# FILED
November 26, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1997 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-96 0 8-CC-0029 9 ) vs. ) Blount County ) SLATER BELCHER, ) Hon. D. Kelly Thom as, Jr., Judge ) Appellant. ) (First Degree Murder, ) Aggravated Assault )

FOR THE APPE LLANT: FOR THE APPELLEE: KEVIN W. SHEPHERD JOHN KNOX WALKUP (on appeal and motion for new trial) Attorney General & Repor ter Attorney at Law 404 Ellis Ave. SANDY R. COPOUS Maryville, TN 37804 Assistant Attorney Gener al Criminal Justice Div

ision MACK GARNER (trial) 450 James Robertson Parkwa y District Public Defender Nashville, TN 37243-0493 NATALEE STAATS HURLEY (trial) MIKE FLYNN Assistant District P ublic Defender District Attorney General 318 Court Street Blount County Courthouse Maryville, TN 37804 Maryville, TN 37804 JERRY CUNNINGHAM Attorney at Law 329 Cates St. Maryville, TN 37801 OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE2 OPINION The defendant, Slate r Be lcher, stands convict ed of the first degree murde rof h is best friend, Larry Wyatt, and the aggravated assault of his w ife, Denise Belcher. His convictions were returned by a jury of his peers in the Blount County Circuit Court at the c

onclusion of a five day tri al. The defendant is currently servinga life sentence for the murder conviction consecutively to a thre e year sentence for the aggravated assault. In this direct appeal , Belcher raises four issues f or our revie w: 1. Whether he was denied his c onstitu tional rights by defense counsel's failure topursue any pretrial motions on his behalf, specifically including failure to move for the suppression of his pretrial statement to the poli ce. 2. Whether his due process rights were violated by the state's failu re to disclo se infor mation a s required by Brady v

. Maryland

. 3. Whether he was depr ived of a f air and im partial ju ry b y t he actions of the jury foreperson in conc ealing material information during voir

dire. 4. Whether the evidence presented at tr ial is sufficient to support his convictions. We affirm the judgment of the trial court.

In February 1995, the defendant and hi s wife, Denise Belcher, lived in and managed an apartment complex in Mar yville. The defendant also owned a tractor-trailer

truck and worked as a truck dr iver through Transis . The Belchers had several friends in their ap artment complex, including Joan Huiet, who lived across the hall from the m, and David Allen, a truc k driver who was Ms. Hui et's occasional boyf ri end. Larry Wyatt, a frequent visitor to the apartment complex, was a truck driver who Slater Belcher des cribed as his best friend. Wyatt was, at the time of his death, engaged in an affair with the defendant's w ife. He was also a former lover of Joan Huiet, although the tw o continued to maintain a close fr iendship.

At trial, the testimony of many of the pr inc ipal witnesses w as contradictory on key points.3 Prior to Fe bruary 26, 1995, the Belcher s were experienci ng marital difficulties. According to Mrs. Belcher, themarriage had reached the poi nt where she was ready either for the defendant to l eave or to leave herse lf. Mrs. Belcher knew the defendant was suspicious of her r elationship with Wyatt, but so far as she knew, he had no definite knowledge of it. Unknow n to Mrs. Belcher, Allen had confirmed the defendant's suspicions about the affair a few days before February 26, and Huiet had likewis e confirmed the affair on February 25. Huiet te stified the defendant was

anxious ov

er the situa

tion prior to her conv

ersation w

ith him.
During the day

of February 25, 1 995, the Belch ers argued, altho ugh Mrs. Belcher

testified her

husband did not then accuse her of hav ing an affair with Larry Wyatt. Sometime in the afternoon or early evening hour

s, Mr. Belcher went to his mother's house in Pow ell so Mrs. Belcher c

ould think abo ut wha t the two needed to do about their relations hip.

Within a fewhours of the defendant's departure, Larry Wyatt arrived at the building. Wyatt agreed to take Huiet to the grocery stor

e. While at the store, Huietimplored Wyatt to come clean with the def endant about his affai r with Mrs. Belcher. Hueit informed Wyattshe had told the defendant about the affair betw een Mrs. Belcher and Wyatt and asked him to warn Mrs. Belcher. Huiet and Wyatt also devised a warning signal whereby Huiet

would alert Wyatt of danger by telling him some flags she was supposed t o pick up for him had not come in.

