                                                                                          08/06/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 20, 2018

        STATE OF TENNESSEE v. EUGENE DAVID SANDERS, JR.

                Appeal from the Criminal Court for Davidson County
                    No. 2012-C-2804 Mark J. Fishburn, Judge
                     ___________________________________

                           No. M2017-01916-CCA-R3-CD
                       ___________________________________


Defendant, Eugene David Sanders, Jr., appeals from his Davidson County Criminal Court
convictions of aggravated assault and aggravated criminal trespass, for which he received
an effective sentence of fifteen years to serve in the Department of Correction. On
appeal, Defendant contends that: (1) the jury’s verdict was against the weight of the
evidence; (2) the trial court erred by failing to instruct the jury on self-defense; and (3)
the trial court erred by allowing the State to call Defendant’s court-appointed private
investigator as a rebuttal witness. Following a thorough review, we affirm the judgments
of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Kara L. Everett, Carthage, Tennessee (on appeal), and Mark Kovach (at trial), for the
appellant, Eugene David Sanders, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Janice Norman,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                         Factual and Procedural Background

      In September 2012, the Davidson County Grand Jury indicted Defendant for
attempted first degree murder, aggravated burglary, and aggravated assault. The case
proceeded to trial in May 2015 on the charges of aggravated burglary and aggravated
assault after the State entered a nolle prosequi to the charge of attempted first degree
murder.

                                  State’s Case-in-Chief

       Jason Haggard testified that he worked as a paramedic with the Nashville Fire
Department in February 2012. On February 1, 2012, Mr. Haggard responded to a
residence on Chestnut Street on an assault call. Upon arrival, Mr. Haggard found the
house was in “disarray,” and he could see pieces of the door jamb on the floor of the front
room. The assault victim was lying on the floor near a couch. Mr. Haggard observed a
large wooden stick on the floor, and based on the victim’s injuries, he believed that the
large wooden stick had been used to hit the victim. When asked to describe the victim’s
condition, Mr. Haggard stated:

              [The victim] was laying [sic] on his back and he was not really
       responsive when we initially tried to say “[H]ey, are you okay? Are you
       awake[?]” just to see if we could get any response out of him at all. He was
       breathing really heavily and he had lots of blood covering his face and his
       eyes, both of his eyes were noticeably very swollen around, just right
       around the orbits there, right around the eye sockets.

He explained that this was a sign of a possible skull fracture or intercranial injury. Mr.
Haggard further testified:

             When we were in the house, I don’t remember any sort of response
       from him at all. I remember him being sort of just really compliant to the
       point of being totally unconscious as we were putting him on the
       spineboard. I remember his breathing was really deep, rapid, which is
       another indicator of possible head injury or a closed head injury.

       Mr. Haggard recalled that the victim had “lots of blood” coming from his nose and
mouth and that he was “critically injured.” Mr. Haggard transported the victim by
ambulance to Vanderbilt Hospital. According to Mr. Haggard, the victim did not regain
consciousness while en route to the hospital. Mr. Haggard stated, “[The victim] had
some movement, but he was not responsive at all, so he didn’t have any sort of
purposeful movement and he wasn’t following commands or acknowledging being talked
to or anything like that.”

       Detective Frederick Heiman of the Metro-Nashville Police Department testified
that on February 1, 2012, police dispatch received a call about a fight in which someone
                                           -2-
had been “severely beaten.” Detective Heiman initially responded to Vanderbilt
Hospital, where he saw that the victim was “on a trauma board, had a neck collar and had
been intubated.” The victim was not conscious, and Detective Heiman was informed that
the victim was in critical but stable condition. Medical staff told Detective Heiman that
the victim suffered “a couple of facial fractures” but no brain injury and that the victim
was expected to make a full recovery. Upon determining that he would not be able to
speak to the victim, Detective Heiman went to the residence on Chestnut Street.

       Sharon Tilley, a crime scene investigator with the Metro-Nashville Police
Department, testified that she responded to the residence on Chestnut Street on February
2, 2012. She photographed the scene, including the front door of the residence, and noted
that the door frame “appeared to be broken and damaged.” Investigator Tilley stated that
it appeared that the storm door had been “torn off the door frame,” and there were
“gouges in the door.” She also observed a damaged coffee table and a shelf that had been
“displaced.” Investigator Tilley collected a cigarette butt, a blue jersey, a pair of blue
jeans with blood on them, and a piece of wood from the crime scene. She noted that
there was a pair of brown gloves in the pocket of the blue jeans.

