IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 25, 2010 Session

KENNETH ALAN STEELE v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Hamilton County

No. 244865 Don W. Poole, Judge

No. E2009-02376-CCA-R3-PC - Filed March 10, 2011

The Petitioner, Kenneth Alan Steele, filed a petition for a writ of error coram nobis, alleging

that because of newly discovered DNA evidence, his convictions should be vacated and/or

he should be granted a new trial to present evidence of a third-party perpetrator. On appeal,

the Petitioner argues that the trial court erred by dismissing his petition without a hearing and

that it applied the wrong standard in making its ruling. We agree that the trial court used the

wrong standard; nevertheless, we conclude that the trial court did not err in dismissing the

petition. Accordingly, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN,J., joined. JAMES CURWOOD WITT,JR., J., filed a separate concurring opinion.

Benjamin L. McGowan, Chattanooga, Tennessee, for the appellant, Kenneth Alan Steele.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney

General; William H. Cox, III, District Attorney General; and Neal Pinkston, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

This court previously noted that the Petitioner “was charged on 21 separate

indictments involving eight separate victims and spanning a time period from November 17,

1987 through June 30, 1990.” State v. Kenneth Alan Steele, No. 03C01-9207-CR-233, 1993

WL 415836, at *1 (Tenn. Crim. App. at Knoxville, Oct. 13, 1993). Upon motion of the
State, the trial court consolidated the indictments and the case proceeded to trial. Id. At trial,

the jury found the Petitioner guilty as charged, and he was convicted of five counts of first

degree burglary, three counts of aggravated burglary, three counts of aggravated rape, three

counts of armed robbery, one count of aggravated robbery, one count of rape, one count of

attempted rape, one count of attempt to commit armed robbery, one count of assault with

intent to commit rape, one count of aggravated assault, and one count of theft of property.

This court previously summarized the proof adduced at trial as follows:

PM testified that on November 17, 1987, she was living with her

son in a duplex in the Avondale area of Chattanooga.[ ] She had

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locked the doors and gone to bed when she was awakened by

“pats” on her chest. The room was very dark, but she was able

to discern a man standing above her. He was holding a knife in

his hand and threatened to cut her throat if she did not remain

silent. He then ordered her to remove her clothing and

proceeded to rape her. PM’s assailant then inquired if she had

a gun or money. She removed money from her purse and

surrendered it to the man. Despite the darkness, PM was able to

describe the man as black, with an average build, approximately

five feet and ten inches tall, wearing pants, a shirt, and a towel

around his head and face. Despite the towel, she was able to see

that he had a “close haircut.” He also appeared to be

left-handed. Finally, she stated that he smelled as if he worked

in a gas station. Following the assault, the intruder left the

bedroom, indicating that he was “going to take a piss,” and

would return. PM remained in the bedroom until she was

reasonably certain that he had departed her home. [The

Petitioner was convicted of the first degree burglary and

aggravated rape of PM].

CM testified that on January 3, 1988, she was living with

her son in a duplex in Chattanooga. The State’s proof revealed

that CM’s duplex was located in an area in which the police

were investigating activities by an unknown individual referred

to at that time as the “towel rapist.” On the night in question,

CM was sleeping with her son when she was awakened by a

man placing his hand over her mouth and nose. The man

 It is the policy of this court to refer to victims of sexual offenses by their initials. 

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threatened to hurt her son if she did not get up from the bed. Her

assailant then forced her down the hallway into the living room,

where he raped her. The man was armed with a knife and held

the knife to her throat during the assault. Her house was dark,

but CM was able to describe her assailant as black, neither fat

nor thin, with very little hair or no hair. CM further recalled

that, when standing, her head was at the same level as his chest.

She testified that she is five feet and one inch tall. She

remembered that her assailant was holding the knife in his left

hand. Finally, CM stated that the assailant left grease marks

with his hands on the wall of her apartment.

Following the rape, CM’s assailant threatened to hurt her

or her son if she did not remain still. He then left the living

room, and CM heard him removing coins from a can she kept in

another room. She subsequently discovered that several silver

coins and a camera were missing from her home. [The

Petitioner was convicted of the first degree burglary, armed

robbery, and aggravated rape of CM].

