         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  December 9, 2003 Session

            STATE OF TENNESSEE v. JOEY THOMAS HOLLAND

                 Direct Appeal from the Circuit Court for Robertson County
                          No. 01-0174    Michael R. Jones, Judge



                     No. M2003-00988-CCA-R3-CD - Filed March 9, 2004


The Appellant, Joey Thomas Holland, appeals the judgment of the Robertson County Circuit Court
denying his petition for writ of error coram nobis. Holland was convicted by a jury of two counts
of aggravated sexual battery of his minor son. Holland alleges that his convictions should be set
aside because the victim recanted his trial testimony. After a thorough review of the record, we
affirm the decision of the trial court denying the petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.
GLENN , JJ., joined.

Roger Eric Nell, District Public Defender; Charles S. Bloodworth, Assistant District Public
Defender, Springfield, Tennessee, for the Appellant, Thomas Holland.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helena Walton
Yarbrough, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and
Dent Morriss, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                       Factual Background

        On April 24, 2001, the Appellant was indicted by a Robertson County jury for two counts
of aggravated sexual battery. In Count 1, the Appellant was charged with touching the victim’s penis
over his clothing during September of 1995. In Count 2, alleged to have occurred in February of
1999, he was charged with rubbing the victim’s penis under his clothing. The victim was the
Appellant’s son, who was under the age of thirteen at the time of these events. The Appellant was
tried by a jury on September 5, 2001. The trial court outlined the relevant trial testimony as follows:
               The victim testified at trial that while he, his brother, mom and dad lived on
       State Line Road that his father (the defendant) while they were alone and in the living
       room “put his hand up underneath my pants. He was rubbing my penis.” Further,
       the victim testified that when he was 9 [years old] living in a trailer that he (the
       victim) was in a recliner and the defendant placed his hands under my pants and
       rubbed my penis. On both occasions the victim was unable to remember what
       happened that caused the defendant to stop. The victim stated he was telling the
       truth. The cross examination of the victim established that the victim had made a
       prior statement to Mike Noland.

               Mr. Noland testified that he requested the defendant to come to the DHS
       building. The defendant appeared on one occasion, but there was no interview. The
       defendant came back on April 10, 2001, and made a statement. The statement was
       made an exhibit and read to the jury. Specifically the defendant admitted touching
       the victim’s penis in September 1995 and again approximately in February 1999.
       Specifically the defendant stated that the victim was sitting in a recliner. Prior to the
       statement being made, the defendant was advised that the victim had made these
       accusations.

               Cross examination of Mr. Noland led to the denial from Mr. Noland that he
       told the defendant that by agreeing to this statement that it would help the defendant
       to regain custody.

               The defendant testified that the dates, addresses and what happened came
       from the victim’s statement to Mr. Noland. The defendant testified that he agreed to
       the statement because - “It would help me and Vanessa get custody back. And I was
       already going through anger management classes and that it would go lighter if I
       signed the confession. If I didn’t sign the confession, the District Attorney would be
       out to get me if I went to trial.” On cross examination the defendant testified that the
       statement was not true. The defendant volunteered that “I was told this would never
       come to trial. This would - never be pursued if I signed a confession.”

               Mr. Noland was recalled by the defense and testified that the victim was
       scared for his mother when she and the defendant would fight.

Following the conclusion of proof, the Appellant was convicted of both counts of aggravated sexual
battery, class B felonies. A sentencing hearing was held on October 12, 2001, during which the trial
court sentenced the Appellant to ten years on each count to run concurrently. The Appellant did not
pursue a direct appeal of his convictions or sentence.

       On August 27, 2002, the petitioner filed a petition for writ of error coram nobis, alleging that
he was entitled to a new trial because the victim “had retracted his statements and now would state



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under oath that no molestation had in fact occurred.” An evidentiary hearing was held on February
21, 2003, during which the following evidence, as summarized by the trial court, was presented:

       . . . [A] taped interview of the victim . . . was made on December 5, 2002. The
       victim testified that neither event had occurred. He stated that he stated that the
       events did occur “because I didn’t want my dad beating on my mom no more and I
       just said that to get him out of the house.” The victim further testified that he told his
       mother that his testimony was not true because “we wasn’t getting along and stuff
       and I felt like I need my dad.” On cross examination the victim stated that he did not
       tell his foster mom that his testimony was not true. This testimony was very
       emotional with tears, hanging of the head and mere nods to some questions.

