         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 14, 2000

        STATE OF TENNESSEE v. WILLIAM "BUTCH" OSEPCZUK

                 Direct Appeal from the Circuit Court for Lawrence County
                          No. 20673     Stella L. Hargrove, Judge



                   No. M1999-00846-CCA-R3-CD - Filed February 1, 2001


William Osepczuk was convicted of criminal attempt to commit first degree murder and was
sentenced to twenty-five years in the Department of Correction. He now appeals his conviction
challenging the sufficiency of the convicting evidence based upon the non credible testimony of the
victim and the erroneous admission of non relevant physical evidence. Finding the proof more than
sufficient to support his conviction, we affirm the judgment of the trial court.


                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE , JJ., joined.

Hershell D. Koger, Pulaski, Tennessee, for the Appellant, William "Butch" Osepczuk.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E.
Clements, Jr., Assistant Attorney General, T. Michael Bottoms, District Attorney General, for the
Appellee, State of Tennessee.


                                             OPINION

        The Appellant, William "Butch" Osepczuk, appeals the verdict of a Lawrence County jury
finding him guilty of the criminal attempt to commit first degree murder of Angelo Wilson. For this
offense, the trial court imposed the maximum sentence of twenty-five years confinement. In this
appeal as of right, the Appellant contends that the evidence is insufficient to support his conviction.

       We affirm the judgment entered by the trial court.
                                              Background

        During 1997 and 1998, Angelo Thomas Wilson acted as an informant and engaged in a
number of "undercover drug buys" for the Lawrence County Sheriff's Department. After a period
of time, it became accepted “street” talk that Wilson was acting as a drug informant.

        Wilson was employed at a local manufacturing plant and worked the 10:00 p.m. to 7:00 a.m.
shift. On the evening of September 9, 1998, Wilson was at a friend’s house waiting for his brother
to furnish him a ride to work when the Appellant showed up. Wilson had known the Appellant since
childhood. After a brief conversation, the Appellant offered to give Wilson a ride to work and the
two men proceeded to walk to a nearby motel where the Appellant was staying.

       The two waited until a friend of the Appellant, known as Terry, arrived in a black or gray four
door vehicle. The Appellant informed Wilson that “he had to make a stop or two and then he was
going to drop [Wilson] off at work.” The Appellant and Terry rode in the front of the vehicle and
Wilson sat in the rear.

        [The men] went to the store across the street from the motel and [the Appellant]
        made a pit stop at a friend’s house and parked down at the bottom of the hill and he
        said he had to make another stop. He had some [drug] buys he had to do. . . . [They
        then] went out Mount Ararat Road. [The Appellant and Terry] let me out on the road
        [next to a soybean field]. [The Appellant] said he didn’t want me to know the
        people. I said, “That’s was fine. That’s no problem.” It didn’t dawn on me and then
        [the Appellant] and them came back down the road. . . . [The Appellant] stopped the
        car and said, “Come on, let’s go,” and that’s when he started shooting.

        Wilson was shot in the right leg. He then began running into a bean field. He heard
additional shots and realized that he was “hit all over [his] body.” Wilson was struck approximately
seven or eight times; resulting in gunshot wounds to his right hand, his right thumb, between his
chest cavity and his rib cage, in the back, in the right leg, and twice in the left leg. After being struck
by gunfire, he fell to the ground. The Appellant and Terry found Wilson in the field and Terry held
the victim while the Appellant beat him in the back of the head with the butt of the gun and a stick.
 After a futile attempt to defend himself, Wilson withdrew further resistance. Terry remarked, “He
is dead. Come on, let’s go.” The men then left. Wilson then managed to walk to a nearby house
where he sought assistance. Wilson informed both the resident of the house and paramedics that
responded to the scene that the Appellant was the individual responsible for the shooting.

       Law enforcement officials recovered five .45-caliber shell casings at the crime scene and
observed a trail leading into the bean field. A bloody shirt with what appeared to be bullet holes, a
watch, sunglasses and keys were located in the field. Officers later obtained a search warrant for
the Appellant’s room at the Traveler’s Motel. A .45-caliber bullet was discovered during the
execution of the search warrant. The .45-caliber weapon was never recovered.



