        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   April 25, 2012 Session

                    STATE OF TENNESSEE v. JUSTIN ELLIS

                   Appeal from the Criminal Court for Knox County
                          No. 93768 Bob R. McGee, Judge


                 No. E2011-02017-CCA-R3-CD - Filed March 22, 2013


The Defendant, Justin Ellis, was convicted by a Knox County jury of aggravated burglary,
employing a firearm during the commission of a dangerous felony, aggravated assault, and
aggravated robbery. The aggravated assault conviction was merged with the aggravated
robbery conviction. The trial court imposed an effective nineteen-year sentence. On appeal,
the Defendant argues that the successor judge erroneously determined that he was qualified
to act as thirteenth juror in this case. Following our review of the record and the applicable
authorities, we conclude that the successor trial judge could not act as the thirteenth juror and
reverse the judgments of the trial court and remand the case for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed;
                                 Case Remanded

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which N ORMA M CG EE
O GLE, J., joined. R OBERT W. W EDEMEYER, J., filed a dissenting opinion.

Joshua D. Hedrick, Knoxville, Tennessee, for the appellant, Justin Ellis.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and TaKisha M. Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                      OPINION
                                FACTUAL BACKGROUND

       This case arises from the December 29, 2009 armed home invasion of the victims,
Isiah Cobb and Jessica Greene. On February 9, 2010, a Knox County grand jury returned a
nine-count indictment against the Defendant, charging him with two counts of aggravated
burglary, one count of employing a firearm during the commission of a dangerous felony,
two counts of especially aggravated kidnapping, and four counts of aggravated robbery. See
Tenn. Code Ann. §§ 39-13-305, -13-402, -14-403, -17-1324. Prior to trial, the State
dismissed one count of aggravated burglary and two counts of aggravated robbery. Trial
proceeded on the remaining six charges.

        Twenty-one-year-old Isiah Cobb testified that he was working at Little Caesars in
December 2009 and living on Chickamauga Ave in Knoxville. He lived there with his
girlfriend Jessica Greene and a roommate, Justin Woodruff. Mr. Cobb testified that he knew
the Defendant prior to the home invasion, that Mr. Woodruff and the Defendant were friends,
and that he later learned that Mr. Woodruff and the Defendant were related.

        Mr. Cobb stated that he had previously tried to help the Defendant get a job. Mr.
Cobb testified that, about a week before the home invasion, the Defendant, along with Mr.
Woodruff, came by Mr. Cobb’s workplace, and the Defendant obtained an application for
employment. Mr. Cobb told the Defendant to fill out the application, and Mr. Cobb would
talk to his managers and “see what [he could] do about getting [the Defendant] a job[.]”

       Mr. Cobb provided a list of the items that he had received or bought as Christmas
presents that year: an “in-dash TV, iPod touch, Nintendo DS, little electronics”; a purse and
bracelet he had purchased for Ms. Greene; and clothes he had bought for his one-year-old
son. He stated that he drove a 1998 Grand Marquis, which had recently been involved in a
wreck and an insurance claim was pending at the time of the home invasion.

        Mr. Cobb then provided that the following events occurred on December 29, 2009.
Just after midnight, he returned home from work. He recalled that the “bottom door handle”
on the back door was locked but that he “didn’t make sure the dead bolt was locked.” Mr.
Cobb and Ms. Greene had brought some food home. He went to his bedroom in the back of
the house, and while he was on the phone, “[a]ll of a sudden [he] heard a loud commotion
bust through the back door[.]” Ms. Greene ran inside the bedroom, followed by an armed
gunman, who he identified as the Defendant. The gunman ordered Mr. Cobb “to put the
phone down and drop everything” and proceeded to “tell [them] to give all of [their]
belongings” to him. The couple started putting their things inside a bag. According to Mr.
Cobb, the gunman was wearing gloves and had on a “black hoodie[,]” so Mr. Cobb believed
“he was there to kill [them].” Mr. Cobb described the gun as a black 9mm “with chrome on
it[.]”