        Freddie Petway, the victim, testified that, on the night of February 1, 2012, he was
at his residence on Chestnut Street, watching television with his girlfriend, Defendant,
and Defendant’s “girl.” At one point, Mr. Petway told Defendant that Defendant could
not keep “coming and going” out of his house. Mr. Petway explained that Defendant did
not pay him rent; instead, Defendant wanted to “freeload” off of Mr. Petway. During this
conversation, Defendant and his “girl” became angry, and Defendant hit Mr. Petway with
a brick and left the residence. Mr. Petway locked his front door, but Defendant returned
and “bust[ed] the door in” with a brick and a “wooden hammer.” Mr. Petway testified
that Defendant then hit him in the face and in the eye with the hammer and that he lost
consciousness. Mr. Petway stated that he had no memory of what happened after he lost
consciousness until he woke up at Vanderbilt Hospital. He explained that he was in the
hospital and an “old folk[’]s home” for six months after the assault. Mr. Petway testified
that doctors placed a metal plate in the area of his eye and cheekbone. He stated that he
had to be fed through a feeding tube because he could not swallow. Mr. Petway recalled
that his girlfriend was at a nearby church getting some food when Defendant returned to
Mr. Petway’s residence. He testified that it was the fifth time that he had told Defendant
not to come back to his house, but Defendant had “been back everyday, five days in a
row, with the same girl.” Mr. Petway stated that Defendant did not live with him at the
house on Chestnut Street; instead, Defendant was staying “[b]y the store by the projects.”

      On cross-examination, Mr. Petway agreed that he had called Defendant and asked
Defendant to bring him some crack cocaine and that he had told Defendant that he would
pay him for the crack cocaine. Mr. Petway testified, however, that Defendant “was too
                                           -3-
late coming, took him all night to come. He had to go get his girl.” Consequently, Mr.
Petway had already obtained crack cocaine from another source. Mr. Petway could not
recall whether Defendant placed a bag of cocaine on the coffee table. Mr. Petway said
that he was not swinging the wooden hammer around or showing it to Defendant before
he locked Defendant out of his home. He explained that he kept the wooden hammer in
order to protect himself from people coming to his door. Mr. Petway did not recall
threatening Defendant with the wooden hammer, and he denied hitting Defendant with
the hammer.

       William Stewart testified that, in February 2012, he worked as a detective with the
Metro-Nashville Police Department and was assigned to investigate the assault on Mr.
Petway. Detective Stewart explained that he was originally given the name “Da-Boy” as
the suspect in the assault. Through a search of a database of nicknames, Detective
Stewart determined that “Da-Boy” was a nickname used by Defendant. Detective
Stewart located Defendant and took him into custody. After being advised of his
Miranda rights, Defendant admitted to being at Mr. Petway’s residence on the night of
the assault. Detective Stewart testified:

      [Defendant] made comments that he had been called and was asked to bring
      some crack cocaine. [Defendant] . . . was told that they had money, so he
      went to that location on . . . Chestnut Street. When he got there, there was
      [sic] several people there, but no one had any money. [Defendant] got into
      an argument with Mr. Petway, a heated argument, words were exchanged.
      He made comments that it was raining that day and he had arrived there
      with a girl by [the] name of Kiana Johnson, and she had stepped outside on
      the front porch during the argument with Mr. Petway. He went out to
      check on her or to tell her to “wait, I’ll be out in a minute,” at which point,
      and it’s not real clear whether Mr. Petway shoved him out the door or
      whether he was standing in the door and Mr. Petway slammed the door and
      hit him. According to [Defendant], he was standing in the doorway, Mr.
      Petway slammed the door, hit him, knocked him down on the concrete.
      [Defendant] said it made him mad and at that point it he just lost it. He said
      he kicked the door in, went in, struggled with Mr. Petway, he said, “I
      swung at Mr. Petway, Mr. Petway swung at me once and missed. I
      wrestled him to the ground and I hit him in the face or punched him in the
      face two or three times,” he said, “And then I got up and left.”

       Detective Stewart explained that, although the interview was not recorded, he took
notes of his conversation with Defendant and then reduced his notes to a written report.



                                           -4-
      About a week later, Detective Stewart located Mr. Petway’s girlfriend, Angela
Stewart-Green, and interviewed her about the incident. Detective Stewart made several
attempts to speak to Mr. Petway, but the detective recalled:

      Every time that I checked or went by and saw him, he was either
      unconscious or he was intubated where he could not speak. At one point he
      could speak, but it just didn’t seem like anything I asked him was
      registering with him at all. He just wasn’t coherent.

       On cross-examination, Detective Stewart agreed that Defendant said that Mr.
Petway was swinging a wooden stick or mop handle around earlier in the night and spit in
Defendant’s face before Mr. Petway kicked Defendant out of his residence. He recalled
that Defendant showed remorse when told about Mr. Petway’s condition, and Defendant
claimed that it had not been his intent to severely injure Mr. Petway.

