        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE           FILED
                           MAY SESSION, 1997           January 9, 1998

                                                    Cecil W. Crowson
STATE OF TENNESSEE,  )                            Appellate Court Clerk
                                   C.C.A. NO. 01C01-9511-CC-00379
                     )
    Appellee,        )
                     )
                     )             BEDFORD COUNTY
VS.                  )
                     )             HON. CHARLES LEE
VENSON EARL WOODARD, )             JUDGE
                     )
    Appe llant.      )             (Direct Appe al-Aggravated Assault)



FOR THE APPELLANT:                 FOR THE APPELLEE:

WILLIAM C. ROBERTS, JR.            JOHN KNOX WALKUP
Suite 1502 , Parkway T owers       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
                                   OPINION


      A Bedford County Circuit Court jury found Appellant Venson Wo odard

guilty of two counts o f aggravated a ssault. As a R ange II mu ltiple offender, he

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

Department of Correction. T he trial court ordered 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 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

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

the evidence shows he was acting in self-defense.



      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 attended a

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

began wrestling, an activity in which these frien ds com monly e ngage d. During the

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

pinned by Mr. Trice.



        Wh ile pinned by Mr. T rice, 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 trie d to calm Appellant, he hit her. The victim, 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 the comm otion, seve ral peop le heard Appella nt yell to

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

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

was a k nife.



       As Mr. Hicks attemp ted to restra in Appe llant, 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 ho spital,

where it was disco vered tha t 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 c ourt er red in

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

thirteenth juror. Rule 33 (f), Ten n. 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.

Howeve r, pursu ant to T .R.A.P . 13(e) this Court’s scope of review of the evidence

is to determine whether it is “insufficient to supp ort 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 (Te nn. Crim. Ap p. 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
       instrum entality 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 reco rd in this Co urt.


State v. Cabbage, 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 this Court held in Burlison, the lim its on a ppella te revie w “pra ctically

foreclose assessm ent of the evidentiary ba sis 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 R ule 33(f), th is Court may not overturn its decision on

appe al. Instea d, the a ppella te cou rt'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. D ankwo rth, 919 S.W .2d 52, 59 (Tenn . Crim. A pp. 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




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