EP testified that on July 26, 1989, she was living with her

daughter in a duplex in the Avondale area of Chattanooga. She

had gone to bed when she was awakened by a man placing his

hand over her mouth. He threatened to hurt her or her child if

she screamed. She felt a sharp object against her neck. He told

her he was going to “f---” her and then inquired if she had any

money. When she told him she did not have money and showed

him her empty purse, he began to touch her and remove her

clothing. EP informed him that she is disabled and that her legs

“were not for doing anything like this.” When the man felt her

legs, he ceased his assault, apologized, and left. Although the

house was very dark, EP was able to testify that the man was

approximately five feet and seven or nine inches tall, his body

felt heavy on top of hers, and he was wearing “cloth or

something” on his head. [The Petitioner was convicted of the

first degree burglary, attempt to commit armed robbery, and

assault with intent to commit rape of EM].

DM testified that, on July 26, 1989, she was living with

her husband and three children in a duplex in the Avondale area

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of Chattanooga. Testimony at trial revealed that her residence

was no more than six blocks from EP’s home. DM’s husband

was a truck driver and was away from home for long periods of

time. He was away from home on the night in question. DM

had gone to sleep when she was awakened by a man standing

next to her bed. He immediately “straddled” her on the bed, and

she began to struggle. She testified, “I was really fighting and

screaming real loud . . . seems like they had something over my

face, I can’t remember, I don’t know. But whoever it was hit

me in my eye and then they ran.” DM subsequently discovered

a butcher knife from her kitchen in her bed. She testified that,

when she had gone to sleep that night, the knife had been in her

kitchen. DM also discovered that a rifle was missing from her

home. At the time of the assault, DM’s house was dark, but she

was able to describe her assailant as five feet and eight inches

tall, with a medium build. According to DM, he “didn’t have

that much hair.” She also recalled that her assailant did not

appear to be wearing a shirt. [The Petitioner was convicted of

the first degree burglary, armed robbery, and aggravated assault

of DM].

ES testified that on October 8, 1989, she was living with

her two daughters in a duplex in Chattanooga. The State

established that the duplex was located in the same area in

which the so called “towel rapist” was operating. ES had gone

to bed and was awakened when the door to her bedroom opened.

The intruder immediately threatened to kill her if she did not

remain silent. He ordered her to remove her clothes and then

raped her. During the assault, the assailant held a “box cutter”

to her throat. Afterwards, he asked if she had money. When she

indicated that she did not, he left the bedroom. He told her that

he would kill her if she called the police. Although her house

was dark, [ES] was able to testify that her assailant was a black

man with an average height and medium build and was wearing

a towel on his head. She further testified that the assailant had

“average” hair, similar to the petitioner’s hair at trial. Following

the incident, she discovered that her child’s piggy bank, filled

with pennies, had been removed from the house and left outside.

[The Petitioner was convicted of the first degree burglary, armed

robbery, and aggravated rape of ES].

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SB testified that on January 21, 1990, she was living by

herself in a duplex in Chattanooga. She had gone to her

bedroom and was watching the television. She had locked the

door to her bedroom and had placed her telephone in the bed

with her. At some point, she heard a noise in the hallway. She

immediately called the police. The police arrived in

approximately five minutes. At that time, she noticed that a

“ceramic dog bank,” filled with Canadian money, was missing

from her home. SB never saw the intruder. However, she

testified that she recognized the petitioner at trial, because he

lived in the same neighborhood. [The Petitioner was convicted

of the aggravated burglary of SB’s residence].

SS testified that on June 24, 1990, she was living with

her two daughters in a duplex in the Avondale area of

Chattanooga. She had gone to sleep when she was awakened by

a man holding his hand over her mouth and pressing a screw

driver to her neck. Her assailant told her that he would not harm

her if she remained silent. He asked if she had any money. She

informed him that she had $75.00 in another room. At that

point, he began to fondle her and tried to remove her pants. SS

grabbed the screw driver and stabbed him twice close to the

collarbone. She did not observe any blood. She stated, “I felt

like I hit him enough to, you know, kinda hurt him a little but

not too much.” SS then began screaming, and her assailant ran

out of the bedroom. Although her house was dark, SS was able

to describe her assailant as a black man with short hair. He was

wearing “some kind of cap on his head.” He was taller than she

was and had a medium build. He was wearing pants but did not

appear to be wearing a shirt. Subsequently, she discovered that

the intruder had taken approximately fifteen dollars and some

jewelry from her home. [The Petitioner was convicted of the

aggravated burglary, aggravated robbery, and attempted rape of

SS].

