# FILED January 9, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE 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 WOODA RD, ) JUDGE ) Appe llant. ) (Direct Appe al-Aggravated Assault)

FOR THE APPELLANT : FOR THE APPELLEE : WILLIAM C. ROBERTS, J R. JOHN KNOX WALKUP Suite 1502 , Parkway T owers Attorney Generaland Reporter Nashvill e, TN 37219 PETER M. COUGHLAN Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243 MIKE M CCOWN Distri ct Attorney General ROBERT G. CRIGLER Assistant Distri ct Attorney One Public Square, Ste. 300 Shelbyvil le, TN 37206-4211
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

A Bedford County Ci rcuit Cour t jury found App el lant Venson Wo odard guilty of two counts o f aggravated a ssault. As a R ange II mu ltiple offender, h e received a sentence of ni ne yea rs and eight months i n the Tennessee Department of Correction. T he trial court ord e red the sentence to be served
consecu tive to a sente nce for w hich Ap pellant wa s on pa role at the tim e of th e offense. In this

appeal, Appell ant presents the foll owing issue for review: whether the tr ial court vi olated i ts duty to act as a thi rteenth j uror by refusing to gr ant Appe llant’s motion for a new trial . Specifi cally Appel lant maintains the wei ght of the evidence s hows he was acting i n self-def ense.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTUAL BACKGROUND

Several witnesse s testified tha t on June 2, 1994 , Appella nt att ended a party in Sh el byvil le, Tennessee. Appel lant and anot her guest, Mr . Leo Trice, began w restling, an activity in which these frien ds com monly e ngage d. During th e wrestli ng match , A ppellant initi ally pi nned his opponent, but was himself later pinned by Mr. Trice.

Wh ile pinned by Mr. T rice, Appellant bit Mr. Tr ice severaltimes on the chest and stomach i nflicting wounds deep enough to require medicalattenti on. After Mr. Trice l et Appellant up, he and Appell ant scuff led some and exchanged blows. They were separated by guests at the party, incl uding Libby Burns. When-3-

Ms. Burns trie d to cal m Appe ll ant , hehit her . Th e vi cti m, Anthony Lee Hicks, saw Appe llant hit Ms. B urns an d attem pted to re strain Ap pellant.

At som e poin t in all t he comm otion, seve ral peop le heard Appella nt yell to his brother to “go get the p iece. ” Several people test ified that they l ater saw Appe llant’s brother hand Appel lant somethi ng, though noone saw thatthe object was a k nife.

As Mr. Hicks attemp ted to restra in Appe llant, the two fel l to the ground. Mr. Hicks was aware of Appell ant hitt ing him in th e back. He let Appellant up and Appellant

hit him in the arm ; at this point Mr. Hicks saw that he was bleeding and realizedthat Appell ant had stabbed him. Appel lant and hi s brother fled across the street but conti nued to taunt the party guests. Mr. Hicks was taken to the ho spital, where it was disco vered tha t on e of his l ungs had been punctured by the stab wound. He was hospital ized for s everal days . Onl y Appellant and his brot her indicated Appellant’ s actions wer e taken in self-defense.

ROLE OF THE COURT AS THI RTEENTH J UROR
Appellant

bases his appeal upon hi s contenti on thatthe trial c ourt er red in faili ng to grant him a new t rial upon the basis of t he trialcourt’s power as thirteenth juror. Rule 33 (f), Ten n. R .Crim.P ., prov ides that the tri al court may granta new trialif it

views theverdict

to be contra ry to t he weight of the evidence. Howeve r, pursu ant to T .R.A.P . 13(e) this Court’s scope of revi ew of the evidence is to determine whether it is “insufficient to supp ort the findi ngs by the trier of fact-4-

of guilt beyond a reasonable doubt.” This Court may not act as a thirteenth juror. State v. Burlison , 868 S.W .2d 713 (Te nn. Crim. Ap p. 1993). This well-set

tled rul e rests on a sound f oundation. The trial judge and the jury see the wit nesses face t o face, hear their testimony and observe thei r demeanoron the stand. Thus the tri al judge and j ury are th e p rimary instrum entality of j ust iceto d ete rmi ne the weight and credibility to be given t o the test imony of wit nesses. In t he trialforum alone i s there human atmosphere and the totality of the e viden ce cannot be repr oduced with a written reco rd in this Co urt.
State v. Cabbag e , 571 S.W .2d 832, 835 (Tenn. 197 8)( quoting Bolin v. Sta te , 219 Tenn . 4, 11, 405 S.W .2d 768 , 771 (19 66)).

As th is Co urt held i n Burlison , the lim its on a ppella te revie w “pra ctically foreclose assessm ent of the evidentiary ba sis for a t rial cour t’s thi rteenth j uror ruling.” State v. Burlison , 868 S.W.2d at 719. Upon t he record that the tr ial court fulfi lled its obligation under R ule 33(f), th is Cour t ma y not overt urn its dec ision on appe al. Instea d, the a ppella te cou rt's duty is limited to a review of whether the obligati on was discharged. If it was discharged in accordance with pr ocedure, we aff ir m. If it

was not, we rev

erse and remand for a new trial . No other remed y is availabl e. State v. D ankwo rth , 919 S.W .2d 52, 59 (Tenn . Crim. A pp. 1995) . Upon this record, we f ind the trial court properly

fulfi lled its d uty to act as thirteenth juror and the record fully suppor ts his deci sion to deny Appellant’ s new trialmotion.

This issue i s without merit, t herefore t he judgment of t he trialcourt is affirmed.-5- ____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAY ES, J UDGE