          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                        APRIL SESSION, 1997


                                                                FILED
STATE OF TENNESSEE,             )                          November 4, 1997
                                )   No. 02C01-9610-CC-00357
      Appellee                  )                               Cecil Crowson, Jr.
                                )   DYER COUNTY                 Appellate C ourt Clerk
vs.                             )
                                )   Hon. J. STEVEN STAFFORD, Judge
WOODY J. DOZIER,                )
                                )   (Aggravated Rape;
      Appellant                 )    Aggravated Kidnapping)




For the Appellant:                  For the Appellee:

JOE H. BYRD, JR.                    CHARLES W. BURSON
Shannon Professional Bldg.          Attorney General and Reporter
203 S. Shannon St., Suite 300
P. O. Box 2764                      ELIZABETH T. RYAN
Jackson, TN 38302-2764              Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493


                                    C. PHILLIP BIVENS
                                    District Attorney General
                                    P. O. Box E
                                    Dyersburg, TN 38025




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                          OPINION



         The appellant, Woody J. Dozier, appeals his jury convictions for the

crimes of aggravated kidnapping and aggravated rape. Following these

convictions, the Circuit Court of Dyer County sentenced the appellant to

concurrent sentences of eight years for the aggravated kidnapping conviction

and fifteen years for the aggravated rape conviction. On appeal, the appellant

raises the following issues:

         I. Whether the Chancellor, sitting by interchange, had jurisdiction
         to try the case;

         II. Whether the appellant is entitled to a new trial because of
         alleged juror misconduct; and

         III. Whether the evidence is sufficient to sustain his convictions for
         aggravated rape and aggravated kidnapping.



         After reviewing the record before us, we affirm the judgment of the trial

court.




                                       I. Background



         The proof, as developed at trial, revealed that the victim of this offense,

Brenda Noel, was forty-one years old and resided in the Roellen community of

Dyer County.1 On Thursday, November 1, 1994, Ms. Noel visited her boyfriend,

Jack Stewart, who lived in Dyersburg. She took a taxi to her friend's home,

arriving between 8:00 and 9:00 p.m. She stayed only a short time and decided

to leave. Without return cab fare, she began walking home, a distance of

approximately five miles. While still inside the city limits of Dyersburg, Ms. Noel

tried to obtain a ride by hitchhiking. She testified that a small blue two door car


         1
        The appellant was unem ployed but had been receiving disability benefits for “nerve
problems” for some period of time.

                                               2
passed her, turned around, and pulled into the V.F.W. parking lot across the

street from her. In addition to the driver, the vehicle was occupied by a male

passenger. The victim approached the vehicle and the driver of the car offered

to take her home. Ms. Noel got into the back seat of the car.



       Although the driver initially proceeded toward Roellen, he changed

directions and turned onto a gravel road. At this point, Ms. Noel stated that she

wanted out of the car, but the driver began to threaten her with physical harm.

Meanwhile, the passenger in the front seat was "talking nasty to [Noel]." He

asked her if she was married, if she had any children, and "what kind of sex did

[she] have with her boyfriend." She responded that she did not want to talk

about those things, but the passenger continued. Ms. Noel testified that the

driver and his passenger were smoking a marijuana cigarette.



       The driver stopped the car in a remote area and got out to use the

bathroom. Upon his return, he climbed into the backseat with Ms. Noel and told

the passenger to get out of the car. He then informed Ms. Noel, "[w]e're fixing to

have sex." While she protested his actions, the driver removed a blue condom

from Ms. Noel’s purse. The driver began removing Ms. Noel’s clothes. She

repeatedly told him to get off of her. Ignoring the victim’s pleas, the appellant

then sexually penetrated her.



       After raping the victim, the appellant went to the back of the vehicle and

asked his passenger to join him. While both were at the rear of the vehicle, the

hatch was opened. Ms. Noel testified that she heard the appellant and the

passenger discuss killing her. She then heard the passenger state that he was

going to get his gun and “shoot the cow." No weapon, however, was ever

observed by the victim. At this point, Ms. Noel thought she was going to die.

The two men returned to the car. The driver told Ms. Noel, "I raped you. Want


                                         3
some more?" to which Ms. Noel replied "Leave me alone. I said take me home

or put me out and I'll walk home." The driver drove his victim to Roellen and

released her at the Farmers Supply Store, which was within walking distance of

her home.2 Ms. Noel hid behind the store until the car left and then walked

home.3 Shortly after reaching her home, the victim contacted law enforcement

officials and agreed to meet them at the Farmer’s Supply Store.4



         Dyer County Deputy Mike Winchester was the first to arrive at the store.

Ms. Noel told the deputy that she had been raped and provided descriptions of

her assailants and the vehicle. Specifically, she described the driver as having

"long hair, a beard and a little goatee. He was a little bit heavy and his hair was

slicked back." The passenger had black hair and a little moustache. She

described the vehicle as being a small blue two door car. She stated that the

black plastic tip from the cigarette lighter was missing, that the car had a digital

dashboard display, that the interior light was not functioning, and that the car had

a luggage rack. Deputy Winchester then transported Ms. Noel to the hospital.



         Calvin Johnson, a criminal investigator with the Dyer County Sheriff's

Department, met Ms. Noel at the hospital. After interviewing Ms. Noel, Johnson,

along with Ms. Noel and Deputy McCreight, returned to the scene where the rape

occurred. Johnson recovered a used blue condom and its wrapper. He

photographed the area, including tire tracks. He also made a plaster casting of

the tire track.