Finally, JP testified that on June 30, 1990, she lived with

her daughter in a home in the Avondale area of Chattanooga.

She had gone to her bedroom to watch television when she

heard a noise. She was leaving her bedroom to investigate when

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“this thing came over my head.” A man pushed her back into

her bedroom and told her that he would “cut” her if she did not

remain silent. He asked if she had any money, and she gave him

one hundred and fifty dollars. He also retrieved some jewelry

from her dresser. The intruder warned JP not to remove the

cloth from her head, but she raised the cloth a small amount and

was able to see him. She testified that there was enough light to

see her assailant. Her assailant, however, was not aware that she

could see him and proceeded to rape her. She observed him

closely for approximately five minutes. She described her

assailant as a black man with a receding hairline. He was

wearing a dark blue or black work uniform with a white and red

name tag. However, she could not discern the name on the tag.

As he was leaving the bedroom, he asked her if she had a gun.

When she told him that she did not, he ordered her to remain

still and indicated that he was going “to take a pee.” The

intruder did not return. JP testified that soon after the incident,

on the same day, she positively identified the petitioner during

a show-up identification procedure at the hospital. She also

positively identified the petitioner at trial, and confirmed that the

clothing removed from the petitioner following his arrest was

the same clothing worn by her assailant. [The Petitioner was

convicted of the aggravated burglary, theft of property, and rape

of JP].

Harold Jackson, Jr., an officer with the Chattanooga

Police Department, testified that he was en route to JP’s

residence on June 30, 1990, when he observed the petitioner

running down the street four or five blocks from JP’s home. The

police subsequently determined that the petitioner matched JP’s

description of her assailant, and the police apprehended the

petitioner one half of a mile from JP’s home. The petitioner was

wearing blue work clothes with a name tag trimmed in red. The

State’s proof revealed that, at the time of his arrest, the

petitioner worked at an automobile parts business. The police

determined that he both worked and lived in the vicinity of all

eight incidents. Moreover, at the time of his arrest, the

petitioner had two small scars on his upper torso near the collar

bone. Finally, Larry Swafford, an officer with the Chattanooga

Police Department, testified that the petitioner is left-handed.

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William Van Atta, a fingerprint specialist with the

Federal Bureau of Investigation, testified that latent fingerprints

or palm prints were recovered from the scenes of all eight

incidents. A total of twenty-six latent fingerprints and four

latent palm prints matched those of the petitioner. Agent Van

Atta opined that there was no possibility that the fingerprints

and palm prints could have been left by someone other than the

petitioner.

Pattie Choatie, a serologist with the Tennessee Bureau of

Investigation, testified that she was able to analyze semen

samples recovered from PM, ES, and JP. She also received a

semen sample recovered from CM. However, the sample had

not been stored properly and was not amenable to testing. Agent

Choatie determined that the assailant in the cases pertaining to

PM, ES, and JP, was a “non-secretor.” She explained that

eighty percent of the population secrete an “antigen”

corresponding to their blood type. This antigen is found in

bodily fluids, including semen. In contrast, twenty percent of

the population do not secrete the antigen. Accordingly, the

antigen will not be present in semen from a non-secretor. She

confirmed that the petitioner is a non-secretor.

Agent Choatie also testified that, after conducting her

tests, she forwarded the semen samples recovered from PM and

JP to the Federal Bureau of Investigation for DNA testing. She

did not forward the semen sample recovered from CM due to its

improper storage. Moreover, Agent Choatie did not forward the

semen sample recovered from ES, because she was unable to

obtain a liquid blood sample from the victim, which item is

essential to DNA testing.

Audrey Lynch, a special agent with the DNA Analysis

Unit of the Federal Bureau of Investigation, testified that she

had performed a procedure known as Restriction Fragment

Length Polymorphism (RFLP) upon semen samples obtained in

the cases of PM and JP. Agent Lynch concluded that the DNA

of the assailant in both cases “matched” that of the petitioner.

