FILED

February 19, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9604-CC-00174

)

Appellee, )

)

) MARION COUNTY

VS. )

) HON. THOM AS W. GRAHAM

CHARLES HAMLIN, ) JUDGE

)

Appellant. ) (Direct Appeal - First Degree M urder;

) Voluntary Manslaughter)

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM H. ORTWEIN JOHN KNOX WALKUP

Ortwein & Associates, P.C. Attorney General and Reporter

723 McCallie Avenue

Chattanooga, TN 37403-0016 KAREN M. YACUZZO

Assistant Attorney General

WILLIAM C. KILLIAN 450 James Robertson Parkway

No. I Oak Avenue Nashville,TN 37243

Jasper, TN 37347

J. MICHAEL TAYLOR

District Attorney General

STEVE STRAIN

Assistant District Attorney

Jasper, TN 37347

OPINION FILED ________________________

AFFIRMED IN PART; AND MODIFIED IN PART; REMANDED FOR RESENTENCING

JERRY L. SMITH, JUDGE
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OPINION

On May 19, 1995, a Marion County jury convicted Appellant Charles

Hamlin of one count of first degree murder and one count of voluntary

manslaughter. On June 29, 1995, the trial court imposed concurrent sentences

of life imprisonment for the first degree murder conviction and seven years and

six months for the voluntary m anslaughter conviction. Appellant challenges his

convictions, raising the following issues:

1) whether the evidence was sufficient to support Appellant’s conviction for

first degree murder;

2) whether the State prevented Appellant from having a fair trial by failing

to disclose exculpatory evidence;

3) whether the State engaged in prosecutorial misconduct;

4) whether the trial court erred when it failed to examine the State’s file for

any undisclosed exculpatory material;

5) whether the trial court erred when it allowed a witness for the State to

testify about the effects of methamphetamine use; and

6) whether the trial court erred when it ruled that a gun and a boot could

not be admitted into evidence.

After a review of the record, we affirm the judgment of the trial court in part,

modify the conviction of first degree murder to second degree murder and

remand this case to the trial court for re-sentencing on the conviction of second

degree murder.

I. FACTS

Clay Haynes testified that on the morning of February 19, 1994, Glenn

Wallace, Jr., yelled at him for waving to his wife, Sandy Wallace. A short time

later, Haynes drove to his father’s home, placed two guns in his truck, and drove

to the home of Glenn Wallace, Jr. When he arrived, Haynes picked up one of his
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guns, got out of his truck, and challenged Glenn Wallace, Jr., to a fight. When

he saw that Glenn Wallace, Jr., was unarmed, Haynes put his gun back in his

truck and then he and Glenn Wallace, Jr., began fighting. As Haynes began

beating Glenn Wallace, Jr., Glenn Wallace, Sr., arrived and told Haynes to stop.

Haynes then heard a gunshot and he saw Glenn Wallace, Sr., fall to the ground.

Haynes heard some more gunshots, saw Glenn Wallace, Jr., lying on the ground,

and saw Appellant standing a few feet away. At this point, Haynes fled the scene

in his truck. 

Christy Haynes testified that she was at her grandfather’s house when her

father, Clay Haynes, took two guns out of the house and put them in his truck.

Clay Haynes then told Christy Haynes that he was upset over something that

Glenn Wallace, Jr., had done earlier that morning. When Clay Haynes drove

away, Christy Haynes called Appellant and told him that she was worried about

her father because he was taking some guns with him to confront Glenn Wallace,

Jr. She asked Appellant to m ake sure that nothing happened to her father, and

Appellant assured her that her father would be safe.

Appellant testified that he was working on a truck in his yard when he

heard his daughter, Sandy Wallace, yell for him to help her remove her children

from the home of Glenn Wallace, Jr. Appellant then walked over to Glenn

Wallace, Jr.’s home and saw Glenn Wallace, Jr., fighting with Clay Haynes. At

this point, Glenn W allace, Sr., approached Appellant and told him to leave

because the fight was not his concern. Appellant testified that he then shot

Glenn Wallace, Sr., when he pointed his gun at Appellant and threatened to kill

him. Appellant also testified that he shot Glenn Wallace, Jr., when he yelled and
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began running in his direction. Appellant admitted that Glenn Wallace, Jr., did

not have any weapons in his hand when Appellant shot him. Appellant testified

that he carried a loaded gun with him at all times.