         Upon returning to the sheriff's office, Ms. Noel was shown a photographic


         2
         The vic tim testified that, after be ing let out of th e vehicle, “[th e perpe trators] we nt . .
.towards Newb ern.”

         3
        Noel testified that, on her walk home, she passed Hilltop Grocery which was closed. She
added that the sto re norm ally closed at 1 0:00 p.m .

         4
         Connie Crawford, the dispatcher on duty on the date at issue, testified that Ms. Noel
reported the inciden t at 12:04 a .m.

                                                       4
array of individuals who fit the description she had given to the sheriff’s

department. Without hesitation, she identified the appellant and the passenger

as her assailants. The passenger was identified as John Turner, who was

indicted as a co-defendant in this case. The appellant and John Turner are

cousins. Again, at trial, the victim identified the appellant as the person who

raped her and she identified Turner as his accomplice.



           At approximately 12:30 a.m., Officer Bennie Green, a sergeant with the

Newbern Police Department, observed a 1990 blue Mustang with a luggage

rack5 turn onto the parking lot of a convenience store at 117 South Main Street

in Newbern.6 The driver got out of the vehicle and made a telephone call. He

described the driver as being a "pretty good size fellow" with long black hair. At

the convenience store, Officer Green spoke with David Neil, the clerk on duty.

Neil explained that he did not know the names of the two men in the blue

Mustang, but that they were regular customers. At trial, Neil identified the

appellant and his co-defendant as the driver and passenger of the Mustang.



           Margaret Bash, a forensic scientist with the Tennessee Bureau of

Investigation Crime Laboratory specializing in DNA analysis and serology,

testified that she was requested by the Dyer County Sheriff’s Department to

perform an analysis of (1) a blood sample from Ms. Noel, (2) vaginal slides and

swabs, and (3) a blue condom. She explained that she found spermatozoa on

the slides obtained from the vaginal swabs, although she could not pinpoint the

time of intercourse, because spermatozoa can survive up to five days after

intercourse.7 She also found spermatozoa from slides produced from the


           5
               At tria l, Gre en ex plaine d tha t wha t he h ad de scrib ed as a lugg age rack was actu ally a
spoiler.

           6
         Although Newbern is also located in Dyer County, the record does not reflect the
distance between the Farmer’s Supply Store in the Roellen community and Newbern.

           7
         The victim testified that she had intercourse with her boyfriend on the Saturday preceding
the rape.

                                                           5
condom. Bash further testified that, although she was able to extract DNA from

Ms. Noel's blood sample and the vaginal swabs, she was unable to obtain a

viable sample from the condom, because it was contaminated with "a lot of gritty,

dusty, red clay," which had caused the sample to degrade. On February 6,

1995, Bash received a blood sample from the appellant from which she was able

to extract DNA. She testified that the appellant's DNA and the DNA recovered

from the vaginal swabs did not match.



         Neither the appellant nor his co-defendant testified at trial. Both relied

upon the defense of alibi. In establishing this defense, the appellant presented

numerous witnesses covering the time frame of 9:00 p.m. on November 1, until

12:45 a.m. on November 2. Charles Preston Turner, the appellant’s cousin,

testified that on the evening of November 1, 1994, the appellant and his co-

defendant were at his home from about 9:00 p.m. to about 10:00 p.m. His wife,

Tonya Turner, confirmed this statement. Stacy Permenter, a friend of the

appellant’s and also an employee of the City Cafe in Newbern, testified that, on

November 1, 1994, she recalled seeing the appellant and Turner leaving the

restaurant at approximately 10:20 p.m. Jackie Dale Bargery, a Ridgely Police

Officer, testified that, on November 1, 1994, he observed the appellant and

Turner sitting in the appellant's blue Mustang near Betty Ann's Pool Room in

Ridgely at approximately 10:45 p.m.8 Bargery also testified that later that

evening he assisted in the search of the appellant's vehicle. He stated that no

Harley-Davidson cigarette butt was found inside the car.9



         Shirley Epperson, a bartender at Bruce's Place in Ridgely, testified that,

on November 1, 1994, the appellant and the co-defendant were at the bar from


         8
           Although we take judicial notice that Ridgely is located in Lake County, again, the record
fails to esta blish t he dis tanc e or p articu lar rou te trav eled b etwe en N ewb ern a nd R idgely.

         9
          On cross-examination, Ms. Noel admitted that she had smoked a cigarette while in the
car. S he st ated , how ever , that th e co- defe nda nt ha d disp ose d of th e ciga rette butt b y throw ing it
out of the car window.

                                                        6
10:55 p.m. until 11:55 p.m. Keith Goodman and Donnie York confirmed their

presence at Bruce's Place. Both Goodman and York stated that, after leaving

Bruce's Place, the foursome proceeded to the Gratio Road to drag race. They

explained that the drive shaft of York's 1989 Silverado fell out and that York had

to drive back to town on his three wheeler, while the appellant followed behind,

providing lights. York and Goodman stated that they arrived back in town about

12:45 a.m. Hazel Tippet, a resident of Gratio Road, testified that, at 12:28 a.m.

on November 1, 1994, she heard drag racing on the road in front of her home,

"and then it sounded like they got in a ditch - the motor was revving." She

explained that she looked out her window, observed two vehicles, then went

back to bed. She stated, however, that she did not observe a vehicle outside the

next morning.