After Wyatt returned from the groce ry s tore, he and Mrs. Belcher decided to go tohis trailer home n earby. Before Mrs . Belcher left t he building, she took her cordless phone to H uie t and asked Huiet to call her if the defendant returned home.

The defendant later

returned and

came to Huiet's apartment looki ng f or the cordles

s phone. Hui et testified this occur red around 11 :00 or 11:30 p .m.4

Ac cording to Huiet, the defendant was upset because he had been stopped b y a police officer on the way home. He asked Huiet whether she could get in touch with Mrs. Belcher. Huiet called the Wyatt home with thedefendant standing at her side and confirmed that Mrs. Belcher was there.
Although Huiet's testimony is inconsistent on the sequence of events, at some pointin the ev ening, she went across the hall to check on the defendant and found him sittingat the kitchen table with bullets and a gun. The two discussed the defendant's suspicions about his w ife's affair with his best fri end. The defendant
was very upset and asked Huiet why this was happeningand what was wr ong with him. He took the bullets and threw them across the room, stating he had better get rid of them before he blew his brains out. He also took the gun an d placed it on a high shelf in the kitchen. Huiet was so concerned about the defendan t she suggested

they go to

the emergenc

y room.

Within approximately 45 min utes o f Huiet's first phone call to the Wyatt residence, the defendant requested she make a second phone call and tell Wyatt and Mrs. Belcher he was on his way ho me. Huiet testified the defendant wanted to get his wife and Wyatt back to the apartment complex so he could talk to them. Before she made the phone call, Huietreceived the defendant's solemn word on his children's liv es an d his Masonic square that no harm would come to Wyatt or Mrs. Belcher. While talking with Wyatt, she relayed the "secret code" that his flags had not come in.

After making the call, Huiet went into her apartment to take a shower. She heard the defendant's Camaro crank up and leave. Sherecognized the car by its distinctive sound. Before she could intercept Wyatt and Mrs. Belcher,, she heard voicesof the defendantand Mrs. Belcher. She could not make out the defenda nt's words, although she heard Mrs. Belcher say, "Nothing's going on " or "Oh, nothing." Next, she hear

d the defe ndant c alling Wyatt out of hiding and accusi ng him of5

behaving cowardly The next thing Huiet

knew , her door popped open and the defendant was yelling for Allen to help him carry Wyatt's body to the car. Wyatt was lying on the f loor just outside Huiet's doorway. Huiet t estified the defendant said, "I didn't mean to hurt him." She deni ed making a pr evious statement that the defendant said, "I didn't mean to shoot him. He jumped me." Hu iet claimed she had not heard agunshot and did not realize the seriousness of the victim's injury. Dressed in a nightgown, Huiet stepped over Wyatt's body in her doorway and ran out the back door to the apartmen t building, where she entered a taxi cab in which Mrs. Belcher was seated. She testified Mrs. Belcher s aid, "He shot him." She and Mrs. Belcher left the building in the cab, went to Allen's ex-wife's home, w here Huiet borrowed some clothing, and Allen's ex-wife's boyfri end drove them back to the apartment bu ilding.

Denise Belcher testified that after receiving the second call fr om Huiet, she and Wyatt agreed to go back to the apartment building so she could "face the music" regarding her affair. When they arrived, Mrs. Belcher did not see the Camaro, so she assumed the defendant was not yet home. She and Wyatt went inside the building. While they were in the hallway

outside her apartment, she heard someone walking on her living room floor and k new her husband was

home. She looked back over

her shoulder, but Wyatt was no longer behind her. When she turned around, the def endant wa s in fron t of her. The defendant was dazed and angry, and he demanded to know where she had bee n. He was holding a stick, later determined to be an axe handle , in his hands. The two walked into their apartment, and argu ed about Mrs. Belcher's w hereabouts and activities , and the defendant hit Mrs. Belcher on her upper right arm with the stick. The defenda nt
wen t through the front door into the hallway. Mrs. Belcher fled the apartm ent , running out the back door a nd jumping int o a taxi cab that

was dr opping off a passenger

at the building. She admitted telling the cab driv er her h usband was going tohurt someone. Huiet came to the door of the building and yelled for Mrs. Belcher to come back in. Mrs. Belcher refused, and Huiet ran out to the taxi. Mrs.6

Belcher denied telling Hu iet that the de fendant sho t Wyatt, a lthough she admitted telling her someone was going to get hurt. She denied hearinga gunshot prior to leaving the buildin g.

