1 It is t he policy of t

his court t

o refrain f

rom using the na

me of a minor who has been t he victim of

a sex crime. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs A

pril 25, 2001
STATE OF TENNESSEE v. RUSSELL ALLEN
Appeal as of Right from the Circuit Court for Maury County

No. 11, 192 Robert L. Jones, Judge

No. M2000-01656-CCA-R3-CD - Filed July 10, 2001

T he appellant, Russell Allen, was convicted in the Maury County Circuit Court of o ne count o f aggravated

sexual battery and was sentenced as a Range I offender to eight yea rs incarceration in the Tennessee Department of Correc tion. On appeal, the appellant raises the following issue for our review: whether the trial court erred in failing to grant the appellant a new trial based u

pon newly discovered

evidence. Upon review of the record and th

e parties’ briefs, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined.
Gary M. Howell, Columbia, Tennessee, for the appellant, Russell Allen.

Paul G. Summers, Attorney General and Reporter; Jennifer L. B ledsoe, Assistant A ttorney Ge

neral; Mike Bottoms, District Attorney General; and Lawrence R. Nickell, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
I. Factual Backgr

ound On the afternoon of May

18, 1999, the appe

llant, Russell

Allen, went to the home of
a co-worker, Jan Mo

ody. Only

Moody’s tee

nage daughte

r, M.M., was home a

t the time. 1 M .M. admitt ed the appellant into the home because she recognized him as a co-worker of her mother. When the appellant

entered the home, he was carrying a bottle of Sun-Drop cola a nd Crown Royal whi ske y. The appellant

offered M. M. a drink of the alcohol and began following her through the house. M.M. refused the alcohol and told the appellant that her mother would be home shortly. The appellant then pulled a gun from his poc k et and began loading it. Upon seeing the appellant’s-2-

actions, M.M. became so afraid that she knelt, covered her head, and began c rying. The appellant placed the gun to M.M.’s head, told her to remove her clothes, and ordered her to perform oral sex on him.

M.M. did as the appellant ordered. After a minute or two, M.M. asked the appellant if she could stop because her mother would s oon be h ome. The appellant became repentant and apologizedto M.M., offering to give her money and threatening to kill himself. M.M. again aske d the appellant to leave and he didso. Immediately following the appellant’s depar ture, M.M. called her mother at work. Moody, the victim’s mother, testified that, during the conversation, her daughter
was incoherent a

nd h ys terical, “cry

ing and scream

ing” at the same

time. Moody w

as able to understandthe word“gun” and told M.M. to call 911. After speaking with her mother, M.M. called 911 and reported the assault. The police and Moody arrived at the r

esidence shortly

after the call. Upon the arrival of the police, M.M. gave one of the o fficers a bullet that she found on the living room carpet after

the appellant left the house. The bullet was determined to be a .25 caliber bullet designed for a semi-automatic weapon.

The appellant was indicted and trie d for the aggr

avated rape of

M.M. At trial, M.M. testified that the gun the appellant had on the day of the offense was a handgun, furthe r explaining that “it was the kind of gun where the bullets go in where that comes out, and the bullets go into that little round thing.” M.M. also later testified that the gun was similar

to guns used to play Russian Roulette. She asserted that neither she nor her mother ever kept a gun in the house; therefore, the bulletmust belong to the a ppellant. M.M. surm

ised that the appe

ll ant dropp ed the bullet while loading his gun. The appellant testified that he did not own a .25 caliber weapon but did admit that he owned a .380 caliber semi-automatic pistol.

The jury convicted the appellant of aggrava ted sexual bat t ery. The trial court
se ntenced the appellant as a Range I offender to eight y ears incarceration in the Ten nesse e Department

of Correction. Subsequently, the appellant filed a motion for new trial alleging, among other things, that, because there had been no preliminary hearing, the appellant was unaware prior to trial that M.M. woul

d testify tha

t the gun used dur

ing th e offe nse was a revolver. He further alleged that he was unaware that the semi-automatic bullet introduced by the Stat e would n ot fire in a revolver. After trial, appellant’s counsel was told by a bailiff that ther e is no such gun as a .25 caliber revolver, and, regardless, the .25 caliber semi-automatic ammunition would not fit into a revolver due to the difference

in gun designs. The appellant contended that this evidence would be crucial in impeaching the credibility of the State’s main witness, M.M. A hearing was held on the appellant’s motion for new trial. The trial court issued an order denying the appellant’s motion for
new trial, finding that

the appellant had

not met the requirements necessary for granting a new trial basedupon newly discovered evidence. The appellant requests that this court review the trial court’s denial of a new trial based upon newly discovered evidence

. II. Analysis In State v. Singleton , 853 S.W.2d 490, 496 (Tenn. 19 93) (citati ons omitted), our supreme court articulated the test for granting a new trial on the basis of newly discovered evidence:-3- It has long been recognized under Tennes see law that a trial court should grant a defendant a new

trial on the basis of newly discovered evidence when [(1)] the defendant has been reasona b ly diligent

in obtainin g evidence, [(2)] th e materiality

of the new eviden

ce is apparent, and [(3)] the evidenc e is likely to c hange the result [of the trial]. It is true that newly discovered impeachment evidence

will not constitute grounds for a newtrial , as a general rule. But if the impeaching evidence is so cr ucial to the defendant’s guilt or innocence that its admission will probably result in an acquittal, a new trial may be ordered. In order to be entitled

to a new trial based on newly discovered evid

ence, all three

prongs of the te

st must be met. See State v. Nichols , 877 S.W.2d 722, 737 (Tenn. 1994). Furthermore, the decision to “grant[] or den[y] a new trial on the basis of newly discover ed evidence rests within the sound discretion of the trial judge.” State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997). Acco rdi ngly, our standard of review is abuse of discretion. See S ta te v. Meade , 942 S.W.2d 561, 565 (Tenn. Crim. App. 1996).