       Marvin Robinson testified that he inspected the appellant's Mustang

impounded at the Sheriff's Department. He stated that the dome light worked;

that the dash panel had needle instrumentation, not digital, although the stereo

had a digital display; that the cigarette lighter was intact but did not heat; that the

brake lights did not work; that the driver side seat was broken; that the vehicle

cannot start without depressing the clutch; and that the hatch cannot be opened

from the back, rather, the trunk release in the glove box must be pushed.

Reverend Charles Runions testified that he had sold the 1990 Mustang to the

appellant. He explained that there was no key to the rear hatch of the car. He

stated that the key must be in the ignition and the trunk release button must be

depressed in order to open the rear hatch of the car.



       Sandy Evans, a forensic scientist for the Tennessee Bureau of

Investigation, testified that she performed a comparison analysis of the tire

tracks taken at the crime scene with those from the appellant's vehicle. Her

testing revealed the photograph of the track and the plaster cast thereof to be


                                           7
inconsistent with respect to the tread design of each of the rear tires of the

appellant's vehicle. However, a comparison of the front tires revealed consistent

size and tread design. No further distinguishing characteristics were observed.



        Based upon this evidence, the jury found the appellant guilty of

aggravated kidnapping and aggravated rape.




                                   II. Judge by Interchange



        On October 31, 1995, the Honorable Joe G. Riley, Circuit Judge of the

Twenty-Ninth Judicial District, entered an order appointing the Honorable J.

Steven Stafford, Chancellor of the Twenty-Ninth Judicial District, to sit by

interchange in the present case, because Judge Riley was scheduled for another

jury trial the same day. Prior to commencement of the trial, the appellant filed a

“Motion for Disqualification of Chancellor by Interchange to Preside over Jury

Trial of Felony Charges.” This motion was denied. On appeal, the appellant

contends that Chancellor Stafford, who presided over the trial of this case was

without authority to preside over a criminal case in the circuit court for the

Twenty-Ninth Judicial District. Specifically, he argues that a chancellor may

interchange with a judge of the circuit court only when the circuit judge is

incompetent to try the pending case.



        The appellant cites as authority for his position the following three statutes

dealing with the issue of interchange. Although in force on the date this case

was tried, these statutes have since been repealed.10 Accordingly, after June 13,


        10
         Effective June 1 3, 1997, S ections 1 7-2-201 , -202, -20 3, -204, an d -205, w ere repe aled.
These collective provisions were replaced by Sections 17-2-201 and 17-2-202. Section 17-2-201
now provides:
       The p urpose of this act is to insure tha t existing jud icial resour ces are utilized to
       the fu llest e xten t and that n o add itiona l judic ial res ourc es ar e cre ated until
       uniform caseload statistics are developed which will establish a priority for the

                                                   8
1997, any similar argument is moot.



        § 17-2-201. Interchange by circuit judges. --The circuit judges
        may interchange with each other or with judges of special courts . .
        .when causes exist making an interchange necessary, or for mutual
        convenience. . . .

Tenn. Code Ann. § 17-2-201(1994)(repealed and replaced June 13, 1997)
(emphasis added).

        § 17-2-202. Duty to interchange. -- Where a judge is
        incompetent[11] to try any cause pending in the judge’s circuit . . .it
        shall be the positive duty of the circuit court judge of any adjoining
        circuit. . .to interchange with such incompetent judge.

Tenn. Code Ann. § 17-2-202 (1994)(repealed and replaced June 13, 1997)
(emphasis added).

        § 17-2-203. Interchange by chancellors. Chancellors may also
        interchange with each other, and with judges of the circuit, criminal,
        or other special courts, under the same circumstances and to the
        same extent as enumerated in § 17-2-202.

Tenn. Code Ann. § 17-2-203 (repealed June 13, 1997) (emphasis added).



        The appellant argues that Tenn. Code Ann. § 17-2-201 permits circuit

judges to interchange only with other circuit judges, not with chancellors. The




        need for additional judges.

Section 17-2-20 2 now p rovides, in p ertinent pa rt:
        (a) Each State Trial Court Judge ha s an affirmative duty to interchange if:
        (1) A judg e has d ied or is una ble to hold c ourt;
        (2) Two (2) or more judges have agreed to a mutually convenient interchange;
        (3) The judge is incompetent under the provisions of § 17-2-101; or
        (4) The Chief Ju stice of the Suprem e Cou rt has as signed b y order a jud ge to
        anothe r court pu rsuant to Rule 11 of the Su prem e Cou rt.

Act of June 13, 1997, Pub. Ch. 430, H.B. No. 116 (to be codified at Tenn. Code Ann. 17-2-201;
Tenn. Code A nn. 17-2-202).



        11
          Grounds of incompetency are:
        (1) Where the judge or chancellor is interested in the event of any cause;
        (2) Con nected with either pa rty, by affinity or cons anguinity, within th e sixth
        degree, computing by the civil law;
        (3) Has been of counsel in the cause;
        (4) Has presided on the trial in an inferior court; or
        (5) In criminal cases for felony, where the person upon whom, or upon whose
        property, the felony has been committed, is connected with the judge or
        chancellor by affinity or consanguinity within the sixth degree, computing by the
        civil law.

Tenn. Code A nn. § 17-2-101 (1994).