       Mr. Cobb testified that the gunman pointed the weapon at his chest and face, ordering
him not to move or he would kill him. According to Mr. Cobb, the gunman proceeded to
confront Ms. Greene with the weapon, pointing it at her chest and asking, “What you got in
your bra? Where is the money at?” He then instructed the couple to take off their clothes.

                                             -2-
Mr. Cobb stated that he did not move “at all” because he “was scared [he] was going to get
shot.” His back was against the wall, and he was “crouched” down, “basically begging” for
“[his] life.” The gunman continued packing items into the bag.

       According to Mr. Cobb, the gunman obtained items from “the room, closets, jewelry
box on top of [the] TV stand, [and] change inside a Mason jar.” Mr. Cobb stated that
“[t]here were several items spread all across the room” because it was “the holiday season”
and he had been “messing with [his] gadgets[.]” Mr. Cobb also testified that the gunman
took his “bill money[,]” which was approximately $1,100 in cash for the rent, utilities, and
phones. Mr. Cobb noticed that some of his son’s clothes were missing, along with several
toys.

        After the gunman gathered everything, he ordered the couple to give him their car
keys. He then took Ms. Greene’s purse and started “stuffing stuff in it.” He ordered them
not to move and then left the bedroom for few seconds. He returned and said, “Don’t move.
I told you stay where you are. Do not move at all[.]” Mr. Cobb continued to “toss[] him
everything” in an effort to get the gunman to leave. Mr. Cobb believed that the gunman tried
to start their other vehicle but that it did not start because there was “something wrong with
the ignition and starter[.]” Mr. Cobb opined that this required the gunman to move the stolen
items to the Grand Marquis. The gunman again returned to the bedroom and ordered them
not to move, “[s]till just taking nicknack things.” The gunman went outside again for a
second time and tried “to start a car up.”

       He returned again to the bedroom and began arguing with the couple: “Telling us,
‘Where’s the rest of the money? I know you hiding something in here. If you don’t give it
up, I’m going to kill you.’” He was still pointing the weapon at their faces and ordering them
to “stay on the ground.” The gunman pretended like he was going to leave but again
returned, acting “like he’s going to shoot.” Mr. Cobb described this behavior as “playing
games.” Mr. Cobb assured the gunman that he “got everything” and begged him to leave.

       The gunman finally left, and still afraid, they waited in the bedroom. Thereafter, Ms.
Greene’s brother, Arnold Greene, arrived. Mr. Greene came to the house because he was the
person on the phone with Mr. Cobb at the time the gunman entered the house and he heard
the commotion. They then used Mr. Greene’s phone to call 911.

       Mr. Cobb testified that he did not give the Defendant permission to enter his house
on December 29, 2009. According to Mr. Cobb, Mr. Woodruff had moved out of the house
“the same day” as the home invasion. Before Mr. Cobb left for work, no one was at his
house; Ms. Greene had also left to go to work.



                                             -3-
        Mr. Cobb’s car was returned to him in May 2010. The car had been titled in someone
else’s name. None of the other stolen items were ever recovered.

         On cross-examination, Mr. Cobb confirmed that he originally reported “the total value
of all this stuff was about $9,000[.]” He stated that he either bought all of the items with his
salary or that they were Christmas gifts.

       Mr. Cobb also confirmed that he and Ms. Greene refused to take off their clothing,
although instructed by the gunman to do so. Mr. Cobb did remove his “chain” and wallet
from his person and gave them to the gunman. Mr. Cobb agreed that the gunman “didn’t gag
[him] with anything, tape over [his] mouth or any of that[.]” Mr. Cobb was forced to stay
in the bedroom due to the gunman’s display of force. According to Mr. Cobb, he was
“headed towards the door, and [he] was forced back inside the room by a man holding a gun,
with gloves on his hands.” Mr. Cobb agreed that the gunman never fired his weapon.