                                                   -2-
        Michael Glen Parrot testified that his apartment was burglarized in 1998, resulting in the theft
of his “High Point .45-caliber automatic pistol.” The weapon was a “rather large gun,” nickel-plated.
Mr. Parrot had saved casings from his weapon to have reloaded. After the attempt on Angelo
Wilson’s life, Mr. Parrot furnished the Sheriff’s Department with these casings fired from his
weapon. The casings were sent to the crime lab for comparison with those found at the crime scene.
The examination proved that the casings had been fired from the same weapon.

       The Appellant testified that, on September 9, 1998, he met Angelo Wilson at Donald
Haygood’s house at about three o’clock that afternoon. The men stayed there for approximately one
hour and then proceeded to his room at the Traveler’s Motel. The Appellant and Angelo were joined
by Tim Cooper and Tiffany Wise. As the afternoon progressed, Angelo announced that he wanted
some crack cocaine. The Appellant left the motel in Cooper’s vehicle, purchased fifty dollars of
crack cocaine, and returned to the motel room. Angelo proceeded to smoke three crack rocks using
an aluminum can fashioned into a pipe. Two hours later, Terry Polidro arrived at the room. Terry
and the Appellant left in Terry’s vehicle to purchase an additional seventy-five dollars of crack
cocaine. Angelo remained at the motel. Upon returning to the motel, the Appellant returned to his
room, but Angelo left with Terry. The Appellant did not see Angelo the remainder of the evening.
The Appellant maintains that Angelo’s crack-induced state-of-hallucination resulted in the current
charge against him.

         In rebuttal, the State presented the testimony of Anthony Quinn Wilson. This witness
testified that on the night of the shooting, the Appellant arrived at his residence after midnight trying
to sell a silver and black .45-caliber handgun.

        Based on this evidence, the jury found the Appellant guilty of criminal attempt to commit
first degree murder.


                                   I. Sufficiency of the Evidence

         The appellant asserts that the evidence was insufficient for a rational trier of fact to find him
guilty of criminal attempt to commit first degree murder. Within this assignment of error, the
appellant maintains (1) the only direct evidence was the “highly questionable and clearly impeached”
testimony of Angelo Wilson; (2) evidence of a bullet discovered in the Appellant’s motel room did
not establish the Appellant as the shooter, and was placed into evidence through inadmissible
hearsay; and (3) the fact that Parrot had his pistol stolen on September 10, 1998, is of no significance
to this case since the crime occurred on September 9th.

        The Appellant’s challenge is one of witness credibility. In essence, the Appellant asks this
court to trespass upon the jury’s duty to evaluate the credibility of the witnesses and reweigh the
evidence introduced at the trial by reassessing the credibility of the victim, Angelo Wilson. It is not
the prerogative of this court to revisit questions of witness credibility on appeal, that function being
within the province of the trier of fact. See generally State v. Carey, 914 S.W.2d 93, 95 (Tenn.


                                                   -3-
Crim. App. 1995); State v. Boling, 840 S.W.2d 944, 947 (Tenn. Crim. App. 1992). We decline the
Appellant’s invitation to overturn his conviction by making a choice different from that of the jury.

