author: E. RILEY ANDERSON, J.,

text:
    Billy Gene GRAY v. CULLOM MACHINE, TOOL & DIE, INC., et al.
    Supreme Court of Tennessee, at Knoxville.
    Oct. 6, 2004 Session at Nashville.
    Dec. 20, 2004.

      Paul G. Summers, Attorney General and Reporter; and Richard M. Murrell, Assistant Attorney General, Nashville, Tennessee, for the Appellant, Second Injury Fund.
    Robert J. Uhorchuk, Chattanooga, Tennessee, for the Appellees, Cullom Machine, Tool & Die, Inc., and Travelers Insurance Company.
    William J. Brown, Cleveland, Tennessee, for the Appellee, Billy Gene Gray.
   OPINION

E. RILEY ANDERSON, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and JANICE M. HOLDER, WILLIAM M. BARKER, JJ., and ALLEN W. WALLACE, SP.J., joined.

We granted review in this workers’ compensation case to determine whether the trial court erred in 1) awarding temporary total benefits, 2) apportioning liability between the employer and the Second Injury Fund, and 3) awarding 180 weeks of lump-sum benefits. After reviewing the record and applicable authority, we conclude that the trial court erred in awarding temporary total benefits to the employee who continued to work for the employer following his injury and then later operated his own unprofitable business. We also hold that the trial court erred in limiting the employer’s liability for permanent total disability benefits to 60% of 400 weeks and in awarding 180 weeks of lump sum benefits. Accordingly, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

On May 26, 2000, the employee, Billy Gray (“Gray”), suffered an injury to his left shoulder while in the course and scope of his employment with Cullom Machine, Tool & Die, Inc. (“Cullom”) in Cleveland, Tennessee. After Gray filed a workers’ compensation claim, the following evidence was presented before the trial court.

Gray, who was fifty years old at the time of the injury, testified as follows. At age eighteen, he joined the United States Marine Corps and served in Vietnam where he suffered injuries to his hands, hip, knee, and thigh from a mortar attack. After spending over a year in military hospitals and undergoing numerous surgeries, his right hand was permanently impaired, which prevented him from curling his fingers and reduced his range of motion. As a result, he received a permanent 60% disability rating from the Veterans Administration.

After being discharged from the military, Gray worked for National Fiberglass Products in Chicago, Illinois. While in the course and scope of his employment, he was struck in his left eye with a high-pressured fiberglass spray. The injury scarred his cornea and caused a 15% loss of sight for which he received workers’ compensation benefits. Seven years later, Gray underwent an unsuccessful corneal transplant procedure that resulted in complete blindness in his left eye.

Gray began working as a machinist for Cullom in 1988 and had worked for approximately twelve years before his injury, during which time he was promoted to supervisor. On May 26, 2000, he was struck in the head and left shoulder by a large, heavy steel tube while loading materials onto a truck. The force of the blow knocked Gray to the ground and rendered him unconscious. He was taken to the hospital and received nearly 100 stitches in his head. Although Gray had pain in his left shoulder, he initially received conservative treatment and continued to work for Cullom. Because the pain in his left shoulder continued to worsen, Gray elected to have surgery to repair his left rotator cuff on November 2, 2000. Gray did not return to work at Cullom after his surgery because the company had reduced its number of supervisors and the injury to his left shoulder prevented him from doing machinist work.

After leaving Cullom, Gray began Gray Tool Service, a tool sharpening business, which he operated from November 2000 to October of 2002. He said that he met with customers, answered phones, hired employees, delivered tools to his customers, and often worked from 9:00 a.m. to 9:00 p.m. or longer. He eventually closed the business because it was not profitable.

Dr. Julian Nadowski, a vocational expert, testified at trial that Gray had an 80% vocational disability rating as a result of his shoulder injury. The expert concluded that he “would not be able to go back to work as a machinist in his regular trade” and that he “would essentially be confined to a relatively narrow range of unskilled jobs.”

Dr. Daniel Johnson, a board-certified orthopedic surgeon, testified by deposition as follows. After examining Gray on June 22, 2000, he diagnosed Gray as having suffered a left rotator cuff tear and/or avulsion. An MRI showed an “abnormal signal within the left rotator cuff consistent with a partial tear and an effusion of the left shoulder.” Gray underwent conservative treatment, including physical therapy and pain management, and was told to avoid reaching overhead or to the side.

Gray reported increased pain in October of 2000 and elected to have surgery on his shoulder. • On November 2, 2000, Dr. Johnson surgically repaired the left rotator cuff tear and a superior glenoid rim tear. He believed that the surgery went “as well as could be expected” but thought that Gray would have “some problems with his shoulder the rest of his life.” Gray showed improvements in strength and range of motion in January and February of 2001, and Dr. Johnson assigned a 10% impairment rating of the upper extremity.

Early in 2003, Gray reported additional pain. Dr. Johnson determined that Gray had lost strength and movement in his left shoulder, and he performed additional surgery to repair an avulsion to the rotator cuff. Dr. Johnson concluded that the initial impairment rating had been made prematurely and that Gray did not reach maximum medical improvement until February 24, 2003. Accordingly, Gray was assigned a 30% permanent impairment to the upper extremity or an 18% permanent impairment to the body as a whole.

The trial court accredited Dr. Johnson’s testimony and found that Gray’s injury while working for Cullom accounted for 60% of his permanent and total disability. In addition to ordering Cullom to pay temporary total disability benefits for the period of June 2000 to February 2003, the trial court also ordered Cullom to pay 60% of the permanent total benefits for the first 400 weeks, i.e., 240 weeks, and ordered the Second Injury Fund to pay all remaining benefits, i.e., 401 weeks, until Gray was eligible for social security benefits. The trial court also ordered lump sum benefits totaling 180 weeks.

Both Cullom and the Second Injury Fund appealed the trial court’s ruling. We accepted review before the case was heard or considered by the Special Workers’ Compensation Appeals Panel.

ANALYSIS

Standard of Review

Our standard of review of factual issues in a workers’ compensation case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the trial court’s factual findings, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50-6-225(e)(2) (Supp.2004); Houser v. Bi-Lo, Inc., 36 S.W.3d 68, 70-71 (Tenn.2001). When the trial court has seen the witnesses and heard the testimony, especially where issues of credibility and the weight of testimony are involved, the appellate court must extend considerable deference to the trial court’s factual findings. Houser, 36 S.W.3d at 71.

Our standard of review of legal issues, such as statutory interpretation, is de novo. Tucker v. Foamex, L.P., 31 S.W.3d 241, 242 (Tenn.2000). Moreover, we must interpret workers’ compensation statutes “ ‘to promote and adhere to [their] purposes of securing benefits to those workers who fall within [their] coverage.’ ” Allen v. City of Gatlinburg, 36 S.W.3d 73, 75 (Tenn.2001) (quoting Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 925 (Tenn.1980)).

Temporary Total Disability

The first issue presented is whether the trial court erred in awarding temporary total disability benefits for the period of June 2000 to February 2003. Cullom argues that Gray was not totally disabled because he continued to work for Cullom until November 2000 and then began and worked in his own tool-sharpening business until October 2002.

On the other hand, Gray contends that the trial court’s ruling was supported by the fact that he was found totally and permanently disabled at the time of maximum medical improvement in February 2003. Although Gray concedes that he operated a business from November 2000 to October 2002, he argues that the business was not profitable.

