# FILED February 3, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706- CR-00209 ) Appellee, ) ) McMINN COUNTY ) V. ) ) HON. R.STEVEN B EBB, J UDGE SAMUEL McKHEEN, ) ) Appe llant. ) (AGGR AVATED ASSAUL T)

FOR THE APPELLANT : FOR THE APPELLEE : HUBERT D. PATTY JOHN KNOX WALKUP Patty Off ice Build ing Attorney General& Reporter 131 Eas t Broadway P.O. Box 5449 TIMOTHY F.BEHAN Maryvil le, TN 37802 Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 JERRY N. ESTES District Attorn ey Ge neral AMY REEDY Assistant Distri ct Attorney General Washington Avenue P.O. Box 647 Athens, TN 37303
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Samuel McKheen, appeals as of right fol lowing a jury tria l in the Criminal Court

for McMinn County . Defen dant was convicted of aggravated
assa ult and was sentenced to four (4) years in t he Departmen t of Corre cti on. On appeal, the Defendant chall enges the fol lowing: (1) Whether the ev id ence w as sufficien t beyond a reaso nable d oubt to convict the Defen dant of ag gravated assau lt as charg ed in the in dictme nt; (2) Whether the tri al court erred in li miting th e Defendant’s cr oss-examinati on of a prosecuting witness; (3) Wh ether th e trial co urt abu sed its discre tion in a llowing the victim ’s so n to testify; (4) Wh ether the State ha d a duty to call an eye witness to the crime to testify and did such fai lure to cal l this witness const itute a Bradyviolat ion; (5) Wh ether a juror’s failure to provi de informati on during voi r dire r egarding his misd emea nor con victions co nstitutes p rejudice to the Defe ndant; (6) Whether the tri al court erred in giving an oral supplemental instruction to the writ ten jury charge. We affirm the ju dgme nt of the trial co urt.
I. S UFFICIENCY OF

THE EVIDENCE The Defendant argues t hat the e v idence was insuf ficien t in that

the great weightof the evi dence is against the findi ngs of the jury and there is no evide nce to support the alle gation s in the indictm ent. Sp ecifica lly, the D efend ant sta tes tha t “all the proof in t his case shows i s that thesaid Lisa McKheen [ the victim] w as no t afraid of the Defendant at

any time and t hat he was not poi nting the gun at anybody nor thatno [sic] gun was ever fired or that anyon e expresse d any fear.” The indictment in the case sub judice states as foll ows: Sammy McKheen on or about the 12t h day of March, 1996, in McMinn County, Ten ness ee, an d befo re the fin ding o f this ind ictme nt, did-3- un lawfully, intentiona lly and kno wingly by th e display o f a deadl y weapon, to-wit : a gun, cause Li sa McKheen to reasona bly fear imminent bodily injury by pointin g the g un at L isa Mc Khee n, in violat ion of T.C.A. 39-13-102, all of which is against

the peace and dignity of t he State of Tennessee. When an accused challenges the suffici ency of the convi cting evi dence, the standard is

whether, af

ter revi ewing the evi dence in thelight most favorabl e to the prosecution , any rationaltrier of fact could have fou nd the essentialelements of t he cri me beyond a reaso nable d oubt. Jack son v. V irginia , 443 U. S. 307, 319 (19 79). On appea l, the State is entitl ed to the st rongest legitimate vi ew of the evi dence and all inference s therefro m. State v. Cabbage , 571 S. W.2d 832, 835 (Ten n. 1978). Because a verdic t of guilt remov es the pr esum ption of inn ocenc e and re places it w ith
a presumption of guil t, the acc used has the burden in thi s court of illustrati ng why the
e vide nce is insufficient to suppo rt the verdict re turned b y the trier of fac t. State v. Tug gle , 639 S.W.2d 913 , 914 (T enn. 19 82); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 19 73).

Questions conce rning the credibility of the witne sses, the weight an d value to be given the e vidence, as we ll as all factual issues raised b y the evidence, a re resolved by the trier of f act, no t this c ourt. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), per m . to appeal denied , id . (Tenn. 198 7). Nor ma y this court reweigh or reeval uate the evi denc e. Cabbage , 571 S.W.2d at 835. A jury verdict accred its the State’s wit nesses a nd resolves al l confl icts i n favor of the State. Grace , 493 S.W.2d at 476.

