# FILED
February 25, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9803-CR-00110 ) vs. ) Knox County ) WILLIAM BRIAN BELSER, ) Honorable Ray L. Jenkins, Judge ) Appellant. ) (Second Degree Murder) ) FOR THE APPELLANT: FOR THE APPELLEE: TOM SLAUGHTER JOHN KNOX WALKUP Attorney At Law Attorney General & Reporter 602 S. Gay Street, Suite 600 Knoxville, TN 37902 R. STEPHEN JOBE Assistant Attorney General 425 Fifth Avenue North 2d Floor, Cordell Hull Build ing Nashville, TN

37243-0493 RANDALL E. NICH OLS District Attor

ney General City-County

Building Knoxville, TN 37902 ROBERT JO LLEY Asst. Dist. Attor

ney General City-County

Building Knoxville, TN 37902

OPINION FILED: _____________ AFFIRMED
JAMES CURWOOD

WITT, JR., JUDGE2 OPINION

The defendant, William Brian Belser, was c onvicted by a Knox C

ounty Criminal Court jury of the second-degree murder of Brian Shaver, and the trial court sentenced the defenda nt as a Range I offender to serve 25 years i n the Department of Correction. The sentence runs consecutively to a federal sentence the defendant
was serving at the time of his Knox County convict ion. In this direct appeal, the defendant raises the following issues:

1. Failure of the trial co urt to grant a continuance w hen the defendant was belatedly transported to Knox County from fe deral custody in Atlanta; 2. The insu fficiency of the evidence to sup port a second-degree murder conviction; 3. Failu re of the trial court to allow defense counsel to crossexamine a state witness about the victim’s v

iolent disposition; and 4. Imposing the sentence to run consecutively to the federal sentence the defendant was serv ing at the time of trial. After a review of the recor d, the briefs, and the a pplica ble law, we affirm the judgment of the trial court.

The conviction from whic h the defendant now appea ls is the defendant’s second conviction for the ho micide of Brian Sha v er. This court overturned the f irst con viction of second-degree murder because the trial court failed to instr uct the jury as to the lesser included offense of voluntary mansl aughter. State v. Belser , 945 S.W.2d 776 (Tenn . Crim. App.1996). Th e present conviction res ulted from the retrial upon remand from this court.

On March 29, 1993, the victim Brian Shaver and four other young adults lived in a Knox County tow nhouse. Angie Barbeau, who was worki ng at the3

time as a “stripper,”

was one of these residents and had been the v ictim’s girlfriend. On the evening of

March 29 the victim s poke by telephone from the townhouse with Ms. Barbeau and with members of h er family. Accord ing to person s who were presentin the townhouse that evening, the victim became upset and angry because he thought Ms. Barbeau’s famil y had been abusive to him over the telephone and because he believed that the defendant had bought a car for Angie Barbeau. During th eirtelephone conversation, the victim and Ms. Barbeau ag reed that he would place some of her belongings on the front porch for he r to pick up. The victim
was agitated and repeatedly declared tha t he would not

allow Ms . Barbeau to c ome back into the townhouse.

The victim gathered a large pile of Ms. Barbeau’s clothing and other personalty

and stacked it on the front porch

. How ever, as he became more distraught, he returned to the porch and kicked and threw her things and scattered them across the lawn. Later, Ms. Barbeau arrived at the front door. The victim met her at the door

and placed his hand on her chest and pushed her away

so he could close the door. As a result of this push, Ms. Barbeau may have stumbled or fallen down. The victim moved back ups tairs and continued to expr ess displeasure with Ms. Barbeau. Within moments, the vict im returned to the same door to ans wer either the door bell or a k nock.