Init ial ly, we note that, although the appellant challenges the trial court’s ruling regarding his motion for new tr

ial, the appellant has failed to include in the record for our review the transcript of the hearing on the motion for new trial. “When an accused seeks appellate review of
an issue in this court, it is the duty of the accused to prepare a record which co

nveys a fa ir, accurate and complete acc

ount of what trans

pired with respec

t to the issue[] which f

orm[s] the basis of the appeal.” State v. Taylor

, 992 S.W.2d 941, 944 (T enn. 1999); see also State v. Ballard , 855 S.W.2d 557, 560-61 (Tenn. 1993). Acco rdingly, when this court is presented with an incomplete record, which does not contain a transcrip t of t he relevant proceedings, this court is precluded from considering the issue and must conclusively presume that the trial court’s ruling was correct. See Statev. Griffis , 964 S.W.2d 577, 593 (Tenn. Crim. App. 1997); State v. Matthews , 805 S.W.2d 776, 784 (Tenn. Crim. App. 1990). Nevertheless, from the record before us, we can determine that the trial court did not a

buse its discretion

in denying

the appellant’s mo

tion for new trial

. The trial court’s order denying the appellant’s motion for new trial indicates that the following proof was presented at the hearing: an affidavit by counsel averring his ignorance of the fact that there is no such gun as a .25 caliber revolver and that even if such weapon exists, a .25 caliber semi-autom atic bull et would not fit into a .25 caliber revolver; an affidavit by Steve Thomason, a gu n dealer, m aintaining that a bullet for a semi-automatic pistol would not fit into a revolver, even a revolver of the same calib

er, and expressing

his doubt that a

.2 5 caliber revolver exists; “testimony of the victim [M.M.;] demonstrations of the loading of a revolver and magazine (clip) of a semi-automatic pistol[;] an exhibit from the investigating officer’s file[;] oral argument of counsel[;] and the entire record in this case.”

After reviewin

g the evidence

, the trial court f

ound that defense counsel was reasonably

diligent in attemp

ting to discover a

ll
ma te rial and relevant evidence before the trial and that the gun-4- evidence would have been material in i m peaching the testimony of [M.M.] about what she remembered seeing at the time of the offense. However, the court is not s atisfied that the evidence concerning the cartridge and

types of pist

ols would change

the result of the tr

ial.

. . .It appears that [M.M.] may be mistaken about the ty pe of gun or that the defendant may have attempted to l oad an automatic round into a revolver, which might explain why it w as found on the floor. In any event, the victim seems no less certain or convincing about the
occurrence

resulting in the defendant’s conviction. Ther efore, while this so called newly discovered eviden ce wo uld be admissible in c ross examination of the victim, this court is satisfied that the victim would still be sufficientl

y credibl e to convince the jury that the defendant committed the offense.

. . .This co nvinces the court that the jury would not have reached a di fferent conclus ion about the requ ired elements of t

he offense mere

ly be cause the victim could not accurately describe the hand gun , especially in light of the traumatic circumstances of this offense. See Caldwell , 977 S.W.2d at 117; State v. Parchman , 973 S.W.2d 607, 610-11 (Tenn. Crim. App. 1997).
In support of the trial court’s findings, we observe that, at trial and at the sentencing hear ing, the victim consistently testified regarding her description of the wea pon. Specifica lly, M.M

. consistently

described

the gun as having “the kind of barrel that [comes] out of the gun, you know.

. . . [L]ike the kids play Rus s ian Roulette with that you spin.” She was equally unfailing in her
assurance that neither she nor her mother kept a gun in the house. As this court stated in Parchman , 973 S.W.2d at 610,

[a] new trial will not be granted on newly discovered evidence when the effect is merel

y to impeach

a witness’ testimony at trial unless the impea c hing evidence is so crucial to the defendant’s guilt or innocence that it

s admissio n would chan ge the outcome of the case. We are not convince

d that the “newly

discovered evid

ence” regar

ding the bullet is

“so crucial” as to change the outcome of the appellant’s case. Again, we note that our standard of review i n thi s case is abuse of discretion, and, based upon the record before us, we are unable

to conclude that the trial court abused its discretion in denying the appellant’s motion for new trial. See State v. Marlon D. Beauregard , No. W1999-01496-CCA-R3- C D, 2000 WL 705978, at *4-5 (Tenn. Crim. App. at Jackson, May 26, 2000), perm. to appeal denied , (Tenn. 2001).

III. Conclusion Based on the for

egoing, we af

firm the judgmen

t of the trial cour

t.-5- ___________________________________ NORMA McGEE OGLE, JUDGE