       Mr. Cobb stated that the Defendant “had never been at [his] house before.” If the
Defendant had come to the house with Mr. Woodruff while Mr. Cobb was out, Mr. Cobb
believed Mr. Woodruff would have informed him of the visit.

       Ms. Greene testified that she was nineteen years old and that Mr. Cobb was her
boyfriend. She worked as an assistant manager at Little Caesars; she worked at a different
location from Mr. Cobb.

        Ms. Greene testified to several items she received for Christmas that year: “[c]lothes,
jewelry[,] . . . a iPod DS and an iPod touch, an Nintendo DS.” She received a Juicy Couture
purse from Mr. Cobb, and she also had a Coach purse and a Coach wallet. She also testified
that they had two cell phones, one for each of them, and that they owned two vehicles, a 1995
Cadillac Deville and a Grand Marquis. Both vehicles were parked in the driveway on the
evening of the home invasion. She was asked if she knew the Defendant prior to the home
invasion, to which she responded: “Far as knowing him, no. I knew his face. I had seen him
before, probably two or three times, maybe, not in a row. I had seen him in the past.”

      Ms. Greene gave a similar recount of the events as Mr. Cobb. According to Ms.
Greene, they had just gotten home after getting some food at Wendy’s. They shut the door
and went to the bedroom to eat when she heard a “big commotion.” The gunman entered the
bedroom, pointed the weapon at her, and said, “Get on the ground. I need everything. I need
money, purses, everything y’all have.” She complied and got down on her knees. She began
throwing items of value towards him, and he was “shoving everything down” in her Coach
backpack; this backpack was different from the Coach purse she previously described. The
gunman approached her and “started tugging on [her] shirt, telling [her] to take [her] shirt

                                              -4-
off[.]” Ms. Greene refused. The gunman took her purse, her phone, both sets of car keys,
the “change jar and stuff like that[.]” The gunman then ordered them not to move or he
would shoot. The gunman kept leaving the house and returning to the room several times,
“[l]ike it was a joke or something, just making [them lie] on the ground, making [them] stay
down.” The gunman left the house in their Grand Marquis. She described the gun used as
“black and chrome” and said “[i]t looked like a 9-millimiter [sic].” She did not give the
Defendant permission to enter her house that evening.

        When her brother arrived “[a] couple of minutes” later, she borrowed his phone and
called 911. She said that she was “real scared” when talking on the phone with the 911
operator but that she tried to remain calm and relay the information to the operator. The 911
call was played for the jury. She acknowledged that, during the call, she asked Mr. Cobb a
lot of questions about the gunman, stating that this was because she “didn’t know anything
about him.” Ms. Greene admitted that she initially replied that the gloves worn by the
gunman were yellow but that Mr. Cobb corrected her that they were red. Ms. Greene also
testified that, initially, she “was unsure” of how the gunman entered the house. She was not
sure if Mr. Cobb had left the door unlocked or if the gunman had kicked it in, but she later
realized that the door had been kicked in “because the bottom lock was broke[.]” She
showed the door to the responding officer.

       On cross-examination, Ms. Greene acknowledged that in the 911 call, she told the
responding officer that they had spoken with Samantha Ellis, the Defendant’s cousin,
following the home invasion and that Ms. Ellis said the Defendant was “probably going to”
Green Hills Apartments. Ms. Greene then clarified that Mr. Cobb had spoken with Mr.
Woodruff, who had spoken to Samantha Ellis. This conversation between Mr. Cobb and Mr.
Woodruff occurred prior to the call to 911.

        She also admitted that she told the 911 operator that the gunman did not force his way
inside, but Mr. Cobb again corrected her. Ms. Greene stated that she had not seen the door
at the time she was speaking with the operator. She also asked Mr. Cobb to provide a
description of the gunman’s clothing, which she relayed.

       Ms. Greene confirmed that she refused to remove her clothing and that she did not
pick up the change off the floor as instructed.