Robert John Bowlby testified that when the victim open ed the door this second time, Bowlby saw a red beam shining into the r oom. He hea rd someone shout, “He’s got a gun!” Bowlby saw the victim push, or “walk,” Ms. Barbeau back into the defendant, who was standing three or four feet behind her. Bowlby noticed that the red beam was coming from a gun which t he de fendant held at shoulder level. The unarmed v ictim, who was then outside, closed the do or behind hi m. Bowlby heard two male voices shouting, a scream and then a gunshot. The victim then walked back into the townhouse hol ding his chest and bleeding . Bowlby called an ambulance.4 Bowlby also testified that, before March 29, he saw the defendant in West Knoxville when the def endant had the same pistol that he had at the town house on March 29. The defendant said that he was “going to use it for an y m----- f------ that f---- with me, and that includes that Shaver g uy.”

Bill Ferrell testified that he was at the townhouse on March 2 9. When the victim answered the door the secon d time, Ferrell saw the defendant standing outside behind Ms. Barbeau. He testi fied that the v ictim told both Belser and B arbea u to leave. When Ms. Barbeau tried to come past him into the house, the victim “scoo ped her up, caught her on his left side, pushed her back. She hi t Belser’s right arm.” Ferre ll testified that she moved away and the defendant pul led
a 9mm pistol from his trenchcoat poc ket. Ferrell saw the flas h of the light beam and yelled that the de f endant had a gun. Ferrell t ried to pull the victim back inside but
was unable to do so because he was “too busy running.” He heard the gunshot and th e victim say to the defendant,“You shot me. Now y ou’re going to jail .” Ferrel l then looked out the window and saw the defendant trying to pull Ms. Barbeau to a
car.
JeffreyChandler Jackson and Kevi n Hall were also pr esent in the townhouse on March 29. Jackson testified that after he heard the shouting and the gunshotten seconds later, he looked o ut the front door and saw the defendant standing in the yard and swinging a gun down to his right s ide.

Lisa Michelle Hu bbard and Guy Adams testified that they were at Hubbard’s residence at about 10:30 or 11:00 on the night of March 29, 1993 w hen the defendant and Ms. Barbeau arriv ed. The defendant laid a pistol on Hubbard’s table a nd said no one should touch it bec ause he thought he had “shot Shav er.” Hubbard testified that the defendant said that Shaver had pull ed Angie Barbeau out of the car and had hit he r, althou gh Hubbard saw no ev idence of an assault on Barbeau’s person. Hubbard further testified that the defendant said that he shot the5

victim as the victim was hitti ng him. However, Adams testi fied that the defendant said that he had loweredthe sight beam from the victim’s head to his chest when the gun went off. At

the defendant’s request, Adams took the pistol to a location
on Clinton Highway where he left it. Adams identified the pistol in evidence as the same pistol which the defendant b rought to Hubbard’s res idence.

Thr ough other proof, the state established that the pisto l wa s recovered f rom th e Clinton Highway location, that the cartri dge found in the townhouse lawn had the same “mechanical fingerprints” as the car

tridges test-fired through the pistol by the Tennessee Bur eau of Investigation, that the guns ho t residue test performed on the defendant indicated he had “fired , handled, or was
near a gun when it was fired,” and that the victi m bled to dea th as a result of the gunshot wound.

The jury convicted the

defendant of second-degree murder, and the trial court imposed the maximum Range I sentence of 25 years to run conse cutively to the federal sentence the defendant was serving at the time.

Before proceeding to discuss the issues on appea l, we acknowledge that the notice of appeal in this case was filed one day late; however, in the interest of justice we excuse the untimely filing. See Tenn. R. App. P. 4(a).