Appellant was convicted of voluntary manslaughter for the killing of Glenn

Wallace, Sr., and first degree murder for the killing of Glenn Wallace, Jr.

II. SUFFICIENCY OF THE EVIDENCE

Appellant contends that the evidence was insufficient to support his

conviction for the first degree murder of Glenn Wallace, Jr. Specifically,

Appellant contends that the evidence was insufficient because there was no proof

that the killing was committed with premeditation and deliberation. We agree.

When an appellant challenges the sufficiency of the evidence, this Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused

is originally cloaked with a presumption of innocence, a jury verdict removes this

presumption and replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to

demons trate the insufficiency of the convicting evidence. Id. On appeal, “the

[S]tate is entitled to the strongest legitimate view of the evidence as well as all

reasonable and legitimate inferences that may be drawn therefrom.” Id. Where

the sufficiency of the evidence is contested on appeal, the relevant question for
1A 1995 ame ndm ent elim inated de liberation as an elem ent of first de gree m urder. See Tenn.

Code Ann. § 39-13-202(a)(1) (Supp. 1998) (“First degree murder is: A premeditated and intentional killing

of another.”).

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the reviewing court is whether any rational trier of fact could have found the

accused guilty of every element of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

(1979). In conducting our evaluation of the convicting evidence, this Court is

precluded from reweighing or reconsidering the evidence. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not

substitute its own inferences “for those drawn by the trier of fact from

circumstantial evidence.” Id. at 779. Finally, Rule 13(e) of the Tennessee Rules

of Appellate Procedure provides, “findings of guilt in criminal actions whether by

the trial court or jury shall be set aside if the evidence is insufficient to support the

findings by the trier of fact beyond a reasonable doubt.”

When Glenn Wallace, Jr., was killed in 1994, Tennessee’s first degree

murder statute provided that “[f]irst degree m urder is: [a]n intentional,

premeditated and deliberate killing of another.” Tenn. Code Ann. § 39-13-202

(1993).1

 Premeditation requires a showing of a previously formed design or

intent to kill. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). Deliberation

requires that the offense be committed with cool purpose, free of the passions of

the moment. Id. Deliberation also requires “some period of reflection, during

which the mind is free from the influence of excitement.” State v. Brown, 836

S.W.2d 530, 538 (Tenn. 1992). Premeditation and deliberation are

determinations for the jury and may be inferred from the manner and

circumstances of the killing. State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim.

App. 1995). However, a jury may not engage in speculation. Id.
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This Court has previously recognized the nature of proof which must be

presented before a jury may properly infer either deliberation or premeditation:

(1) facts about how and what the defendant did prior to the actual killing

which show he was engaged in activity directed toward the killing, that is,

planning activity;

(2) facts about the defendant’s prior relationship and conduct with the

victim from which motive may be inferred; and

(3) facts about the nature of the killing from which it may be inferred that

the manner of killing was so particular and exacting that the defendant

must have intentionally killed according to a preconceived design. 

State v. Schafer, 973 S.W.2d 269, 273 (Tenn. Crim. App. 1997) (citing State v.

Gentry, 881 S.W .2d 1, 4–5 (Tenn. Crim. App. 1993)). 

In this case, the State failed to introduce any evidence establishing the

elements of premeditation and deliberation. First, there was absolutely no

evidence that Appellant had planned to kill Glenn Wallace, Jr., or that he

engaged in any activity to further that plan. There was also no proof that

Appellant killed with a “cool purpose” or that he had any time between his

decision to kill and the act of killing during which he could reflect on his decision.

The State’s only argument on appeal is that the jury could have inferred that after

he received the telephone call from Christy Haynes about the fight between Clay

Haynes and Glenn Wallace, Jr., Appellant dispassionately went to the scene of

the fight for the purpose of killing Glenn Wallace, Jr. While this theory may have

been true, it remains only a theory because the State failed to support it with

evidence. While the jury may have speculated that the State’s theory was true,

speculation is not a substitute for proof. West, 844 S.W .2d at 148. 