       Officer John David Lawson of the Knoxville Police Department was the responding
officer on the scene. After receiving the call, he went to the victims’ home, where he met
them in the front yard. He “had to calm them down and speak with them.” They said that
they had been robbed. Officer Lawson took down the information they reported.



                                             -5-
        Officer Lawson went inside the house to investigate. “It seemed in disarray. The
bedroom was kind of tossed around, the belongings in the bedroom, and just little things
seemed out of place.” He recorded the items they reported as stolen. He then went to look
at the door, where the gunman had allegedly entered. According to Officer Lawson, the door
“was damaged and didn’t have a very good lock on it[.]” His observations of the door were
consistent with the version of the events given by the victims. After speaking with the
victims, officers attempted to located the Defendant that evening, but they were unsuccessful.

       Officer Lawson confirmed that his vehicle was equipped with an audio and video
recording device. He wore a device that recorded his interactions on his vehicle’s equipment.
His conversation with the victims was recorded on this equipment.

        On cross-examination, Officer Lawson agreed that the victims had stated the gunman
took approximately $650 in cash. He was again asked about the condition of the door.
Officer Lawson stated that “the strike plate . . . looked old and worn, and it looked like it had
been knocked around a little bit, and it was cracked.” He further described that it was
“cracked” around “the strike plate[.]” The frame was “[c]racked and splintered a little bit[,]”
but it “wasn’t knocked out or knocked on the ground[.]” Officer Lawson agreed that the
door had “seen a lot of hard days[.]”

       On redirect, the officer elaborated as to more of the items reported missing: “$650
cash with miscellaneous bills, two cell phones, jewelry, more jewelry, keys to the . . .
Mercury. Some coins and miscellaneous assorted in a coin jar, kid’s clothing and shoes.”
It was also reported that the gunman took a wallet and a purse. The recording of Officer
Lawson’s conversation with the victims was then played for the jury.

       Over the recording, the victims can be heard telling Officer Lawson the details of the
home invasion, providing much of the same details as given in their trial testimony.
However, Mr. Cobb can be heard saying that the Defendant had previously visited their
house.

        Following the presentation of proof, the jury found the Defendant guilty of one count
of each of the following—aggravated burglary, employing a firearm during the commission
of a dangerous felony, and aggravated robbery. The jury also found the Defendant guilty of
aggravated assault as a lesser-included offense of aggravated robbery, but acquitted the
Defendant of the especially aggravated kidnapping charges. Judge Richard Baumgartner was
the presiding judge over the Defendant’s trial. After the verdict, Judge Baumgartner simply
stated, “real mixed verdict[,] . . . [v]ery interesting.”




                                               -6-
       Thereafter, the original trial judge, Judge Baumgartner, pled guilty to one count of
official misconduct and resigned from the bench. At that time, he had not expressly
approved the verdict as thirteenth juror in this case.

       Senior Judge Jon Kerry Blackwood conducted the Defendant’s sentencing hearing on
February 18, 2011. The trial court merged the aggravated assault and aggravated robbery
convictions. After hearing the evidence, the judge sentenced the Defendant as follows: five
years for the aggravated burglary conviction; nine years for the employing a firearm during
the commission of a dangerous felony conviction; and ten years for the aggravated robbery
conviction.1 The five-year sentence was ordered to run concurrently with the ten-year
sentence but consecutively to the nine-year sentence, for a total sentence of nineteen years
in the Department of Correction.

       On March 17, 2011, the Defendant filed his motion for new trial and a renewed
motion for judgment of acquittal. He later amended his motion, rasing the issue, among
others, of whether the successor judge could properly act as thirteenth juror in this case.
Judge Bob McGee was designated to hear the Defendant’s motion for new trial. Therefore,
Judge McGee, as the successor judge, was required to consider whether he could perform the
thirteenth-juror review.