David Allen, a convicted felon on probation, was sleeping throughout the evening on Huiet's s ofa. Both he and Huiet

testified he is a very sound sleeper. Nevertheless, Allen testified he was aw akened b y the def endant earlier in the evening. The defendant had a stick and told Allen h e was going to "talk to" Wyatt with it. Later, Allen was again awakened by the defendant, who asked him for help moving Wyatt's body. Wyatt was at this time lying face down in the doorway with his head to the side and a pool of blood by his head. Allen had not heard any of the preceding events, and di d not realize Wyatt wasdead. He helped the defendant carry Wyatt's body

outside and load the body into the back seat of W yatt's Camaro. The defendant told Allen to meet him at Kay's Ice Cream, which was a few blocks away. Allen went

inside the build ing to get his keys and some clothing, then drove to Kay's. The defendant was in the parki ng lot wai ting for Allen when he ar rived. The defe ndant go t into Allen's car, hit the dashboard very har d, and was "hyper." According to Allen, thedefendant had been nervous and stress ed out earlier in the day. The defendant handed Allen a baseball cap and a towel and asked him to get rid of them. Allen felt a gun wrapped up in the tow el and realized the gr

avity of the situation. He took the defendant back to the apartment building, then went to a convenience sto re and thre w the items the defendant had giv en him into a dumpster. Allen was co n cerned that he would be sent back to prison because of his involvem ent, so he went to a friend's house to ask him what to do. Within a short time, Allen alerted l aw enforcement of his knowledge of the crime.

Meanwhile, backat the apartment building, Huiet cleaned the floor in the hallway. She testi

fied she did this be cause she sp illed some of her medical suppliesearlier in the even ing. She denied n oticing any blood , although Allen test ified he had seen a pool of blood in the hallway after the body was m oved

.7

Huietsaid the hallway

was "pitch black" and she could not see what she was doing.

The defendant , M rs. Belcher and Huiet congregated in Huiet's apartment. Huiet demanded the defendant take h er to Wyatt, and the three went to Kay's Ice Cream. Huiet went to Wyatt's vehicle and took seve ral items from the body, including a trucker's log book, a dollar, some keys and a coat. According to Huiet, the defendant told his wife to lo ok at Wyatt to see what she made him do. Mrs. Belcher denied her h usband ever made this statement.

The defendant did nottestify at trial, although his recorded st atement
was played for the jury. In the statement, the defendantsaid he came home from his mother's house and parke d his car do wn the road because he wanted to s neak up to the apartment

building to

see with his own ey

es whether his wife was having
an affair with his bes t friend . Neither h is wi fe norWyatt were there, although the t wo arrived sometime later. The defendant repeatedly insist ed Wyatt's shooting ha d been an accident. He said he encountered Wyatt in the hall.Wyatt slapped hi m, and he went into

his kitchen to get the

gun to scar

e Wyatt. He inten ded no harm, although he wanted Wyatt to leave the apartment building. When he returned, Wyatt grabbed the defendant, which s cared him. The defendant claimed, "I didn't
mean to." He al so claime d the gun wa s not supp osed to h ave been loade d. Although the defendant admitted being upse t at seeing his wife and best friend together as they entere d th e apartment building, he denied shooting Wyatt out of anger. The de fendant claimed he attempted to help Wyatt by first looking for his
cor dl ess phone to call for help, and later attempting to drive hi m to UT Medical Center. The defendant claimed he abandoned t he tr ip to the hospital when he realized his friend was

not responsive. He le

ft the car in a brightly

lit parking lot

and walked home to continue the s earch for his telephone to call for hel p. During the interrogation, he mentione d nothing of Allen's invol vement in the disposal of evidence following the crime.1 There was some evidence Wyatt used his frien dship with Huiet as a