In addition, the State failed to introduce any evidence about Appellant’s

relationship with Glenn Wallace, Jr., that established a motive for the killing.
2

“Voluntary manslaughter is the intentional or knowing killing of another in a state of passion

produced by adequate pro vocation sufficient to lead a reasonable person to act in an irrational manner.” 

Tenn. Code A nn. § 39-13-211(a) (1997).

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Although there was some evidence that Appellant’s daughter and Glenn Wallace,

Jr., had been experiencing some marital difficulties, there was no evidence that

Appellant himself had experienced any problems with Glenn W allace, Jr.

Further, the State did not introduce any facts about the nature of the killing from

which the jury could have inferred that Appellant had intentionally killed according

to a preconceived design. In fact, none of the State’s witnesses testified that they

had even seen the actual killing of Glenn Wallace, Jr., they only testified that they

heard gunshots and then saw Glenn Wallace, Jr., lying on the ground and

Appellant standing nearby. Indeed, the only evidence presented by the State

about the nature of the killing was evidence that Glenn Wallace, Jr., had died

from a single gunshot wound to the head. This evidence does not establish

either premeditation or deliberation in any way.

 “The law in Tennessee has long recognized that once the homicide has

been established, it is presumed to be murder in the second degree. The state

bears the burden of proof on the issue of premeditation and deliberation sufficient

to elevate the offense to first-degree murder.” Brown, 836 S.W.2d at 543 (citation

omitted). In this case, the State has simply failed to meet this burden and the

presumption of second degree murder is therefore unrebutted. There is however,

ample evidence in the record to establish that Appellant knowingly shot and killed

Glenn Wallace, Jr., without the adequate provocation required to reduce the

conviction to voluntary manslaughter.2 Accordingly, we modify Appellant’s

conviction to second degree murder and we remand this case to the trial court for

resentencing.
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III. SUPPRESSION OF EVIDENCE

Appellant contends that he did not receive a fair trial because the State

suppressed exculpatory evidence. Specifically, Appellant claims that the State

withheld four witness statements and a lab report that were favorable to his

defense.

In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963), the United States Supreme Court held that the prosecution has a

constitutional duty to furnish the accused with exculpatory evidence pertaining to

either the accused’s guilt or innocence and the potential punishment that may be

imposed. Failure to reveal exculpatory evidence violates due process where the

evidence is material either to guilt or punishment, irrespective of good faith or bad

faith of the prosecution. Id. 373 U.S. at 87, 83 S. Ct. at 1196–97. The

prosecution must also disclose evidence which may be used by the defense to

impeach a witness. Giglio v. United States, 405 U.S. 150, 154–55, 92 S. Ct. 763,

766, 31 L .Ed. 2d 104 (1972); Workman v. State, 868 S.W.2d 705, 709 (Tenn.

Crim. App. 1993).

Before a reviewing court may find a due process violation under Brady, all

of the following four prerequisites must be satisfied:

1) The defendant must have requested the information (unless the

evidence is obviously exculpatory, in which case the State is bound to

release the information whether requested or not);

2) The State must have suppressed the information;

3) The information must have been favorable to the accused; and

4) The information must have been material. 
3

The record indicates that both of these witnesses gave pre-trial statements in which they

admitted that they had initially failed to tell the police that Tony Wallace, Jr., had taken a gun from the

crime scene and hidden its existence from investigators.

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State v. Evans, 838 S.W.2d 185 (Tenn. 1992). In Kyles v. Whitley, 514 U.S. 419,

434, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995), the United States

Supreme Court stated that in determining whether information is material, “[t]he

question is not whether the defendant would more likely than not have received

a different verdict with the evidence, but whether in its absence he received a fair

trial, understood as a trial resulting in a verdict worthy of confidence.” 

A. Witness Statements

Appellant contends that the State violated Brady when it failed to disclose

the pre-trial statements of four witnesses. We disagree.

First, Appellant contends that the State violated Brady when it failed to

disclose the pre-trial statement of William Rapier. However, Appellant has failed

to identify any part of the record that indicates that Rapier made any such

statement, that the State possessed the statement, or that it was the least bit

exculpatory. Indeed, the trial court specifically found that there was no proof that

the State ever had any statement from Rapier that it failed to disclose. 