      After a hearing, Judge McGee denied the motion for new trial and motion for
judgment of acquittal, approving the verdict. Judge McGee reasoned as follows:

        [I]t does appear that the [State v.] Biggs[, 218 S.W.3d 643 (Tenn. Crim. App.
        2006),] case is limited to where, not just where [credibility] is overriding. I
        think that’s the word they use, but it’s actually a situation where [credibility]
        is the whole case.

               It is limited pretty much to situations that we sometimes call he said,
        she said, where the only evidence of the crime is the testimony, the victim, and
        the only evidence rebutting that -- is the testimony of the defendant. And we
        are post-trial now, the defendant’s right to testify or not to testify was
        protected at the trial and he made his decision. In judging retrospectively,

1
   We note that the original judgment form for the Defendant’s employing a firearm during the commission
of a dangerous felony conviction, a Class C felony, reflects that he was a sentenced as a Range I, standard
offender. However, the Defendant received a nine-year sentence for this conviction, which is outside of the
standard offender range for a Class C felony. See Tenn. Code Ann. § 40-35-112(a)(3) (A Range I sentence
for a Class C felony is not less than three nor more than six years). The judgment form for the employing
a firearm conviction was later “corrected to a multiple offender status and a multiple 35% release eligibility.”
However, nothing in the record supports the decision to enhance the Defendant to Range II.

                                                      -7-
       what the quality of the verdict was. Certainly we are -- we have to take into
       consideration what the testimony was and the fact is in this case there was no
       testimony contradicting the testimony of the victims. None.

               We don’t have witness versus witness here. We have witness versus
       argument and that’s not what the Biggs case is about. Also, I did read the
       transcript. The tenor of the testimony of the victim’s was not that they refused
       to take their clothes off because they were standing up to the guy. They both
       testified they were scared to death that if they moved at all he would shoot
       them. The jury apparently accepted that testimony.

               Also, there was never any real dispute that the defendant was present
       in the premises and that he stole things from them. So, it’s not even by -- you
       can’t even say that the idea was floated to the jury that none of this ever
       happened. That wasn’t in any way presented to the jury. And there was
       evidence to support the proposition that there was a breaking and entering,
       damage to the back door. Particularly the witness, I think Jessica Greene, Ms.
       Greene at least testified that the bottom lock, she called it, was broken. So,
       this is not a situation where the case hangs entirely on [credibility]. The
       [credibility] of the victims was not rebutted. There was nothing for the jury to
       weigh in opposition to the [credibility] of the witnesses. They found the
       witnesses to be credible and they also apparently gave considerable attention
       to the case and reflected upon it because they found him not guilty of the
       kidnapping charges. And it would appear to this [c]ourt that the jury did what
       they were supposed to. They did a good job and this [c]ourt does accept their
       vedict.

This timely appeal followed.

                                          ANALYSIS

       On appeal, the Defendant argues that the trial court erred in denying his motion for
new trial “where the credibility of the witnesses was the sole issue at trial and the trial judge
did not fulfill his obligation as thirteenth juror prior to being replaced by a successor judge.”
Specifically, the Defendant submits that

                [i]t is error for a judge, sitting as thirteenth juror, to assume that there
       is no issue of witness credibility merely because there was not evidence
       presented by the defense. . . . [T]he jury and the judge as thirteenth juror are
       still tasked with the role of determining whether they believe the testimony of

                                                -8-
       the State’s witnesses and whether the State’s proof is sufficient to convict,
       both in terms of quantity and reliability.

       The State responds that the successor judge did not err or abuse his discretion in
determining that he could act as thirteenth juror because witness credibility was not the
overriding issue in this case. The State explains that the successor judge correctly
determined that credibility was not an overriding issue because the witnesses’ testimony was
not rebutted, and defense counsel stated the theory of defense was that the Defendant was
there by invitation and simply stole some things while the victims were not looking.