First, we examine the

defendant’s complaint that the tri al court erred in failing to grant a continuance of the trial. Defense counsel was appointed in this
case on May 14, 1997 after th e court had successive ly excused t wo previous lyap pointed attorneys. Although tr ial had already been set for November 17, 1 997 , at some point and through some means not reflected in the rec ord the trial date was accelerated to September 30 , 199 7. Counsel filed motions to continue on September

23 and 28; however, only the grounds alleged in the latter motion have been preserved as an issue o n appeal. In that motion, defense counsel asserted (1)6

the defen d ant was in federal custody in Atlanta pursuant to 1996 federal convictions, (2) counsel wished hi m to be broug ht to Knoxville at least two weeks prior to trial, (3) as of

September 28 he had not arrived, and (4) the federal authoritieswere not being cooperative in a rranging h is transit to Knoxv ille. On September

29, the trial court conti nued the trial from September 30 until October 1 and cont inued th e hearing on the mo tion unt il the next day, September 30. The defendant arrived in Knoxv ille at about

9:00 pm on Monday, September 29. At the hearing on Tuesday morning, the tri al court decided to begin the tria l on Wed nesday, October 1, at 1:30 pm and announced that it believ ed that the day and a half would be sufficient time for c ounsel to consult with the defendant.

On ap pea l, the defendant argues that the al lotted time was insuffi c ient; however, during the arguments on the continuance i n the trial court, defense counsel acknowledged that n ormal preparation requirements were alleviated because of the earlier trial of the case, that counsel had made one trip to Atlanta to meet with the defendant, that counsel would “need at least a day w ith [the defendant],” and that “if we can get him here today [Monday, September 29] and I can have tomorrow [Tuesday ] with him, perhaps Wednesday I could go.”

“The question of whether a criminal trial should be continued to a later date is entrusted to the sound discretion of the trial court.” State v. Covington , 845 S.W.2d 784, 787 (Tenn. Crim. App. 1992). On appeal, this court will not “interfere with the exercise of this discretion unless it appears on the face of the record that (a) the trial court has abused its discretion and (b)prejudice enured to the accus ed
as a direct result of the trial court’s ruling.” Id . We a gree wi th the state that the defendant has shown neither an abuse o f discretion nor prejudice in this instance.
Although defense counsel originally alleged in a separate motion for continuance that he had not had sufficient time to inte rview or p lan for the use of witnesses

and that an expert in firear m forensics with whi ch the defense had7

consulted was unavailable for the trial date, the gro unds o f that motion were abandoned. Moreover, the defendant has not articulated any

specific instance of lackof preparation as a result of th e defendant’s belated arrival in Knoxville, the ground for continuance which is asserted on appeal. There is cause to believe the federal authorities were capr icious in their handling

of the Tennessee requests to have their prisoner made avai lable for his state homicide t rial. Although a Tennessee trial court in this s ituation should not hold a ny such fe deral caprices against the accused on the question of a co ntinuance, there is no showing o f an abuse of discretion. The trial c ourt partially gr

anted the motion, continuing the trial
a day and a h alf, a pe riod of t ime wh ich defense counsel said would be the minimum he would need. Counsel had s erved on the case since May 1997, had previouslymet with the defendant at his place of confinement in Atlanta, and had the benefit of the record of the previous t rial in the case. We find no suggestio n of prejudice to the defendant because a longer co n tinuance was not granted. Although thedefendant neither testifiednor called any witnesses in his behalf, he has made no attempt to show that his lack of evidence in chief r esulted from insufficientpreparation time rather than defense strategy. Accordi ngly, we hold that the trial court did not abuse its discretion in refusing to grant the continuance motion in full.

The next issue is the defendant’s claim that the evidence pr esented at trial is insufficient to s upport the verdict of second-degree murder. It is well established that a jury verdi ct, approved by the trial judge, accreditsthe testimony of the witnesses for

the state and resolves all conflicts in favor o

f the theory of the sta te. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978); State v. Townsend , 525 S.W.2d 842, 843 (Tenn. 1975). On appeal, the state is entitled to the strongest legitimateview of the evidence and all reas onable or legitimate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 83 6 (Tenn. 1978).

Moreover, a verdict against the defendant removes the presumption8

of innocence and raises a pres umption of guilt on appeal. State v. Grace , 4 93 S. W. 2d 474, 476 (Tenn. 1973); Anglin v. State , 553 S.W.2d 616, 620 (Tenn. Crim. App. 1977). The defendant has the burden of overcoming the presumption on appeal. State v. B rown , 551 S.W.2d 329, 33 1 (Tenn. 1977).