                                    Defendant’s Proof

        Defendant testified that, on February 1, 2012, he was at a convenience store with
Kiana Johnson when he received a phone call from Mr. Petway, who said that “they had
some money at the house” and asked Defendant to bring him $50 worth of crack cocaine.
Defendant testified, “I told Mr. Petway that I didn’t have any drugs at that time, he said,
‘Well you need to get you some now because there’s plenty of money up here.’ So I said,
‘I’ll snatch me some and I’ll probably come on the way.’” Defendant obtained some
cocaine, and he and Ms. Johnson went to the residence on Chestnut Street. Defendant
testified that the door to the residence was open when he arrived and that there were five
or six people in the residence. Defendant claimed that he lived in the Chestnut Street
residence; he kept clothing there and had a key to the residence. He explained that, when
he arrived at the house with the cocaine, Mr. Petway said, “Let me get something.”
Defendant responded, “Let you get something? . . . [W]here the money at [sic]?” Mr.
Petway then informed Defendant that “nobody got no [sic] money.” Defendant testified
that Mr. Petway said, “B****, I’m not paying you nothing [sic] [,]” and he ordered
Defendant to get out of his house while swinging a wooden stick around. Ms. Johnson,
who was already getting high, said, “Y’all blowing my high, I gotta go[,]” and she
stepped out onto the front porch. Defendant said that he stepped out the front door to
check on Ms. Johnson. According to Defendant, while he was standing in the doorway,
Mr. Petway “hit [him] with the stick” and pushed Defendant out of the doorway, causing
Defendant to slip and fall. Defendant explained that he was hurt in the fall and responded
“against [his] better judgment.” Defendant admitted that he “forced [his] way back in”
Mr. Petway’s residence. He stated, “When I went back in the house Mr. Petway hit me,
we was fighting.” He said that Mr. Petway “still had the stick in his hand, he was still

                                           -5-
swinging the stick and we got into it, it was just a -- just a fight, I got the better end of the
stick, he lost and got the short end of the stick[.]”

       During a jury-out hearing following Defendant’s direct examination, the following
colloquy occurred:

              THE COURT: If I charge the jury on self-defense, then the law
       allows the State to get into your prior aggravated assaults.

              [DEFENDANT]: Yes, sir.

             THE COURT: Because one of the things that the jury would have to
       determine is who the first aggressor was[.]?

              [DEFENDANT]: Yes, sir.

              THE COURT: Also there will be an issue that, this being in his
       home, and I don’t know if I have the most updated one, if I were to charge
       self-defense, not only would the State be allowed to introduce your prior
       aggravated assaults, since this happened at his home, the jury would also be
       advised that his swinging the club at you, there’s a presumption that he was
       doing so to protect himself because he was presumed to have held a
       reasonable fear of imminent peril of death or serious bodily injury, which
       would justify him doing what he did, if the jury finds you unlawfully
       entered the premises.

              So, my point is, since this just came up in your testimony, I had no
       idea about the self-defense possibility, I thought it best that we stop and you
       and your attorney talk as to whether or not you want to pursue self-defense
       because, to be honest, it appears to me that the evidence is justified maybe
       that charge being given, I just don’t know whether or not you want it given,
       under the circumstances, and I think you and your attorney need to discuss
       that before we go any further with the General’s cross-examination . . . so I
       can make a determination as to whether these aggravated assaults come in
       or stay out, as I’ve already ruled. If we’re going down a new path, I need to
       know now, so I think you need to make a conscious, intelligent, voluntary
       decision as to whether or not you want to put self-defense before this jury
       and also your prior history with aggravated assaults and this being in his
       house where the law says it’s all right for him to defend himself if someone
       forces their way into his house. I just want to you understand that and
       make a decision before we go any further. So we’re going to take a few
                                              -6-
      minutes, let you and [defense counsel] discuss that issue, I just need to
      know, if you say you want self-defense, I’m telling you the way things are
      going to go if that’s what you want. If you don’t want it, we’ll proceed as
      we are, nothing else is brought up about your prior record and your prior
      convictions on agg[ravated] assault or anything else.

       Following a recess, defense counsel announced, “Your Honor, we would like to go
with the self-defense strategy[.]” The trial court replied:

              I am wondering even if self-defense should even be charged. When
      you look at the instruction it says the threat or use of force against another
      by the defendant is not justified if the defendant consented to the exact
      force used or attempted by the other individual. I mean, he forced his way
      in the door and he sees him swinging this stick and chooses to go forward
      with it anyway.

      ....

             [Defendant] placed himself in that situation. He consented to go
      back in by forcing his way in the door . . . and proceeded. He saw what the
      guy was doing and proceeded to get into the struggle with him anyway.

      ....

              I just don’t think that under the facts of this case from what I’ve
      heard from [D]efendant, in looking at it in light most favorable to him, that
      it really raises a legitimate self-defense argument. He forced his way back
      into a situation that he knew was already volatile.

      ....

             There is no reason to have to concern yourself with self-defense if
      you don’t reenter the premises that you were just forced out of. I’m not
      going to charge self-defense.