Second, Appellant contends that the State also violated Brady when it

failed to disclose the pre-trial statements of Joyce Davis and Tony Wallace, Jr.3

However, Appellant concedes that the State provided him with these statements

during trial. This Court has previously stated that “[i]f previously undisclosed

evidence is disclosed during trial, then no Brady violation occurs unless prejudice
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results from the delayed disclosure.” State v. Jim Inman, No. 03C01-9201-CR00020, 1993 WL 483321, at *9 (Tenn. Crim. App., Knoxville, Nov. 23, 1993)

(citing United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986)). Appellant has

failed to indicate anything that he could or would have done differently if he had

known about these statements before trial. Indeed, the record indicates that

Appellant’s counsel reviewed each statement and thoroughly cross-examined

both witnesses about their pre-trial statements. Thus, Appellant has not shown

that he was prejudiced by disclosure of these statements during trial as opposed

to disclosure before trial.

Finally, Appellant contends that the State violated Brady when it failed to

disclose a pre-trial statement of Sandy Wallace in which she mentioned the

existence of another witness, Sherry Dixson, about whom Appellant had no

previous knowledge. Appellant is correct that the general rule is that the

prosecution has “a duty to disclose the names and addresses of witnesses who

could exonerate the accused, corroborate the accused’s position in asserting his

innocence, or possessed favorable information that would have enabled defense

counsel to conduct further and possibly fruitful investigation.” State v. Marshall,

845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). However, “[t]he prosecution is

not required to disclose information that the accused already possesses or is able

to obtain.” Id. “When exculpatory evidence is equally available to the

prosecution and the accused, the accused ‘must bear the responsibility of [his]

failure to seek its discovery.’” Id. (citation omitted). In this case, the information

contained in Sandy Wallace’s statement was equally available to both parties. 

 Indeed, Sandy Wallace is Appellant’s daughter and she testified as a defense

witness at trial. There is absolutely no indication that had Appellant asked his
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daughter whether she knew of any other witnesses, she would have refused to

disclose the name of Sherry Dixson. Further, the record indicates that Sherry

Dixson lived in the neighborhood where the killings took place. Thus, Appellant

could easily have identified her as a possible witness and asked her whether she

had seen or heard anything on the day of the killings. In short, because this

information was equally available to both Appellant and the State, Appellant

“must bear the responsibility of [his] failure to seek its discovery.” Id.

B. Lab Report

Appellant contends that he did not receive a fair trial because the State

suppressed a lab report of tests performed on the shirts that Glenn Wallace, Sr.,

was wearing when he was killed. We disagree.

Although the sequence of events concerning the lab reports is somewhat

unclear, it appears that the trial court originally imposed a deadline of July 31,

1994, for the State to provide Appellant with results of tests preformed on the

victims. At that time, the State notified Appellant and the court that it could not

predict when the Tennessee Bureau of Investigation would complete its testing

and thus, it could not guarantee disclosure of the reports by a certain date. 

On February 1, 1995, the T.B.I. reported the results of its tests on the body

of Glenn W allace, Sr. The results indicated that there was gunshot residue on

his hands and that he “could have fired, handled, or [been] near a gun when it

fired.” These results were included in a stipulation that was read to the jury. 
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On March 8, 1995, the State notified Appellant and the court that it had

submitted Glenn Wallace, Sr.’s shirts for gunshot residue testing. The State

indicated that it had not submitted the shirts earlier because it had not known that

they were in the possession of the local sheriff’s office. Appellant and the court

both agreed that the State had not intentionally withheld the evidence, and the

court informed Appellant that he could request a continuance if he needed

additional time to review the lab results when they were released. The T.B.I.

released its report on May 3, 1995. The test results indicated that there was

gunshot residue on both the shirt and undershirt of Glenn Wallace, Sr., but

because of the absence of gunpowder or lead vapor residues, it was not possible

to determine a muzzle-to-garment distance. These findings were also included

in the stipulation that was read to the jury. 

The T.B.I. subsequently performed additional testing on the outer shirt of

Glenn Wallace, Sr. This test revealed the “presence of particles unique to

gunshot primer residue.” The T.B.I. agent who performed the test surmised that

the primer residue had traveled with the bullet and had been deposited on the

clothing upon impact. The T.B.I. reported these test results on July 7, 1995,

approximately two months after Appellant’s trial was completed. The State

provided Appellant with a copy of the report as soon as it received it.