"cover" for his affair with Mrs. Belcher. 8

One of the few a reas about which there w as no controversy w

as whether the defendant had been upset prior to these cr imes. Allen talked with the defendant the previous morning and observed that, although the defenda nt usually had a neat appearance, he looked as if he was about to ha ve a nervous breakdow n. Huietmade similar observati ons about the defendant being agitated and upset on the evening of February 25. Mrs. Belcher admitted s he and the defendant argued during the day, and he was appare ntly agitated eno ugh to use profanity. Mrs. Belch eralso adm itted her husband and Wyatt had quarreled a few nights earlier when Wyatt had knocked on Huiet's door looking f or Mrs. Belcher. 1

Brandi Presley, Denise Belcher's 14 year old daughter and the stepdaughter of the defendant, testified she found a bag contai ning several items of the defendant's clothing and Wyatt's jacket behind t he Belchers' waterbed. These items were turned over to the police.

CharlesSterling, a Maryville re sident who lives nea r the apartment building, testified that at 2:00 a.m. on February 26, he saw someone park a car near his home. Then a shadowy figure walked away from it . Because he had experienced trouble with vandal ism, he p hotographed the vehicle. When he learned of the crimes, he turned the negative over to the police. An enlargement of the negative revealed the vehicle to have a license tag n umber registered to the defendant. Mr. Sterling noticed the car wasgone when he left at 5:00 a.m. Kelly Sterling, the wife of Char les Sterling, confirmed th e time the car arrived.

Victoria O'Hara, a tenant of the apartment bui lding , tes tified she awoke at 2:14 a.m. on themorning of February 26 w hen she heard a gunshot. She looked at her clock, then went back to sleep. A day or two later, she found a watch bythe dumpster

which she turned over to the poli ce. The watch was identified by9

Wyatt's son as belonging to his father

.

Several law enforc

ement officers

from th e Blount County Sheriff's Departmentand the Maryville Police Department test ified regarding their investiga tion of t his case. Significa ntly, Maryville Det ective David Graves found a blood smear on a wall in the Belcher apartment. Testin g by the TBI lab later determined the bloo d was the sa me type as that of W ya tt. However, Graves admitted the defendant's blood had not been typed to determine whether

he might be the source of the blood foun d in his apartment. Graves further testified that substancesfound on the steps and gravel outsi de the building, the tow el recovered fro m the convenience store dumpste r, and the defendant's clothing found behin d the waterbed were human bl ood. The samples could not be typed, however, due to theirage by the time they r eached the TBI lab. Hairs found on the baseball cap recovered from the conven ience st ore dumpster w

as scie ntifi call y determined to match Wyatt's hair.

Raymond Finney, M.D., the Blo unt County Medical Examiner, performed an autopsy of Wyatt's body. He determined that Wyatt's death resulted from a gunshot . Based on the lack o f injury t o the body from hot gases, pow der burns or gun barrel contact, Dr. Finney opined the w ound wasnot inflicted at close range.

Gerald Wilkes, an agent with the FBI, testified the .22

caliber weapon recovered from the dumpste r wa s a si ngle action revolver, a weapon that would hav e to be cocked and then the trigger depressed separately for each firi ng. H e performed tests on the weapon and determined it was the wea pon used to shoot Wyatt. He further determined there w ould be residue burns, call ed s tippli ng or tattooing, on Wyatt's body or clothing if the weapon was fired from a distanc e of five feet or less. Ch emical pr ocessing and micro scopic exa mination of Wyatt's shirt revealed no eviden ce of stippling o r tattooing.10 Finally, the parties stipulated that if Blount County Sheriff 's Deputy J.R. Johns on testified , he would say that he stopped the de fendant drivin g a Camaro on Alc

oa Highwa

y travel ing towar

d Maryvi lle at 11:56 p.m.

