         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT NASHVILLE

                      MARCH 1998 SESSION



STATE OF TENNESSEE,            )
                               )    NO. 01C01-9702-CC-00059
      Appellee,                )
                               )    WILLIAMSON COUNTY
VS.                            )
                               )    HON. DONALD P. HARRIS,
JOHN WILLIAM KUHLMAN,          )    JUDGE
                               )
      Appellant.               )    (Assault)



FOR THE APPELLANT:                  FOR THE APPELLEE:

JOHN WILLIAM KUHLMAN, Pro Se        JOHN KNOX WALKUP
341 Stable Drive                    Attorney General and Reporter
Franklin, TN 37064
                                    DARYL J. BRAND
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    JOSEPH D. BAUGH, JR.
                                    District Attorney General

                                    JEFFREY P. BURKS
                                    Assistant District Attorney General
                                    Williamson County Courthouse
                                    Suite G-6
                                    P.O. Box 937
                                    Franklin, TN 37065-0937




OPINION FILED:



CONVICTION AFFIRMED;
REVERSED AND REMANDED AS TO FINE



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, John William Kuhlman, was convicted by a Williamson

County jury of assault, the Class B misdemeanor. The trial court sentenced him to

six (6) months in the county jail and approved the jury’s assessment of a fine of

$2,500. On appeal, defendant presents several issues for our review, including:

(1) whether the evidence is sufficient to support the jury’s verdict; (2) whether the

state proved his sanity at the time of the offense; (3) whether his preliminary hearing

was held in violation of Tenn. R. Crim. P. 5; (4) whether the trial court erred in

refusing to strike hearsay evidence; and (5) whether he was denied his right against

self-incrimination when he was compelled to testify at his sentencing hearing. We

affirm defendant’s conviction; however, because the jury imposed a fine that

exceeds the statutory maximum for a Class B misdemeanor, we remand so that a

new jury may be empaneled on the sole issue of fixing a fine.



                                       FACTS



       The state’s proof revealed that on May 12, 1996, Roland Penaloza, the

victim, was shopping at Kroger grocery store in Franklin when he noticed a man

watching him. The man, later identified as the defendant, began following him in

the store. Penaloza turned to face the defendant and said, “how are you doing,

sir?” Suddenly, without provocation, and much to the surprise of Penaloza, the

defendant kicked him in the groin. Predictably, Penaloza perceived prodigious pain.

       When the victim asked defendant why he would do such a thing, defendant

reached into his coat and responded that he would kill the victim. Penaloza, fearing

that defendant was reaching for a weapon, went to tell the store clerk to call the

police. Defendant replied, “I am the police.” One of the clerks then watched

defendant leave the store from a side exit.

       The incident was witnessed by another Kroger customer, Keith Vaughn.

Vaughn testified that Penaloza did nothing to provoke defendant’s actions. He also



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feared that defendant was grabbing a weapon when defendant reached into his

coat.

        The police arrived within minutes. After apprehending defendant in front of

the store, they were unable to locate any kind of weapon on his person. Defendant

denied any involvement in the incident to the police. When asked why Penaloza

would fabricate the incident, defendant referred to the victim using a racial slur.

        The defendant did not testify or offer any proof at trial.

        The jury returned a guilty verdict for assault, the Class B misdemeanor, and

assessed a fine of $2,500. The trial court approved the $2,500 fine and sentenced

defendant to six (6) months in the county jail. From this conviction, defendant

brings this appeal.



                        SUFFICIENCY OF THE EVIDENCE



        In his first issue, defendant challenges the sufficiency of the evidence. He

argues that he effectively impeached the eyewitnesses to the incident, Penaloza

and Vaughn. He maintains that both witnesses were untruthful, and the jury should

have been instructed accordingly. Therefore, he contends that the evidence is

insufficient to find him guilty beyond a reasonable doubt.

        In determining the sufficiency of the evidence, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

A jury verdict approved by the trial judge accredits the state's witnesses and

resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803

(Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state

is entitled to the strongest legitimate view of the evidence and all legitimate or

reasonable inferences which may be drawn therefrom. Bigbee, 885 S.W.2d at 803;

Harris, 839 S.W.2d at 75. This Court will not disturb a verdict of guilt due to the

sufficiency of the evidence unless the defendant demonstrates that the facts

contained in the record and the inferences which may be drawn therefrom are

insufficient, as a matter of law, for a rational trier of fact to find the accused guilty



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beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.

1996). Accordingly, it is the appellate court's duty to affirm the conviction if the

evidence, viewed under these standards, was sufficient for any rational trier of fact

to have found the essential elements of the offense beyond a reasonable doubt.

Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781,

2789, 61 L. Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

       The defendant was convicted of Class B misdemeanor assault, which is

defined as intentionally or knowingly causing “physical contact” with another that a

“reasonable person” would regard as “extremely offensive or provocative.” Tenn.

Code Ann. § 39-13-101(a)(3). The state’s proof at trial showed that defendant

approached the victim and made physical contact by kicking him in the groin without

provocation. The proof further shows that the victim was extremely offended by this

action. We are further satisfied that any reasonable person would regard such

physical contact as extremely offensive. The state proved the elements of the

offense beyond a reasonable doubt.