       On cross-examination, Defendant acknowledged that he had four prior convictions
for theft. He further acknowledged that he was frustrated and upset with Mr. Petway
after he learned that Mr. Petway could not pay for the drugs. Defendant stated that Mr.
Petway “already owed [him] $250 before he called me for the $50 worth of crack
cocaine.” He explained that, after Mr. Petway told him to leave the residence, Mr.
Petway hit him with the wooden stick and pushed him out the door. Defendant admitted
                                          -7-
that he was mad at Mr. Petway when he forced the door back open and forced his way
back into the house. He stated that Mr. Petway “never had the chance to hit [him] again
with that stick” but that they were “fighting.” He agreed that he hit Mr. Petway in the
face with his fist but denied ever hitting Mr. Petway with the wooden stick.

       Angela Stewart-Green testified for Defendant. She stated that, on the night of the
incident, Mr. Petway called her and asked her to “bring him some drugs.” Ms. Stewart-
Green stayed at the residence and “continued to . . . get high,” and she recalled that
Defendant arrived about thirty minutes later. Defendant took off his socks and shoes
because he had walked in the rain to Mr. Petway’s residence. She said that Mr. Petway
began beating on the walls with a wooden stick, causing Ms. Johnson to leave the
residence. Ms. Stewart-Green recalled that Defendant stood in the doorway to tell Ms.
Johnson to come back inside, and then Mr. Petway “slammed the door on him.”
Defendant knocked on the door for Mr. Petway to let him in, but when Mr. Petway did
not comply, Defendant “kicked the door in.” Ms. Stewart-Green testified that, after
Defendant kicked in the door, “they had started arguing and then [Defendant] started to
put his shoes and socks and things back on. As he was bending down I recall Mr. Petway
hitting him with stick.” She stated that Defendant then hit Mr. Petway three or four
times. Defendant then continued to put on his socks and shoes and left the residence.
Ms. Stewart-Green called 911 because Mr. Petway was bleeding profusely and did not
appear to be breathing.

       On cross-examination, Ms. Stewart-Green acknowledged that she had been
smoking crack cocaine on the night of the offense and agreed that her memory of that
night was “somewhat spotty.” She agreed that Detective Stewart interviewed her on
February 12, 2012, and that she did not tell the detective that Mr. Petway hit Defendant
with the wooden stick. She told Detective Stewart that Defendant was hit by the door
and knocked down and that this made Defendant angry. Ms. Stewart-Green also told
Detective Stewart that, after Defendant kicked in the door, he “jumped in [Mr. Petway’s]
face” and hit Mr. Petway. She recalled, “[W]hen [Mr. Petway] tried to hit back [Mr.
Petway] fell down on the floor and [Defendant] started beating him.” Ms. Stewart-Green
told Detective Stewart that Defendant was hitting Mr. Petway in the face, and she
attempted to stop Defendant. However, Ms. Stewart-Green testified that some of the
things she told Detective Stewart were not true and stated that her memory was better at
the time of trial. She said that she did not recall talking to a defense investigator about
the case in 2014. She denied telling the defense investigator that Defendant took the
wooden stick from Mr. Petway and hit him in the face and beat him with his fist. Ms.
Stewart-Green testified that Defendant did not live at Mr. Petway’s residence, but he
would “crash out there sometimes.”



                                           -8-
                            State’s Rebuttal Proof

Prior to the State calling its rebuttal witnesses, the following colloquy took place:

       [DEFENSE COUNSEL]: Then Mr. Wells is coming with -- I
contacted him, he’s on his way.

         THE COURT: Is he going to testify too?

       [DEFENSE COUNSEL]: I don’t know if the State intends to call
him as a rebuttal witness, I think they may.

      [THE STATE]: I think that he might be a witness as it relates to
impeachment.

         THE COURT: For the State?

         [THE STATE]: Uh-huh (affirmative).

         THE COURT: His private investigator?

         [THE STATE]: Uh-huh (affirmative).

         THE COURT: The [D]efendant’s private investigator?

       [THE STATE]: That is correct, Your Honor, that’s one of the
reasons that I’ve been having a moment processing. It’s an odd situation,
that’s what I’m -- I’m not exactly sure what all the ramifications of that are.

       [DEFENSE COUNSEL]: And Your Honor, if I may have a moment
to speak with [Defendant] in the back real quick?

         THE COURT: Yea, just trying to process this mentally, how this
works.

         (Whereupon, [defense counsel] and [Defendant] stepped into the
back.)

       THE COURT: I’m just trying to wrap my head around the State
calling the [D]efendant’s private investigator. Tell him to come in here.

                                     -9-
             (Whereupon, Mr. Patrick Wells entered the courtroom.)

             THE COURT: I don’t want you to answer this yet, Mr. Wells, but I
      do at some point in time, I’ve just been advised that you may be called as a
      rebuttal witness by the State.

             MR. WELLS: Yes, sir.