She stated that one in one hundred and fifty million people in

the black population would produce the same result.

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Kenneth Alan Steele v. State, No. 03C01-9701-CR-00012, 1999 WL 512053, at **2-5 (Tenn.

Crim. App. at Knoxville, July 21, 1999) (footnotes omitted).

For the foregoing convictions, the Petitioner received a total effective sentence of 165

years in the Tennessee Department of Correction. The Petitioner appealed his convictions

and sentences, and this court affirmed his convictions but modified his total effective

sentence to 129 years. See Steele, No. 03C01-9207-CR-233, 1993 WL 415836, at *8.

Subsequently, the Petitioner pursued two unsuccessful habeas corpus claims and one

unsuccessful post-conviction claim. See Steele, No. 03C01-9701-CR-00012, 1999 WL

512053; Kenneth A. Steele v. State, No. 01C01-9708-CC-00105, 1998 WL 120308 (Tenn.

Crim. App. at Nashville, Mar. 18, 1998); Kenneth Steele v. State, No.

01C01-9512-CC-00409, 1997 WL 211265 (Tenn. Crim. App. at Nashville, Apr. 30, 1997).

Thereafter, the Petitioner filed a petition to reopen his post-conviction petition; however, the

trial court determined that the motion should be construed as a petition for a writ of error

coram nobis. The Petitioner also filed two amendments to his petition for a writ of error

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coram nobis.

From various pleadings in the technical record, we discern that in 2003, the Petitioner

received reports from the Federal Bureau of Investigation (FBI) indicating that he was

excluded as the contributor of DNA collected from two rape victims. The names of the

victims were redacted from the report. According to the Petitioner, an FBI agent testified at

the Petitioner’s trial that testing revealed the Petitioner was the contributor of DNA collected

from two rape victims; therefore, the Petitioner believed the report revealed that the State had

suppressed contradictory, exculpatory information. However, the Petitioner later learned that

the FBI tested DNA samples from four separate rape victims. Two of the samples, which

were collected from PM and JP, contained the Petitioner’s DNA. However, the other two

samples, which were collected from JF and BW, excluded the Petitioner as the contributor.

The Petitioner was never charged with crimes relating to JF and BW.

In his amended petitions for a writ of error coram nobis, the Petitioner maintained that

prior to trial, defense counsel moved for the disclosure of discovery materials and evidence

which were exculpatory under Brady v. Maryland, 373 U.S. 83 (1963). Therefore, the

Petitioner asserted he was entitled to relief because the State withheld evidence regarding a

possible third-party perpetrator which the Petitioner could have used in his defense. The

Petitioner acknowledged that the facts of the case involving BW were so “insufficiently

similar” to his case that the State’s failure to disclose the crime was not error; however, he

Neither the motion to reopen the post-conviction petition or the trial court’sinitial order construing

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it as a petition for a writ of error coram nobis are in the record, but we have gleaned their content from

subsequent orders filed by the trial court. 

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contended that the crime involving JF was factually similar to the “towel rapist” offenses for

which he was convicted. Specifically, he noted that JF was an African American female

living with two young children but no other adults; the perpetrator entered the one-story

residence in the early morning through an unlocked window; he was armed with a

screwdriver, threatened to harm the children, and demanded cash; and his face was covered

with a cloth, possibly a gray shirt. Additionally, he placed a pillowcase over the victim’s

head; he had a strong body odor and smelled of alcohol; prior to the rape he told the victim

“I want you”; and he fled out the back door after the attack. Additionally, the Petitioner

maintained that the description JF gave was similar to the ones given by the Petitioner’s

alleged victims, namely that the perpetrator was a black male, around six feet tall, weighing

165 pounds, and had a medium complexion and “nappy” hair. However, the Petitioner

acknowledged certain factual dissimilarities, including greater physical violence in the JF

rape; JF endured both vaginal and anal rapes; and the JF crimes occurred near the Alton Park

neighborhood, not the Avondale area in which the “towel rapist” incidents predominantly

occurred. Nevertheless, the Petitioner argued that the State should have disclosed the crimes

relating to JF and the DNA evidence exonerating the Petitioner from those crimes so that he

could have argued at trial that a third-party must have committed the similar crimes with

which the Petitioner was charged.