I The fir st issue we are call ed upon to consider is wh ether the defendant has been denied his constituti onal rights through tr ial counsel's failure to pursue pret rial m otions on his behalf, including a motion to suppress his pre trial statemen t to the police. Essentiall y, this is an allegation of ineffective assistanc e of counsel. We note, however, the def endant failed to raise this issue in any of his three motions for a new trial. Therefore, the issue is waived. Tenn. R. App. P. 3(e); State v. Karl Christopher Davis , No. 01C01-9202-CC-00062, slip op. at 5 (Tenn

. Crim. App., Nashville, Mar. 17, 1993).

M oreov er, as we have repeatedly noted in the past, the practic e of raising ineffective assistance of couns el claims on direct appeal without an evidentiaryhearing having been conducted on the issue is "fraught w ith peril." See, e.g. , State v. Anderson , 835 S.W.2d 600 (Tenn. Crim. App. 1992). In this case, the defendant failed to raise the issue i n his motions for new tri al and submitted no proof regarding counsel's performance. The trial court had no opportun ity to make findings of fact on this issue. As such, it is inappropriate for u s to con sider the issue. Nevertheless, our abs tention from considering the issue does not deprive the defendant of an opportu nit y to have this issue reviewed in an appr

opriate postconviction proceeding

if he so desires.

II Next, the defendant alleges his d ue p rocess rights we re violated because the state failed to disclose the identity of a witn ess and her allegedly exculpatorystatement, contrary to the requir ements of Brady v. Maryl and , 373 U.S. 83, 83 S. Ct. 1194 (1963). At the hearing on the motion for new trial, Eliz abeth11

Ostler testified she lived in the apartment building wher e the crimes occurred. She heard a loud bang between 1:30 and 2:00 a.m. on February 26. She reported this to D et. Graves later that mor ning while he was

processing the crime s cene. Sh e also called him a couple of weeks later and reiterated the information. Greg Ostler confirmed his wife spoke with Det. Ostl er on February 26. Detecti ve Graves had no notes or independent

recollection of speaking with Mrs. Ostler. He admitted he had
a phone message from Mrs. Ostl er but could not recall whether he spoke with her. The defendant contends Mrs. Ostler 's statement is exculpator y because it contains evidence the gunshot was fired earli er in time than shown at trial, potentially inculpating Mrs. Belcher as the shoot er. The state counters that the sequence of events, rather

than the time of the gunshot itself is determinative in this c ase, and the Ostler evidence is o nly marginally material and not subject to Brady disclosure.

In Brady v. Maryl and , the United States Supre me Court held that the prosecution has the du ty to furni sh exculpatory ev idence to the accused upon request. Any "suppressionby the prosecution of evi dence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 87, 83S. Ct. at 1196-97. The duty to disclose extends to all "favorable information" regardless of whether the evid en ce is admissible at tri al. State v. Marshall , 845 S.W.2d 228, 232-33 (Ten n. Crim. App. 1992); Branch v. State , 4 Tenn. Crim. App. 164, 168, 469 S.W.2d 533, 536 ( 1969). In United St ates v. Bagley , 473 U.S. 667, 6 76, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 ( 1985), the SupremeCourt held that both exculpatory and impeachment evidence fall under the Brady rule.

Before an accused is entitled to r elief under thi s theory , he must establish several prerequi s ites: (a) the prosecution must have suppressed the evidence; (b) the evidence suppressed must have been favor able to the accused; and (c) the evidence must have been material. See Bagley , 473 U.S. at 67 4-75 ,2 The defendant contends in his brief that a d iscovery reques t was made; however, no request

appears of record. Unsupported assertions of counsel do not suffice as evidence in this court.
3 We are not unmindful that the defendant's position that his wife or Huiet may have committed the cri me is belied by the confessio n he gave the investigating officers in the hours following the crime, in which he said, "I didn't mean to" and repeatedly insis ted Wyatt's death was an accident.

12 105 S. Ct. at 3379-80; Brady , 373 U.S. at 87, 83 S. Ct. at 1196-97; Work man v. State , 868 S.W.2d 705, 709 (Tenn. Crim. App. 1993); State v. Marshall , 845 S.W.2d 228, 232; Strouth v. State , 755 S.W.2d 819, 828 (Tenn. Crim. App. 1986). In State
v. Spurlock , 874 S.W.2d 602 (Te nn. Crim. App. 1993), this court recogniz ed a fourth prere qui site to relief, that "the accused must make a proper request for the production of the evidence, unless the evidence, when v iewed by the prosecuti on, is obviously exculpatory in nature and will be helpful tothe accused." Spurlock , 874 S.W.2d at 609 (citations omitted).

