FILED

January 9, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MAY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9511-CC-00379

)

Appellee, )

)

) BEDFORD COUNTY

VS. )

) HON. CHARLES LEE

VENSON EARL WOODARD, ) JUDGE

)

Appellant. ) (Direct Appeal-Aggravated Assault)

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM C. ROBERTS, JR. JOHN KNOX WALKUP

Suite 1502, Parkway Towers Attorney General and Reporter

Nashville, TN 37219

PETER M. COUGHLAN

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243

MIKE MCCOWN

District Attorney General

ROBERT G. CRIGLER

Assistant District Attorney

One Public Square, Ste. 300

Shelbyville, TN 37206-4211

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

A Bedford County Circuit Court jury found Appellant Venson Woodard

guilty of two counts of aggravated assault. As a Range II multiple offender, he

received a sentence of nine years and eight months in the Tennessee

Department of Correction. The trial court ordered the sentence to be served

consecutive to a sentence for which Appellant was on parole at the time of the

offense. In this appeal, Appellant presents the following issue for review: whether

the trial court violated its duty to act as a thirteenth juror by refusing to grant

Appellant’s motion for a new trial. Specifically Appellant maintains the weight of

the evidence shows he was acting in self-defense.

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

FACTUAL BACKGROUND

Several witnesses testified that on June 2, 1994, Appellant attended a

party in Shelbyville, Tennessee. Appellant and another guest, Mr. Leo Trice,

began wrestling, an activity in which these friends commonly engaged. During the

wrestling match, Appellant initially pinned his opponent, but was himself later

pinned by Mr. Trice.

 While pinned by Mr. Trice, Appellant bit Mr. Trice several times on the

chest and stomach inflicting wounds deep enough to require medical attention.

After Mr. Trice let Appellant up, he and Appellant scuffled some and exchanged

blows. They were separated by guests at the party, including Libby Burns. When
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Ms. Burns tried to calm Appellant, he hit her. The victim, Anthony Lee Hicks, saw

Appellant hit Ms. Burns and attempted to restrain Appellant. 

At some point in all the comm otion, several people heard Appellant yell to

his brother to “go get the piece.” Several people testified that they later saw

Appellant’s brother hand Appellant something, though no one saw that the object

was a knife. 

As Mr. Hicks attempted to restrain Appellant, the two fell to the ground. Mr.

Hicks was aware of Appellant hitting him in the back. He let Appellant up and

Appellant hit him in the arm; at this point Mr. Hicks saw that he was bleeding and

realized that Appellant had stabbed him. Appellant and his brother fled across the

street but continued to taunt the party guests. Mr. Hicks was taken to the hospital,

where it was discovered that one of his lungs had been punctured by the stab

wound. He was hospitalized for several days. Only Appellant and his brother

indicated Appellant’s actions were taken in self-defense.

ROLE OF THE COURT AS THIRTEENTH JUROR

Appellant bases his appeal upon his contention that the trial court erred in

failing to grant him a new trial upon the basis of the trial court’s power as

thirteenth juror. Rule 33 (f), Tenn. R.Crim.P., provides that the trial court may

grant a new trial if it views the verdict to be contrary to the weight of the evidence.

However, pursuant to T.R.A.P. 13(e) this Court’s scope of review of the evidence

is to determine whether it is “insufficient to support the findings by the trier of fact
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of guilt beyond a reasonable doubt.” This Court may not act as a thirteenth juror.

State v. Burlison, 868 S.W.2d 713 (Tenn. Crim. App. 1993).

This well-settled rule rests on a sound foundation. The trial

judge and the jury see the witnesses face to face, hear

their testimony and observe their demeanor on the stand.

Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and

credibility to be given to the testimony of witnesses. In the

trial forum alone is there human atmosphere and the

totality of the evidence cannot be reproduced with a

written record in this Court.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)(quoting Bolin v. State, 219

Tenn. 4, 11, 405 S.W.2d 768, 771 (1966)). 

As this Court held in Burlison, the limits on appellate review “practically

foreclose assessment of the evidentiary basis for a trial court’s thirteenth juror

ruling.” State v. Burlison, 868 S.W.2d at 719. Upon the record that the trial court

fulfilled its obligation under Rule 33(f), this Court may not overturn its decision on

appeal. Instead, the appellate court's duty is limited to a review of whether the

obligation was discharged. If it was discharged in accordance with procedure, we

affirm. If it was not, we reverse and remand for a new trial. No other remedy is

available. State v. Dankworth, 919 S.W .2d 52, 59 (Tenn. Crim. App. 1995). Upon

this record, we find the trial court properly fulfilled its duty to act as thirteenth juror

and the record fully supports his decision to deny Appellant’s new trial motion.

This issue is without merit, therefore the judgment of the trial court is affirmed.
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____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

DAVID G. HAYES, JUDGE