         Within his challenge to the sufficiency of the evidence, the Appellant also contends that no
physical evidence exists which established him as the perpetrator. In this regard, he asserts that the
admission of the results of ballistics testing on various shell casings and the testimony of the “found”
bullet in his motel room was immaterial and, thus, error. During the trial, Mr. Parrot testified that
a .45-caliber pistol was unlawfully taken from his residence. Ballistics testing revealed that the shell
casings from Mr. Parrot’s weapon matched shell casings found at the crime scene. From this
evidence, the inference can be made that the weapon used in the shooting was the weapon stolen
from Mr. Parrot’s apartment. The Appellant contends that this evidence should not have been
admitted as Parrot testified that his weapon was taken on September 10, the day after the shooting
incident, therefore, negating any connection between the weapon and the shooting incident.
Although Parrot testified on cross-examination that the burglary occurred on September 10, he also
stated that he discovered the burglary upon returning home from the Harvest Festival that weekend.
September 10, 1998, was a Thursday. Additionally, witness testimony placed possession of a
weapon matching the description of the stolen weapon with the Appellant on the night of the
shooting. Accordingly, it was within the jury’s discretion as the finder of fact and weigher of
credibility to draw its own conclusion as to whether the burglary occurred prior to or after the
shooting incident. Moreover, there was no objection to Mr. Parrot’s testimony or the results of the
ballistics tests performed on the shell casings. The failure to object to this evidence at trial results
as a waiver on appeal. Tenn. R. App. P. 36(a); see also State v. Thornton, 10 S.W.3d 229, 234
(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1999).

        The Appellant also contests the admissibility of testimony of the “found” bullet in the
Appellant’s motel room. During trial, the State examined Investigator James Foriest as to the search
of the Appellant’s motel room:

       STATE: During the course of that search, did you find anything of any significance
       that you felt might be related to this case, sir?

       FORIEST: During the initial search we took in a few pieces of evidence. A piece of
       evidence that I feel like you are referring to, the bullet.

       STATE: Yes.

       FORIEST: The bullet. That was actually brought to my attention by the motel manager.

 Defense counsel objected to the testimony as being hearsay. The prosecutor then rephrased his
question:




                                                  -4-
       STATE: Let me ask it this way Investigator Foriest: Did you during the course of that
       search and perhaps toward the end of the search, did you have some conversation with the
       motel owner?

       FORIEST: Yes, sir.

       STATE: As a result of that did you go back into the room and look in some specific place
       inside the room?

       FORIEST: Yes, sir.

       STATE: What did you find there, sir?

       FORIEST: A .45-caliber bullet.

       STATE: Where was it located in the room?

       FORIEST: It was on the floor underneath the edge of the bed.

        On cross-examination of Investigator Foriest, defense counsel made further inquiry as to
the discovery of the bullet.

       MR. KOGER: September 16th, somewhere in the afternoon is when you went over to
       that room and on the floor underneath the bed or by the bed you found this bullet; right?

       FORIEST: If I can explain the exact situation. That is not a yes or no answer.

       COURT: The Court will allow –
       MR. KOGER: As long as it doesn’t involve hearsay that’s alright.

       FORIEST: We had held the keys to that room for a few days. The manager, Mr.
       Shafrai, if I have pronounced it correctly, had wanted to get the key back if we were
       finished with the search so that he could clean it up and get it ready for rental again and I
       had returned the key to him. I was outside in the parking lot outside the room talking to
       another individual when Mr. Shafrai came out while he was cleaning the room to show
       me what he had found while removing the sheets and what not.

Any challenge to the introduction of the bullet is without merit. First, no hearsay evidence was
introduced during the State’s examination of the witness. Second, no objection was made by
defense counsel as to the introduction of the bullet into evidence. See Tenn. R. App. P. 36(a).
Finally, defense counsel elicited the testimony to which he now complains. Id. For these
reasons, the Appellant has waived any objection to this evidence.



                                                -5-
        Contrary to the Appellant’s numerous attacks on the sufficiency of the evidence, we
conclude that the evidence is more than sufficient to support the jury’s verdict. The victim, who
had known the Appellant since childhood, identified the Appellant as the person who fired
multiple gun shots at his person and beat him in the head with a gun and a piece of wood. The
physical evidence at the crime scene supported the victim’s testimony. This proof is sufficient to
establish the elements of criminal attempt to commit first degree murder. See Jackson v.
Virginia, 443 U.S. 307, 317, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e); Tenn. Code
Ann. § 39-13-202; § 39-12-101. Moreover, the law is well established that the testimony of a
victim identifying the perpetrator is sufficient in and of itself to support a conviction. State v.
Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993).


       For these reasons, the judgment of conviction entered by the trial court is affirmed.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




                                                -6-