             THE COURT: I’m just trying to wrap my head around the ethics and
      propriety of that type of thing happening. I don’t know if there’s, from
      your standpoint as a private investigator, if your code of conduct allows
      you to basically end up being an adverse witness to your own client. Just
      never in my life had this come up before, so. Seems to me it’s work
      product.

             [THE STATE]: It’s Jencks material. He has written notes from his
      interview with the witness, which –

             THE COURT: I haven’t looked at 26.2 in so long because y’all have
      open-file discovery, it’s never applicable anymore.

             (Whereupon, [defense counsel] and [Defendant] reconvened into the
      courtroom for the following proceedings.)

            THE COURT: See if we even get to that point. There doesn’t
      appear to be anything in 26.2 that exempts the statement being turned over .
      ...

       The State called Patrick Wells as a rebuttal witness without objection from
Defendant. Mr. Wells testified that he was a private investigator for the defense and that
he had interviewed several witnesses on Defendant’s behalf in 2014. Mr. Wells
explained that he attempted to contact Ms. Stewart-Green at several addresses and was
unsuccessful. He then received a phone call from someone who identified herself as Ms.
Stewart-Green. Ms. Stewart-Green spoke to Mr. Wells about the assault on Mr. Petway,
telling him specific details about the offense. Following his conversation with Ms.
Stewart-Green, Mr. Wells prepared a written report. Mr. Wells identified a copy of his
report and read the following from the report:

            At some point [Defendant] retrieved the mop handle that Mr. Petway
      had previously had and started assaulting Mr. Petway. Mr. Petway was
      begging [Defendant] to stop beating him with the mop handle and with his
                                          - 10 -
       fist. Mr. Petway started bleeding profusely from the mouth and head area.
       Ms. Stewart[-Green] . . . asked [Defendant] to quit, he eventually did and
       left the area. Everyone left the area at that point.

       On cross-examination, Mr. Wells explained that his interview with Ms. Stewart-
Green was conducted over the phone. He stated that, in his experience, witnesses often
say things to him during interviews that are not true.

       The State next recalled Detective Stewart, who testified that when he interviewed
Defendant he did not see any injuries to Defendant’s head. Detective Stewart said that he
did not physically check Defendant’s head but that he sat and spoke to Defendant for
thirty minutes.

       Following deliberations, the jury found Defendant guilty of aggravated assault and
aggravated criminal trespass, as a lesser-included offense of aggravated burglary. At a
subsequent sentencing hearing, the trial court found that Defendant was a career offender
and sentenced Defendant to concurrent terms of fifteen years at sixty-percent for
aggravated assault and eleven months and twenty-nine days for aggravated criminal
trespass. Defendant’s judgments of conviction were entered on June 25, 2015.

       Defense counsel did not file a timely motion for new trial. Defendant, pro se, filed
an untimely notice of appeal. Thereafter, this court issued a show cause order, directing
defense counsel to explain why Defendant’s appeal should proceed. In response, defense
counsel informed this court that Defendant had told him that he did not wish to proceed
with an appeal. The record, however, did not reflect that defense counsel obtained a
written waiver of appeal or moved to withdraw from further representation. In his
response, defense counsel further explained that Defendant now wanted to proceed with
an appeal, and he asked permission to pursue a delayed motion for new trial in the trial
court. On November 3, 2015, this court dismissed Defendant’s pro se notice of appeal
without prejudice so that Defendant could file a motion for new trial and pursue an
appeal “in accordance with the applicable rules.”

        On December 2, 2016, Defendant filed a petition for post-conviction relief,
requesting a delayed direct appeal. The post-conviction court found that Defendant’s
counsel was ineffective for failing to file a timely motion for new trial. Accordingly, the
post-conviction court entered an order on June 26, 2017, staying post-conviction
proceedings and allowing Defendant to pursue a delayed direct appeal. Defendant then
filed a timely motion for new trial and amended motion for new trial.

     At a hearing on the motion for new trial, the trial court made the following
comment about the self-defense jury instruction:
                                          - 11 -
                I did not charge self-defense jury instruction because the evidence
        was that [Defendant] kicked in the door and the injuries caused occurred
        after the kicking in of the door, self-defense requires that you be in a place
        that you lawfully have a right to be, and that you’re not committing some
        type of illegal act and obviously the jury found that he had committed an
        illegal act, at least by trespassing.

       Regarding Mr. Wells’s testimony, the State clarified that it had originally
subpoenaed Ms. Stewart-Green, but when she arrived for court, she gave a statement
different than any other statement she had given to police. The State immediately
notified defense counsel about Ms. Stewart-Green’s differing statements, and they
discussed whether either party intended to call her as a witness. The State explained that
it had an agreement with defense counsel to share witness statements and that defense
counsel had shared a report from Mr. Wells containing Ms. Stewart-Green’s statement to
him.1 The State called Mr. Wells as a rebuttal witness to provide proof of Ms. Stewart-
Green’s prior inconsistent statement. The trial court found that Defendant had waived
any privilege he had with the investigator and denied the motion for new trial. This
timely appeal follows.