                                                  9
interchange provision between chancellors and circuit judges, he contends, is

found within Tenn. Code Ann. §17-2-203. Thus, he argues, chancellors may

interchange with circuit judges only when the circuit judge is “incompetent to try

any cause pending.” Accordingly, because the record fails to establish grounds

evidencing Judge Riley’s incompetency, the chancellor was without authority to

hear this case. The State responds that the appellant’s strict interpretation of

Tenn. Code Ann. § 17-2-203 is too narrow and against legislative intent. We

agree.



         Although we do not ignore the plain language of Section 203, after review

of Sections 201 et seq. and other relevant statutory provisions, we are

constrained to conclude that the legislature intended to place such limitations on

interchange between chancellors and circuit judges. Several reasons support

our conclusion. First, we again reiterate the appellant’s position, i.e., chancellors

may only interchange with circuit or criminal court judges if the circuit or criminal

court judge is deemed incompetent. However, if this limited reading is given to

Section 203, not only would chancellors be precluded from interchanging with

circuit judges, they would also necessarily be precluded from interchanging with

other chancellors, except for reasons of incompetency. Clearly, this was not the

intent of our legislature in creating interchange provisions. Moreover, we note

that, as indicated by its caption, Section 202 governs only those situations where

a judge is incompetent to hear a pending matter, thereby imposing a mandatory

duty of interchange.



         In interpreting Section 203, our primary role is to ascertain and give effect

to the legislative intent without unduly restricting or expanding the statute’s

coverage beyond its intended scope. Roseman v. Roseman, 890 S.W.2d 27, 29

(Tenn. 1994) (citations omitted). Thus, although the plain language of the

statute is generally conclusive, in those circumstances in which a literal


                                           10
application of the statute would produce a result which is demonstrably at odds

with the intention of its drafters, the legislative intent will prevail over the literal

language of the statute. See Business Brokerage Centre v. Dixon, 874 S.W.2d

1, 5-6 (Tenn. 1994). If the legislative intent is unclear from the face of the

questioned statute, those statutes relating to the same subject matter, or in pari

materia, must be construed together, the language of some provisions aiding the

interpretation of the other, and viewing the statutes, as a whole, consistent with

their legislative purpose. State v. Blouvett, 904 S.W.2d 111, 113 (Tenn. 1995).



         In 1984, the General Assembly reorganized the entire trial court structure

in Tennessee. In doing so, the legislature provided:

         Each trial court judge shall continue to be officially known and
         designated as either a chancellor, circuit court judge, criminal court
         judge, or law and equity court judge depending upon the position to
         which . . . elected or appointed . . . . Any judge or chancellor may
         exercise by interchange, appointment, or designation the
         jurisdiction of any trial court other than that to which such judge or
         chancellor was elected or appointed.

Tenn. Code Ann. 16-2-502 (1994) (emphasis added). This section reiterated the

proposition that judges and chancellors are officers for the state at large, and not

merely for their own circuits or divisions.12 See Tenn. Code Ann. 17-1-203

(1994); Lieberman v. Knight, 153 Tenn. 268, 283 S.W. 450 (1925). However,

this reorganization of the court system in no way “alter[ed], diminish[ed] or

abolish[ed] . . . the constitutional and historical distinctions between chancery

court and circuit court.” Tenn. Code Ann. § 16-2-501(b) (1994); Flowers v. Dyer

County, 830 S.W.2d 51 (Tenn. 1992) (holding that the general assembly did not



         12
         Tenn . Code A nn. 17-1 -203 pro vides, in pa rt:
       The judges and chancellors are . . . judges and chancellors for the state at large,
       and as such, may, upon interchange and upon other lawful ground, exercise the
       duties of office in any other judicial district in the state.
(Empha sis added).

       Tenn . Code A nn. 17-1 -204(19 94) prov ides, in part:
       (a) The judges and chancellors shall have interchangeable and concurrent
       jurisdiction to grant injunctions, attachments, and all other extraordinary process,
       issu able o ut of , a nd re turna ble to , any o f the c ircuit o r cha nce ry cou rts of this
       state.
(Empha sis added).

                                                      11
intend to give the chancery court of Dyer County unbridled discretion to hear

cases involving unliquidated damages). In other words, while trial courts are

normally restricted to hearing cases over which their respective court has original

and exclusive jurisdiction, a trial judge or chancellor, upon reasons enumerated

in § 17-2-201, et seq., may interchange with any other trial judge or chancellor

within the state, and thereby, acquire jurisdiction to hear the pending case. See

also Tenn. Code Ann. § 17-2-206 (1994) (“the judge or chancellor holding court

in the circuit or division of another, shall have the same power and jurisdiction as

the judge or chancellor in whose place the judge or chancellor is acting”); Harris

v. State, No. 03A01-9401-CV-00016 (Tenn. App. at Knoxville, Aug. 3, 1994)

(holding that chancellors may interchange with circuit and criminal court judges)

(citing Tenn. Code Ann. § 16-2-502; Tenn. Code Ann. 17-2-201 et seq.; Dupuis

v. Hand, 814 S.W.2d 340 (Tenn. 1991): Elms v. State, 29 Tenn. 128 (1849)).



       Next, Sections 17-2-201 and 17-2-205 permit interchange by circuit court

judges and criminal court judges “with each other and with judges of all other

courts . . . when causes exist making an interchange necessary or desirable, or

mutually convenient by agreement.” (emphasis added). See also State v.