Temporary total disability refers to an “ ‘injured employee’s condition while disabled to work by his injury and until he recovers as far as the nature of his injury permits.’ ” Anderson v. Dean Truck Line, Inc., 682 S.W.2d 900, 903 (Tenn.1984) (quoting Redmond v. McMinn County, 209 Tenn. 463, 354 S.W.2d 435, 437 (1962)); see also Tenn.Code Ann. § 50-6-207(l)(A) (Supp.2004). To establish a prima facie case of entitlement to receive temporary total disability benefits, an employee must show (1) that he or she was totally disabled and unable to work due to a compen-sable injury, (2) that there was a causal connection between the injury and his inability to work, and (3) the duration of the period of disability. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 776 (Tenn. 2000). Temporary total disability benefits ensure that the employee may receive compensation during “ ‘the healing period during which the employee is totally prevented from working.’ ” Id. (quoting Gluck Bros., Inc. v. Coffey, 222 Tenn. 6, 431 S.W.2d 756, 759 (1968)).

In A.C. Lawrence Leather Co. v. Love-day, 224 Tenn. 317, 455 S.W.2d 141 (1970), this Court concluded that the trial court erred in awarding temporary total disability benefits for a period during which an employee worked at another job. Id. at 144. Moreover, this Court emphasized that the period of temporary total disability ended even though the employee was in constant pain or needed to work because of economic necessity. Id. In short, when an employee “becomes able to work at any employment permitted by the nature of his injuries, temporary total disability ends at that time.” Anderson, 682 S.W.2d at 903.

Here, the record does not support the trial court’s judgment granting temporary total disability benefits for the period of June 2, 2000 to November 2, 2000. After his injury on May 26, 2000, Gray continued to work for Cullom until November 2, 2000. Although Gray testified that he was in pain while continuing to work during this time, there was simply no showing that he was not able to work and was totally disabled as a result of the injury. Cleek, 19 S.W.3d at 776. Accordingly, the trial court erred in awarding temporary total benefits for the period of June 2, 2000 to November 2, 2000.

In addition, the record does not support the trial court’s judgment granting temporary total disability benefits for the period of November 2, 2000 to October of 2002. Gray testified that he had intended to return to work following surgery on his left shoulder but that his position with Cullom had been terminated. He then started his own tool-sharpening business in November of 2000 because he needed money to pay his living expenses. Although he was forced to compensate for the loss of strength and movement in his left shoulder, Gray said that he met with customers, handled office work, and made deliveries. Gray stated that he routinely worked twelve or more hours per day before finally closing the business because it failed to make a profit.

Gray’s testimony demonstrated that he started and operated his own tool-sharpening business and, in the process, worked long hours and engaged in both physical and administrative tasks. This was consistent with his history of overcoming and adjusting to previous serious military and industrial injuries with a strong work ethic and the desire to support his family. Although his business did not make a profit, the standard for awarding temporary total disability benefits is not profitability, but rather an employee’s ability to work. See Anderson, 682 S.W.2d at 90S. Accordingly, the trial court erred in awarding temporary total benefits for the period of November 2, 2000 to October of 2002.

Finally, the record does not contain sufficient factual findings to support the trial court’s award of temporary total benefits for October 2002 to February 2003. It may be that Gray’s condition worsened during this period since Gray was no longer operating his own business and had returned to Dr. Johnson for further treatment. On the other hand, Gray testified that he was no longer operating his tool sharpening business solely because it was not profitable, which may indicate that he was still able to work. Accordingly, the trial court should conduct further proceedings and make factual findings on this issue.

To summarize, we conclude that the trial court erred in awarding temporary total disability benefits. We therefore remand the case for a determination of the credit owed to Cullom for the temporary total disability benefits it paid from June 2000 to October 2002, and for a determination of whether temporary total disability benefits may be awarded for the period of October 2002 to February 2003.

Apportionment

The second issue presented for resolution is whether the trial court erred in holding Cullom liable for 60% of only 400 weeks (i.e., an award of 240 weeks) of Gray’s compensation for permanent and total disability, rather than 60% of the benefits due until Gray was eligible for social security (i.e., an award of 401 weeks). The State of Tennessee’s Second Injury Fund (“Second Injury Fund”) argues that the trial court erred because this case is controlled by Bomely v. Mid-America Corp., 970 S.W.2d 929 (Tenn.1998). Conversely, Cullom argues that the trial court’s apportionment was supported by the evidence. The employee, Gray, takes no position on this issue.

The Second Injury Fund was created to encourage employers to hire employees who have had prior injuries. Bomely, 970 S.W.2d at 932; see also Tenn.Code Ann. § 50-6-208(a)(l) (1999 & Supp.2004). This purpose is achieved by limiting an employer’s liability for . a later injury that results in an employee’s permanent and total disability to the compensation due for the later injury without consideration of any prior injury or injuries. The remainder of the compensation is paid to the employee by the Second Injury Fund. See Tenn. Code Ann. § 50-6-208(a)(l)-(3) (1999 & Supp.2004).

In allocating liability between the employer and the Second Injury Fund where an employee has suffered permanent partial or total disability, this Court has held that an employer is not limited to a percentage of 400 weeks. Bomely, 970 S.W.2d at 932-33; see also Watt v. Lumbermens Mut. Cas. Ins. Co., 62 S.W.3d 123, 132 (Tenn.2001). As we explained in Bomely,

It is not equitable to cap the employer’s liability at 400 weeks and require the Fund to pay the bulk of the award in light of the fact that Tenn. Code Ann. § 50 — 6—102(a)(6)(C) specifically exempts permanent total disability awards from the 400 week maximum total benefit limitation and Tenn.Code Ann. § 50-6-207(4)(A)(i) authorizes benefits to age 65 in cases of permanent and total disability-

970 S.W.2d at 932. Moreover, we concluded that “[i]f the legislature had wanted to cap an employer’s liability at 400 weeks where benefits are awarded to age 65 in cases involving the Second Injury Fund it could have easily done so.” Id.

In this case, the trial court erred in limiting Cullom’s liability for Gray’s permanent and total disability to 60% of 400 weeks (i.e., an award of 240 weeks). The parties agree that the trial court correctly determined that Gray had a permanent and total disability and that 60% of this disability was due to his injury on May 26, 2000. As a result, the trial court was required to hold that Cullom was responsible for 60% of Gray’s permanent and total disability until he reached the age of eligibility for social security (i.e., an award of 401 weeks) and that the Second Injury Fund was responsible for the remainder (i.e., an award of 268 weeks). See Bomely, 970 S.W.2d at 932. Accordingly, we remand to the trial court for a rede-termination of the permanent total disability benefits due to Gray and the relative responsibilities of Cullom and the Second Injury Fund.

Lump Sum

The final issue is whether the trial court erred in commuting 180 weeks of benefits to a lump sum. Cullom argues that the trial court erred because a lump-sum payment cannot exceed 100 weeks under Tennessee Code Annotated section 50-6-207(4)(A)(ii) (Supp.2004). Cullom also argues that the trial court improperly accelerated the payment of Gray’s remaining benefits by refusing to reduce the weekly rate at which they were to be paid. Gray maintains that the lump sum was appropriate because it included amounts for attorney’s fees and Gray’s pre-injury debt which was in arrears.

This issue requires an examination of Tennessee Code Annotated section 50-6-207(4)(A)(ii) (Supp.2004), which states in part that permanent total disability payments shall not be commuted to a lump sum except in accordance with the following:

(a) Benefits may be commuted to a lump sum to pay only the employee’s attorney’s fees and litigation expenses and to pay pre-injury obligations in arrears;
(b) The commuted portion of an award shall not exceed the value of one hundred (100) weeks of the employee’s benefits;
(c) After the total amount of the commuted lump sum is determined, the amount of the weekly disability benefit shall be recalculated to distribute the total remaining permanent total benefits in equal weekly installments beginning with the date of entry of the order and terminating on the date the employee’s disability benefits terminate....