        Rule 33(d) of the Rules of Criminal Procedure provides that “[t]he trial court may
grant a new trial following a verdict of guilty if it disagrees with the jury about the weight
of the evidence.” This rule “is the modern equivalent to the ‘thirteenth juror rule,’ whereby
the trial court must weigh the evidence and grant a new trial if the evidence preponderates
against the weight of the verdict.” State v. Blanton, 926 S.W.2d 953, 958 (Tenn. Crim. App.
1996)). In State v. Carter, the supreme court interpreted this rule as “impos[ing] upon a trial
court judge the mandatory duty to serve as the thirteenth juror in every criminal case[.]” 896
S.W.2d 119, 122 (Tenn. 1995). The supreme court also held that “approval by the trial judge
of the jury’s verdict as the thirteenth juror is a necessary prerequisite to imposition of a valid
judgment.” Id.

        In situations when a trial judge is unable to perform post-verdict duties, Rule 25(b)(1)
of the Rules of Criminal Procedure provides: “After a verdict of guilty, any judge regularly
presiding in or who is assigned to a court may complete the court’s duties if the judge before
whom the trial began cannot proceed because of absence, death sickness, or other disability.”
Rule 25(b)(2) elaborates that “[t]he successor judge may grant a new trial when that judge
concludes that he or she cannot perform those duties because of the failure to preside at the
trial or for any other reason.” This court has held that a successor judge’s consideration,
pursuant to Rule 25(b) of whether the duties of the original judge with regard to a motion for
new trial can be met in a particular case “must include an assessment of his or her ability to
act as a thirteenth juror, including witness credibility.” State v. Nail, 963 S.W.2d 761, 765
(Tenn. Crim. App. 1997); see also State v. Biggs, 218 S.W.3d 643, 653-54 (Tenn. Crim. App.
2006); State v. Brown, 53 S.W.3d 264, 275 (Tenn. Crim. App. 2000). This assessment in
turn requires the successor judge to determine “the extent to which witness credibility was
a factor in the case and the extent to which he [or she] had sufficient knowledge or records
before him [or her] in order to decide whether the credible evidence, as viewed by the judge,
adequately supported the verdict.” Nail, 963 S.W.2d at 766; see also Biggs, 218 S.W.3d at
654; Brown, 53 S.W.3d at 275. If these determinations cannot be made by the successor
judge, then the verdict cannot be approved and a new trial must be granted. See Biggs, 218
S.W.3d at 654; Brown, 53 S.W.3d at 275; Nail, 963 S.W.2d at 766.

                                               -9-
       The Defendant relies on State v. Biggs, wherein this court ruled that the successor
judge was required to grant a new trial because the presiding judge did not rule as the
thirteenth juror and unresolved credibility issues remained. 218 S.W.3d at 654. Just as in
Biggs, the statements by the presiding judge in this case, “real mixed verdict[,] . . . [v]ery
interesting[,]” were ambiguous as to whether he approved the jury’s verdict. See id.
Therefore, we must address whether the successor judge erroneously concluded that he could
sufficiently familiarize himself with the written record in order to act as the thirteenth juror
and approve the jury’s verdict. See id. at 654-55.

        “Given the statement made by our supreme court regarding the purpose of the
thirteenth juror rule, it is difficult to see how a trial judge who has not heard the evidence and
who has not seen the witnesses can act as the thirteenth juror when weight and credibility are
issues.” Brown, 53 S.W.3d at 275. “When a trial judge is asked to review the weight and
credibility of the evidence as the thirteenth juror based upon a written record, the trial judge
‘is in no better position to evaluate the weight of the evidence than an appellate court.’” Id.
(quoting State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995)). The appellate courts have no
independent authority to act as thirteenth juror. See State v. Burlison, 868 S.W.2d 713, 719
(Tenn. Crim. App. 1993).

