conviction for kidnapping.

        After the trial court granted the delayed appeal on October 7, 2011, a motion for new
trial was filed November 8, 2011. On September 19, 2012, Appellant filed an amended
motion for new trial. After conducting a hearing, the trial court denied the motion for new
trial on October 10, 2012. Once again, there is no written order in the technical record but
instead a page reflecting the minutes of the trial court. Subsequently, Appellant filed a notice
of appeal on November 13, 2012.

       A motion for new trial “shall be made . . . within thirty days of the date the order of
sentence is entered.” Tenn. R. Crim. P. 33(b). This provision is mandatory, and the time for

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filing may not be extended. See Tenn. R. Crim. P. 45(b); see also State v. Martin, 940
S.W.2d 567, 569 (Tenn. 1997); State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App.
1989). The thirty-day provision is jurisdictional, and an untimely motion is a nullity.
Dodson, 780 S.W.2d at 780. It deprives Appellant of the opportunity to argue on appeal any
issues that should have been raised in the motion for new trial. Martin, 940 S.W.2d at 569.
Furthermore, the untimely filing of a motion for new trial does not toll the time for filing a
notice of appeal; thus, an untimely motion for new trial will also result in an untimely notice
of appeal. See State v. Davis, 748 S.W.2d 206, 207 (Tenn. Crim. App. 1987). A notice of
appeal must be filed thirty days after either the judgment or, if a timely motion for new trial
is filed, thirty days after the trial court rules on the motion for new trial. Tenn. R. App. P.
4(c).

        Unlike the untimely filing of the notice of appeal, this Court does not have the
authority to waive the untimely filing of a motion for new trial. See Tenn. R. App. P. 4(a);
State v. Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App. 1980). This Court has previously
held that pursuant to Rule 3(e) “the failure to file a motion for a new trial, the late filing of
a motion for a new trial, and the failure to include an issue in a motion for a new trial results
in waiver of all issues which, if found to be meritorious, would result in the granting of a new
trial.” State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994) (footnote omitted). In
other words, an untimely motion for new trial waived appellate consideration of all issues
other than sufficiency of the evidence and any other matters the relief from which would not
result in a new trial. See Tenn. R. App. P. 3(e), 36(b).

         Here, the thirty day time period began to run on October 7, 2011, the date it granted
the delayed appeal. Appellant filed the motion for new trial on November 8, 2011. To
calculate the 30 days, the date the judgment was entered is not included and the period begins
the following day. Tenn. R. Civ. P. 6.01. The last day of the time period is included unless
it is a Saturday, Sunday, or legal holiday. Tenn. R. Civ. P. 6.01. Because the time period is
thirty days, intermediate Saturdays, Sundays, and legal holidays are included. Tenn. R. Civ.
P. 6.01. By our calculations, thirty days from October 7, 2011 is November 6, 2011, which
was a Sunday, so Appellant had until November 7, 2011 to file his motion. Therefore, the
motion was untimely.

        The trial court did review the motion despite the fact that the trial court did not have
jurisdiction to hear and determine the merits of the untimely motion for new trial. The trial
court’s “erroneous consideration [and] ruling on a motion for new trial not timely filed . . .
does not validate the motion.” Martin, 940 S.W.2d at 569 (citing Dodson, 780 S.W.2d at
780). Because the untimely filing of a motion for new trial does not toll the time for filing
a notice of appeal, a late filed motion for new trial will generally result in an untimely notice
of appeal. State v. Patterson, 966 S.W.2d 435, 440 (Tenn. Crim. App. 1997); Davis, 748

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S.W.2d at 207. In the case herein, the trial court denied the untimely motion for new trial on
October 10, 2012. Therefore, Appellant had thirty days after the entry of the judgment,
October 7, 2011, to file the notice of appeal. We also point out that even if the trial court’s
ruling on the motion for new trial on October 10, 2012, is used, Appellant’s notice of appeal
is still untimely. The trial court ruled on October 10, 2012, and by our calculations the thirty
days ends on November 9, 2012. Appellant filed his notice of appeal on November 13, 2012.

       Although Appellant’s issue, the sufficiency of the evidence, need not be raised in a
motion for new trial in order to secure appellate review, see State v. Boxley, 76 S.W.3d 381
(Tenn. Crim. App. 2001), there is no automatic appeal of this issue to this Court. Either the
timely filing of a notice of appeal must occur, or a waiver of the timely filing of a notice of
appeal must be obtained from this Court in order to perfect an appeal. Tenn. R. App. P. 4(a).
This Court has commented:


       An attorney who fails to perfect a timely appeal from the entry of a judgment
       places his client’s appeal in peril of dismissal. See T[enn]. R. A[pp]. P. 4(a).
       Although certain post-judgment motions may suspend the time for filing the
       notice of appeal, none of those motions were timely filed in this case. See
       T[enn]. R. A[pp]. P. 4(c). However, Rule 4(a) provides that the notice of
       appeal “is not jurisdictional and the filing of such document may be waived in
       the interest of justice.” T[enn]. R. A[pp]. P. 4(a). “In determining whether
       waiver is appropriate, this Court will consider the nature of the issues
       presented for review, the reasons for and the length of the delay in seeking
       relief, and any other relevant factors presented in the particular case.” State
       v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, Davidson County,
       slip op. at 2 (Tenn. Crim. App. Dec. 27, 2005).