TenmCode Ann. § 50-6-207(4)(A)(ii) (Supp.2004). Because lump sum awards are an exception to the general purpose of providing injured workers with periodic payments that substitute for wages, this Court has emphasized that commutation “should occur only in exceptional circumstances, and not as a matter of course.” Henson v. City of Lawrenceburg, 851 S.W.2d 809, 814 (Tenn.1993).

Although the record reflects that the trial court properly considered attorney’s fees and Gray’s arrearages for pre-injury obligations in awarding lump sum benefits, the trial court erred in the extent of its award which totaled 180 weeks. The plain language of the statute provides that “the commuted portion of an award shall not exceed the value of one hundred (100) weeks of the employee’s benefits.... ” TenmCode Ann. § 50-6-207(4)(A)(ii)(b) (Supp.2004). Given that the term “shall” is mandatory, the statutory language is unambiguous and must be applied as written. See Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 83 (Tenn.2001). Accordingly, this case must be remanded to the trial court for a redetermination of lump sum benefits, which may not exceed 100 weeks.

In addition, the record shows that after awarding lump sum benefits, the trial court erred in refusing to reduce the weekly rate at which the remaining payments were to be made. See TenmCode Ann. § 50 — 6—207(4)(ii)(c) (Supp.2004) (“After the total amount of the commuted lump sum is determined, the amount of the weekly disability benefit shall be recalculated to distribute the total remaining permanent total benefits in equal weekly installments_”). In our view, reducing the weekly rate ensures that the employee will receive payments throughout the entire period of disability, serves as a more effective substitute for regular wages, and avoids forcing employers to make payments on an accelerated schedule. Accordingly, on remand, the trial court shall make a determination as to the lump sum benefits and shall then calculate the weekly rate at which Cullom shall pay the remaining benefits by using the full period of Gray’s disability.

CONCLUSION

After reviewing the record and applicable authority, we conclude that the trial court erred in awarding temporary total benefits to the employee who continued to work for the employer following his injury and then operated his own unprofitable business. We also hold that the trial court erred in limiting the employer’s liability for permanent total disability benefits to 60% of 400 weeks, rather than 60% of the benefits due until the employee’s eligibility for social security benefits. Finally, we hold that the trial court erred in awarding 180 weeks of lump-sum benefits and in failing to reduce the weekly rate of remaining benefits over the full period of disability. Accordingly, we reverse the trial court’s judgment and remand for a rede-termination of benefits and further proceedings consistent with this opinion. Costs of the appeal are taxed one-half to the appellee, Billy Gene Gray, and one-half to the appellees, Cullom Machine, Tool & Die, Inc., and Travelers Insurance Company.

      . The trial court initially held a trial on the issue of temporary total benefits and later held a trial on the issue of permanent benefits.

      . The trial court discounted the deposition testimony of Dr. Neal Spitalny, an orthopedic surgeon who had stated that Gray had a 10% impairment to the upper left extremity.

      . In Cleek, we also held that a period of temporary total disability benefits may be revived if there is evidence that an initial assessment of impairment or maximum medical improvement was incorrect or premature. 19 S.W.3d at 777-78.


source: Caselaw Access Project

author: JANICE M. HOLDER, J„ WILLIAM M. BARKER, J„

license: Public Domain

text:
    Synthia M. HOPKINS v. Victor L. HOPKINS.
    Supreme Court of Tennessee, at Nashville.
    Heard at Cookeville June 2, 2004 Session.
    Sept. 27, 2004.
    Sharon T. Massey and Gregory D. Smith, Clarksville, Tennessee, for the appellant-defendant, Victor L. Hopkins.
    Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellee-plaintiff, Synthia M. Hopkins.

      . Oral argument was heard in this case on June 2, 2004, in Cookeville, Putnam County, Tennessee, as part of this Court's S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

   OPINION

JANICE M. HOLDER, J„

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, and ADOLPHO A. BIRCH, JR., JJ., joined. WILLIAM M. BARKER, J., filed a dissenting opinion.

The issue in this case is whether child support may be awarded when neither party has been designated the primary residential parent. The Court of Appeals modified the trial court’s judgment to award equal parenting time between the parties. Neither party contests this modification. We hold that the Court of Appeals erred, however, in awarding child support to one party when neither party was designated the primary residential parent. We remand to the trial court for the designation of a primary residential parent, for the consideration of the amount of child support to be paid, and for entry of a parenting plan.

Factual and Procedural Background

In January 2001, Synthia M. Hopkins (“Mother”) filed a complaint seeking a divorce from her husband, Victor L. Hopkins (“Father”). Father filed an answer and counter-complaint. Both parties filed proposed parenting plans in the trial court. Father submitted two parenting plans, one more detailed than the other. Both plans filed by Father called for the parties to divide the residential schedule of their three minor children equally, and the second plan required Father to pay Mother $800 per month in child support. Mother’s parenting plan listed her as the residential custodian of the three children and required Father to make child support payments in the amount of $1,262.15 per month.

In July 2002, the trial court granted Mother a divorce on the ground of inappropriate marital conduct. The trial court did not adopt a parenting plan proposed by either party. Although the trial court stated that it was adopting its own parenting plan, no formal parenting plan was signed by the parties or set forth in the final divorce decree. In its ruling, the trial court found that the demands of Mother’s master’s degree program, when combined with her full-time teaching position, would necessarily limit the time she had available to meet her children’s needs. The trial court found that Father’s job was flexible and that he needed no further education. The trial court’s divorce decree, in effect, granted primary physical custody of the parties’ three children to Father. Mother was ordered to pay child support to Father in the amount of $681.37 per month. The children were ordered to reside with Father during the school year and with Mother during the summer. Mother objected to the residential schedule and filed a Motion to Alter and Amend, in which she stated that she would be pursuing her master’s degree studies on a part-time basis and that her class schedule would take away only limited parenting time. The motion was denied. Mother subsequently appealed.

The Court of Appeals reversed the trial court’s residential provisions and its child support ruling. The intermediate appellate court adopted one of the parenting plans submitted by Father. The court thus divided the residential schedule of the children between Mother and Father equally, with both parties alternating physical custody on a weekly basis. This alternating custody arrangement is greatly facilitated by the fact that Father built a house next door to the marital home where Mother resides. In addition, Father was ordered to pay child support to Mother in the amount of $800 per month, the amount Father suggested to the trial court in one of his parenting plans. The court did not designate a primary residential parent.

Father asserts that the Court of Appeals erred in determining the proper amount of child support. We granted permission to appeal.

Analysis

It is important to note that neither party takes issue with the Court of Appeals’ determination that the parties should share equal time with their children. The only issue before us is that of support. Father argues that the Court of Appeals erred in calculating his child support obligation. He proposes two alternatives for determining the proper amount of child support in a case in which custody of minor children is divided equally between two parents. First, Father suggests that the income of both parents be considered in calculating the child support award. Second, Father suggests that neither party should be required to pay child support.

In Gray v. Gray, 78 S.W.3d 881, 882 (Tenn.2002), we held that “the use of a comparative analysis of the parties’ earnings is improper under the Child Support Guidelines.” Under the Child Support Guidelines applicable in the present case, the income of the obligee (the parent with whom the children primarily live) is not to be considered in the calculation of the amount of child support awarded. Tenn. Comp. R. & Regs. 1240-2^-.03(2). Thus, we reject Father’s suggestion that the income of both parties should have been considered in computing child support.

Father’s second suggestion is equally flawed. Child support payments are for the benefit of the child, and both parents have a duty to support their minor children. See, e.g., Gallaher v. Elam, 104 S.W.3d 455, 461 (Tenn.2003). We decline to adopt a bright-line rule that no child support is owed when a child’s residential time is divided equally between the parents.