               Mike Noland testified that the victim was interviewed at Jo Byrns school on
       March 20, 2001. The notes of the statement were read to the defendant when he was
       interviewed. In this statement the victim stated that the defendant touched his penis
       about 2 years ago while they were living in Adams area in a trailer owned by Max
       Baggett. The child demonstrated the actions of the defendant. On the second
       episode the victim stated that he was at home because the bus did not pick them up
       and that the defendant touched his penis.

On March 28, 2003, the trial court issued a detailed opinion denying the petition, and this timely
appeal followed.

                                             ANALYSIS

       In this appeal, the Appellant argues that the judgments of conviction should be set aside and
a new trial ordered because the victim, who testified against the Appellant at trial, recanted his
testimony. A writ of error coram nobis is an extraordinary remedy by which the trial court may
provide relief from a judgment under narrow and limited circumstances. State v. Mixon, 983 S.W.2d
661, 666 (Tenn. 1999). The remedy is available by statute to a criminal defendant in Tennessee. See
Tenn. Code Ann. § 40-26-105 (2003). This statute, in pertinent part, provides:

       Upon a showing by the defendant that the defendant was without fault in failing to
       present certain evidence at the proper time, a writ of error coram nobis will lie for
       subsequently or newly discovered evidence relating to matters which were litigated
       at the trial if the judge determines that such evidence may have resulted in a different
       judgment, had it been presented at the trial. The issue shall be tried by the court
       without the intervention of a jury, and if the decision be in favor of the petitioner, the
       judgment complained of shall be set aside and the defendant shall be granted a new
       trial in that cause.

Id.



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      Recanted testimony may qualify as newly discovered evidence. Mixon, 983 S.W.2d at 672.
A new trial should be granted on the basis of newly discovered recanted testimony, however, only
if:

         (1) the trial court is reasonably well satisfied that the testimony given by the material
         witness was false and the new testimony is true; (2) the defendant was reasonably
         diligent in discovering the new evidence, or was surprised by the false testimony, or
         was unable to know of the falsity of the testimony until after the trial; and (3) the jury
         might have reached a different conclusion had the truth been told.

Id. at 673 n.17 (citations omitted). The decision to grant or deny a petition for writ of error coram
nobis based on newly discovered evidence lies within the sound discretion of the trial court. See
Tenn. Code Ann. § 40-26-105; State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).

       As such, we will not overturn the decision of the trial court in this case absent a showing of
abuse of discretion. In its opinion denying the petition, the trial court, applying Mixon,1 found that:

                 Had this victim testified at the trial of this case that nothing occurred, a
         motion for judgment of acquittal would have been granted. Normally prior
         inconsistent statements would not be admitted for the truth of the matter asserted.
         It would be a question of law for the court to have considered whether or not the
         confession or admission was corroborated. The jury might well have reached a
         different conclusion if the victim had testified that these events did not occur. It is
         clear that the defendant was diligent in discovering the recantation. Prongs 2 and 3
         above are satisfied.

                  The most difficult part of this case is (1) - is this court reasonably well
         satisfied that the victim’s testimony at trial was a lie and that he was telling the truth
         at the last hearing. The victim testified that he made the original statements to get
         rid of his dad so he would not beat his mother anymore. He testified that he recanted
         because he was mad at his mother at the time and wanted his dad. During the time
         that he was in foster care, he made no recantation.