                                              Analysis

                                  1. Sufficiency of the evidence

       Defendant first contends that the jury’s verdict, finding Defendant guilty of
aggravated assault, was contrary to the weight of the evidence.2 He asserts that the State
offered “no proof of [Defendant’s] intent or knowledge that his actions would result in
serious bodily injury[.]” The State responds that the evidence was sufficient to support
the jury’s conclusion that Defendant was guilty of aggravated assault beyond a
reasonable doubt.

      Rule 33(d) of the Tennessee Rules of Criminal Procedure states, “The trial court
may grant a new trial following a verdict of guilty if it disagrees with the jury about the
weight of the evidence.” This rule is the modern equivalent of the “thirteenth juror rule”
and requires the trial court to weigh the evidence and grant a new trial “if the evidence
preponderates against the weight of the verdict.” State v. Blanton, 926 S.W.2d 953, 958
        1
        In response to the State’s assertions, post-conviction counsel acknowledged that the report from
Mr. Wells had been provided to the State, apparently by defense counsel.
        2
         In his brief, Defendant does not challenge the sufficiency of the evidence as it relates to his
conviction for aggravated criminal trespass.
                                                - 12 -
(Tenn. Crim. App. 1996). Our supreme court has stated that this rule “imposes upon a
trial court judge the mandatory duty to serve as the thirteenth juror in every criminal
case[ ] and that approval by the trial judge of the jury’s verdict as the thirteenth juror is a
necessary prerequisite to imposition of a valid judgment.” State v. Carter, 896 S.W.2d
119, 122 (Tenn. 1995). When a trial judge overrules a motion for new trial, absent any
evidence that the trial court expressed dissatisfaction or disagreement with the weight of
the evidence or the verdict, this court presumes that the trial judge has served as the
thirteenth juror and approved the jury’s verdict. Id. Once the trial court fulfills its duty
as the thirteenth juror and imposes a judgment, appellate review is limited to determining
the sufficiency of the evidence. State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995)
(citing State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993)).

        Here, the record reflects that the trial judge approved the jury’s verdict and
fulfilled his duty as the thirteenth juror. Accordingly, we must determine whether the
evidence presented at trial was sufficient to support Defendant’s conviction for
aggravated assault.

        Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing 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, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

       As relevant here, “[a] person commits aggravated assault who . . . [i]ntentionally
or knowingly commits an assault as defined in § 39-13-101, and . . . causes serious bodily
injury to another[.]” Tenn. Code Ann. § 39-13-102(a)(1)(A)(i) (2012). “A person
commits assault who: (1) [i]ntentionally, knowingly, or recklessly causes bodily injury to
another; (2) [i]ntentionally or knowingly causes another to reasonably fear imminent
                                            - 13 -
bodily injury; or (3) [i]ntentionally or knowingly causes physical contact with another
and a reasonable person would regard the contact as extremely offense or provocative.”
Tenn. Code Ann. § 39-13-101(a)(1)-(3) (2012). “Serious bodily injury” is “bodily injury
that involves: (A) [a] substantial risk of death; (B) [p]rotracted unconsciousness; (C)
[e]xtreme physical pain; (D) [p]rotracted or obvious disfigurement; (E) [p]rotracted loss
or substantial impairment of a function of a bodily member, organ or mental faculty; or
(F) [a] broken bone of a child who is eight (8) years of age or less[.]” Tenn. Code Ann. §
39-11-106(34) (2012). “‘Bodily injury’ includes a cut, abrasion, bruise, burn or
disfigurement, and physical pain or temporary illness or impairment of the function of a
bodily member, organ, or mental faculty[.]” Tenn. Code Ann. § 39-11-106(2) (2012).

       When viewed in the light most favorable to the State, the evidence is sufficient to
support Defendant’s conviction for aggravated assault. Mr. Petway ordered Defendant
out of his residence and locked his front door. Defendant then returned and “bust[ed] the
door in.” Defendant immediately began hitting Mr. Petway in the face and in the eye
multiple times with a wooden stick, knocking out Mr. Petway. Mr. Petway appeared to
be unconscious when the paramedics arrived, and he had to be transported to Vanderbilt
Hospital. Mr. Petway testified that he had no memory of what happened after he lost
consciousness but that he later woke up in the hospital. He explained that he was in the
hospital and an “old folks home” for six months after the assault. He testified that
doctors placed a metal plate in the area of his eye and cheekbone due to fractures in his
face and that he had to be fed through a feeding tube because he could not swallow.
Defendant forced his way into Mr. Petway’s residence after he had been locked out, and
he immediately began hitting Mr. Petway. The evidence is more than sufficient to
support Defendant’s conviction for aggravated assault involving serious bodily injury.