Assuming the Ostlers' testimony is accepted as credible, we fail tosee how this evidence is materi al. As the trial court f ound and the state posits, the sequence of events, not the actual time they occurred, is pertinent in th is case

. Addition ally, the record is devoid of any evidence the defense requested Brady mate rial. 2 In the absence of a request for ex culpatory material, ther e h as been a Brady viola tion onl y if t he evidence in question is obviously exculpatory in nature. Mrs. Ostler's alleged

sta tement to Det. Graves fails to meet this standard. Mrs. Ostler's testimony sheds no light on the critical sequence of events; she merely places a time on one of the events. The tri al witnesses' and Mr s. Ostler's estimates of the time when the events o ccur r ed varied b y as much a s approxim ately two hours. None of the witnesses who esti mated the time Mrs. Belcher an d Huietleft the apartment building wer e able to give a preci se answer. Because of the
uncertainty

of that evidence, Mrs. Os tler's statement cannot be v iewed a s contradictingthe evidence actu a lly presented and does not indicate that Mrs. Belcher or Huiet could be the kil ler because they were still in the apartment buil ding when Wyatt was shot. 3 There has been no Brady violation.13 III The defend ant next claims he was denied a fair trial because during voir dire the jury foreperso n concealed material information r egarding her knowledge of the case. The state argues ther e was no intentional failur e to disclose, nor was there any concealment or m isrepres entation of information bearing on impartiality

.

Challenges

to juror qualifications generally fall into two categories at
common law -- pr

opter defectum

or propter affectum. Partin v. Henderson , 686 S.W.2d 587, 589 (Tenn. App. 1984). Objections based on general disqualifications, such as alienage, family rel ationship or statutory mandate, are cla ssified as propter defectum and must be challeng ed prior to the return of the ju ry verdict. State v. Akins , 867 S.W.2d 350, 355 ( Tenn. Cr im. App. 1993). On the other hand, object ions based on bias, prejudice or partiality towar

d a party are classified a s propter affectum. Durh am v. State , 182 Tenn. 577, 582, 188 S.W.2d 555, 559 (Tenn. 1945). Propter

affectum challenges may be made after the return of the jury verdict. State v. Furlough , 797 S.W.2d 631, 65 2 (Tenn. Crim. App. 1990).

The party alleging j uror bias or partiality bears the burden of proof on the issue. See State v. Taylor , 669 S.W .2d 694, 700 (Tenn. Crim. App. 1983). When a juror wilfully conceals or fails to dis close information which c alls into question her impartiality, a presumption of prejudice arises. Durham , 182 Tenn. at 584,188 S.W.2d at 559; see Hyatt v. State , 221 Tenn. 644, 646, 430 S.W.2d 129, 130 (Tenn. 1967) (silence on an issue considered a negativ e response).

The evidence regarding the juror in quest ion, D ebbie Mills, was developed at the hearing on the motion for n ew trial. Mrs. M ills is married to a truck driver, Russell Mills, who works for T ransis. The defendant also worked for this company. Mr. Mills pre viously worke d at Servic e Way, another trucking co mpany, f ora brief tim e with Larry W yatt. The defend ant also wo rked for Service W ay,4 With the consent of the state, the defendant presented an affidavi t of Jimmy Wilkerson, alleging Wilkerson w as the vice president of oper ations of Service Way Motor Freight,Inc., in which capacity he was the custodian of the company's business recor ds. According to those r ecords, Slater Belcher w as employed by Service Way from April 4, 1990 until May 21, 1993. Russell Mills was employed from June 13, 1994 u ntil August 25, 1995, and he w orked for Service Way through a temporary agency prior to his term of employment. Larry Wyatt was employ

ed from October

30, 1992 unti l July 28,1994, after w hich time he purchased his own truck, which he parked on Service Way's premises. 14 although he left before Mr. Mills w as hired. On the evening before jury selection began, th e Millses ate dinn er at a Shoney's res taurant with Robe rt and Angi e Hubbard. Mr. Hubbard is the ow ner of Hubbard Trucking. Hu bbard Truckingleases its services to Transis.The Hubbards knew the defendant. D uring dinn er, Mrs