In its order denying Appellant’s motion for a new trial, the trial court found

that the State’s failure to provide Appellant with this third lab report before trial did

not violate Brady. The trial court found that the State had not suppressed either

Glenn Wallace, Sr.’s shirts or the results of tests performed on those shirts. The

trial court also found that, even assuming that the State had suppressed this
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evidence, there had been no showing that the evidence was either exculpatory

or material under the standards of Kyles. The trial court found that the evidence

in the third lab report was not material because evidence that there was gunshot

residue on the shirt of Glenn Wallace, Sr., was completely consistent with the lab

report that had been read to the jury which indicated that there was gunshot

residue on the hands of Glenn Wallace, Sr. Thus, the trial court found that there

was no new evidence in the third lab report that supported Appellant’s claim of

self defense. 

 “The findings of fact and conclusions of law made by the trial court after

an evidentiary hearing are afforded the weight of a jury verdict; this Court will not

set aside the judgment of the trial court unless the evidence contained in the

record preponderates against its findings.” State v. Dick, 872 S.W.2d 938, 943

(Tenn. Crim. App. 1993) (citation omitted). Appellant has failed to identify

anything in the record that preponderates against the trial court’s findings. W e

agree with the trial court that the absence of the evidence contained in the third

lab report did not deprive Appellant of “a trial resulting in a verdict worthy of

confidence.” Kyles, 514 U.S. at 434, 115 S. Ct. at 1566. This issue has no merit.

IV. PROSECUTORIAL MISCONDUCT

Appellant contends that the State engaged in prosecutorial misconduct by

withholding the pre-trial statements of Joyce Davis and Tony Wallace, Jr., and

the T.B.I. lab report of July 7, 1995. We disagree.
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This Court has stated that in order to prevail on a claim that prosecutorial

misconduct denied the defendant of a fair trial, the defendant is required to show

that the misconduct was so improper that it “affected the verdict to his detriment.”

State v. Gray, 960 S.W.2d 598, 609 (Tenn. Crim. App. 1997) (citation omitted).

“In reviewing an allegation of improper conduct, this Court should consider

several factors including the intent of the prosecutor, the curative measures

which were undertaken by the court, the improper conduct viewed in context and

in light of the facts and circumstances of the case, the cumulative effect of the

[improper conduct] with any other errors in the record, and the relative strength

or weakness of the case.” Id. (citation omitted). 

In this case, Appellant has simply failed to meet his burden of showing that

he was prejudiced by the alleged misconduct. As previously discussed, the State

disclosed the statements of Joyce Davis and Tony Wallace, Jr., to Appellant at

trialand Appellant’s counsel vigorously cross-examined both witnesses about the

statements. In addition, Appellant was not prejudiced by the failure of the State

to disclose the third T.B.I. lab report before trial because the report contained no

exculpatory evidence that was not already before the jury. This issue is without

merit.

V. FAILURE TO INSPECT THE STATE’S FILE

Appellant contends that the trial court erred when it failed to perform an in

camera inspection of the State’s file to determine whether it contained any

undisclosed exculpatory material. Appellant also claims that the trial court erred

when it failed to have the file sealed and preserved for appeal. We disagree.
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The record indicates that on June 23, 1995, one month after completion

of the trial, Appellant filed a motion asking the court to order the State to submit

its file for inspection. Although the trial court apparently denied this motion, the

record does not contain an order to that effect. Appellant then claimed in his

amended motion for a new trial that the trial court erred in denying his inspection

motion. Following a hearing on the motion for a new trial, the trial court issued

an order which stated that in regard to Appellant’s request that the court inspect

the State’s file, Appellant “was not entitled to such extraordinary relief and [he

had] presented no authority for that relief.” Although the record contains a portion

of the hearing on the motion for a new trial, it does not contain the portion that

addressed this issue. Therefore, it is not possible for this Court to consider the

arguments of counsel, any evidence presented, or the reasoning of the trial court.