The Child Support Guidelines do not expressly provide for an equal division of residential time. Instead, the Guidelines address situations in which a child resides primarily with one parent. See Tenn. Comp. R. & Regs. 1240-2-4- 02(6) (providing that the Child Support Guidelines “are designed to apply to situations where children are living primarily with one parent but stay overnight with the other parent at least as often as every other weekend from Friday to Sunday, two weeks in the summer and two weeks during holidays throughout the year”). Accordingly, a primary residential parent is defined as “the parent with whom the child resides more than fifty percent (50%) of the time.” Tenn.Code Ann. § 36-6-402(4) (2001) (emphasis added). However, we do not interpret this definition as precluding a child’s residential schedule from being divided equally between the parents. While silent on this precise issue, the Guidelines “are designed to consider the actual physical custody of the children), regardless of whether custody is awarded to one parent and visitation to the other or such an arrangement is ordered to be joint custody or split custody.” Tenn. Comp. R. & Regs. 1240-2-4.02(6).

Having decided that an equal division of time is permissible under the Guidelines, we must address the manner in which child support is to be calculated in such a situation. In situations in which overnight time is divided more equally between the parents, courts should make a case-by-case determination as to the appropriate amount of support. Tenn. Comp. R. & Regs. 1240-2-4-.02(6); see also Gray, 78 S.W.3d at 884; Tenn. Comp. R. & Regs. 1240-2-4-.04(2)(b). Therefore, it may be appropriate to award less child support to the primary residential parent when residential time is divided equally.

In the present case, however, the Court of Appeals did not designate a primary residential parent. Tennessee’s statutes require both a residential schedule, see Tenn.Code Ann. § 36-6-404(b) (2001), and the designation of a primary residential parent, see Tenn.Code Ann. § 36-6-402(5) (2001). As we stated in Gray, “the Child Support Guidelines contemplate that child support may be awarded only to the primary residential parent.” 78 S.W.3d at 884. We hold that the Court of Appeals erred in awarding child support without designating a primary residential parent.

We affirm the Court of Appeals’ determination and the parties’ desire that the parents share equal residential time. However, we vacate the intermediate court’s award of child support. We remand this case to the trial court to determine which party should be designated the primary residential parent. The trial court must then apply the Child Support Guidelines to determine the amount of child support, if any, that the non-primary residential parent should pay to the primary residential parent. Finally, the trial court should direct the parties to submit to the court a permanent parenting plan that incorporates the requirements set forth in Tennessee Code Annotated section 36-6-404.

Conclusion

In summary, we hold that under the Child Support Guidelines, only the primary residential parent may be awarded child support. In reviewing the trial court’s judgment, the Court of Appeals erred in failing to designate a primary residential parent. We remand this case to the trial court for further proceedings consistent with this opinion. On remand, the trial court shall consider all of the relevant statutory factors in designating a primary residential parent and in calculating child support and shall enter a parenting plan. Costs of this appeal are taxed equally to the appellant, Victor L. Hopkins, and the appellee, Synthia M. Hopkins, and their sureties, for which execution may issue if necessary.

WILLIAM M. BARKER, J„ filed a dissenting opinion.

WILLIAM M. BARKER, J„

dissenting.

With its decision today, the majority has attempted to fit a round peg into a square hole, and as one would expect, it does not fit.

The sole issue in this case is whether the award of child support of $800 per month to be paid by the father is appropriate. Neither party has appealed the Court of Appeals’ custody determination. While not specifically at issue, a brief review of the custody situation is helpful.

The trial court granted primary custody of the parties’ three children to the father, who would have custody approximately 230 days per year, and the mother would have custody the remaining 185 days per year. The mother was ordered to make child support payments to the father in the amount of $681.37 per month. The Court of Appeals reversed the trial court’s custody determination and adopted the parenting plan that had been proposed by the father. Pursuant to that plan, both parents would share equal custody, alternating custody on a weekly basis.

The parenting plan adopted by the Court of Appeals also provided that the father would pay child support in the amount of $800 per month to the mother. The Court of Appeals found that this approximately equaled the amount of support the father would owe under the guidelines minus the amount the mother would owe under the guidelines.

The Child Support Guidelines were “designed to apply to situations where children are living primarily with one parent but stay overnight with the other parent at least as often as every other weekend from Friday to Sunday, two weeks in the summer and two weeks during holidays throughout the year.” Tenn. Comp. R. & Regs. 12-2-4-02(6). The guidelines consider “actual physical custody of the children), regardless of whether custody is awarded to one parent and visitation to the other or such an arrangement is ordered to be joint custody or split custody.” Id.

While the guidelines do allow for downward deviation of support where custody is divided more equally between the parents, Tenn. Comp. R. & Regs. 12-2-4-02(6), support is still granted to the parent with whom the ehild(ren) live primarily, Tenn. Comp. R. & Regs. 12-2-4-.03. In other words, it is always presumed in the guidelines that one parent will have more than 50% of the custody of the child(ren). Nowhere in the guidelines is there direction for providing support where custody is divided exactly equally.

The majority of this Court has approved the Court of Appeals’ decision to award equal custody to the parents, but also recognizes that under the guidelines, support can only be granted to the “primary residential parent.” Tenn. Comp. R. & Regs. 1240-4- 03(1), (2). The “primary residential parent” is, be definition, the parent with whom the children) reside more than 50% of the time. Tenn.Code Ann. § 36-6-402(4) (2003 Supp.). Therefore, the majority is remanding the case to the trial court to name a “primary residential parent” for the sole purpose of awarding child support to one of the parents. This is a contrived result that stands the definition of “primary residential parent” on its proverbial ear.

Because the child support guidelines do not cover this situation in which the parents are sharing equal custody of the children, a better solution would be for the court to look to the law that was in existence prior to the enactment of the guidelines. Cf. In re Swanson, 2 S.W.3d 180, 189 (Tenn.1999) (holding that where part of the statute relating to the abandonment of a child was found unconstitutional, the definitions that were in effect under the prior law would remain in effect until the legislature amends the statute); Leech v. Am. Booksellers Ass’n Inc., 582 S.W.2d 738, 740 (Tenn.1979) (holding that prior law is in full force and effect when an act is held unconstitutional).

Prior to the adoption of the child support guidelines, the trial court was vested ■with wide discretion in matters relating to child custody and support. Campanali v. Campanali, 695 S.W.2d 193 (Tenn.Ct.App.1985). The obligation to provide support was found to be “determinable only by equitable principles and rules, with due regard to the condition and means of each [parent].” Brooks v. Brooks, 166 Tenn. 255, 61 S.W.2d 654, 654 (1933); Lescher v. Lescher, 679 S.W.2d 463, 465 (Tenn.Ct.App.1984).

Prior to the guidelines, Tennessee Code Annotated section 36-5-101(e) (1988) set forth the factors to be considered by the trial court when determining the necessity and amount of child support:

(1) The age, physical, mental and emotional condition of each child;
(2) The educational needs of each child and the educational advantages each child had available at the time the circumstances requiring a court order for his or her support arose;
(3) The earning capacity, obligations and needs, and financial resources of each parent;
(4) The contributions, monetary and nonmonetary, of each party to the well-being of the children;
(5) The financial resources of each child;
(6) The standard of living each child has enjoyed during the marriage; and
(7) Such other factors as are necessary to consider the equities for the parents and children.

Tenn.Code Ann. § 36-6-101(e) (1988). From among these factors, the need of the children) and the parent’s ability to pay should receive the foremost consideration. Allison v. Allison, 638 S.W.2d 394, 396 (Tenn.Ct.App.1982).

In approving of the child support of $800 proposed in the parenting plan, the Court of Appeals considered the needs of the children and the resources of each parent, concluding that the $800 would “equalize the resources available to the children, regardless of which parent they are with.” The Court also noted that “if we were to subtract the presumptively correct amount of support [the mother] would be obligated to pay under the child support guidelines from the amount [the father] would have to pay under the same guidelines, the result would be very close to the amount [the father] offered.” While the guidelines do not apply to this situation, and do not allow for the consideration of the obligee’s income and resources, this simply demonstrates that the Court of Appeals was attempting to fashion an equitable child support award for this particular set of circumstances.

