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
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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
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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.
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____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
DAVID G. HAYES, JUDGE
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