Lisa McKheen, Defendant’s wife at the t ime of tri al, test ifiedthat she w ent to her fat her-i n-l aw’ s ho me on Mar ch 12, 19 96 to deliver some prescript ion medicine. Her father- in-law, J.B. McKheen, to whom she refers to as “Dad,” cal led her earl ier-4-

thatday and asked her to pic k up his prescription from Revco. I t was between 3: 00 and 5:00 p.m. when she arrived athis traile r. Her s on, T rent M ichae l, and a family friend, Tommy Conn, accompanied her. She and Trent Michael walk

ed into t he home and found J .B. McKheen asle ep in his hospi tal bed. Th e Defend ant was
a sleep in a chair

located acr

oss from the bed. When Lisa walked over to the hospitalbed and said, “ Dad, here’s your medicine, ” the Defendant suddenly j umped up and star ted yelling o bscen ities. The Defendant announced that he was leavi ng and yelled some more obscenities, but Li sa said that she was ”just dro pping o ff Dad ’s medicine a nd [she wa s] leaving.” Trent Michael was hugging his gr andfather when Lisa was trying to leave, and t he Defendantgrabbed h er and started to h it her.

Lisa told the Defendant that she was no longer

afraid of him and th at if he h it her she w ould take outa warrant for his arr est. Defendant

continued to yell, and Lisa stated that “[T ]his is not the place. D ad is sick.” J.B. McKheen was yel ling that i f the Defendant was not going to si t down, then t o “please l eave.” Li sa exited through the front do or with the Defendant following and yelli ng at her. Li sa was on her way toward t he car whe n the Defenda nt ran around and jump ed onto he r car. A picture was

entered int

o evidence whi ch showed his muddyfootpri nts on the car and s ome damage to the paint . At that time, she was standing at the driver’s si de frontfender and Trent M ichael was standing just behind her. Tommy Conn was sitting in the fro nt passe nger se at.

Lisa told the Defendant that “jumping on my car is so chi l dish,” and the Defendant became very angry and ran back into the hou s e. Lisa bel ieved the Defendant was going insi de to get a gun becaus e she had seen the gun ear lier when-5-

her father- in-law had t aken it out

from underneath hi s bed to get t he Defen dant to calm down. When t he Defendant came back from the house carrying a gun, Lisa
was tryi ng to get Trent Michael in the car and lay down in the back seat because she believed that the D efe nd ant wa s goin g to sh oot into the ca r. Lisa s pecific ally testified that shewas in fear of Defendant when he brandished t he weapon, point ing it at her and her son.

Trent Michael Ward, Lisa McKheen’s son, stated that he was nine (9) years old at the ti me of trial . On March 12, 1996, h e went w ith his mo ther and Tom my to his “Pop’s hous e.” Wh en they w alk ed in the house, J.B. McKheen and the Defenda nt were both asleep, with McKheen in t he hospitalbed and the Defendant in the chair. Tre nt Micha el’s moth er was th ere to give his “Pop” some medicine she had picked up at Revco. Bot h J.B. McKheen and the Defendant woke up, and the Defendant stated th at he was leaving . Lisa M cKhe en sta ted “It’s o kay, I’m leaving,” and then the Defendant got i n her face and gr abbed her by the t hroat. Trent Michael and h is mother left , but then the Defendant ran out and jumped on the front end of their car. W h en they just stood there, the Defendant r an back inside. His mother said “Get in the car, he’s g oing to ge t th e gun.” A fte r they got in the car an d were tryin g to pull out , the Defendant came out on the steps and was point ing the gun at the car. Trent Mich ael had see n this same gun earlier, on the floo r by J
. B. McKh een’s be d.