Most significantly, where the sufficiency of the evidence is challenged, the relevant question for an appellate court is w

hether, after reviewi ng the evidence in the light most favorable to the prosecution, any rational tri er of fact could have found the essenti al elements o f the crime

beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 2782 (1979); Tenn R. App. P. 13; see also State v. Williams , 657 S.W.2d 405 (Te nn. 1983). This rule applies to findings based
on both direct and circumstantial evidence. State v. Thomas , 755 S.W.2d 838, 842 (Tenn. Crim. App. 1988). Circumstantial evidence alone may be sufficient to convict one of a crime. State v. Boling , 840 S.W.2d 944, 94 7 (Tenn. Crim. App. 1992).

To establish a defendant’s guilt of murder in the second degree, the state must prove that the accused knowingly killed another pers on. S ee Tenn. Code Ann. § 39-13-210 (a)(1) ( 1991). The proof in this case, as outl ined a bove, overwhelmingly

supports the jury’s conclusion that the defendant knowingly ki lled Brian Shaver. Any issues of fact which the d efend ant may have raised and/or argued were resolved in the state’s f avor by the j ury, and such was the jury’s prerogative. State v. Gilbert , 612 S.W.2d 188 (Tenn. Crim. App. 1980). We hold that the evidence was sufficient beyond a reasonable doubt to convict the defendant of second-degree murder.

In his third issue, the defendant argues that the trial court erred when it did n ot allow the defendant to open his cross-examination of Mr. Bowlby , th e state’s first witness, by aski ng him whether the vi ctim wasan “aggressive type” of person. Upon the state’s objection to the question, the court held a jury-out hearing. After hearing argument about the “first aggressor” r ul e and about the applicability1 At times, the evidence may be admitted to demonstrate either the defendant’s or the victim’s state of mind, to impea ch or rebut the state’s evidence that the deceased had a peaceful character, or so that the jury can determine who was the tr ue aggressor. State v. Furlough , 797 S.W.2d 631, 648- 49 (Tenn. Crim. App. 1990) (citations to other cases omitted ). 9 of the facts to the presence of provocation that might redu ce the charge to voluntary manslaughter, the court ruled that any questions of this first w itness about the victim’s history of aggressi on or violence were premature. The defendant did not revisitthe issue throughout the trial, did not attempt any other cross-ex

amination of this type, and did not present any independent proof of the vict im ’s history of aggression or vi olence.

Under Tennessee la w, evidence of a homicide vi ctim’s violent acts against the defendant and others may beadmissible under certain c ircumstances
even if they occurred prior to the events that

led to the murder. See State v. Ruane , 912 S.W.2d 766, 780-781 (Tenn. Crim. App. 1995); State v. Hill , 885 S.W.2d 357, 361 (Tenn. Crim

. App. 1994); State v. Furlough , 797 S.W.2d 631 (Tenn. Crim. App. 1990); State v. Laterral Jolly , No. 02C01-9207-CR-00169 ( Tenn . Cr im. App., Jackson, Dec. 15, 1993), perm. app. denied (Tenn. 1994). The rules of admissibil ity vary with the pur

pose for which the eviden ce is admitted. 1

We need not elaborate upon the interplay between Tennessee

Rules of Evid ence 405 and the ru les for th e admiss ibility of “first aggr essor” evi denc e developed by Tennessee case law. The prerequisite for the admission of evidence of a deceased’s violent acts in every instance is the same. Before first aggressor evidence may be admitted, the issue of w hether the deceased w as the first aggressor

must be raised by the proof. State v. Ruane , 912 S .W.2d at 766. Allegations

o f couns el and pl eadings are not sufficie nt to rai se the i ssue of selfdefense. State v. Laterral Jolly , slip op. at 7. Here, defense counsel’s first question of the s tate’s first witness was whether the v ictim was an “agg ressive type” of person. Bowlby’s testimony on direct examination

contained no suggestion that the defendant may have acted in self defense or that t he deceased was the “first10

aggressor.”