Because the child support guidelines do not cover this situation in which custody is divided equally between the parents, the court should revert to pre-guidelines equitable principles in setting child support. The Court of Appeals’ decision appears to have done just that, and therefore, I would affirm both the custody and child support determinations made by that Court.

      . We note, however, that proposed amendments to the Child Support Guidelines allow for a comparative analysis of the parties’ incomes in determining child support. See Substance of Proposed Rules of the Tennessee Department of Human Services, Tenn. Comp. R. & Regs. 1240-2-4.

      . The designation of a primary residential parent is also important for purposes other than the determination of child support. For example, other state and federal statutes require that one parent be named the child's custodian. See Tenn.Code Ann. § 36-6-410 (2001).

      . Instead of applying the guidelines, the dissent would revert to "the law that was in existence prior to the enactment of the guidelines.” The cases on which the dissent relies, however, involve statutes found to be unconstitutional. In this case, the constitutionality of neither the statute nor the guidelines has been raised by the parties or addressed by the dissent. The dissent cites to no case holding that difficulty in application warrants ignoring a statute in favor of "equitable principles.”

      . While neither party challenges the custody arrangement, it is important to note that rarely is completely equal custody appropriate. That having been said, equal custody in this case is less problematic due to the fact that the parents live next door to each other, thus providing more stability for the children than would normally be available in other equal custody situations.

      . While these cases deal with statutes that were found to be unconstitutional instead of simply inapplicable, they do stand for the proposition that when a statute cannot be applied to a certain factual situation, the law prior to the enactment of that statute should be utilized. In re Swanson, 2 S.W.3d at 189; Leech, 582 S.W.2d at 740.


author: WILLIAM M. BARKER, J.,

text:
    STATE of Tennessee v. Shawn Rafael BOUGH.
    Supreme Court of Tennessee, at Knoxville.
    Sept. 9, 2004 Session.
    Nov. 1, 2004.
    Rehearing Denied Dec. 3, 2004.

      Mark E. Stephens and John Halstead, Knoxville, Tennessee, for the appellant, Shawn Rafael Bough.
    Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and John H. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee.
   OPINION

WILLIAM M. BARKER, J.,

delivered

the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, JANICE M. HOLDER, JJ„ and J. STEVE DANIEL, S.J., joined.

The defendant, Shawn Rafael Bough, was convicted of felony murder and especially aggravated robbery. The Court of Criminal Appeals held that the motion for new trial, which was not filed until the date of the sentencing hearing on the especially aggravated robbery conviction, fifty-two days after judgment was entered on the felony murder conviction, was untimely as to the felony murder conviction. The Court of Criminal Appeals also held that two amended motions for new trial were untimely. On these two issues, we reverse the Court of Criminal Appeals, finding that the original motion for new trial, as well as the two amended motions for new trial, were timely filed as to both convictions. The Court of Criminal Appeals found that the evidence was sufficient to support both convictions. The remaining issues addressed by the Court only related to the especially aggravated robbery conviction because the Court had held that the motion for new trial was untimely. On those issues, the Court held that (1) while the State’s reference to a “missing witness” during closing argument was improper, the error was harmless beyond a reasonable doubt; (2) the witnesses Deanna Jones, Edie Jones and Dante Smith were not accomplices whose testimony needed corroboration, and therefore the trial court did not err in failing to give a jury instruction on accomplice testimony; and (3) the defendant waived any objection to the testimony of Isaiah Dixon regarding the defendant’s out-of-court confession by his failure to raise the issue at trial. We affirm the Court of Criminal Appeals on these issues. However, because the Court of Criminal Appeals did not address these last three issues with respect to the felony murder conviction or any of the issues raised in the amended motions for new trial as to either conviction, we remand the case to the Court of Criminal Appeals for consideration of those issues.

FACTUAL BACKGROUND

On December 19, 1998, two sisters, Deanna and Edie Jones, vacated their student housing at Knoxville College for winter break. They planned to stay the night in Knoxville before catching their flight home to New Jersey the following morning. They went to the Expo Inn in Knoxville where Edie Jones rented- room 207 for the night. While checking into the hotel, Deanna Jones saw the defendant, Shawn Bough, and co-defendant, Craig Shears, in the parking lot. She invited them to come up to their room later on that evening. Deanna and Edie Jones knew both the defendant and Craig Shears because the two men were also students at Knoxville College.

Montes Best was working at the desk when two African-American men who claimed to be looking for a friend in room 207 approached the locked front doors late at night. Deanna and Edie Jones remembered the defendant, co-defendant and another male student stopping by room 207 for a few minutes before midnight. The defendant and Craig Shears stopped by again after midnight, asking to use the telephone. The defendant used the telephone to call several airlines, attempting to secure a flight from Tennessee through Chicago to California, his home state. Der anna Jones noticed a gun underneath the corner of the bed where the defendant was sitting. She told the defendant not to forget his gun; he thanked her and put the gun in his sock. At that time, the defendant and Craig Shears left the room.

Sometime after midnight, the defendant and Craig Shears returned to room 207 for the third time, again to use the telephone. Deanna Jones heard the defendant ask the person on the other end of the phone about getting a ride. The two men left the room after the phone call. The defendant and Craig Shears came back to room 207 for a fourth and final time to tell Deanna and Edie Jones that they were leaving. At trial, Deanna Jones testified that it was “still dark” when the two men left the hotel room for the last time. However, the statement she gave to the police on the day of the incident indicates that the two left the hotel room around 9:00 a.m. on December 20, 1998. Around 10:00 a.m., Deanna and Edie heard something downstairs in the lobby area that sounded like three or four gunshots.

Dante Smith picked up the defendant and Craig Shears at the Expo Inn shortly after 10:00 a.m. on December 20, 1998, after being called repeatedly by the defendant. He drove to the hotel where he saw the defendant and Craig Shears running out of the lobby. The defendant was carrying a plastic tub which contained envelopes. Dante Smith testified that:

He [the defendant] was just talking a lot. He kept on saying something about he thinks he killed — or he thinks he shot somebody inside. He wasn’t sure, but— he said he shot him, but he wasn’t sime if he killed him or not.

Mr. Smith drove the two men towards Knoxville College where he stopped the car and asked them to get out because he “had never done anything like this.” Mr. Smith then drove back to his apartment.

The defendant and Craig Shears later showed up at Mr. Smith’s apartment and started counting money from the plastic container they carried from the hotel. The defendant asked Mr. Smith if he would “hide the gun for him.” Mr. Smith refused, asking the defendant if he was “crazy.” The defendant also asked Mr. Smith to give the two a ride to the bus stop or airport. Again, Mr. Smith refused.

Just after 10:00 a.m. on December 20, 1998, officers of the Knoxville Police Department were dispatched to the Expo Inn in response to a 9-1-1 call from the hotel’s clerk that there had been a robbery and shooting. According to the victim, Billy Oldham, two tall, thin black males from room 207 demanded money and shot him. According to the Knox County Medical Examiner, the victim died as a result of complications from multiple gun shot wounds.

Investigator A.J. Loeffler arrived at the Expo Inn around 10:15 a.m. Almost immediately, he got into the ambulance with the victim. The victim was “gasping for air” and kept saying “I am losing it. I am going out. I am losing it.” The victim stated that he “was working the desk, and two guys came in from room 207, asked me for my money, and then shot me.” The victim described the perpetrators as “two black males, tall, slender” with “a little bit of facial hair.”