. Mills mentioned that shehad been summoned for jury duty the following day. Mr. Hubbard mentioned that the defendant's trial was scheduledto start t he next da y. Mrs. Hubbard claims Mr. Mi lls responded by say ing, "Y eah, you know Slater Belcher," to his wife, while the Millses deny this. Mrs. Millsclaims the defendant's
name meant nothing to her. Accordin g t o Mrs. Hubbard, Mrs. Mills also said she had always wanted t

o serve on a jury i n a murder trial.

Mr. Mills also testified

he heard some rumors at work about one truck driver shooting another. He told his wife about these rumors, although he did not know the names of those involved. Mrs. Mills rec alled her husband telling her one trucker from Service Way "supposedly" s hot anoth er trucke r from Se rvice W ay. 4 She testified she was

unaware a fatality res ulted, and she had not followed the case in the newspaper.

Mrs. Mills testified sh e gave truthful a nswers to all of th e qu e stions posed during voir dire. She further testified she based her ver dict on the evidence she heard in the courtro om.

In resolving this issue against the defendant, the lower court obviously accredited the testimony of Mr. and Mr s. Mills over that

of Mrs. Hubbard, which was its prerogative to do as the finder of fact. Thereby, the court accepted the state's15

evidence as rebutting the presumption of

bias. In t his case, we are requi red to give the findings of fact made by the tri al cour

t the we ight of a

jury verdict. See State v. Burgin , 668 S.W.2d 668 (Tenn. Crim. App. 1984). We cannot reverse the holding unless the evidence clearly preponderates against the trial court's conclusion that the juror acted without bi as and performed her duties with impartial ity. In this case, the evidence does not preponderat e against the co nclusion of the trial court. Having accepted the Millses as credible, the court r eached the correct conclusi on. This issue is without merit.

IV

Fina lly, the defendant challenges the sufficienc y of the evidence supporting his two convictions. When an accused challenges the s ufficiency of the evidence, an appellate court’s standard of review is whether, after consi dering the evidence in the lig ht mo st favorable to the prosecuti on, any rational trier of fact could have found the essential elements of the crime beyond a reasonable do ubt. Jackson v . Vir ginia , 443 U.S. 307, 324, 99 S. Ct. 2781,2791-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Te nn . 1985); Tenn. R. App. P. 13(e). This rule applies to findings of

guilt based upon direct ev idence, circumstantial

evidence, or a combination of direct and circumstantial evi dence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determini ng t he sufficiency of the evidence, this court should not reweigh or reevaluate the evi dence. State v. Ma tthews , 805 S.W.2d 776 , 779 (Tenn. Crim. App. 1990). Questions concerning the credibi lity of the witnesses , the weight and value of the evidence, a s well as a ll factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute its inferences for those drawn by the trier of fact from the evidence. Liakas v . State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn . Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate16

view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage , 571 S.W.2d at 835.

Moreover, a crimina l offen se may be e stablish ed exc lusive ly by circumstantial evidence. Duchac v. State , 505 S.W.2d 237 (Tenn. 1973); State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire , 634 S.W.2d 608 (Tenn. Crim. App. 1987). How ever, before an accused may be conv icted of a criminal offense based up on circums

tant ial evidence alone, the facts and circumstances

"must be so strong andcogent as to exclude every other reasonable hypothesis save the guilt of the defendant." State v. Crawford , 225 Tenn. 478, 470 S.W.2 d 6 10 (1971); Jones , 901 S.W.2d at 396. In oth er words, "[a] web of guilt must be woven around the defendant from which he cannot esca pe and from which facts and circumstances the jury could draw

no other reasonable inference save the guilt of the defendantbeyond a reasonable doubt." Crawford , 470 S.W.2d at 613; State v. McAfee , 737 S.W.2d 304, 30 5 (Tenn. Crim. App. 1987).