Coolidge, 915 S.W.2d 820, 824 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1995) (judges may interchange for personal convenience). But see

Tenn. Code Ann. 17-2-202 (imposing a duty upon trial judges to interchange

when a trial judge is incompetent). Since circuit and criminal court judges may

interchange for mutual convenience, it is only logical to assume that our

legislature likewise intended that chancellors, who are also trial judges, may

likewise interchange for mutual convenience. To interpret otherwise would

negate the intent of the General Assembly in promulgating provisions for

interchange and encouraging the same in order to conserve judicial resources.

See Act of June 13, 1997, Pub. Ch. 430, H.B. No. 116 (to be codified at Tenn.

Code Ann. 17-2-201; Tenn. Code Ann. 17-2-202). Accordingly, we conclude that


                                        12
Chancellor Stafford properly presided by interchange over the appellant’s trial.

This issue is without merit.




                                  III. Juror Misconduct



        The appellant raises two issues relating to alleged juror misconduct. First,

he contends that juror Anthony Alexander's undisclosed prior acquaintance with

defense witness, Charles Preston Turner, was prejudicial. Second, he asserts

that the jury foreperson, Judy Owen, improperly influenced the jury with

extraneous prejudicial information.



                              A. Juror Anthony Alexander

        The appellant argues that juror Anthony Alexander failed to disclose that

he knew one of the defense witnesses and that failure to disclose this fact

resulted in prejudice. During voir dire, the prospective jurors were specifically

asked if any of them knew the two defendants, the victim, or any of the intended

witnesses, including Charles Preston Turner. No affirmative response was

entered when the inquiry as to Charles Preston Turner was made.



        At the motion for new trial, Charles Preston Turner testified that, after he

was seated in the witness chair, he recognized Juror Alexander.13 However, he

did not inform defense counsel until after the trial. Turner explained that

Alexander had dated his stepsister three to four years ago. Turner's father and

stepmother divorced and, subsequently, Turner began dating his former

stepsister. Juror Alexander learned of this relationship and ceased association

with Turner and his ex-stepsister. As a result of this incident, Turner stated that



        13
         The appellant, the witness Charles Preston T urner, and the co-defendant, John Turner,
are cousins.

                                              13
he believed Alexander "held a grudge against [him]." Turner further testified

that, although he had mentioned the names of both defendants in conversing

with Alexander, to his knowledge, Alexander had never met either the appellant

or John Turner. Alexander was not called to testify at the hearing.



        Article I, Section IX of the Tennessee Constitution guarantees a criminal

defendant the right to trial "by an impartial jury." In fact, every accused is

guaranteed "a trial by a jury free of . . . disqualification on account of some bias

or partiality toward one side or the other of the litigation." State v. Akins, 867

S.W.2d 350, 354 (Tenn. Crim. App. 1995) (quoting Toombs v. State, 197 Tenn.

229, 270 S.W.2d 649, 650 (1954)). Thus, the function of voir dire is essential.

Voir dire permits questioning by the court and counsel in order to lead respective

counsel to the intelligent exercise of challenges. Id. (citing 47 Am.Jur.2d, Jury

§195 (1969)). "Since full knowledge of facts which might bear upon a juror's

qualifications is essential to the intelligent exercise of peremptory and cause

challenges, jurors are obligated to make 'full and truthful answers . . . neither

falsely stating any fact nor concealing any material matter.'" Id. at 354-355 (citing

47 Am.Jur.2d, Jury § 208 (1969)).



        In Tennessee, challenges to juror disqualifications fall within two distinct

categories, propter defectum, "on account of defect", and propter affectum, "for

or on account of some affection or prejudice."14 See Akins, 867 S.W.2d at 355;

BLACK'S LAW DICTIONARY 1220 (6th ed. 1990). But see Akins, 867 S.W.2d at

355, note 10. Propter defectum challenges must be made prior to the verdict,

but propter affectum challenges may be made after the verdict. Id. (citing State

v. Furlough, 797 S.W.2d 631, 652 (Tenn. Crim. App. 1990)). Thus, when a juror


        14
            Bouvier m entions a s caus es for ch allenge, " Propter defectum (on account of some
defect) f rom person al objection s, as aliena ge, infanc y, lack of sta tutory require men ts; propter
affectum (on account of partiality), from some bias or partiality either actually shown to exist or
presumed to exist from circumstances." 1 Bouv. Law Dict., Rawle's Third Revision, page 451.
Durha m v. S tate, 188 S.W .2d 555, 5 59 (Te nn. 1945 ).

                                                   14
conceals or misrepresents information tending to indicate a lack of impartiality, a

challenge may properly be made, in a motion for new trial. Id.



       "When a juror willfully conceals (or fails to disclose) information on voir

dire which reflects on the juror's lack of impartiality, a presumption of prejudice

arises." Id. (citing Durham v. State, 188 S.W.2d 555, 559 (Tenn. 1945)). The

presumption of bias, however, may be dispelled by an absence of actual favor or

partiality by the juror. State v. Taylor, 669 S.W.2d 694, 699 (Tenn. Crim. App.

1983). Moreover, the defendant bears the burden of providing a prima facie

case of bias or partiality. Id. (citing Taylor, 669 S.W.2d at 700).



       In the instant case, Charles Preston Turner was the only witness offered

to establish Juror Alexander's prior association with Turner and his ex-stepsister.

The defense failed to call Juror Alexander to respond to Turner's allegations.