State v. Baldomero Galindo, No. E2009-00549-CCA-R3-CD, 2010 WL 4684469, at *13
(Tenn. Crim. App., at Knoxville, Nov. 19, 2010), perm. app. denied, (Tenn. Apr. 13, 2011).

       The notice of appeal in criminal cases is not jurisdictional, and can be waived by this
court “in the interests of justice.” Tenn. R. App. P. 4(a). We have decided to waive the
timely notice of appeal in the interest of justice.

                                Sufficiency of the Evidence

      We now address Appellant’s issue that the evidence was insufficient to support his
kidnapping conviction.

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        When a defendant challenges the sufficiency of evidence, the relevant question is
whether any trier of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 318-
19 (1979); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). In making this decision this
Court is to afford the State “the strongest legitimate view of the evidence as well as all
reasonable and legitimate interests that may be drawn therefrom.” State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). A guilty verdict that has been rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves
all conflict in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Harris,
839 S.W.2d 54, 75 (Tenn. 1992). The guilt of a defendant may be predicated upon direct
evidence, circumstantial evidence, or a combination of the previous two. See State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Although the accused is
originally cloaked by a presumption of innocence, a guilty jury verdict removes this
presumption and replaces it with a presumption of guilt, thus, placing the burden of proof
with the defendant to show insufficiency of the evidence on appeal. Tuggle, 639 S.W.2d at
914. As such, questions concerning the weight and value to be given to evidence, as well as
all factual issues raised by the evidence, are resolved by the trier of fact; this Court is
precluded from re-weighing the evidence when evaluating the convicting proof, nor may we
substitute our own inferences for those formed by the trier of fact from circumstantial
evidence. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); State v. Morgan, 929 S.W.2d
380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990).

       “The standard of review is the same whether the conviction is based upon direct or
circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). Here, Appellant was convicted of
kidnapping, as a lesser included offense of especially aggravated kidnapping. When a
defendant is convicted of a lesser included offense, the defendant may challenge the
sufficiency of the evidence even if the proof is not sufficient to support the primary offense.
State v. Parker, 350 S.W.3d 883, 909 (Tenn. 2001). When convicted of the lesser included
offense, the proof must be sufficient to support each and every element of the conviction
offense to sustain a conviction. Id. “If every element is not supported by sufficient proof,
the defendant is entitled to a reversal of the conviction.” Id.

       Initially, we point out that in his brief Appellant argues that the evidence was
insufficient to support his conviction which he alternatively states is for aggravated
kidnapping and then for especially aggravated kidnapping. However, according to the
judgment in the record, Appellant was convicted of kidnapping. Therefore, our analysis is
confined to whether the evidence was sufficient to support a conviction of kidnapping.



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       “Kidnapping is false imprisonment as defined in § 39-13-302, under circumstances
exposing the other person to substantial risk of bodily injury.” T.C.A. § 39-13-303(a). False
imprisonment is defined in the following manner, “A person commits the offense of false
imprisonment who knowingly removes or confines another unlawfully so as to interfere
substantially with the other’s liberty.” T.C.A. 39-13-302(a).

        At trial, the victim testified that Appellant physically dragged her from the car to a
shed fifteen feet away. She stated that Appellant physically held her against her will up
against both the shed door and later against a truck in his backyard. He choked her and hit
her in the head with his gun. Clearly, these incidents constitute interfering with the victim’s
liberty and exposing her to the risk of serious bodily injury.

        Appellant argues that there was not sufficient evidence independent of the victim’s
testimony to corroborate the victim’s version of events to support his conviction. We
disagree. Both officers who testified at trial stated that there were physical markings on the
victim that were consistent with the altercation to which she testified. She had road rash
which would corroborate her testimony that Appellant dragged her. She had petechiae
present in both of her eyes which is evidence of strangling. Furthermore, the State played
the telephone call between Appellant and the victim. In that call, Appellant did not deny the
victim’s allegations, but rather apologized for what he had done to her. We consider the
above evidence sufficient corroboration of the victim’s testimony.

       Therefore, we conclude that this issue is without merit.

                                      CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.


                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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