1. First Degree Murder

On February 26, 1995, the definition of first degree murder was "[a]n intentional, premeditated and deliberate ki lling of another." Tenn. Code Ann. § 39- 13-202 (1991) (amended 1995). In this case, th e state presented circumstanti al evidence which, if accepted by the trier of fact, sufficiently supports the de fendant's conviction of first degree murder o f Larry Wyatt. Prior to Wyatt's death, the defendant express ed his int ent to "talk to" Wyatt with an axe han dle. He lured Wyatt to the apartment building. While waiting for Wyattto arrive, the defendant hid his car down the street. The jury could logically infer t he d efendant was la ying a trap for Wyatt. According to the defen dant's statement, he was upset over his wife's affair with Wya tt. Afte r Wya tt arrived, Wyatt hit the defendant. Belcher did not respond immediately, but retreated to his apartment, got a

gun, and shot Wyatt from
a distance of

at least five feet. The evidenc e strongly supports

the conclusion the defendant and the victim were alone at the time of the shooting. The officers who17

interrogated the defendantrepeatedly referred to the defendant having shot Wyatt, and in the course of givin g a full statement, the defendant never denied he was the shooter. The defendant admitted, "I didn 't mean to," and repeatedly stated, "It was an accident." He made a similar statement to Huiet imm ediately after the crime. A rational trier of fact could easily interpr et these statements as confessions of g uilt.

While the defendant interprets t he evidence much differently, we must
a dhere to a review in the light most favorable to the state. Moreover, we are constrained not to consider the defendant's wife's testimony at the hearing on the motion fornew trial in our review of this iss ue, as the defendant would have us do. At that hearing , Mrs. Belcher testified she knew her husband had not shot Wyatt and then asserted h er Fifth Amend ment privilege when asked how she knew this. We are limited to considerati on of the evidence presented t o t he jury. If the defendant has new evidence that w as not available at tri al, he may apply to the trial court for a Writ of Error Coram Nobis. See generally Tenn. Code Ann. §§ 27-7-101 to -108 (1980).

2. Aggravated Assault

Aggravatedassault, as ind icted in this case, is k nowingly causing bodilyinjury

to anoth er thro ugh the use of a deadly weapon. Tenn. Code An n. § 39- 13-102 (1991). Thedefendant argues thestate's e vidence was insuff icient to prove the axe handle qualified as a d eadly weapon and that he committe d the crime knowingly.
According to the criminal c ode, "'Deadly weapon' means: (A) A fire arm or anything manifestly designed, made or adapted for the pur pose o f inflicting death or serious bodily injury, or (B) Anything that in the manner of its use
or intended use is capable of causing death or serious bodily injury[.] " Tenn. Code Ann. § 39-11-106(5) (Supp. 1996). "Serious bodily injury" results from bodily injury5 The appellant makes a cursory allegation attacking the sufficiency of the knowing element of the aggravated assault conviction. This allegation is less than one sentence long and contain s no argument or citations . Because the defendant has failed to present his cas e, he has waived our c onsideration of the issue. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b)

. 18 involving "(A) A substantial ri sk of death; (B) Prot r acted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty." Tenn. Code Ann. § 39-11- 106(33) (Supp. 1996).

In this case, the state exhi bited the axe handle to the jury. The

state offered further proof through photographs of th e inju ry that resulted to Mrs. Belch er's a rm after only one blow from the axe handle. One of the photogr aphs shows Mrs. Belcher's upper left arm with a solid pur ple/blue bruise extending completely across her

arm from side to side and exten ding from a few inches below her shoulder at least five to six inches down toward her elbow. From this evidence, the jury could reasonably conclude the axe handle was capable of ca using death
or serious bodily inj ury by the manner of its use. Cf

. State v. David Lee Dycus , No. 1, slip op. at 4 (Tenn. Crim. App., Jackson, Oct. 24, 1990)(a large stick and mar tial arts fighting sticks

considered deadly we apons).

We find no error

in the defendant's convictio n of aggravatedassault. 5
The judgment of the trial court is affirmed.

_______________________________ CURWOOD WITT, JUDGE
CONCUR:

_______________________________ JOSEPH B. JONES, PRESIDIN G JUDGE19

_______________________________ JOSEPH M. TIPTON, JUDGE