In an order, the trial court noted that “[t]he state does not dispute the veracity of the

exonerative DNA report or this description of the incident involving [JF] and the Court

accepts them as true.” Further, because the Petitioner’s trial counsel requested Brady

material, the court did not “fault the Petitioner for his untimely discovery of the evidence.”

However, the trial court stated that DNA inculpating the Petitioner was found on two of the

eight charged victims, which “evidence was, presumably, no less reliable than the new DNA

evidence exculpating him in the ninth incident [involving JF].” Additionally, the court said

that the Petitioner’s fingerprints or palm prints were found at all eight crime scenes and that

the Petitioner bore scars on his “clavicle corresponding to stab wounds inflicted by a victim

in one of the six cases in which there was no DNA evidence.” Accordingly, the court found

that “while ‘evidence of modus operandi’ was the apparent basis for joinder of the charges,

there was a sufficient, even strong, independent basisfor conviction in each case.” Therefore,

the court found “that the evidence in issue would not have changed the results of the

petitioner’s trial.”

On appeal, the Petitioner argues that the trial court erred in dismissing the petition

without a hearing, maintaining that the trial court applied an incorrect standard in making its

ruling. Specifically, the Petitioner contends the trial court erred in finding that the evidence

“would not have” changed the result at trial instead of applying the correct standard that the

new evidence “might have” changed the result at trial.

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II. Analysis

Tennessee Code Annotated section 40-26-105(a) and (b) provides:

There is hereby made available to convicted defendants in

criminal cases a proceeding in the nature of a writ of error

coram nobis, to be governed by the same rules and procedure

applicable to the writ of error coram nobis in civil cases, except

insofar as inconsistent herewith. . . . 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.

Generally, a decision whether to grant a writ of error coram nobis rests within the sound

discretion of the trial court. See State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App.

1995).

We note that the petition for a writ of error coram nobis was filed outside the one-year

statute of limitation. Tenn. Code Ann. § 27-7-103. However, the State did not raise the

untimeliness of the petition as an affirmative defense nor did the trial court deny the petition

on this basis. See Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003) (stating that “the State

bears the burden of raising the bar of the statute of limitations as an affirmative defense”).

Moreover, the Petitioner’s claim would qualify as a “later arising” ground, permitting a

petition to be filed outside the statute of limitation. See Sands v. State, 903 S.W.2d 297, 301

(Tenn. 1995) (providing a three-step balancing test to weigh a petitioner’s interest in

obtaining a hearing to present a later-arising ground for relief against the State’s interest in

preventing stale and groundless claims); Harris v. State, 301 S.W.3d 141, 145 (Tenn. 2010)

(endorsing the Sands three-part test).

The writ of error coram nobis is a post-conviction mechanism that has a long history

in the common law and the State of Tennessee. See State v. Vasques, 221 S.W.3d 514,

524-26 (Tenn. 2007). It is now codified in Tennessee Code Annotated section 40-26-105.

The writ “is an extraordinary procedural remedy . . . [that] fills only a slight gap into which

few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999). By its terms, the statute

is “confined” to cases in which errors exist outside the record and to matters that were not

previously litigated. Tenn. Code Ann. § 40-26-105(b). Where the case involves a matter that

has been previously litigated, the writ will not lie unless the petitioner demonstrates that he

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was without fault in failing to present the evidence and that the evidence “may have resulted

in a different judgment.” Id.

Our supreme court has stated that when examining a petition for a writ of error coram

nobis, a trial court is to

first consider the newly discovered evidence and be “reasonably

well satisfied” with its veracity. If the defendant is “without

fault” in the sense that the exercise of reasonable diligence

would not have led to a timely discovery of the new information,

the trial judge must then consider both the evidence at trial and

that offered at the coram nobis proceeding in order to determine

whether the new evidence may have led to a different result.

Vasques, 221 S.W.3d at 527. In determining whether the new information may have led to

a different result, the question before the court is “‘whether a reasonable basis exists for

concluding that had the evidence been presented at trial, the result of the proceeding might

have been different.’” Id. (quoting State v. Roberto Vasques, No.