        Defendant asserts that the evidence does not support his conviction because there
was no proof that he intended to cause serious bodily injury or knew that his actions
would result in serious bodily injury; however, this court has previously held that, under
the plain language of our aggravated assault statute, “it is clear the mens rea element of
intentionally and knowingly is limited in application . . . to the commission of assault as
defined in section 39-13-101.” State v. Jones, 341 S.W.3d 318, 321 (Tenn. Crim. App.
2010). The mens rea element does not apply to the result of the assault, i.e., seriously
bodily injury. Id. at 321-22. Thus, Defendant’s argument is without merit, and he is not
entitled to relief on this issue.

                                2. Self-defense instruction

       Defendant also contends that the trial court erred by failing to instruct the jury on
self-defense. Defendant argues that the trial court foreclosed Defendant’s reliance on a
theory of self-defense by “making itself the trier of fact,” determining that Defendant
                                           - 14 -
“forced his way back into the residence” and “placed himself in that situation.”3 The
State responds that because the issue of self-defense was not fairly raised by the proof,
the trial court properly declined to provide a self-defense instruction to the jury.

      Whether the jury instructions were proper is a mixed question of law and fact,
which this court reviews de novo with no presumption of correctness. State v. Smiley, 38
S.W.3d 521, 524 (Tenn. 2001). Under Tennessee law, a trial court has a duty to provide
“a complete charge of the law applicable to the facts of the case.” State v. James, 315
S.W.3d 440, 446 (Tenn. 2010) (quoting State v. Harbison, 704 S.W.2d 314, 319 (Tenn.
1986)); see also Tenn. R. Crim. P. 30(d)(2). This obligation “extends to general
defenses, such as self-defense, defense of another, or defense of a habitation.” State v.
Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013) (footnote omitted).

        When evidence adequately supporting self-defense is admitted at trial, the
question of whether an individual acted in self-defense is a factual question for the jury.
See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). However, before a trial
court may submit a defense question to a jury, the proof must fairly raise an issue as to
the existence of that defense, and the defendant has the burden of introducing such proof.
Tenn. Code Ann. § 39-11-203(c), Sentencing Comm. Cmnts. “The quantum of proof
necessary to fairly raise a general defense is less than that required to establish a
proposition by a preponderance of the evidence.” Hawkins, 406 S.W.3d at 129. In
determining whether a general defense has been fairly raised by the proof, a trial court
must consider the evidence in the light most favorable to the defendant and draw all
reasonable inferences in the defendant’s favor. Id. If the evidence fairly raises the issue
of self-defense, the trial court is required to submit the instruction to the jury. Id.

        Tennessee’s self-defense statute provides, in pertinent part:

               (b)(1) Notwithstanding § 39-17-1322, a person who is not engaged
        in unlawful activity and is in a place where the person has a right to be has
        no duty to retreat before threatening or using force against another person
        when and to the degree the person reasonably believes the force is
        immediately necessary to protect against the other’s use or attempted use of
        unlawful force.

              (2) Notwithstanding § 39-17-1322, a person who is not engaged in
        unlawful activity and is in a place where the person has a right to be has no
        3
          In his brief, Defendant asserts that the jury should have been instructed on self-defense but fails
to explain how the issue was raised by the proof. Because Defendant failed to make a specific argument
in this respect, our analysis will, necessarily, focus on the propriety of the trial court’s ruling and its
reasoning.
                                                   - 15 -
      duty to retreat before threatening or using force intended or likely to cause
      death or serious bodily injury, if:

                  (A) The person has a reasonable belief that there is an
             imminent danger of death or serious bodily injury;

                     (B) The danger creating the belief of imminent death
             or serious bodily injury is real, or honestly believed to be real
             at the time; and

                   (C) The belief of danger is founded upon reasonable
             grounds.

Tenn. Code Ann. § 39-11-611(b)(1)-(2). Importantly, the threat or use of force against
another is not justified “[i]f the person using force consented to the exact force used or
attempted by the other individual[.]” Tenn. Code Ann. § 39-11-611(e)(1); see also
Hawkins, 406 S.W.3d at 128 (stating that the defense of self-defense is generally not
available if the defendant “consented to the danger”).

      In this case, the trial court found that self-defense was not fairly raised by the
proof and denied Defendant’s request for a self-defense instruction. The trial court
reasoned:

              When you look at the [self-defense] instruction it says the threat or
      use of force against another by the defendant is not justified if the
      defendant consented to the exact force used or attempted by the other
      individual. I mean, he forced his way in the door and he sees him swinging
      this stick and chooses to go forward with it anyway.

      ....

             [Defendant] placed himself in that situation. He consented to go
      back in by forcing his way in the door . . . and proceeded. He saw what the
      guy was doing and proceeded to get into the struggle with him anyway.

      ....