       In Biggs, the jury convicted the defendant of aggravated sexual battery. 218 S.W.3d
at 652. The Biggs court found that the successor judge was required to grant a new trial
because the presiding judge did not rule as the thirteenth juror, as there were unresolved
credibility issues, reasoning as follows:

              This case involved accusations by the victim and her parents and a
       denial of any wrongdoing by the defendant, with no physical evidence present.
       Witness credibility was an overriding issue in this case. The jury chose to
       accredit the testimony of the victim and her parents. However, the successor
       judge was not at the trial to see any of the witnesses testify and would have
       been unable to make a credibility determination from the written record. A
       successor judge cannot rule on a motion for a new trial if witness credibility
       is an overriding issue.

Id. at 655.

       The present case is indistinguishable from Biggs. The fact that the Defendant did not
put on any proof to rebut the testimony of the State’s witnesses does not, by itself, mean that
credibility was not an overriding issue. The validity of the Defendant’s convictions depends
upon the jury’s and ultimately the judge’s, acting as thirteenth juror, determinations of the
credibility and weight of the victims’ testimony. Even if the Defendant conceded his

                                              -10-
presence at the scene, there were still credibility determinations to be made regarding the
elements of the offenses, i.e., whether he entered the house forcefully and wielded a gun
while stealing the victims’ possessions. See Tenn. Code Ann. §§ 39-13-102 (under the facts
of this case, “[a] person commits aggravated assault who . . . [i]ntentionally or knowingly
commits an assault as defined in § 39-13-101, and . . . [u]ses or displays a deadly weapon”);
39-13-402 (aggravated robbery, as relevant here, is “robbery as defined in § 39-13-401 [and
a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead
the victim to reasonably believe it to be a deadly weapon”); 39-14-403(as charged here,
aggravated burglary is entry of a habitation without the effective consent of the property
owner and with the intent to commit a theft); 39-17-1324 (possession of a firearm offense).
The victims testified that the Defendant kicked in their back door, entered their home, held
them at gunpoint, and stole their things, including their car. Only the car was later recovered,
and no evidence presented during the trial connected the Defendant to the car other than the
victims’ testimony.2 No gun was ever found. Officer Lawson testified that the strike plate
on the door was “old and worn” and “looked like it had been knocked around a little bit, and
it was cracked.” He agreed on cross-examination that the door had “seen a lot of hard
days[.]” Other than the victims’ own statements, no one provided any independent
knowledge of what was taken from the victims, that it was taken at gunpoint, or that the
Defendant entered the residence forcibly. The recordings of the 911 call and from Officer
Lawson’s vehicle serve simply to bolster the victims’ credibility; they do not provide
independent evidence that the statements made in the recordings or that the victims’ trial
testimony are true. Upon review, we conclude that witness credibility was an overriding
issue and that a new trial is therefore required.




2
 We note that opening and closing statements were not transcribed and included in the record on appeal.
Outside the presence of the jury, defense counsel summarized the theory of defense as follows:

        [I]t will be our position today that [the Defendant] was there by invitation, having spent
        several days there at the invitation of the roommate, his cousin, and that he did take some
        items from them, but that he did not do so by force. He waited until they were basically not
        paying attention, grabbed their marijuana and their car keys and took off in their car.

The trial court asked, “And you claim there was no weapon, and that he just stole certain items while they
weren’t looking--watching.” Defense counsel replied, “That’s what my client tells me, your Honor, yes sir.”
However, the statements of counsel are not evidence. At trial, neither victim testified that the Defendant was
at their house that evening by invitation. Additionally, Mr. Cobb testified that the Defendant had never been
inside the residence. Defense counsel’s statement that the Defendant was there by invitation and
subsequently stole the car was not evidence and was not supported by the evidence adduced at trial.

                                                    -11-
                                      CONCLUSION

       Based upon the foregoing reasoning and authorities, we conclude that the successor
judge could not properly act as thirteenth juror in this case because credibility was an
overriding issue. The judgments of the trial court are reversed, and this case is remanded for
a new trial.


                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




                                             -12-