For the defe nse, J.D. McKhe en testified that he wa s the Defen dant’s father. He stated that on March 12, 1996, the Defendant was at home with him. Ear lier t hat morning he had ca lled Lisa to go by the d rug store to pick up a prescripti on, and Lisa stated that shewould bring it to him. McKheen stated that he had told bot h Lisa and-6-

the D efendant not t

o be present i n his house toget her because of t heir pr io r arguments. When Lisa arrived, the Defendant was sit ting in a recline r sleepin g and he was in his daybed . McKh een sa id, “Lisa, w ha t are yo u doin g here ? Sam my is here.” The Defendant woke up and the two started arguing. McKheen told them both to leave, and t he Defendant stated thathe would leave.Eventuall y, Lisa went outside and then the Defendant followed. While McKheen went to thedoor, he then
cam e back to his daybed and laid down. McKheen stated that he had a s hotgun , and that no o ther gun wa s present in his trailer.

The Defendant test ified on his own behalf . He stated thathe and Lisa were in the process of get

ting a divorce when t his inci dent occurred. On March 12, 1996, he had come home from work early because it was r

aining and hewas sick. When he arrived at his fat her’s tr ailer, his fat her was lyi ng in his hospital bed. The Defendant went to sleep in a nearb y recliner, bu t awoke to the sound of Li sa cursing at him. The two argued, and the Defendant knew they were not supp osed to be in his father’ s trail er at the same t ime so he offere d to leave. Lisa then stated that “There ain’t no us e in it. I will leave . . . I don ’t want to be around this trash anyway .” Defendant admitte d that his father had a s hotgun lyi ng near his bed, and that he could hold it

in one hand and shoo t it. Defendant stated that he did not ha ve a gun in his han d.

“A perso n com mits a ssau lt who intenti onally or knowingly causes another to reasonably fearimminent bodily injur y.” Tenn. Code Ann. § 39-13-101(a) (2). The offense of assault ri ses to aggravated assault i f the person “uses or displ ays a dead ly weapon. ” Tenn. Code Ann. § 39-13 -102( a)(1) (B)

. “To establish these charges, the statewas required t o prove bey ond a reasonable doubt that [t he-7-

defend ant] intentio nally or k nowin gly cau sed th e victim [s] to fea r im m inent b odily injury by his use or display o f a deadly wea pon.” State v. Wilson , 924 S.W.2d 648, 649 (Tenn. 199 6). One a cts intention ally “with resp ect to the nature of the conduct
or to a resu lt of the c ondu ct whe n it is the pers on’s con scious o bjective or d esire to engage in the con duct or ca use th e result.” Tenn . Code Ann. § 3 9-11-30 2(a). A person acts kno wingly wh en, with res pect to a re sult of the p erson’s c onduc t, “ th e person is aware that the co nduct is re asona bly certain to cause the re sult.” Id . at (b).

In the li ght most favor

able to th e State, t here was suffic ientevidence whereby
a rationaltrier

of fact could have determined beyond a rea son able doubt t hat the Defendant comm itted the offe nse of ag gravated assau lt. The proof establ ished that the Defenda nt walked de liberately inside his father’s tra ile r to ret rieve a gun, and then walked outsi de and intenti onally poi nted the weapon at the car the vi ctim was drivi ng. Aware that the victim, their son and a friend of the family were inside t he car, the Defendant

knowingly poi nted a deadly weapon at the vict im while she was in her car. Th e jury w as en titled to in fer that th e Def enda nt’s action of pointin g the gun at the victim w as for the p urpose of causing fear of imminent bodi ly inj ury, and there was proof that

the victi m reasonably fear ed imminentbodily i njury. This issue has no merit.

II. C ROSS - EXAMINATION OF WITNESSES

The Defen dant arg ues tha t h is trial counsel was denied adequate crossexamination of

the prosecut ing witnes s. In hi s brief, the Defendant fails to spec ify eithe r the witn ess o r the su bject w hich is th e bas is of his a rgum ent. T his issu e is waived because the Defendant failed to make appropriate referencesto the recor d.-8-

Tenn. Ct. Crim. App. R. 10(b) ; State v. Killebr ew , 760 S.W.2d 228, 231 (Ten n. C ri m. App.), perm . to appeal denied , id . (Tenn. 198 8); see also Tenn. R. App. P. 27(a)(7) and (g).

III. F AILURE TO LI ST WITNESS ON INDI CTMENT

Defendant has failed to addressin his bri ef Issue 3 r egarding whether it was error to permit the Stat e to callas a witness t he victi m’s child who had not been listed as a witness on the ind ictment i n thi s case . The fa ilure to b rief this argument constit utes waiver of this issue. Tenn. Ct. Cri m. App. R . 10( b); Tenn. R. App. P . 27.