         1
           The Appellant argues that the trial court applied the wrong standard in reaching its decision. The Appellant,
relying on State v. Workman, 111 S.W .3d 10, 18 (Tenn. Crim. App. 2002), submits that the correct standard is: (1)
whether the newly proffered testimony is, in fact, a recantation and, (2) if so, “the court must go forward and determine
that the new testimony, if considered in connection with all of other evidence in the case, created a ‘reasonable
probability’ that ‘may have resulted in a different judgment.’” However, the Appellant misreads Workman. In Workman,
the court acknowledged that Mixon was the proper standard to apply to newly discovered recantation testimony. Id. at
17. The court then proceeded to clarify the coram nobis statute, Tennessee Code Annotated section 40-26-105, and
prong (3) of the Mixon analysis, concluding that the “reasonable probability” standard was the proper interpretation of
the “may have resulted in a different judgment” language of the statute and the “might have reached a different
conclusion had the truth been told” language of Mixon. Id. at 18. Ultimately, the Workman court found that a Mixon
analysis was inapplicable to the facts of that case because the testimony given was not a recantation. Id.

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              . . . There are factors on each side of this question. His testimony at trial was
       believed by the jury; it was compelling, to the point and full of specifics. His
       testimony at the hearing was emotional as one should expect.

                The jury found beyond a reasonable doubt that the defendant did do those acts
       testified to by the victim. In doing so, the jury rejected the testimony of the
       defendant that he did not commit either act and confessed only to help him regain
       custody. The testimony of the defendant at trial and at the time of the hearing as to
       why he made the statement are just not reasonable. Applying common sense and
       reason, this court can not accept that reasoning by the defendant just as the jury could
       not. Placing the confession with the trial testimony, this court is more than
       reasonably well satisfied that the testimony of the victim at the time of the trial was
       true; therefore, this court is not reasonably well satisfied that the testimony given by
       the victim at the trial was false and the court is not reasonably well satisfied that the
       testimony given by the victim at the hearing was true.

         In this matter, the trial court conducted an evidentiary hearing on the Appellant’s claim of
recanted testimony at which the victim; his mother, Vanessa Holland; and Mike Noland with the
Department of Children Services testified. In March of 2001, the victim and his younger brother
were removed from their parents’ home and placed in foster care. The victim remained in foster care
at the time of trial; however, he was returned to his mother’s custody approximately two and one-half
months following the conclusion of trial proceedings. It was not until the victim returned to his
mother’s custody that he claimed the instances of sexual conduct did not happen. While in his
mother’s care, the victim read letters from the Appellant that stated “how hard it is to be in prison”
and “how he wants to come home, be a family again.” Also at this time, the victim was not getting
along with his mother and felt like he needed his father. Furthermore, according to Mike Noland,
the victim’s mother told him, prior to trial, that she believed the Appellant abused the victim. As
noted by the trial court, the Appellant’s reasons for confessing to these crimes are unreasonable, i.e.,
it is not reasonable to conclude that admitting to sexual abuse of one’s child would help that
individual regain custody of the child. Moreover, at trial, the victim gave specific testimony about
two instances of improper sexual contact by his father.

         Since the same trial judge presided at both the trial and coram nobis hearing, the judge had
a unique opportunity to determine, to the extent that it is possible to know when another person is
being untruthful, at which occasion the victim testified falsely. Terry Stephens v. State, No. M2001-
00023-CCA-R3-CO (Tenn. Crim. App. at Nashville, Dec. 19, 2001) (citing Mendiola v. Schomig,
224 F.3d 589, 593 (7th Cir. 2000)). Applying the dictates of Mixon, the court determined that the
false testimony occurred at the hearing and, based upon our review of the entire record including the




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trial transcript, we cannot say that the court abused its discretion in so concluding. Accordingly, we
affirm the order of the trial court denying the petition for writ of error coram nobis.2

                                                  CONCLUSION

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




                                                                 ___________________________________
                                                                 DAVID G. HAYES, JUDGE




         2
          Although it is not the basis for our holding in this case, we note that courts are skeptical of recantations in
sexual abuse cases involving children for, in such cases, “recantation is a recurring phenomenon.” Terry Stephens, No.
M2001-00023-CCA-R3-CO (quoting United States v. Provost, 969 F.2d 617, 621 (8 th Cir. 1992)).

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