                                                    FILED
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE
                                                    February 25, 1999
                          NOVEMBER 1998 SESSION
                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk



STATE OF TENNESSEE,                 )
                                    )
             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 Building
                                        Nashville, TN 37243-0493

                                        RANDALL E. NICHOLS
                                        District Attorney General
                                        City-County Building
                                        Knoxville, TN 37902

                                        ROBERT JOLLEY
                                        Asst. Dist. Attorney General
                                        City-County Building
                                        Knoxville, TN 37902




OPINION FILED: _____________

AFFIRMED


JAMES CURWOOD WITT, JR., JUDGE
                                     OPINION




              The defendant, William Brian Belser, was convicted by a Knox County

Criminal Court jury of the second-degree murder of Brian Shaver, and the trial court

sentenced the defendant as a Range I offender to serve 25 years in the Department

of Correction. The sentence runs consecutively to a federal sentence the defendant

was serving at the time of his Knox County conviction. In this direct appeal, the

defendant raises the following issues:

              1. Failure of the trial court to grant a continuance when the

       defendant was belatedly transported to Knox County from federal

       custody in Atlanta;

              2. The insufficiency of the evidence to support a second-degree

       murder conviction;

              3.   Failure of the trial court to allow defense counsel to cross-

       examine a state witness about the victim’s violent disposition; and

              4.   Imposing the sentence to run consecutively to the federal

       sentence the defendant was serving at the time of trial.

After a review of the record, the briefs, and the applicable law, we affirm the

judgment of the trial court.



              The conviction from which the defendant now appeals is the

defendant’s second conviction for the homicide of Brian Shaver.          This court

overturned the first conviction of second-degree murder because the trial court

failed to instruct the jury as to the lesser included offense of voluntary

manslaughter. State v. Belser, 945 S.W.2d 776 (Tenn. Crim. App. 1996). The

present conviction resulted 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 townhouse. Angie Barbeau, who was working at the



                                         2
time as a “stripper,” was one of these residents and had been the victim’s girlfriend.

On the evening of March 29 the victim spoke by telephone from the townhouse with

Ms. Barbeau and with members of her family. According to persons who were

present in the townhouse that evening, the victim became upset and angry because

he thought Ms. Barbeau’s family had been abusive to him over the telephone and

because he believed that the defendant had bought a car for Angie Barbeau.

During their telephone conversation, the victim and Ms. Barbeau agreed that he

would place some of her belongings on the front porch for her to pick up. The victim

was agitated and repeatedly declared that he would not allow Ms. Barbeau to come

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. However, 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 upstairs and continued to express displeasure with

Ms. Barbeau. Within moments, the victim returned to the same door to answer

either the door bell or a knock.



              Robert John Bowlby testified that when the victim opened the door this

second time, Bowlby saw a red beam shining into the room. He heard 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 the defendant held at shoulder

level. The unarmed victim, who was then outside, closed the door behind him.

Bowlby heard two male voices shouting, a scream and then a gunshot. The victim

then walked back into the townhouse holding his chest and bleeding. Bowlby called

an ambulance.



                                          3
              Bowlby also testified that, before March 29, he saw the defendant in

West Knoxville when the defendant had the same pistol that he had at the

townhouse on March 29. The defendant said that he was “going to use it for any

m----- f------ that f---- with me, and that includes that Shaver guy.”



              Bill Ferrell testified that he was at the townhouse on March 29. When

the victim answered the door the second time, Ferrell saw the defendant standing

outside behind Ms. Barbeau. He testified that the victim told both Belser and

Barbeau to leave. When Ms. Barbeau tried to come past him into the house, the

victim “scooped her up, caught her on his left side, pushed her back. She hit

Belser’s right arm.” Ferrell testified that she moved away and the defendant pulled

a 9mm pistol from his trenchcoat pocket. Ferrell saw the flash of the light beam and

yelled that the defendant had a gun. Ferrell tried to pull the victim back inside but

was unable to do so because he was “too busy running.” He heard the gunshot and

the victim say to the defendant, “You shot me. Now you’re going to jail.” Ferrell

then looked out the window and saw the defendant trying to pull Ms. Barbeau to a

car.



              Jeffrey Chandler Jackson and Kevin Hall were also present in the

townhouse on March 29. Jackson testified that after he heard the shouting and the

gunshot ten seconds later, he looked out the front door and saw the defendant

standing in the yard and swinging a gun down to his right side.