       As for defendant’s contention that he effectively impeached the state’s

witnesses, the weight and credibility of the witnesses' testimony are matters

entrusted exclusively to the jury as the triers of fact. State v. Brewer, 932 S.W.2d

at 19; State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). The jury resolved any

inconsistencies in the witnesses’ testimony in favor of the state.

       This issue is without merit.



                                       INSANITY



       In a related issue, defendant argues that the state did not prove that he

possessed the requisite criminal intent to commit the offense. He alleges that he

suffers from a “certified brain disorder . . . to wit, bipolar disorder (manic depression)

and probably atypical seizure disorder.” He insists that he was “not of sound mind”

on the day of the incident. Therefore, he argues that the state cannot prove that he

is guilty of this offense beyond a reasonable doubt because he lacks culpability.



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       A defendant must give written notice of an intent to rely upon the insanity

defense. Tenn. R. Crim. P. 12.2(a). No such notice appears in the record. Insanity

is an affirmative defense which the defendant must prove by clear and convincing

evidence. Tenn. Code Ann. § 39-11-501(a). At trial, defendant presented no proof

on the issue of insanity. 1 Moreover, there is no evidence in the record, other than

defendant’s allegation, that he was suffering from any type of psychological

disorder. Therefore, this issue has no merit.



                          WAIVER OF REMAINING ISSUES



       As to the remaining issues, we must note that defendant did not file a motion

for new trial after the judgment was entered. Failure to file a motion for new trial

within thirty days from the date the order of sentence is entered results in defendant

losing the opportunity to argue on appeal any issues that should have been

presented in the motion for new trial. Tenn. R. App. P. 3(e); see also State v.

Martin, 940 S.W.2d 567, 569 (Tenn. 1997); State v. Clinton, 754 S.W.2d 100, 103

(Tenn. Crim. App. 1988). These issues, therefore, have been waived.

       These issues have also been waived for failure to make appropriate citations

to the record and for failure to cite authority to support his argument. Tenn. Crim.

App. Rule 10(b); State v. Turner, 919 S.W.2d 346, 358 (Tenn. Crim. App. 1995);

State v. Hill, 875 S.W.2d 278, 283-84 (Tenn. Crim. App. 1993); State v. Killebrew,

760 S.W.2d 228, 231 (Tenn. Crim. App. 1988); see also Tenn. R. App. P. 27(a)(7)

and (g).

       Furthermore, the issues are waived on other grounds as well. Firstly,

defendant complains of the procedure surrounding his preliminary hearing in that

it was not held in conformance with Tenn. R. Crim. P. 5. However, the transcript of

defendant’s preliminary hearing is not in the record before this Court. When no

evidence is preserved in the record for review, we are precluded from considering


       1
         Although admittedly bizarre, evidence of kicking another in the groin without
provocation is insufficient, in and of itself, to place an insanity defense properly before the
court and jury.

                                              5
the issue. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). In

addition, we fail to see how such preliminary hearing allegations are material since

the defendant was subsequently indicted.

       Secondly, defendant alleges that the trial court refused to “strike hearsay

evidence in trial.” However, defendant points to no specific portions of testimony

that should have been stricken as hearsay. This issue is much too broad in scope;

therefore, it is waived. Tenn. R. App. P. 27(a)(4); State v. Dykes, 803 S.W.2d 250,

254 (Tenn. Crim. App. 1990).

       Lastly, defendant claims that he was denied his right against self-

incrimination when he was called to testify at his sentencing hearing. When the

state called defendant to testify, the trial court informed him that he did not have to

answer any questions regarding the subject offense.             Additionally, defendant

refused to answer many of the assistant district attorney’s questions claiming, “I

don’t know.” We find that defendant’s rights against compulsory self-incrimination

were not violated.

       This issue has no merit.



                                          FINE



       Although defendant does not raise this as an issue, we note that the jury

imposed a fine of $2,500 for the offense. This fine was approved and imposed by

the trial court. However, the maximum fine provided by statute for a Class B

misdemeanor is $500. Tenn. Code Ann. § 40-35-111(e)(2). Article VI, Section 14

of the Tennessee Constitution provides that every citizen has the right to have a jury

of his peers assess any fine in excess of $50. This Court may not, therefore,

reduce defendant’s fine to correct this error. State v. Martin, 940 S.W.2d at 570-71.

However, it is permissible to remand the case for a determination on the issue of

the fine alone, so that defendant may have a jury assess a fine within the statutory

limits. Id. It is not constitutionally required that “the same jury fix the fine that finds

the defendant guilty.” Id. at 570. Therefore, we remand this case to the trial court



                                            6
where a new jury shall be empaneled to fix the fine. The issue of guilt has already

been properly determined by a jury.



                                 CONCLUSION



      For the foregoing reasons, we affirm defendant’s conviction. However,

because the jury fixed a fine in an amount which exceeded the statutory limit for a

Class B misdemeanor, we remand for a new jury to fix the amount of the fine.




                                                JOE G. RILEY, JUDGE



CONCUR:




JOSEPH M. TIPTON, JUDGE




DAVID H. WELLES, JUDGE




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