After interviewing the victim, Officer Loeffler went back to the Expo Inn. He noted that the telephone lines in the lobby were cut as well as those in the adjacent offices of rooms 105 and 106. The crime scene specialist, Joe Cox, found three .22 caliber long rifle cartridge cases behind the front desk and two cartridge cases located elsewhere in the lobby area. The detail tape on the cash register indicated that the “no-sale” button was pushed at 10:03 a.m. on December 20,1998.

The defendant called Mr. Smith in January of 1999. He asked Mr. Smith if he talked to the police about the incident. Mr. Smith told the defendant he had not. A few months later, Mr. Smith talked to several detectives regarding his knowledge of the incident.

Isaiah Dixon, a long-time friend of the defendant, saw the defendant in California sometime after the December incident. The defendant told Mr. Dixon that he was on bail for a homicide charge in Tennessee. Mr. Dixon stated that the defendant “told me that he was trying to pull a heist, and there was [sic] things that went wrong.... [H]e said the man was taking too long, so he let him have it.” The defendant told Mr. Dixon that he got a “couple thousand” in the heist, but that “he had went [sic] to jail shortly after that for like a warrant or something, and when he had got [sic] back to school, all the money wasn’t there.” At the time of trial, Mr. Dixon was incarcerated in a California prison as a result of a guilty plea for second degree burglary.

The defendant was arrested on May 9, 1999, at his mother’s home in San Francisco, California. Officer Loeffler was present during the arrest and recorded a conversation with the defendant later that day. During the conversation, the defendant indicated that he stayed at a hotel with Deanna and Edie the night he vacated the dorms for Christmas break and “left about 9:00 ... in the morning ... about 9:30.” He stated that “the home boy gave me a ride to Nashville. I took my plane from there.” He told Officer Loeffler that the guy who gave him and Craig Shears a ride was named “Ted” and that he drove a van. According to the defendant, “Ted” was a guy who “just come [sic] up to the school, you know ... he just give [sic] us rides and stuff so I asked him could he give me a ride ... the night before ... he said alright, I’ll be there.” He stated that “Ted” picked him and Craig Shears up at around 9:00 or 9:30 a.m. on December 20, 1998, and took them straight to Nashville where he dropped them off at the airport after making sure their flights were not delayed.

PROCEDURAL HISTORY

On May 6,1999, the Knox County Grand Jury returned a multiple-count indictment against the defendant and Craig Shears for one count of first-degree premeditated murder, one count of felony murder, and one count of especially aggravated robbery. Following a jury trial on June 11 and 12, 2001, the defendant was found not guilty of first-degree premeditated murder, but guilty of felony murder and especially aggravated robbery. Immediately after the verdict was announced on June 12, 2001, the trial court imposed the mandatory life sentence and entered judgment on the felony murder conviction accordingly. At a subsequent sentencing hearing on August 3, 2001, the trial court sentenced the defendant to twenty-one years for the especially aggravated robbery, to run concurrently with the life sentence.

On August 3, 2001, the defendant filed a motion for new trial as to both convictions, alleging: (1) that the evidence was insufficient to find him guilty of felony murder and/or especially aggravated robbery; (2) that the state committed misconduct and the trial court erred in permitting the state to argue the missing witness rule; (3) that the trial court erred in fading to include a jury instruction regarding the missing witness argument; (4) that there was not sufficient corroboration of the testimony of Dante Smith to sustain a finding of guilty; and (5) that there was not sufficient corroboration of the defendant’s alleged confession to Isaiah Dixon to establish guilt. A hearing on the motion was held on September 27, 2001, at which time the court orally denied the motion. At the conclusion of the hearing, defense counsel orally moved to withdraw from representing the defendant, and upon accepting the defendant’s affidavit of indigency, the trial court appointed the District Public Defenders’ office as new counsel.

On October 11, 2001, defendant’s newly-appointed counsel filed an amended motion for new trial which asked the trial court to direct that a transcript be prepared “so that the newly appointed counsel ... [could] properly preserve all objections and errors for the appellate courts.” This amended motion for new trial did not raise any new substantive grounds for relief. On October 18, 2001, the trial court conducted a hearing on the amended motion for new trial wherein the attorneys for both sides argued whether the amended motion for a new trial was proper and timely. As a result of the hearing, the trial court ordered that the transcript of the pre-trial, trial and motion for new trial proceedings be prepared.

A second amended motion for new trial was filed by the defendant on March 6, 2002, alleging several new substantive grounds for relief. On March 13, 2002, the trial court held a hearing on the motion wherein the attorneys again argued whether the amended motion for new trial was proper and timely. The trial court overruled, on the merits, the amended motion for new trial on March 21, 2002. The defendant filed a notice of appeal on March 21, 2002.

On appeal, the Court of Criminal Appeals determined that the defendant’s motion for new trial and his two amended motions for new trial were untimely as to the felony murder conviction because they were filed more than thirty days after the entry of judgment. As a result, all issues raised therein, with the exception of sufficiency of the evidence, were waived. As for the especially aggravated robbery conviction, the Court of Criminal Appeals found that the two amended motions for new trial were not timely filed and that the issues raised in those pleadings were waived. On the merits, the Court of Criminal Appeals held that the evidence was sufficient to support both convictions. The Court also held that with regard to the especially aggravated robbery conviction, the trial court did not err in allowing the State to argue the missing witness rule; the trial court did not err in failing to give a jury instruction on accomplice testimony; and the trial court did not err in failing to give a jury instruction on the out-of-court confession.

ANALYSIS

I. Motion for New Trial as to Felony Murder

When the guilty verdicts were entered on June 12, 2001, the trial judge entered a mandatory life sentence on the felony murder conviction and then set a sentencing hearing on the especially aggravated robbery conviction for August 3, 2001. The defendant filed his motion for new trial as to both convictions on August 3, 2001. While this was the same day that he was sentenced for the especially aggravated robbery conviction, it was fifty-two days after sentencing was entered on the felony murder conviction.

Tennessee Rule of Criminal Procedure 33(b) provides that “[a] motion for a new trial shall be made in writing ... within thirty days of the date the order of sentence is entered.” This filing deadline is mandatory and jurisdictional and may not be extended. Tenn. R.Crim. P. 45(b); State v. Martin, 940 S.W.2d 567, 569 (Tenn.1997). A trial judge does not have jurisdiction to hear and determine the merits of a motion for a new trial which has not been timely filed. Tenn. R.App. P. 3(e). If a motion for new trial is not timely filed, all issues are deemed waived except for sufficiency of evidence and sentencing. . Id.; Martin, 940 S.W.2d at 569.

The Court of Criminal Appeals held that the motion for new trial filed on August 3, 2001, was untimely as to the felony murder conviction because it was not filed within thirty days of the entry of judgment, which occurred on June 12, 2001. The court relied on the unreported case of State v. Benjamin Brown, No. W1999-00327-CCA-R3-CD, 2000 WL 1664226 (Tenn.Crim.App., Oct.24, 2000), which held that where the judgment of conviction for felony murder was entered on April 30, 1999 and the judgment of conviction for aggravated child abuse was entered on May 26, 1999, the motion for new trial filed on June 14, 1999 was untimely as to the felony murder conviction.

Were we to accept the position of the Court of Criminal Appeals, it would mean that the two crimes, which occurred at the same time and were tried together, would suddenly be dealt with separately for post-trial purposes. Under this scheme, the motion for new trial on the felony murder conviction would have been required to be filed by July 12, 2001, and if no motion for new trial was filed, then a notice of appeal would have been due by July 12, 2001. Then, the defendant, sentenced on August 3, 2001 on the robbery conviction, would have had until September 2, 2001 to file a motion for new trial with respect to that conviction, or if no motion for new trial was filed, to file his appeal. Requiring a defendant to file two separate motions for new trial when only one trial occurred serves no purpose other than to create extra expense for the parties and the courts, as well as to waste the time of the parties and the courts.

