                                                                                          09/08/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 11, 2017

              STATE OF TENNESSEE v. KEVIN LYNN MORRIS

                  Appeal from the Circuit Court for Chester County
                       No. 15-CR-25       Kyle Atkins, Judge
                      ___________________________________

                           No. W2017-00126-CCA-R3-CD
                       ___________________________________

The Defendant, Kevin Lynn Morris, was convicted by a Chester County jury of
aggravated burglary, theft of property valued at $500 or less, vandalism, and evading
arrest. His sole issue on appeal is that the trial court erred by denying his motion for new
trial based on newly discovered evidence. Upon review, we affirm the judgment of the
trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and D. KELLY THOMAS, JR., JJ., joined.

G.W. Sherrod III, Henderson, Tennessee, for the Defendant-Appellant, Kevin Lynn
Morris.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Benjamin C. Mayo,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       The Defendant appeals from his convictions of aggravated burglary, theft,
vandalism, and evading arrest stemming from a home burglary. In this direct appeal, the
Defendant claims that he is entitled to a new trial based on newly discovered evidence
regarding the victim’s identification of the Defendant’s truck. The following facts are
relevant to this appeal.

       On April 10, 2015, Chester County Sheriff Blair Weaver responded to a burglary
at 770 Deming Road. Sheriff Weaver received a description provided by the victim of
the suspect’s truck, which was described as a “dark blue Ford stepside Ranger pickup
with a dark colored toolbox in the back.” On his way to the house, Sheriff Weaver
encountered a truck that matched the description of the suspect’s truck, and he activated
his blue lights. The truck sped up, ran a stop sign, turned down another road, and
continued “a quarter of a mile” before pulling over. Once the truck stopped, Sheriff
Weaver arrested the Defendant, who was driving the truck. Sheriff Weaver detained the
Defendant while another officer drove the victim by to identify the Defendant. The
officer confirmed over the radio that the victim had positively identified the Defendant as
the perpetrator, and Sheriff Weaver proceeded with the Defendant’s arrest. On cross-
examination, Sheriff Weaver identified a towing report for the Defendant’s truck which
listed the color as black. Sheriff Weaver did not write the towing report and testified that
he believed the truck to be a “very dark” blue.

        The victim, Robby Lax, testified that he arrived home around noon on April 10,
2015, to find an unknown truck parked near his driveway. Lax then saw the Defendant
“coming around the house” carrying Lax’s saw, which had been inside his house. Lax
told the Defendant to put the saw down and pointed his gun at the Defendant. The
Defendant set the saw down and complied with Lax’s demand to get on the ground.
However, as Lax pulled out his phone to call 911, the Defendant crawled towards his
truck and escaped. Lax gave dispatch a description of the Defendant and the Defendant’s
truck, which he described as a “blue Ranger stepside extended cab” with a painted blue
emblem on the side and a painted blue toolbox in the back. On cross-examination, Lax
also recalled that the truck’s wheels were painted blue. Lax testified that one door
leading into his house had been pried open and that another door had a glass pane
knocked out. Lax confirmed that an officer drove him to identify the Defendant shortly
after the arrest, and he also identified the Defendant at trial.

       After the State rested, defense counsel called Sheriff Weaver as a rebuttal witness.
Defense counsel presented a series of photographs on a digital camera allegedly depicting
a truck in the Chester County impound lot. These photographs were not entered into
evidence. When asked to identify the truck in the photographs, Sheriff Weaver said that
the truck “appear[ed] to be a dark . . . colored Ford Ranger . . . similar to the one that [he]
stopped.” Sheriff Weaver agreed that the truck in the photographs had chrome wheels
and a chrome emblem on the side. Sheriff Weaver also confirmed that the Defendant’s
truck was impounded after his arrest and that there were no other Ford Rangers on the
impound lot at that time. However, Sheriff Weaver said that he could not say with
complete certainty that the truck in the photographs was the Defendant’s truck and that he
did not know who took the photographs or when the photographs were taken.