M2004-00166-CCA-R3-CD, 2005 WL 2477530, at *13 (Tenn. Crim. App. at Nashville, Oct.

7, 2005)).

As we noted, the Petitioner maintains that the trial court applied an incorrect standard

in dismissing his petition. The court found that “there was a sufficient, even strong,

independent basis for conviction in each case[, therefore,] the evidence in issue would not

have changed the results of the petitioner’s trial.” The Petitioner contends that the trial court

erroneously decided the issue based upon whether the newly discovered evidence “would

have” changed the result at trial instead of properly considering whether the new evidence

“might have” changed the result at trial. This court has previously stated, “While this

appears at first glance to be a matter of mere semantics, the difference in the analysis of the

situation under a ‘would have’ standard is definitively more burdensome for a coram nobis

petitioner than would be the case under a ‘may have’ standard.” Margo Freshwater v. State,

No. W2006-01758-CCA-OT-CO, 2008 WL 4560242, at *9 (Tenn. Crim. App. at Jackson,

Oct. 8, 2008). Therefore, requiring a petitioner to show that the new evidence would have

resulted in a different verdict is the incorrect standard to use in denying coram nobis relief.

See Vasques, 221 S.W.3d at 527-28; Erskine Leroy Johnson v. State, No.

W2007-01546-CCA-R3-CO, 2009 WL 3126237, at *8 (Tenn. Crim. App. at Jackson, Sept.

30, 2009). Accordingly, we must conclude that the trial court applied the wrong standard

when dismissing the petition.

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Nevertheless, we conclude that dismissal of the petition was appropriate. Like the

trial court, this court has stated that “even absent the DNA evidence, the State presented

overwhelming proof of the petitioner’s guilt.” Steele, No. 03C01-9701-CR-00012, 1999 WL

512053, at *19. Specifically, we noted that

[t]he State introduced testimony that fingerprints

matching the petitioner’s had been recovered from the scenes of

all eight incidents underlying the petitioner’s indictments,

including the incidents relating to PM and JP. Seven victims,

including PM and JP, were able to provide descriptions of the

assailant. The descriptions were roughly similar to one another

and matched the petitioner’s appearance. With respect to the

incident involving JP, the petitioner was observed immediately

following the incident running down the street four blocks away

from JP’s residence. JP positively identified the petitioner both

in a show-up identification procedure immediately following the

incident and at trial. Testimony by PM and another victim, CM,

suggested that the assailant was left-handed. The petitioner is

left-handed. The petitioner had scars in a location where one of

the victims had stabbed her assailant with a screw driver. The

petitioner lived and worked in close proximity to the locations

of all eight incidents. An expert in serology with the Tennessee

Bureau of Investigation testified that, with respect to the

incidents involving PM, JP, and another victim, ES, she was

able to establish that the Petitioner was within the twenty

percent of the population who could have committed the crimes.

Moreover, . . . all eight incidents possessed similar

characteristics strongly suggesting a common perpetrator.

Id. at *14.

The Petitioner argues that if the State had disclosed the evidence regarding JF prior

to his trial, he could have pursued a third-party perpetrator defense and could have

challenged the accuracy of the fingerprint results. Additionally, the Petitioner maintains that

he also could have used the newly discovered evidence to challenge the trial court’s decision

regarding consolidation. However, this issue was raised on direct appeal, and this court

concluded that consolidation was proper. See Steele, No. 03C01-9701-CR-00012, 1999 WL

512053, at *15; Steele, No. 03C01-9207-CR-233, 1993 WL 4158361, at **1-2. Further, we

concluded that there was no error regarding the admission of fingerprint evidence at the

Petitioner’s trial. See Steele, No. 03C01-9701-CR-00012, 1999 WL 512053, at *15.

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Accordingly, given the overwhelming evidence against the Petitioner, we conclude that there

is no indication that the newly discovered evidence might have changed the verdicts against

the Petitioner.

III. Conclusion

In sum, although the trial court applied the incorrect standard in dismissing the

petition for a writ of error coram nobis, the trial court nevertheless reached the correct result.

Therefore, we affirm the judgment of the trial court.

___________________________________

NORMA McGEE OGLE, JUDGE

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