While Turner's allegations bring reasonable question to Juror Alexander's

partiality, the defense failed to prove the veracity of these allegations, and, as

stated by the trial court, "failed to show any bias or partiality on the part of the

juror. To the contrary, the uncontroverted proof reveals that the juror did not

know the defendant." Findings of fact made by the trial court are given the

weight of a jury verdict. State v. Burgin, 668 S.W.2d 668 (Tenn. Crim. App.

1984). We are not at liberty to reverse the trial court’s finding unless the

evidence clearly preponderates against the trial court's conclusion that the juror

was not biased or partial. As the appellant has failed to carry his burden of

proof, we defer to the trial court's findings. This issue is without merit.




                         B. Jury Foreperson Judy Owen

       Next, the appellant contends that extraneous information was brought into

the jury's deliberations by Judy Owen, the jury foreperson, which prejudiced the


                                          15
outcome of the trial. The incident preceding this allegation arose after the jury

had retired for deliberation. Judy Owen forwarded a note to the court which

read, "We, the jury, would like to hear Ms. Brenda Noel's testimony regarding the

seat being broken in the car and Mr. Marvin Robinson's testimony regarding the

interior of the car." The court properly informed the jury that "[t]he jury has been

provided with all the trial exhibits that have been introduced into evidence. The

jury has requested that certain portions of testimony be read to it. The law does

not allow this to be done." The jury then retired to continue their deliberations.



       At the hearing on the motion for new trial, Juror Michael Price testified that

he and the rest of the jurors were "shocked" at the trial court's refusal of this

request. He related that, in response to the court's refusal, the jury foreperson

said that:

       she had been on trials before and that they should have been . . .
       accessed. There was a woman to my left that said the same thing,
       that she'd been on a jury several times before. They had never
       been denied nothing like that before. The jury fore[person] then
       popped up and said, 'It must have been Mr. Byrd that stopped us
       from having that evidence presented.'

Another juror agreed with the foreperson's observation. Price admitted that

these statements had "a big impact" on jury deliberations, in fact, the jury

returned its guilty verdicts only two or three minutes later. As a result of

Foreperson Owen's statement, Price sought legal advice as to this matter.

In finding this issue to be without merit, the trial court found that Juror Price had

been allowed to testify in violation of Tenn.R.Evid. 606(b).



       Rule 606(b) provides:

       Upon an inquiry into the validity of a verdict or indictment, a juror
       may not testify as to any matter or statement occurring during the
       course of the jury's deliberations or to the effect of anything upon
       any juror's mind or emotion as influencing that juror to assent to or
       dissent from the verdict or indictment or concerning the juror's
       mental processes, except that a juror may testify on the question
       whether extraneous prejudicial information was improperly brought
       to the jury's attention, whether any outside influence was
       improperly brought to bear upon any juror, or whether the jurors

                                          16
       agreed in advance to be bound by a quotient or gambling verdict
       without further discussion; nor may a juror's affidavit or evidence of
       any statement by the juror concerning a matter about which the
       juror would be precluded from testifying be received for these
       purposes.


(Emphasis added). The public policy consideration behind Rule 606(b) are

obvious. These considerations include the prevention of jury harassment,

encouragement of free and open jury deliberation, promotion of finality of

verdicts and the reduction of the incentive for jury tampering. The right to

impeach a jury verdict is extremely limited.



       "Extraneous information" is information from a source outside the jury.

Caldararo v. Vanderbilt University, 794 S.W.2d 738, 742 (Tenn. App. 1990)

(citing State v. Coker, 746 S.W.2d 167, 171 (Tenn. 1987)) (emphasis added).

"External influences which could warrant a new trial if found to be prejudicial

include: (1) exposure to news items about the trial; (2) consideration of facts not

admitted in evidence, and (3) communications with non-jurors about the case."

Id. (citation omitted). "Internal influences that are not grounds to overturn a

verdict include: (1) discussions among jurors; (2) intimidation or harassment of

one juror by another; (3) a juror's personal experiences not directly related to the

litigation, and (4) a juror's subjective thoughts, fears, and emotions." Id.

(citations omitted).



       Juror Owen's statements during deliberations were clearly remarks about

her prior experience and her opinion relating to the trial court's ruling. Although a

prejudicial influence on a jury may be in the form of fact or opinion, the

prejudicial fact or opinion must be from contact with a third person. State v.

Blackwell, 664 S.W.2d 686, 688-689 (Tenn. 1984). There was no contact with a

third person in the instant case. Although the trial court allowed Juror Price to

testify, this testimony was precluded by Rule 606(b). This testimony cannot be

considered by the court. As such, we defer to the findings of the trial court and

                                         17
find this issue to be without merit.




                                 IV. Sufficiency of the Evidence



         In his final issue, the appellant questions the sufficiency of the evidence in

sustaining his convictions for both aggravated kidnapping and aggravated rape.

The appellant contends that the overwhelming inconsistencies in the proof,

specifically within the victim's testimony, in addition to the "uncontroverted,

unimpeached alibi testimony which was offered on his behalf," "overwhelmingly

excludes the defendant from being the perpetrator of the crime[s] for which he

was convicted." Although we acknowledge the discrepancies between the

State's proof and the appellant's proof at trial, we disagree with the appellant's

contention and resulting conclusion.




