### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Brief Ju ly 10, 2001 S ession STATE OF TENN ESSEE v. EARL D EWAYNE COLE Direct Appeal from the Circuit Court for Madison County No. 99-836 Roy B. Morgan, Jr., Judge

No. W2000-02029-CCA-R3-CD - Filed February 1, 2002

The appellant, Earl Deway ne Cole, was convicted by a Madison C ou nt y ju ry of the offense of aggravated

assault with a deadly w eapon. He was sentenced as a Range I I offender to a

term of seven (7) yea

rs incarceration

in the Tennessee Department of Correction. I n this appeal the appellant claims the trial judge failed to adequately respond to a

jury question r

egard ing the need for

unanimity in their verdict, that the written jury instructions showed the victim’s name and weapon only under the maincharge, and that the trial judge should have considered a lesser offense a tsente ncin g. We find that all of these alleged errors ha ve been waived

by the failure

o f the appellant to enter a contemporaneous objectio n to them, by the failure to raise these issues in the motion for a new trial, and by the failure

of the ap pellant on appeal t o cite to a

ny r elevant authority supportin g his argume nts. Moreover, we find that none of these alleg ed errors constitute plain error. We therefore affirm t he judg ment of the

trial cou rt. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t is Affir med. J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVID G. H AYES , a nd A LAN E. G LENN , JJ, joined. Stephen P. Spracher, Assistant Public Defender, Jackson, Tennessee, for appellant, Earl Dewa yne Cole. Paul G. Summers , Attorney Genera l & Reporter, Kim R. Helper, Assistant Attorney General; Jerry Woodall, District Attorney Ge ner al; and Jody Pickens, Assistant District Attorney, for appellee, State of Tennessee. OPINION On July 30, 1999, the appellant and Latony a Tate lived together

in Jackson, Tennessee. On that date the pair argued over T ate’s desire to return to her mother’shome and r

umors tha t Colewas unfaithful to Tate. During the argument the a ppellant grabbed a gun and a

mmunition from a dresser and threate

ned to kill Tate. As the ar gument p rogre ssed the a

ppellant struck Ms

. Tate with

his fist on the left side of her face near her

eye. He then got on top of Tate and strangled he r until he noticed1 Although the ap pellan t’s brief d oes c ite to one case, i t is only for the broad propositi on that a t rial court has the author it y to s upplement it s i nstr ucti ons in resp ons e to a ju ry q uestio n. See State v. Moore , 751 S. W.2d 464 (Tenn. Cr i m. App. 1988). The appel lant point s t o no author it y support ing the prop osition that the trial judg e in the instant case had a dut y to s o suppl ement t he jur y ins truc ti on. -2- her ey e swellin g. The a

ppellant retrieved s ome ice for the swelling and repea tedly stated he wa s sorry for w

hat had happened. Both Ms. Tate and the appe llant eventually fell asleep. Ev en tu al ly, Ms. Tate awoke and called her mother to pick he

r up. The appella nt urge d Ms. Tate not to tell her mother what happened. However, Tat e did rep ort t he incident to police who arrested the appe

llant. Waiver Non e of the issues raised by the appellant were raised in the motion for new t rial, and o n appeal none ar e s up po rt ed by c it at io n t o r el ev an t a ut ho ri ty. 1 Under the circumstances the issues are waived. Tenn. R. A

pp. P. 3(e ); Tenn. R

. App. P. 36(a); Court of Cr iminal App eals R. 10 (b); State v. Baker , 785 S.W.2d 132, 135 (Tenn. Crim. App. 1989). Neverth eless, the appe

llant arg ues these allege d error s should

be treated as plain errors and reviewed on the merits by

this Court. We ha

ve revie wed the a ppellant ’s issues u

nder the test laid down in State v. Smith , 24 S.W.3d 274, 282 (Tenn. 2002) and find that none constitute plain error. We therefore af

firm the j udgmen

t of the tr ial cour t.

___________________________________ JERRY L. SMITH, JUDGE