The Rules of Criminal Procedure “are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay-” Tenn. R.Crim. P. 2. To interpret Tennessee Rule of Criminal Procedure 33(b) as requiring two separate motions for new trial would be contrary to the spirit of the Rules of Criminal Procedure as expressed in Rule 2.

In cases such as the one under submission, where there is a single trial for felony murder and the underlying felony, and where the sentences are entered on different days, we interpret Rule 33(b) as to require a motion for new trial to be filed within thirty days of the day the last sentence is entered. This will avoid the unnecessary expense and time consumption that would result from requiring two separate motions for new trial. Therefore, in this case, we hold that the motion for new trial as to both convictions must be filed within thirty days of the entry of sentencing on the underlying felony. Thus we find that the motion for new trial was timely as to the felony murder conviction as well as to the especially aggravated robbery conviction.

II. Amended Motions for New Trial

In the case under submission, the initial motion for new trial was denied at a hearing on September 27, 2001. At that time, defendant’s counsel moved to withdraw from the case, and new counsel was appointed. The defendant’s newly appointed counsel filed an amended motion for new trial on October 11, 2001, requesting a new trial for “errors, presently unknown which [would] be enumerated by counsel after diligent review of the transcript of the proceedings.” Subsequently, on March 6, 2002, the defendant filed a second amended motion for new trial stating specific allegations of error at trial. Over the objection of the State, the trial court conducted a hearing on the second amended motion for new trial and denied the motion on the merits.

The Court of Criminal Appeals held that:

[T]he attempt by the appellant to amend the motion for a new trial on October 11, 2001 that failed to specifically state the grounds for a new trial and was filed after the trial court ruled on the initial motion for new trial was a nullity; the trial court did not have jurisdiction to hear and determine the merits of the grounds set forth in the amended motion.

Pursuant to the Rules of Criminal Procedure, amendments to a motion for new trial shall be allowed “liberally until the day of the hearing of the motion for a new trial.” Tenn. R.Crim. P. 33(b). We have held, however, that this rule does not prevent a judge from allowing, at his or her discretion, an amendment to a motion for new trial at any time during which the trial judge has jurisdiction of the case. See State v. Butler, 626 S.W.2d 6, 12 (Tenn.1981); see also State v. Washington, 658 S.W.2d 144, 146 (Tenn.Crim.App.1983) (an amendment to a motion for new trial comes too late when it is filed after the trial judge has ruled upon the merits of the original motion).

In Butler, the defendant filed a motion for a new trial that was heard on November 7, 1979. The order denying the motion was not entered until November 21, 1979. A motion to amend the motion for a new trial was filed on November 12, 1979, setting forth what purported to be newly discovered evidence. This Court held that the motion was timely filed. Butler, 626 S.W.2d at 12.

The Trial judge, however, did not consider the merit of the motion, but accepted the State’s argument that an amendment would not be appropriate under Rule 33 of the Tennessee Rules of Criminal Procedure. The rule provides in pertinent part that the “court shall upon motion allow amendments liberally until the day of the hearing of the motion for a new trial.” (emphasis added)
We would point out, however, that the rule does not prevent a judge, in his discretion, allowing an amendment to a motion for a new trial at any time the trial judge has jurisdiction of the case. As pointed out in Rule 2 of the Tennessee Rules of Criminal Procedure, “the rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”

Id.

In this case, the trial judge denied the defendant’s original motion for new trial on September 27, 2001. However, on October 11, 2001, fourteen days after that denial, the defendant filed an amended motion for new trial. The trial court still had jurisdiction over the case at that time as no notice of appeal had yet been filed. See State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn.1996) (noting that a trial court loses jurisdiction with the filing of a notice of appeal). Because the trial judge retained jurisdiction, it was within his discretion to hear and determine the amended motion.

III. Sufficiency of Evidence

The standard for appellate review when a criminal defendant challenges the sufficiency of the evidence is “whether, considering the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Reid, 91 S.W.3d 247, 276 (Tenn.2002); see also Tenn. R.App. P. 13(e). When reviewing the evidence, “the State is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom.” State v. Smith, 24 S.W.3d 274, 279 (Tenn.2000). Moreover, “this Court does not re-weigh or re-evaluate the evidence. Nor may this Court substitute its inferences drawn from circumstantial evidence for those drawn by the trier of fact.” Reid, 91 S.W.3d at 277 (citation omitted).

The Court of Criminal Appeals addressed the issue of the sufficiency of the evidence both as to the felony murder and the especially aggravated robbery, and found the evidence sufficient to sustain both convictions. While the evidence was for the most part circumstantial, we agree that it was clearly sufficient to support the jury’s finding of guilt of both the murder and robbery. The evidence established that the victim was working at the front desk of the Expo Inn when two tall, thin black men “from room 207” demanded money and then shot him, ultimately killing him. The defendant was observed inside room 207 of the Expo Inn with a gun on the night prior to the shooting, and was in and out of that room throughout the night and early morning. The defendant and co-defendant were seen running from the hotel lobby close to the time that the victim was shot, carrying a bin matching the description of that used to hold money in the hotel safe. The defendant made incriminating statements to two different people, claiming that he shot someone inside the hotel. The register tape from the hotel cash register showed the “no sale” button was pushed right before the victim’s call to 9-1-1.

Clearly, when considering this evidence in a light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crimefe] beyond a reasonable doubt.” Reid, 91 S.W.3d at 276.

IV. State’s Reference to “Missing Witness”

During trial, the State introduced a statement given by the defendant in which he references a person named “Ted,” who allegedly picked up the defendant at the Expo Inn thirty minutes before the victim was shot. The State argued during closing arguments that if “Ted” really existed, the jury would have surely heard from him at trial because he would have exonerated the defendant. The defendant contends that the State’s reference to a missing witness constitutes reversible error. The Court of Criminal Appeals addressed this issue as to the robbery conviction, and held the State committed prosecutorial misconduct in making the “missing witness” argument, but that the misconduct was not prejudicial and was harmless beyond a reasonable doubt.

A party may comment about an absent witness when the evidence shows “that the witness had knowledge of material facts, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness was available to the process of the Court for the trial.” Delk v. State, 590 S.W.2d 435, 440 (Tenn.1979). The burden is on the proponent of the missing witness rule to establish the Delk prerequisites. See State v. Thompson, 768 S.W.2d 239, 250 (Tenn.1989).

The Court of Criminal Appeals correctly found the State failed to show that all three of the Delk requirements were met. Specifically, no showing was made that a relationship existed between the witness and the defendant that would naturally incline the witness to favor the defendant or that the missing witness was available to the process of the court for the trial. Because the requirements outlined in Delk were not met, the trial court erred in allowing the State to comment on the defendant’s failure to call the witness, and the comments by the State amounted to prosecutorial misconduct.

We must now determine whether the above error resulted in prejudice to the defendant. Judge v. State sets forth five factors to determine whether prosecutorial misconduct during closing argument prejudiced the defendant or was harmless beyond a reasonable doubt:

1. The conduct complained of viewed in context and in light of the facts and circumstances of the case.
2. The curative measures undertaken by the court and the prosecution.
3. The intent of the prosecutor in making the improper statement.
4. The cumulative effect of the improper conduct and any other errors in the record.
5. The relative strength or weakness of the case.