              I just don’t think that under the facts of this case from what I’ve
      heard from the [D]efendant, in looking at it in light most favorable to him,
      that it really raises a legitimate self-defense argument. He forced his way
      back into a situation that he knew was already volatile.
                                          - 16 -
         During his testimony, Defendant stated that Mr. Petway told him to leave the
residence, hit him with a wooden stick, pushed him out the door, and locked it. This
angered Defendant, and he kicked in Mr. Petway’s door. Defendant said that Mr. Petway
“still had the stick in his hand, he was still swinging the stick and we got into it, it was
just a -- just a fight, I got the better end of the stick, he lost and got the short end of the
stick[.]” He stated, “When I went back in the house Mr. Petway hit me, we was [sic]
fighting.” Defendant stated that Mr. Petway “never had the chance to hit [him] again
with that stick[,]” but they were fist fighting. The trial court’s finding that Defendant
consented to Mr. Petway’s use of force when he re-entered the residence is clearly
supported by Defendant’s own testimony. As previously noted, the defense of self-
defense is generally not available if the defendant “consented to the danger.” Id.; see
also Tenn. Code Ann. § 39-11-611(e)(1). Because Defendant did not introduce evidence
sufficient to “fairly raise” an issue as to the existence of self-defense, he is not entitled to
relief on based on this claim.

                                 3. State’s rebuttal witness

       Defendant contends that the trial court erred by allowing the State to call Mr.
Wells as a rebuttal witness because his communications with defense counsel were
privileged under Tennessee Code Annotated section 24-1-209. Additionally, Defendant
asserts that Mr. Wells’s report containing Ms. Stewart-Green’s statement was specifically
prohibited from reciprocal discovery pursuant to Rule 16(b)(2) of the Tennessee Rules of
Criminal Procedure. The State responds that the trial court properly allowed the State to
call Mr. Wells as a rebuttal witness.

                                    Investigative privilege

        Defendant is correct that Mr. Wells’s communications with defense counsel were
privileged under Tennessee law. Tennessee Code Annotated section 24-1-209 states that
“[c]ommunications between an attorney and a private detective or investigator hired by
such attorney, while acting in their respective capacities shall be privileged
communications.” Tenn. Code Ann. § 24-1-209. In denying Defendant’s motion for new
trial, however, the trial court specifically found that Defendant waived this privilege by
sharing with the State the report from Mr. Wells containing Ms. Stewart-Green’s prior
statement. Defendant cannot now raise a claim of investigative privilege when he
voluntarily provided the State with the report from Mr. Wells. Moreover, Defendant did
not object to the State’s calling Mr. Wells to testify as a rebuttal witness. Because
Defendant failed to raise a contemporaneous objection, we conclude this issue is waived.
State v. Gilley, 297 S.W.3d 739, 762 (Tenn. Crim. App. 2008) (concluding that the failure
to make a contemporaneous objection constitutes waiver of an issue on appeal); Tenn. R.
                                             - 17 -
App. P. 36(a) (stating that “[n]othing in this rule shall be construed as requiring relief be
granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error”).

                                        Rule 16 discovery

       Moreover, we reject Defendant’s contention that Rule 16(b)(2) of the Tennessee
Rules of Criminal Procedure prohibited defense counsel from turning over Mr. Wells’s
report to the State as reciprocal discovery. Rule 16(b)(2) provides:

              (2) Information Not Subject to Disclosure. Except as to scientific or
       medical reports, this subdivision does not authorize the discovery or
       inspection of:

                      (A) reports, memoranda, or other internal defense
               documents made by the defendant or the defendant’s
               attorneys or agents in connection with the investigation or
               defense of the case; or

                      (B) a statement made by the defendant to the
               defendant’s agents or attorneys or statements by actual or
               prospective state or defense witnesses made to the defendant
               or the defendant’s agents or attorneys.

Tenn. R. Crim. P. 16(b)(2) (2015). The rule does not require a defendant to turn over
statements made by potential defense witnesses to the defendant or the defendant’s agent
during pretrial discovery; however, it does not prevent a defendant from doing so. See
Tenn. R. Crim. P. 16, Advisory Comm’n Cmts (“The voluntary disclosure of evidence
not within the ambit of this rule is encouraged by the commission.”). Rule 16(b)(2) did
not prevent defense counsel from voluntarily turning over Ms. Stewart-Green’s statement
to Mr. Wells during pretrial discovery.4 This issue is without merit.




       4
         As noted by the State in its brief, it is unclear from the record whether Mr. Wells’s report
contained Jencks material, which would have been subject to mandatory disclosure under Tennessee Rule
of Criminal Procedure 26.2. See Tenn. R. Crim. P. 26.2.
                                               - 18 -
                                Conclusion

For the aforementioned reasons, the judgments of the trial court are affirmed.


                                            _________________________________
                                            ROBERT L. HOLLOWAY, JR., JUDGE




                                   - 19 -