              Lisa Michelle Hubbard 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 when

the defendant and Ms. Barbeau arrived. The defendant laid a pistol on Hubbard’s

table and said no one should touch it because he thought he had “shot Shaver.”

Hubbard testified that the defendant said that Shaver had pulled Angie Barbeau out

of the car and had hit her, although Hubbard saw no evidence of an assault on

Barbeau’s person. Hubbard further testified that the defendant said that he shot the



                                           4
victim as the victim was hitting him. However, Adams testified that the defendant

said that he had lowered the 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 brought to Hubbard’s residence.



              Through other proof, the state established that the pistol was

recovered from the Clinton Highway location, that the cartridge found in the

townhouse lawn had the same “mechanical fingerprints” as the cartridges test-fired

through the pistol by the Tennessee Bureau of Investigation, that the gunshot

residue test performed on the defendant indicated he had “fired, handled, or was

near a gun when it was fired,” and that the victim bled to death 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 consecutively

to the federal sentence the defendant was serving at the time.



              Before proceeding to discuss the issues on appeal, 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 trial court erred

in failing to grant a continuance of the trial. Defense counsel was appointed in this

case on May 14, 1997 after the court had successively excused two previously-

appointed attorneys. Although trial had already been set for November 17, 1997,

at some point and through some means not reflected in the record the trial date was

accelerated to September 30, 1997.            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 on appeal. In that motion, defense counsel asserted (1)



                                          5
the defendant was in federal custody in Atlanta pursuant to 1996 federal

convictions, (2) counsel wished him to be brought to Knoxville at least two weeks

prior to trial, (3) as of September 28 he had not arrived, and (4) the federal

authorities were not being cooperative in arranging his transit to Knoxville. On

September 29, the trial court continued the trial from September 30 until October

1 and continued the hearing on the motion until the next day, September 30. The

defendant arrived in Knoxville at about 9:00 pm on Monday, September 29. At the

hearing on Tuesday morning, the trial court decided to begin the trial on

Wednesday, October 1, at 1:30 pm and announced that it believed that the day and

a half would be sufficient time for counsel to consult with the defendant.



              On appeal, the defendant argues that the allotted time was

insufficient; however, during the arguments on the continuance in the trial court,

defense counsel acknowledged that normal 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 with [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 accused

as a direct result of the trial court’s ruling.” Id. We agree with the state that the

defendant has shown neither an abuse of 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 interview or plan for the use of

witnesses and that an expert in firearm forensics with which the defense had



                                          6
consulted was unavailable for the trial date, the grounds of that motion were

abandoned. Moreover, the defendant has not articulated any specific instance of

lack of preparation as a result of the defendant’s belated arrival in Knoxville, the

ground for continuance which is asserted on appeal. There is cause to believe the

federal authorities were capricious in their handling of the Tennessee requests to

have their prisoner made available for his state homicide trial.           Although a

Tennessee trial court in this situation should not hold any such federal caprices

against the accused on the question of a continuance, there is no showing of an

abuse of discretion. The trial court partially granted the motion, continuing the trial

a day and a half, a period of time which defense counsel said would be the

minimum he would need. Counsel had served on the case since May 1997, had

previously met with the defendant at his place of confinement in Atlanta, and had

the benefit of the record of the previous trial in the case. We find no suggestion of

prejudice to the defendant because a longer continuance was not granted.

Although the defendant neither testified nor called any witnesses in his behalf, he

has made no attempt to show that his lack of evidence in chief resulted from

insufficient preparation time rather than defense strategy. Accordingly, 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 presented

at trial is insufficient to support the verdict of second-degree murder. It is well

established that a jury verdict, approved by the trial judge, accredits the testimony

of the witnesses for the state and resolves all conflicts in favor of the theory of the

state. 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

legitimate view of the evidence and all reasonable or legitimate inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978).



              Moreover, a verdict against the defendant removes the presumption



                                           7
of innocence and raises a presumption of guilt on appeal. State v. Grace, 493 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. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).



              Most significantly, where the sufficiency of the evidence is challenged,

the relevant question for an appellate court is whether, after reviewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of 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 (Tenn. 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, 947 (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 person. See Tenn.