         Although neither the appellant nor his co-defendant testified at trial,

numerous alibi witnesses were presented in defense. Several of the witnesses

providing alibi testified as to the appellant’s whereabouts well after the crime had

been committed. Moreover, the record reflects that those witnesses providing

the earlier time frame alibi were either cousins of the appellant or close friends.15

However, the victim positively identified the appellant and the co-defendant as


         15
           The State, in its motion for notice of alibi, averred that the offense was alleged to have
occurred “between approximately 11:00 p.m. on November 1, 1994 and 12:04 a.m. on November
2, 19 94.” C ons isten t with th e victim ’s ada ma nt reite ration s tha t she was unce rtain a s to th e tim e
of the offense, the proof at trial indicated that the crime could have occurred any where between
9:00 p.m. and 12:00 a.m. Although not argued by the appellant on appeal, a variance existed
betw een the m otion and t he pr oof. H owe ver, a varia nce in a cr imin al cas e is on ly fatal w here it is
mate rial and pre judicial to the d efenda nt. State v. Richardson, 875 S.W.2d 671 (Tenn. Crim. App.
1993). A variance between the proof and the pleadings is not material where the variance is not
of a cha racter wh ich would have m isled a def endan t at the trial. State v. Tu rnbill , 640 S.W.2d 40,
48 (Tenn. Crim. App. 1982) (citations omitted). The appellant, in the present case, makes no
assertion that he was in any way prejudiced by the State’s proof regarding the time of the
offenses. Moreover, the appellant presented an alibi defense which encompassed a time span
betw een 9:00 p.m . and 12:4 5 a.m . W e can not c onc lude t hat th e var ianc e bet wee n the State ’s
motion and the proof at trial in anyway impaired the appellant’s defense or constitutional
guaran tees to a fa ir trial.

                                                      18
her two perpetrators from a photo line-up and she gave a description of the

vehicle, which matched that of the appellant’s car. Additionally, the jury was

required to resolve the conflict between the State’s proof, which placed the

appellant in Newbern, Dyer County, at 12:30 a.m., and the defense proof which

placed the appellant in Ridgely, Lake County, at the same time.



       The determination of the weight and credibility of the testimony of

witnesses and reconciliation of conflicts in that testimony are matters entrusted

exclusively to the trier of fact, and not this court. State v. Sheffield, 676 S.W.2d

542, 547 (Tenn. 1984); Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).

Like any other fact at trial, an alibi defense presents an issue of fact

determinable by the jury. Cole v. State, 215 S.W.2d 824 (Tenn. 1949); Smith v.

State, 566 S.W.2d 553, 556 (Tenn. Crim. App. 1978). Likewise, the credibility of

eyewitness testimony identifying the accused as the perpetrator of the criminal

offense for which he stands trial is a question of fact for the determination of the

jury upon consideration of all competent proof. Strickland, 885 S.W.2d 85, 87

(Tenn. Crim. App. 1993) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn.

Crim. App. 1982)); see also State v. Williams, 623 S.W.2d 118, 120 (Tenn.

Crim. App. 1981). Despite the numerous conflicts within the proof at trial, as the

arbiters of the credibility of the witnesses, the jury chose to accredit the

testimony of the State’s witnesses and reject the claims of the appellant. The

appellant has had his day in court. This court may not reevaluate the evidence

or substitute its inferences for those drawn by the trier of fact from the evidence.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); Farmer v. State, 574

S.W.2d 49, 51 (Tenn. Crim. App. 1978); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973). A conviction may only be set aside when the reviewing court finds

that the evidence is insufficient to support the finding of the trier of fact. Tenn. R.

App. P. 13(e).




                                          19
       When there is a challenge to the verdict based upon the sufficiency of the

evidence, this court must review the evidence in the light most favorable to the

prosecution and determine whether "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, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875

S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e). A guilty verdict

accredits the testimony of the witnesses for the State, and a presumption of guilt

replaces the presumption of innocence. Grace, 493 S.W.2d at 476. Guilt may

be predicated upon direct evidence, circumstantial evidence, or a combination of

direct and circumstantial evidence. State v. Carey, 914 S.W.2d 93, 95 (Tenn.

Crim. App. 1995). Moreover, the appellant bears the burden of proving that the

evidence is insufficient to support the jury verdict in his case. State v. Tuggle,

639 S.W.2d 913, 914 (Tenn. 1992).



       In the light most favorable to the State, the proof at trial revealed that, on

November 1, 1994, between 8:30 p.m. and 9:30 p.m., Barbara Noel was walking

home after leaving her boyfriend's residence. After several attempts at

hitchhiking, she was eventually given a ride by the appellant and John Turner.

However, instead of driving Ms. Noel home as promised, the appellant drove to a

secluded area, despite Ms. Noel's pleas to be released. During the drive, she

was threatened with physical harm. The appellant got into the backseat of the

car with the victim, ordered Turner out of the car, and then, with force, sexually

penetrated Ms. Noel. See Tenn. Code Ann. § 39-13-503. Ms. Noel testified that

the appellant used a blue condom which he had obtained from her purse. After

the appellant raped Ms. Noel, he exited the car and began discussing plans to

further harm her. The victim was then driven to another location, where she was

released.



       Aggravated kidnapping is "false imprisonment . . . committed (1) to


                                         20
facilitate the commission of any felony or flight thereafter." Tenn. Code Ann. §

39-13-304 (1990). The evidence presented at trial established that the appellant

knowingly removed and confined the victim by transporting her to a secluded

area in order to commit the crime of rape. After the rape was successfully

completed, the appellant drove the victim to another location where she was

ultimately released. We conclude that the evidence is sufficient beyond a

reasonable doubt to support a conviction for aggravated kidnapping.