“Absent the necessary relevant material in the record an appellate court cannot

consider the merits of an issue.” State v. Ballard, 855 S.W.2d 557, 561 (Tenn.

1993) (citing Tenn. R. App. P. 24(b). Appellant has failed to properly preserve

this issue for appeal.

However, it appears that even if this issue had not been waived, Appellant

would still not be entitled to relief. In State v. Caughron, 855 S.W.2d 526, 540–41

(Tenn. 1993), the Tennessee Supreme Court held that a trial court had not

abused its discretion when it refused to conduct an in camera inspection of the

State’s file because the defendant had not asked the court to inspect any

particular piece of evidence and there had been no proof that the State had

committed any Brady violations. Similarly, there is no proof that the State

violated its Brady duties in this case. In addition, rather than asking the trial court

to inspect a specific piece of evidence, Appellant likewise asked the trial court to
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search the entire file for any exculpatory evidence that might be in it. Under

these circumstances, the trial court did not abuse its discretion when it declined

to inspect the State’s file and seal the file for appellate review. This issue has no

merit.

VI. TESTIMONY ABOUT THE EFFECTS OF METHAMPHETAMINE USE

Appellant contends that the trial court erred when it allowed a witness for

the State to testify about the effects of metham phetamine on the hum an body.

However, Appellant has failed to support this contention with any argument or

any citation to authority. Thus, Appellant has waived this issue. Tenn. Ct. Crim.

App. R. 10(b). 

Notwithstanding Appellant’s waiver of this issue, we conclude that even on

the merits, Appellant is not entitled to relief. The record indicates that Doctor

Charles Harlan testified on direct examination that Glenn Wallace, Sr., had 0.2

micrograms of methamphetamine per milliliter in his blood at the time of his death

and that Glenn Wallace, Jr., had 0.1 micrograms of methamphetamine per

milliliter in his blood at the time of his death. Dr. Harlan then testified that

methamphetamine is sometimes used to make a person more alert. Appellant

did not object to any of this testimony.

On cross-examination, Dr. Harlan stated that although he had never

treated anyone who had taken methamphetamine, he had conducted research

regarding methamphetamine’s effects on the human body. Appellant’s counsel

then went on to question Dr. Harlan about the physical and mental effects that
4

This boot and gun were apparently found in the home of Glenn Wallace, Jr., some time after he

was k illed. 

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methamphetamine use could have on a person. When Dr. Harlan reiterated on

re-direct examination that methamphetamine is sometimes used to make a

person more alert, Appellant’s counsel objected, claiming that Dr. Harlan was not

qualified to make that statem ent. 

We conclude that even if the trial court erred when it allowed Dr. Harlan to

testify about the effects of methamphetamine use, it was harmless error because

Appellant was not prejudiced by it. See Tenn. R. App. P. 36(b). Indeed, Dr.

Harlan had already given identical testimony without objection. Further,

Appellant’s own expert witness, Doctor Chris Blevins, testified that people in

certain professions take metham phetamine in order to remain alert. Thus, this

issue has no merit.

VII. EXCLUSION OF EVIDENCE

Appellant contends that the trial court erred when it ruled that he could not

introduce Glenn Wallace, Jr.’s boot and a gun that was allegedly found in that

boot into evidence.4

 Once again, however, Appellant has failed to support this

contention with any argument or any citation to authority. Thus, this issue is also

waived. Tenn. Ct. Crim. App. R. 10(b). In addition, despite the trial court’s

statement that it would allow Appellant to make on offer of proof, Appellant failed

to include the gun and the boot in the record and also failed to make any offer of

proof as to why they were relevant. Thus, this Court has no basis upon which to

review the trial court’s decision that this evidence should not be admitted
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because it was simply not relevant to any issue in the case. “Absent the

necessary relevant material in the record an appellate court cannot consider the

merits of an issue.” Ballard, 855 S.W.2d at 561 (citing Tenn. R. App. P. 24(b).

Appellant has failed to properly preserve this issue for appeal.

VIII. CONCLUSION

Because we hold that the evidence was insufficient to support Appellant’s

conviction for first degree murder, we modify his conviction to second degree

murder and we remand this case to the trial court for resentencing. In all other

respects, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

WILLIAM M. BARKER, SPECIAL JUDGE