         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                            FILED
                          AT KNOXVILLE                     June 16, 1999

                                                         Cecil Crowson, Jr.
                        APRIL 1999 SESSION              Appellate C ourt
                                                            Clerk



STATE OF TENNESSEE,             )
                                )     NO. 03C01-9808-CC-00291
      Appellee,                 )
                                )     BLEDSOE COUNTY
VS.                             )
                                )     HON. J. CURTIS SMITH,
TRACEY PENDERGRASS,             )     JUDGE
                                )
      Appellant.                )     (Aggravated Child Abuse)



FOR THE APPELLANT:                    FOR THE APPELLEE:

L. THOMAS AUSTIN                      PAUL G. SUMMERS
M. KEITH DAVIS                        Attorney General and Reporter
P.O. Box 666
Dunlap, TN 37327-0666                 TODD R. KELLEY
                                      Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      JAMES MICHAEL TAYLOR
                                      District Attorney General

                                      WILL DUNN
                                      Assistant District Attorney General
                                      265 Third Ave., Ste. 300
                                      Dayton, TN 37321




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                    OPINION



       A Bledsoe County jury convicted the defendant, Tracey Pendergrass, of

aggravated child abuse, a Class B felony. The trial court sentenced her to ten years

imprisonment. In this appeal as of right, defendant contends that she is entitled to

a new trial because the sequestered jury was exposed to improper communications

prior to reaching its verdict. Upon our review of the record, we AFFIRM the

judgment below.



                                           I



       This is the second time this case has been before this Court on direct appeal.

Previously, we considered whether the trial court should have granted a mistrial

after four jurors were permitted to make phone calls during the course of the jury's

deliberations. See State v. Tracey Pendergrass, C.C.A. No. 03C01-9608-CC-

00310, Bledsoe County (Tenn. Crim. App. filed Dec. 11, 1997, at Knoxville). We

remanded for further findings.

       During deliberations several jurors felt they needed to make arrangements

to spend the night and made phone calls. Shortly thereafter, a verdict was reached.

Upon defendant's motion, the trial court held a hearing after the verdict was

returned and heard testimony from the officers who had taken the jurors to make

their calls. One of these officers overheard the jurors' conversations and testified,

"Everyone said I need you to bring clothes, put 'em in my car, I don't know when I'll

be home, bye." Another officer testified that the conversations were very short, and

she did not see the jurors arguing with anyone. The court did not hear testimony

from any of the jurors.

       At the conclusion of the hearing, the trial court overruled defendant's motion,

stating, "I do not find that there's been anything improper. I don't find any prejudice

to the defendant as far as the activities of the jury." This Court determined that the




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trial court had used an improper test and remanded the matter for an evidentiary

hearing. Specifically, the trial court was directed that if it

              finds that all of the jurors' communications were on
              subjects foreign or upon subjects not pertaining to the
              trial and that no impressions were made upon the jurors
              in reaching the verdict other than the proof heard at
              trial, and after making this determination that no
              prejudice occurred to the Defendant, the judgment shall
              be reinstated. Absent such a finding by the trial court,
              the trial court shall grant the Defendant a new trial.

Id.



                                           II



       On remand the trial court heard testimony from each of the twelve jurors. We

note that the hearing took place more than three years after the trial. Five jurors

testified that they had not made a phone call at the time in question. One juror

remembered making a phone call "to let 'em know that I wouldn't be there. . . . That

I was going to be delayed maybe another night, I wasn't for sure." The remaining

six jurors could not remember whether they had made a phone call, but one of

these six testified "[t]here was no communication on [his] part to anyone outside this

-- outside the jury room concerning the case." The remaining five emphatically

denied that any outside influence had affected their decision. No juror testified that

he or she received any prejudicial information.

       Following the hearing, the trial court found:

              1.      All witnesses were credible.

              2.    All the jurors' communications outside the jury
              room were on subjects not pertaining to the trial.
              3.    No impressions were made upon the jurors in
              reaching a verdict other than the proof heard at trial.

              4.     No prejudice occurred to the defendant as a
              result of any communication between third  parties
              and jurors outside the jury room.

Based upon these factual findings, the trial court did not grant defendant a new trial.




                                           3
                                         III



       Our standard of review in this matter requires us to afford the trial court's

findings "the weight of a jury verdict unless the evidence contained in the record

preponderates against his findings." State v. Young, 866 S.W.2d 194, 197 (Tenn.

Crim. App. 1992). The evidence in this matter supports the trial court's findings.

       Immediately following the phone calls, the court heard testimony from court

officers who overheard the jurors' phone conversations. One of the officers testified

that the phone calls were simply brief discussions making arrangements to spend

the night. Only one juror was able to recall making a phone call, and she testified

that it was just to advise her listener that she might be delayed another night. When

asked whether her decision in the case had been based upon any conversation, any

phone call or any outside influence, she replied, "Absolutely not."

       Of the jurors who could not recall whether they had made one of the

challenged phone calls, each one testified that no outside information had

influenced his or her decision. This testimony combined with the officers' testimony

of what they overheard is sufficient to support a reasonable inference by the trial

court that the outside communications did not pertain to the trial.     There is no

evidence that the phone conversations included any improper communications.

       The trial judge was in the best position to make this determination. Young,

866 S.W.2d at 196. The trial judge specifically found all witnesses to be credible,

and that the jurors received no improper communications. The evidence does not

preponderate against these findings.

       In short, the state has carried its burden of overcoming the presumption that

the verdict was "vicious." See Gonzales v. State, 593 S.W.2d 288, 291 (Tenn.

1980). Accordingly, the judgment below is affirmed.




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                                   ____________________________
                                   JOE G. RILEY, JUDGE

CONCUR:


____________________________
JERRY L. SMITH, JUDGE


____________________________
NORMA MCGEE OGLE, JUDGE




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