        The State sought to enhance the offense of rape through proof that the

appellant was aided or abetted by co-defendant Turner. See Tenn. Code Ann.

§ 39-13-502(3)(A) (1992 Supp.). 16 As we have previously determined that the

elements of rape have been proven, the only question under our sufficiency

analysis is whether the facts establish that the appellant’s commission of the

rape was aided or abetted by co-defendant Turner.



        In this regard, we note that, at the joint trial, the jury found co-defendant

Turner guilty of aggravated rape in that he aided or attempted to aid the

appellant in the commission of the rape. However, at the hearing on Turner’s

motion for new trial, the trial court, finding the evidence insufficient, entered a

judgment of acquittal as to Turner’s conviction for aggravated rape.17

Notwithstanding the trial court’s ruling that Turner’s conduct of aiding and

abetting was legally insufficient to support his conviction for aggravated rape, this

ruling does not preclude our review as to whether the appellant was “aided or

abetted” by Turner, thereby permitting enhancement of the appellant’s conviction

from rape to that of aggravated rape. Accordingly, we return to the sufficiency


        16
          Aggra vated rap e is the “un lawful sex ual pene tration of a vic tim by the d efenda nt . . .
accompanied by . . . (3) The defendant was aided or abetted by one or more other persons; and
(A) force or coercion was used to accomplish the act.” Tenn. Code Ann. 39-13-502.

        17
           The trial court’s order recites the thirteenth juror rule as its authority for entry of the
judgment of acquittal. The thirteenth juror rule, Tenn. R. Crim. P. 33(f), extends only to the weight
of the evidence and if granted results only in a new trial. It is distinguished from Rule 29(c), which
gove rns th e suf ficien cy of th e evid enc e and if gran ted, re sults in a jud gm ent o f acq uittal.

                                                   21
analysis.



       The proof establishes that John Turner was present and in a position to

aid and assist his co-defendant at all times during the commission of the rape.

In addition to his presence, his actions consisted of the following: After the

victim entered the appellant's vehicle, the co-defendant Turner began

questioning the victim about the kind of sex she had with her boyfriend.

Moreover, the victim testified that, after she had been raped, she overheard the

appellant and Turner discussing her fate. Specifically, the victim testified that

Turner announced, “I’ll just shoot the cow.”



       More than mere presence at the crime scene and an acquaintanceship

with the perpetrator is necessary to support a finding that a person is an aider

and abettor. Essary v. State, 357 S.W.2d 342 (Tenn. 1962); see also People v.

Rockwell, 470 N.W.2d 673 (Mich. App. 1991); State v. Brumley, No. 89-P-2092

(Ohio App. 11 dist. Mar. 29, 1996). Moreover, mere knowledge that a crime is

being committed and the failure to prevent it does not amount to aiding and

abetting. But, presence alone is enough if presence is intended to assist the

perpetrator in the commission of the offense. See 1 F.Wharton, Criminal Law §

114 at 60 (1978).



       For Turner to aid or abet the appellant, it was unnecessary that he share

the criminal intent of the perpetrator to commit the rape. However, he must

have knowingly intended to assist, encourage, or facilitate the design of the

criminal actor. Thus, there must be some evidence tending to show that the

alleged aider and abettor, by word or deed, gave active encouragement to the

perpetrator of the rape or, by his conduct, made it known to such perpetrator that

he was standing by to lend assistance when and if it should become necessary.

See Flippen v. State, 365 S.W.2d 895 (Tenn. 1963); see also State v. Penland,


                                         22
472 S.E.2d 734, 743 (N.C. 1996), cert. denied, -- U.S. --, 117 S.Ct. 781 (1997).

The aider must, therefore, in some way "associate himself with the venture,

participate in it as in something that he wishes to bring about, and seek by his

actions to make it succeed." United States v. Peoni, 100 F.2d 401, 402 (2d Cir.

1938), quoted with approval in, Nye & Nissan v. United States, 336 U.S. 613,

619, 69 S.Ct. 766, 770 (1949). Thus, although his intent to assist the perpetrator



may be proven by circumstantial evidence and need not be demonstrated by




express actions, the evidence must support the conclusion that the aider's

presence lent support and encouragement to his companion(s).



       Whether or not a person present at the scene of the crime aided and

abetted the perpetrator of the offense is a question of fact to be determined by

the jury. The answer of which depends on circumstances surrounding his

presence and his conduct before, during, and after the commission of the rape.

In the instant case, we conclude that John Turner's instigation of the victim's

sexual preferences before the rape, his presence at the crime scene, and his

threat of harm afterward encouraged the appellant's commission of the offense.

Moreover, we find that Turner’s presence created, in the mind of the victim, an

atmosphere of intimidation and a greater threat of harm. Accordingly, we

conclude that the evidence is sufficient for a rational trier of fact to find the

appellant guilty beyond a reasonable doubt. This issue is without merit.




                                   V. Conclusion



       After a review of the issues presented by the appellant and the applicable


                                          23
law, we conclude that there are no errors of law requiring a reversal of the trial

court's judgment. Accordingly, the judgment of convictions finding the appellant

guilty of aggravated rape and aggravated kidnapping are affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:




___________________________________
JOSEPH M. TIPTON, Judge



___________________________________
WILLIAM M. BARKER, Judge




                                         24