539 S.W.2d 340, 344 (Tenn.Crim.App.1976); see also State v. Francis, 669 S.W.2d 85, 91 (Tenn.1984).

The Court of Criminal Appeals held:

The record reflects that the only improper comments made by the State during closing arguments related to the missing witness inference. Because the comments were improper, the trial judge should have instructed the jury to disregard that part of the State’s argument. However, the State’s reference to the missing witness was not or [sic] extensive, and the State did not make any other improper comments. The prosecutor did not appear to be intentionally trying to unfairly prejudice the appellant. The appellant did not request a curative instruction. However, the trial judge did explain to the jury before closing arguments that the State had the burden of proof beyond a reasonable doubt. Further, the trial court fully and accurately instructed the jury on the difference between evidence and argument. Thus, we cannot conclude that the comment shifted the burden of proof from the State to the Defendant or unfairly prejudiced the appellant.... Therefore, we conclude that although the comment was improper, this error was harmless beyond a reasonable doubt.

We agree with the Court of Criminal Appeals’ reasoning and conclusion that the State’s comment regarding the missing witness was harmless error.

V Accomplice Testimony

In this case, the defendant challenges the testimony of Dante Smith, Edie Jones, and Deanna Jones, arguing that they were accomplices whose testimony had to be corroborated. It is well-settled in Tennessee that a defendant cannot be convicted solely upon the uncorroborated testimony of an accomplice. See State v. Bane, 57 S.W.3d 411, 419 (Tenn.2001); Monts v. State, 214 Tenn. 171, 379 S.W.2d 34, 43 (1964).

There must be some fact testified to, entirely independent of the accomplice’s testimony, which, taken by itself, leads to the inference, not only that a crime has been committed, but also that the defendant is implicated in it; and this independent corroborative testimony must also include some fact establishing the defendant’s identity. This corroborative evidence may be direct or entirely circumstantial, and it need not be adequate, in and of itself, to support a conviction; it is sufficient to meet the requirements of the rule if it fairly and legitimately tends to connect the defendant with the commission of the crime charged.

Bane, 57 S.W.3d at 419 (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.1994)) (emphasis added).

An accomplice is one who knowingly, voluntarily, and with common intent participates with the principal offender in the commission of a crime. State v. Lewis, 36 S.W.3d 88, 94 (Tenn.Crim.App.2000); Conner v. State, 531 S.W.2d 119,123 (Tenn.Crim.App.1975). To satisfy the definition of an accomplice, it is not enough that the witness merely possess guilty knowledge, is morally delinquent, or even participated in a distinct but related offense. See State v. Lawson, 794 S.W.2d 363, 369 (Tenn.Crim.App.1990). Rather, the test for whether a witness is an accomplice is whether the witness could have been convicted of the offense. Id.

While each of these witnesses was close in proximity to the defendant and co-defendant and to the perpetration of the offenses, each witness’s testimony shows that none of the witnesses were actual accomplices to the conduct of the defendant and co-defendant. The evidence is clear that none of them “knowingly, voluntarily, and with common intent participate[d] with the principal offender in the commission of [the] offenses.” Lewis, 36 S.W.3d at 94.

In any event, the defendant never requested a special jury instruction on accomplice corroboration, as he was required to do when the trial court did not give one. In State v. Anderson, 985 S.W.2d 9 (Tenn.Crim.App.1997), which involved a similar factual situation, the Court of Criminal Appeals held that because the defendant faded to make a request for an accomplice instruction, the defendant waived the issue.

[O]ur supreme court has held that an instruction on the rule requiring corroboration of an accomplice’s testimony is not fundamental. Upon the trial court’s failure to instruct the jury regarding accomplice testimony and the requirement of corroboration, it becomes the obligation of the defendant to make a special request for the instruction. In the absence of a special request, the trial court does not err by failing to instruct the jury about accomplice testimony even if the circumstances of the case warrant such an instruction.

Anderson, 985 S.W.2d at 17 (citations omitted). Therefore, because the defendant in this case failed to request a special jury instruction on accomplice testimony, he waived the issue.

VI. Out-Of-Court Confession

The defendant contends that the trial court erred in not giving a jury instruction on corroboration of confessions, pointing out that a confession must be corroborated by sufficient independent proof to support a guilty verdict. The Court of Criminal Appeals correctly determined that the defendant waived any objection to the testimony of Isaiah Dixon by his failure to raise the issue at trial, thereby preventing the trial court from having an opportunity to rule on the matter before the witness began his testimony before the jury. See Tenn. R.App. P. 36(a); Smith, 24 S.W.3d at 280 (finding that a failure to object to otherwise inadmissible evidence will allow that evidence to be considered as if it were, in fact, fully admissible under the law of evidence).

Even if the defendant’s confession challenge was not waived, the defendant is not entitled to relief because the evidence is sufficient to corroborate his confession. “It is a well-established principle of law in this state that a conviction cannot be founded solely upon a defendant’s confession, and our cases have long required some corroborating evidence in order to establish the corpus delicti.” Smith, 24 S.W.3d at 281. However, “[the corroborating] evidence is sufficient if ... it tends to connect the defendant with the commission to the offense, although the evidence is slight, and entitled, when standing by itself, to but little consideration.” Id. (quoting Ricketts v. State, 192 Tenn. 649, 241 S.W.2d 604, 606 (1951)).

In this case, the Court of Criminal Appeals correctly found sufficient corroboration of the defendant’s confession in the defendant’s presence at the motel at the approximate time of the incident as well as in the testimony of Edie Jones, Deanna Jones, and Dante Smith. This evidence is sufficient to corroborate the confession because it “tends to connect the defendant with the commission of the offense.” Smith, 24 S.W.3d at 281. Even if this evidence could be characterized as “slight,” that is all that is legally required for corroboration of a defendant’s confession of culpability. Id.

VII. Issues Pretermitted by Procedural Ruling of Court of Criminal Appeals

Because the Court of Criminal Appeals held that the motion for new trial was late as to the felony murder conviction, the Court did not address the issues of the missing witness argument, the accomplice testimony, or the out-of-court confession with respect to the felony murder conviction. Additionally, because the Court found that the amended motions for new trial were untimely, the Court did not address any of the issues raised therein as to either conviction. We reverse the Court of Criminal Appeals’ rulings as to the timeliness of the motions for new trial and remand the case to the Court of Criminal Appeals to consider the issues pretermit-ted by its procedural rulings.

CONCLUSION

In summary, we find that the motion for new trial filed on August 3, 2001, was timely as to the felony murder conviction as well as the especially aggravated robbery conviction. We further find that the two amended motions for new trial were timely filed because they were filed while the trial court still retained jurisdiction over the case. On these two issues, we reverse the Court of Criminal Appeals.

We conclude that the evidence was sufficient to support both convictions, and affirm the Court of Criminal Appeals on that issue. With respect to the especially aggravated robbery conviction, we agree with the Court of Criminal Appeals that: (1) while the State’s reference to a “missing witness” during closing argument was improper, the error was harmless beyond a reasonable doubt; (2) the witnesses Deanna Jones, Edie Jones, and Dante Smith were not accomplices whose testimony needed corroboration, and therefore the trial court did not err in failing to give a jury instruction on accomplice testimony; and (3) the defendant waived any objection to the testimony of Isaiah Dixon regarding the defendant’s out-of-court confession by his failure to raise the issue at trial.

Because the Court of Criminal Appeals did not address these last three issues with respect to the felony murder conviction or any of the issues raised in the amended motions for new trial as to either conviction, we remand the case to the Court of Criminal Appeals for consideration of those issues.

The costs of the appeal are taxed to the State of Tennessee.

      . In an analogous, but unreported case of Kevin Wilkins v. State, No. W2002-00436-CCA-R3-PC, 2002 WL 31624971 (Tenn.Crim.App. Nov. 14, 2002), the Court of Criminal Appeals held that for a first-degree murder/especially aggravated robbery case where the offenses were separated in the appellate process, time would not begin to run for the filing of post-conviction relief until both cases were disposed of in the appellate process.