Code Ann. § 39-13-210 (a)(1) (1991). The proof in this case, as outlined above,

overwhelmingly supports the jury’s conclusion that the defendant knowingly killed

Brian Shaver. Any issues of fact which the defendant may have raised and/or

argued were resolved in the state’s favor by the jury, 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 not allow the defendant to open his cross-examination of Mr. Bowlby, the

state’s first witness, by asking him whether the victim was an “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” rule and about the applicability



                                          8
of the facts to the presence of provocation that might reduce the charge to voluntary

manslaughter, the court ruled that any questions of this first witness about the

victim’s history of aggression or violence were premature. The defendant did not

revisit the issue throughout the trial, did not attempt any other cross-examination of

this type, and did not present any independent proof of the victim’s history of

aggression or violence.



              Under Tennessee law, evidence of a homicide victim’s violent acts

against the defendant and others may be admissible under certain circumstances

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. Crim. App.,

Jackson, Dec. 15, 1993), perm. app. denied (Tenn. 1994). The rules of admissibility

vary with the purpose for which the evidence is admitted.1



              We need not elaborate upon the interplay between Tennessee Rules

of Evidence 405 and the rules for the admissibility of “first aggressor” evidence

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 whether the deceased was the first

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

Allegations of counsel and pleadings are not sufficient to raise the issue of self-

defense. State v. Laterral Jolly, slip op. at 7. Here, defense counsel’s first question

of the state’s first witness was whether the victim was an “aggressive type” of

person. Bowlby’s testimony on direct examination contained no suggestion that the

defendant may have acted in self defense or that the deceased was the “first


       1
             At times, the evidence may be admitted to demonstrate either the
defendant’s or the victim’s state of mind, to impeach or rebut the state’s
evidence that the deceased had a peaceful character, or so that the jury can
determine who was the true aggressor. State v. Furlough, 797 S.W.2d 631, 648-
49 (Tenn. Crim. App. 1990) (citations to other cases omitted).

                                          9
aggressor.”    The trial court properly found that this line of questioning was

premature. The trial court did not rule that first aggressor evidence, if otherwise

proper, would not be allowed later in the trial after the pertinent issues had been

raised by the proof.     The issue of self-defense was not raised by Bowlby’s

testimony, and the defendant made no effort to offer the evidence again. There is

no error in the trial court’s handling of the first aggressor issue.



              The defendant’s argument about his attempt to cross-examine Bowlby

was based in part upon his claim that the victim’s status as an “aggressive type”

person provoked a mental reaction in the defendant that could reduce his culpability

for the killing to that of voluntary manslaughter. However, the use of evidence of

the victim’s prior violent misconduct to establish this defense requires that the

defendant knew, at the time of the killing, that the victim had the violent tendencies.

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 introduced 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 present 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 victim.

Thus, to the extent that the defendant sought the evidence in order to show a

reduced culpability, the claim is meritless.



              Finally, we address the the defendant’s sentencng issue. He correctly

observes in his brief that a maximum Range I sentence of 25 years was approved

by this court in the previous appeal from the first second-degree murder conviction,

see Belser, 945 S.W.2d at 791-92, and the defendant restricts his sentencing

complaint to the impostion of his sentence to run consecutively to the existing

federal sentence.



                                           10
              We cannot review even this issue, however, because the defendant

has not included in the appellate record any transcript of sentencing proceedings.

The record contains no presentence report, no transcript of a sentencing hearing,

and no findings and conclusions of the trial court. See Tenn. Code Ann. §§ 40-35-

203, 205, 209 (1997). It is the duty of the appellant to prepare a record which

conveys a fair, accurate, and complete account of what transpired in the trial court

with respect to the issues which form the basis of the appeal. Tenn. R. App. 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 court 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 reviewing the consecutive sentencing

issue raised by the defendant in his brief, we note that Tennessee Rule of Criminal

Procedure 32(c)(2) provides that, when the trial court is sentencing a defendant who

has “additional sentences or portions thereof to serve, as the result of conviction in

other states or in federal court, the sentence imposed shall be consecutive thereto

unless the court shall determine . . . that good cause exists to run the sentences

concurrently and explicitly so orders.” Tenn. R. Crim. P. 32(c)(2) (emphasis added).

The trial court’s judgment did just the opposite from explicitly ordering concurrent

service; it explicity ordered consecutive sentences. Accordingly, Rule 32(c)(2)

appears to preclude any claim to concurrent sentencing which the defendant could

have made had he presented an adequate record.



              The judgment of the trial court is affirmed.




                                           __________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE




                                         11
CONCUR:


______________________________________
DAVID H. WELLES, JUDGE


______________________________________
L.T. LAFFERTY, SPECIAL JUDGE




                               12
