State of Tennessee v. Venson Earl Woodard

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 9, 1998
• Docket: 01C01-9511-CC-00379
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY SESSION, 1997 January 9, 1998

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9511-CC-00379 ) Appellee, ) ) ) BEDFORD COUNTY VS. ) ) HON. CHARLES LEE VENSON EARL WOODARD, ) JUDGE ) Appe llant. ) (Direct Appe al-Aggravated Assault)

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM C. ROBERTS, JR. JOHN KNOX WALKUP Suite 1502 , Parkway T owers Attorney General and Reporter Nashville, TN 37219 PETER M. COUGHLAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243

MIKE MCCOWN District Attorney General

ROBERT G. CRIGLER Assistant District Attorney One Public Square, Ste. 300 Shelbyville, TN 37206-4211

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE OPINION

A Bedford County Circuit Court jury found Appellant Venson Wo odard

guilty of two counts o f aggravated a ssault. As a R ange II mu ltiple offender, he

received a sentence of nine years and eight months in the Tennessee

Department of Correction. T he trial court ordered the sentence to be served

consecu tive to a sente nce for w hich Ap pellant wa s on pa role at the tim e of the

offense. In this appeal, Appellant presents the following issue for review: whether

the trial court violated its duty to act as a thirteenth juror by refusing to grant

Appe llant’s motion for a new trial. Specifically Appellant maintains the weight of

the evidence shows he was acting in self-defense.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTUAL BACKGROUND

Several witnesse s testified tha t on June 2, 1994 , Appella nt attended a

party in Shelbyville, Tennessee. Appellant and another guest, Mr. Leo Trice,

began wrestling, an activity in which these frien ds com monly e ngage d. During the

wrestling match, Appellant initially pinned his opponent, but was himself later

pinned by Mr. Trice.

Wh ile pinned by Mr. T rice, Appellant bit Mr. Trice several times on the

chest and stomach inflicting wounds deep enough to require medical attention.

After Mr. Trice let Appellant up, he and Appellant scuffled some and exchanged

blows. They were separated by guests at the party, including Libby Burns. When

-2- Ms. Burns trie d to calm Appellant, he hit her. The victim, Anthony Lee Hicks, saw

Appe llant hit Ms. B urns an d attem pted to re strain Ap pellant.

At som e poin t in all the comm otion, seve ral peop le heard Appella nt yell to

his brother to “go get the piece.” Several people testified that they later saw

Appe llant’s brother hand Appellant something, though no one saw that the object

was a k nife.

As Mr. Hicks attemp ted to restra in Appe llant, the two fell to the ground. Mr.

Hicks was aware of Appellant hitting him in the back. He let Appellant up and

Appellant hit him in the arm ; at this point Mr. Hicks saw that he was bleeding and

realized that Appellant had stabbed him. Appellant and his brother fled across the

street but continued to taunt the party guests. Mr. Hicks was taken to the ho spital,

where it was disco vered tha t one of his lungs had been punctured by the stab

wound. He was hospitalized for several days. Only Appellant and his brother

indicated Appellant’s actions were taken in self-defense.

ROLE OF THE COURT AS THIRTEENTH JUROR

Appellant bases his appeal upon his contention that the trial c ourt er red in

failing to grant him a new trial upon the basis of the trial court’s power as

thirteenth juror. Rule 33 (f), Ten n. R.Crim.P ., provides that the trial court may

grant a new trial if it views the verdict to be contrary to the weight of the evidence.

Howeve r, pursu ant to T .R.A.P . 13(e) this Court’s scope of review of the evidence

is to determine whether it is “insufficient to supp ort the findings by the trier of fact

-3- of guilt beyond a reasonable doubt.” This Court may not act as a thirteenth juror.

State v. Burlison, 868 S.W .2d 713 (Te nn. Crim. Ap p. 1993).

This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrum entality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written reco rd in this Co urt.

State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8)(quoting Bolin v. Sta te, 219

Tenn . 4, 11, 405 S.W .2d 768 , 771 (19 66)).

As this Court held in Burlison, the lim its on a ppella te revie w “pra ctically

foreclose assessm ent of the evidentiary ba sis for a trial court’s thirteenth juror

ruling.” State v. Burlison, 868 S.W.2d at 719. Upon the record that the trial court

fulfilled its obligation under R ule 33(f), th is Court may not overturn its decision on

appe al. Instea d, the a ppella te cou rt's duty is limited to a review of whether the

obligation was discharged. If it was discharged in accordance with procedure, we

affirm. If it was not, we reverse and remand for a new trial. No other remedy is

available. State v. D ankwo rth, 919 S.W .2d 52, 59 (Tenn . Crim. A pp. 1995). Upon

this record, we find the trial court properly fulfilled its duty to act as thirteenth juror

and the record fully supports his decision to deny Appellant’s new trial motion.

This issue is without merit, therefore the judgment of the trial court is affirmed.

-4- ____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAYES, JUDGE

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