The trial court properly found that this line of questioning was premature. The trial court did not rule that first aggress or e vidence, if otherwise proper, would not be allowed later in the trial after th e pertinent issueshad been raised by the proof. The issue of self-defense w as not raised by Bo wlby’s testimo ny, and the defendant made no effort to offer the evidence again. There is no error in the trial c

ourt’s handling of the first aggressor issue.

The defendant’s argument about his attempt to cross-exam ine Bowlby
was based in part upon his clai m that the victim’s status as an “aggressive type” person provoked a

mental reaction in the defendant that could reduce his culpability for the k illing to that o f volunt ary man slaughter. Ho

wever , the use

of evid ence of the victim’s prior violent misconduct to establish this defense requires that th e defendant knew, at the time o f the killing, that the victim had the v iolenttendencies. Furlough , 797 S.W.2d at 648. The evidence, offered for this purpose,relates to “apprehension on the part of the defendant” and must be introd uced through the defendant in his proof

in chief, unless it is needed “in rebuttal if the state ‘presents evidence to disprove defendant had received such information.’” Id . (citing Williams
v. State , 565 S.W.2d 503, 505 (Tenn. 1978)). In the pres ent case, the question posed to Bowlby was premature for the purpose of showing the defendant’s apprehension. Moreover, the defendant never testified and never injected into the trial any basis for the court to conclude that he knew of any violent acts of the v ictim. Thus, to the extent that the defendant sought th e evidenc e in order to show a reduced culpability, the claim is meritless.

Finally, we address the

the defendant’s sentencng issue. He correctly observesin his brief that a maximum Range I sentence of 25 years was approved bythis court in the previous appeal from the first second-degr ee murder

conviction,
see Belser , 945 S.W.2d at 791-92, and the defendant restr icts his sentencing complaintto the impostion of his sentence to run consecutively t o the existing federal sentence.11 We cannot review ev

en this issue, however, because the defendant has not included in the appellate record any transcript of sentencing proceed ings. The record contains no presentence report, no trans criptof a sentencin g hearing, and no findings and conclusions of the trial court. See Tenn. Code Ann. §§ 40-35- 203, 205, 209 (1997). It is the dut y of the appell ant to prepare a record which conveys a fair, accurate, and complete account of what transp ired in the trial court with respect to theissues whic h form the basis of the appeal. Tenn. R. Ap p. P. 24(b); State v. Rhoden , 739 S.W.2d 6 (Tenn. Crim. App. 1987); State v. Miller , 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). Generally, this cour t is precluded from addressing an issue on appeal when the record fails to include relevant documents. See , e.g. , State v. Bennett , 798 S.W.2d 783 (Tenn. Crim. App. 1990); Tenn. R.App. P. 24.
Although we are precluded from re viewing the con secutive sentencing issue raised by the defendant in his brief, we note that Tennessee Rul e of Criminal Procedure 32(c)(2) provides that, when the trial court is sentencing a defendant who has “additional sentences or portions ther eof to serve, as the result of conviction in other states or in federal

court, the sentence imposed shall be consecutivethereto
u nles s the court shall determine . . . that good cause exis ts to run the sentences concurrently and explicitly so orders.” Tenn. R. Crim. P. 32(c)(2) (emphasis added). The trial court’s judg ment did just the opposite from ex plicitly orde ring conc urrent service; it explicity or

dered c onse cutive sentences. Accor dingly, Rule 32(c) (2) appears to precludeany claim to concurrent sentencing which the defendant could have made had he presented an adequat e record.
The judgment of the trial court i s affirmed.

____ _____ ________________________ _ JAMES CURWOOD WITT, JR., JUDGE12

CONCUR:

______________________________________ DAVID H. WELLES, JUDGE

______________________________________ L.T. LAFFERTY, SPECIAL JUD GE