       At the conclusion of the proof, the jury found the Defendant guilty as charged.
Following a sentencing hearing, the court imposed a sentence of fifteen years’
incarceration for the aggravated burglary, six years’ incarceration for evading arrest, and
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eleven months and twenty-nine days’ incarceration for both the theft and vandalism
convictions, with all sentences running consecutively. The Defendant filed a motion for
new trial on October 21, 2016, alleging, inter alia, that,

       following the close of [the] Defendant’s case, the Defense was provided
       new information that is potentially material to the outcome of the case.
       More specifically, the photographs of a [pickup] truck on the county
       impound lot shown to Sheriff Blair Weaver during the Defendant’s case[-
       ]in[-]chief were also shown to the [S]tate’s complaining witness, Robby
       Lax, by the Assistant District Attorney General, and upon information and
       belief that the [S]tate’s complaining witness stated that the truck depicted in
       those photographs was not the truck that he saw in his driveway on the
       [d]ate of the offense.

       At the motion for new trial hearing, defense counsel claimed that, after he closed
his proof, the prosecutor showed the truck photographs to the victim. Defense counsel
told the trial court that he “wasn’t there” but that he was informed “from a witness that
was in the hall” and by the prosecutor that the victim said, “‘That’s not the truck that was
in my driveway.’” No evidence was presented at the hearing and, on December 5, 2016,
the trial court entered a written order denying the Defendant’s motion. This timely
appeal followed.

                                       ANALYSIS

        On appeal, the Defendant raises the single issue of “whether the trial court erred in
failing to grant [his] motion for new trial based upon newly discovered evidence.” The
State responds that the Defendant has failed to present the alleged new evidence on which
he relies and that the fact that the victim “would have stated that an unspecified vehicle in
the Chester County impound was not the vehicle he saw at his residence” is irrelevant,
and would not change the result of the trial. We agree with the State.

       In order to obtain a new trial on the basis of newly discovered evidence, the
defendant must show: “(1) reasonable diligence in seeking the newly discovered
evidence; (2) materiality of the evidence; and (3) that the evidence will likely change the
result of the trial.” State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994) (citing State v.
Goswick, 656 S.W.2d 355, 358-60 (Tenn. 1983)). Additionally, “[w]hether the trial court
grants or denies a new trial on the basis of newly discovered evidence rests within the
sound discretion of the trial judge.” State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim.
App. 1997) (citing Hawkins v. State, 417 S.W.2d 774, 778 (Tenn. 1967)). Typically, a
petitioner will not be granted a new trial where the newly discovered evidence “merely
contradicts or attempts to impeach” a witness’s testimony at trial. State v. Sheffield, 676
                                            -3-
S.W.2d 542, 554 (Tenn. 1984). However, “if the impeaching evidence is so crucial to the
defendant’s guilt or innocence that its admission will probably result in an acquittal, a
new trial may be ordered.” State v. Singleton, 853 S.W.2d 490, 496 (Tenn. 1993) (citing
State v. Rogers, 703 S.W.2d 166, 169 (Tenn. Crim. App. 1985); Rosenthal v. State, 292
S.W.2d 1, 4-5 (Tenn. 1956); Evans v. State, 557 S.W.2d 927, 938 (Tenn. Crim. App.
1977)).

       The trial court found that the photographs at issue were within the Defendant’s
control. In fact, at the motion for new trial hearing, the Defendant acknowledged that the
photographs came from one of his witnesses. The trial court also noted that the
Defendant could have re-examined the victim about the photographs, as he did with
Sheriff Weaver. In this regard, the Defendant has presented no proof that the
photographs or the ability to question the victim about the photographs was out of his
control.

         We also fail to see how the victim’s statement, even if true, tends to prove any
material fact. The evidence is not relevant to the Defendant’s crimes. As pointed out at
trial, the photographs were not part of the record and there was no evidence regarding
who took the photographs, when the photographs were taken, or if the truck in the
photographs was the Defendant’s truck. Further, no testimony from the victim or anyone
who heard the victim’s statement directly was introduced at the motion for new trial
hearing.

       Likewise, we are not convinced to the likelihood of a different result had the
victim’s alleged statement been produced and accepted by the jury. As discussed above,
the evidence was not material. Sheriff Weaver was questioned about the difference
between the truck in the photograph and the victim’s description of the truck, and the jury
chose to convict the Defendant despite this testimony. Without further proof, we fail to
see how the jury could reach any other conclusion. Accordingly, we see no abuse of
discretion in the trial court’s denial of the motion for new trial.

                                    CONCLUSION

       Based upon the foregoing, we affirm the judgment of the trial court.


                                                    ______________________________
                                                    CAMILLE R. MCMULLEN, JUDGE




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