IV . E XCULPATORY EV IDENCE

Defendant contends that the State’ s fail ure to calla particul ar witness to the
ass ault was a violation of t he Defendant’s constitut ional ri ght of due process . Defendant argues that theevidence T omm y Conn wo uld have provide d to the court was favorabl e to Defendant, and, consequently, would beexculpatory evidenc e to which he was en titled under Brady v. Maryl and , 373 U.S. 83, 83 S.Ct . 1194, 10 L. Ed. 2d 215 (1963).

The law does not require t hat the State call any particul ar witness in a cri minal prosecu tion, or t hat it use a ll of the witnes ses it mig ht have a vailable. Roberts v. State , 489 S. W.2d 263, 265-66 (Tenn. Cri m. App. 1972). I f the State introduces proofthat there was a w itn ess to a crime and refuses to discl ose that witness’ identity, and that wi tness might be i n a positi on to assist the defense, then that-9-

defendantmight be effectively deprivedof his constit utional ri ght to due process. Id
. at 266. As thi s witness was av ailabl e and known to the Defen dant, then t he st andard for the determin ation of whethe r Defenda nt’s due proce ss rights were violated does n ot apply. State v. Hartman , 703 S.W .2d 106 , 114 (T enn. 19 85), cert
. denied , 478 U.S. 10 10, 106 S.C t. 3308, 92 L.Ed .2d 721 (198 6) (citations omitted).

In the case sub judice , the wit ness in questi on, Tommy Conn, was known to the Defen dant. W hile not listed on the ind ictmen t, the witnes s was equa lly availab le to either pa rty. The Defendant does not ar gue that thi s witness’identit y was not made know n to him , only tha t the Sta te had a duty to call C onn as a witness or to divulgewhatever

evid ence he wo uld pr ovid e to t he Defen dant. As stated above, the State is not un der suc h an obligat ion, and t he Defendant could have subpoenaed Conn to testify as a w itness. Te nn. R. C rim. P. 17 (d). This iss ue is witho ut merit.

V . V OIR DIRE EXAMI NATION OF JURORS

The Defendant argues that one of the juror s on the panel failed to disclose
answers to questi ons by the Defenda nt’s trial counselduring voi r dire. The juror failedto disclose that he ple d guilty to so me m isdem eanors several m onths p rior to the Defe ndan t’s trial an d was on pro bation . The D efend ant co ntend s that h is
c onsti tutionaldue proce ss rights were violated because this was exculpa tory evidence to which he w as entitled unde r Brady . He cites State v. Mars hall , 845 S .W. 2d 228 (Tenn. Crim. App. 1992), for the proposi tion that

even if t here is no-10-

showing of bad fai th on the part of the prose cution, the prosecuti on had a duty to disclose the statem ents that w ere excu lpatory or fa vorable to the accu sed.

The Defendant’s r

eliance upon Mars hall and the case of Montesi v. Montesi , 529 S.W .2d 720 (Tenn . Ct. App . 1973), is m isguided
. In Montesi , a juror failed to disclose to the court

that he previously s at on a jury which convicted the appell ant of second degree murder of his form er wife. Th e court fou nd that a fa ilure to disclose that inf

ormation misl ed the app ellant’s attorn ey to his pre judice. Montesi , 529 S.W.2d at 724. Certai nly, t he informati on which the j urorin the case sub judice failedto discl ose was not of a pr ejudici al nat ure in t hat this inform ation w as no t in any way related to the Defen dant. The Mars hall case involve d the fa ilure of c ertain witnessesin the trial to disc lose state ments which w ere excu lpatory or fa vorable to the accuse d. Mars hall , 845 S.W.2d at 231-32. This case is di stingui shable from Mars hall in that this was a j uror, and not a witness, who fail ed to disclose informati on. Also, th e inform ation w hich th e juror fa ile d to dis close was not exculpatory.
Furthermore, if this juror failed to disclose t hat he earlier ple d gui lty t o so me misdem eanors and was on probation, su ch failure does n ot give rise to a n inhe rently prejudici al situati on for the Defendant. It is li kely that

if thi s particu lar jur

or had been prosec ute d by the State for a misdemeanor, any prejudi ce he might have caused would likel y have been towar ds the State. This juror was n ot ask ed du ring vo ir dire if he had b een ind icted or co nvicted in a ny court. The followi ng excerpt of the vo ir dire examination by the t rial court was as follows: It doesn’t matter to me if you are close frien ds with th e DA or Amy [State ’s prosec uto r] or anybody else , but all I want to know is is there anything about the Dist rict At torney’ s office, or any of the people t hat-11- you know in that offi ce, that would cause you to be unfai r or feel l ike you had to be on their sid e before we sta rt th is case? On the ot her hand, do you have any f riends that have been prose cuted by the D A’s office, or family

or fri ends thathave been prosecuted by the DA’s of fice, that you ar

e laying i n wait for

them here today? The D efenda nt’s trial coun sel also q uestione d the jury on a similar su bject: I need to know and have your feeli ngs on it, and that has to do w i th somedomestic situations. Are any of you now involved i n a divorce proceeding? None of you. H ave an y of you recen tly been involve d in a divorce proceedings? We ll, I take i t all of your re lations hips wit h your spouses have been good and you’ ve had no prob lems in th e past. And I believe I ’ve check ed on yo ur prelim inary inform ation on th e jury list, and none of you have any lawsuits pending anywhere i n the county at this ti me? Or any lawsuits pending anywhere? In the absence of questions cal cul ated to produce the specifi c answers, t he Defendant has w aived th e right to objec t to the fa il ure of the j uror to vo lunteer t he informati on. State v. Tay lor , 6 69 S.W .2d 69 4, 700 (Ten n. Crim . App. 1 983). T his issue is w ithout me rit.

V I . O RAL JURY INS TRUCTIONS

Defendant argues that the tri al court communicated oral ly wit h t he jury in response to their questions du ring deliberations, an d that this ora l commun icatio n was in error. Defendant rel ies upon Rule 30(c) of the Tennessee Rules of Criminal Procedu re in that the trialcourt fai led to submit every word of

his chargeto the jury in written form, and argues this rule is not subject to waiver

by either t he State or t he Defen dant.-12- At the conclusi on of the proof, the trial court read the written jury instruct ions to the jury and then s ent these instruction s with the jury for their deliberations . Later, the jury returned to t he cour troom with a q uestion for the trial court. Th e jury foreman asked for t he trial court to “explain t he differ ence between aggravated assault and just assault .” The trialcourt’s answer was as foll ows: Let me have your ch arge ri ght there and l et me, number one, aggravated assault is a felony an d it requ ires inte ntiona lly, know ingly causing somebody to reasonabl y fear bodi ly inj ury, and t he use or displayi ng of a dead ly weapo n. The simp le assa ult me rely says that the defendantint en tionally a nd kn owing ly caus ed an other to reaso nably fearimmin ent bod ily injury. It does not require t he use of a weapon or displayi ng of a wea pon. Th at’s the ba sic differen ce, and that i s a mis demea nor . Ye s, m a’a m. The juror t hen asked the trial court to explai n what the phrase “di splayof a weapon”
mean t, but the trialcourt refused stati ng that “[Y]ou have to decide what that means. Tha t’s a jury quest ion. Use or di splay. Ju st common English, whatever you thi nk that it mea ns.”

T he trialcourt has t he authorit y to respond to jury quest ions wit h a supplemental instruction
. State v. Forbes , 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995) (citat ions omitted). In t his instance, the trial cou rt mer ely reread a port ion of the written instru ctions with which the j ury had already been charged. T he trial court neither commented on specifi c evidence nor on testi mony introduced at trial. Wh ile the supplemental i nstructi on s hould h ave includedan admonishment to pl ace no undue emphasis upon it, there i s no reversi ble error in the t rial cour

t’s oral instruct ion. Id . at 451 ( citing State v. Chance , 77 8 S. W.2d 4 57, 461- 62 (Tenn . Cr im. App. 1989); see Burton v. Sta te , 217 Tenn . 62, 70-71, 394 S.W.2d 873, 876-77 (Tenn . 1965)). T his issue has no merit.-13- After a thorough review of the re cord a nd the briefs in this case, we aff irm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ DAVID G. HAYES, Judge