State v. Gillon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH 1997 SESSION
FILED

October 10, 1997
STATE OF TENNESSEE, * C.C.A. # 02C01-9610-CC-00363

Appellant, * LAUDERDALE COUNTY

VS. * Hon. Joseph H. WCecil Crowson, Jr.
alker, Judge
Appellate C ourt Clerk
JOHN H. GILLON, * (Criminally Negligent Homicide; Aggravated
Assault; Assault--State Appeal)
Appellee. *

For Appellee: For Appellant:

J. Thomas Caldwell Charles W. Burson
Attorney at Law Attorney General & Reporter
114 Jefferson Street
Ripley, TN 38063 Deborah A. Tullis
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493

Mark Davidson
Assistant District Attorney General
302 Market Street
P.O. Box 562
Somerville, TN 38063

OPINION FILED: ___________________

REVERSED AND REMANDED

GARY R. WADE, JUDGE
 OPINION

The defendant, John H. Gillon, was convicted of the criminally

negligent homicide of Terry Phillips, the aggravated assault of Lemmie Haynie, and

the assault of James Haynie. The trial court imposed sentences of one year, two

years, and eleven months, twenty-nine days respectively. When, however, the

defendant filed a motion for judgment of acquittal or, in the alternative, a new trial,

the trial court acquitted the defendant on all counts. The state appeals from that

judgment.

At about dusk on the evening of April 6, 1995, there was an

automobile accident at the intersection of Highway 51 and Industrial Road in

Lauderdale County involving the defendant and each of the three victims. A

witness, Montel Maners, Jr., was traveling south on the divided, four-lane Highway

51 when he "heard a noise and saw a ... white cloud" on the southbound lanes.

When he successfully drove through the smoke, he saw two vehicles: "an El

Camino, in a ditch, and a pickup truck on its side." Maners stopped to assist and

first determined that the two people inside the El Camino were conscious and

breathing. As he approached the pickup truck, which was flipped on its passenger

side on the edge of a ditch, he saw the defendant exit the truck. Maners recalled

asking him if he was okay and the defendant responded, "Yeah. I was driving" and

something like "[d]id you see that person pull out in front of me?"

Maners testified that the occupant on the passenger side of the truck

did not have a pulse and was not breathing. A third occupant of the truck was also

seriously injured. Maners could hear ambulance sirens and decided to leave the

passengers in the truck until more help arrived. At that point, he recalled that the

defendant said, "Well, I was driving." Although he did not see the collision, Maners

2
estimated that he was 100 to 150 yards away when the accident occurred. When at

the scene, he specifically remembered the defendant saying that the El Camino had

"just pulled right out in front" of him.

Maners testified that Highway 51 was a four-lane road accommodating

north and south traffic. He stated that Industrial Road was two-lane road,

intersecting Highway 51.

Maners described the accident scene as follows:

[Each car was] on the west shoulder of 51 going
southbound lane on the west in the ditch and the road
right [as] it crosses Industrial Road ...; the pickup truck
was [lying] on its passenger side facing northbound and
from the road itself, it was probably 20, 30 feet from the
actual road in the ditch, and the other truck was probably
50 to 70 feet, the El Camino sitting on its wheels facing --
and it was just about in the center of the ditch facing
southbound.

Trooper Willie Thompson, who investigated the accident, testified that

the defendant identified himself as the driver of the truck. He recalled that the

defendant was very disoriented and did not remember what had happened. Trooper

Thompson remembered that it "was still fairly light" when he arrived at the scene.

The trooper determined that the defendant, who he believed was traveling west on

Industrial Road, would have traveled across "two lanes of [Highway 51] traffic that

are northbound, the median, and then the inside lane of the southbound lane"

before the collision. He described the accident scene at Highway 51 as "a long,

straight stretch of road both ways, where you can see a long distance ...." The

trooper concluded that the El Camino, occupied by the victims Lemmie and James

Haynie, was traveling south on Highway 51 and that the defendant, accompanied by

the deceased victim Phillips and Davis, was traveling from the east on Industrial

3
Road. He found that the El Camino had left about fifteen feet of skid marks in the

southbound lane of Highway 51.1

William Davis, a passenger in the defendant's truck, testified that he

had spent the afternoon at the defendant's mother's house doing construction work.

He remembered that around 6:00 P.M., the defendant drove his truck to Crockett

County to pick up the deceased victim, Terry Phillips. Davis recalled that he was in

the middle, Phillips was on the passenger side, and the defendant was driving.

According to Davis, the three men were "just riding" with no particular destination in

mind when the defendant stopped to purchase a twelve-pack of beer. The last thing

Davis remembered was that the defendant put the beer in a cooler in the bed of the

truck before driving away from the store, which is located about a mile and a half

from the accident scene. Davis described the lighting conditions as "dusk dark." In

a coma for four days after the accident, Davis had no other recollection of the

events surrounding that day.

James Haynie, the driver of the El Camino, testified that he and his

father were traveling south on Highway 51 when his father warned that a "truck

wasn't going to stop up the road...." He recalled driving "further on down the road

and the next thing I [knew], I was in Memphis." Haynie estimated his car's speed at

55 to 60 miles per hour. He did not specifically recollect seeing the truck at any time

before the accident. When asked if he was "looking at [his] father," Haynie replied,

"Right." James Haynie suffered a fractured skull, had stitches in his elbow, and had

a crushed kneecap, which had to be removed.

1
The trooper testified in great detail using a diagram of the roads. The diagram was not made
a part of the record; much o f the trooper's testimony made little sense in written form.

4
 His father, Lemmie Haynie, testified that he was a passenger in his

son's El Camino when the wreck occurred. As the two approached the intersection,

Haynie saw the defendant's truck traveling Industrial Road, "moving pretty fast." He

recalled that he was 50 to 70 feet from the intersection when he told his son that the

truck might not stop. He estimated the driving time from the intersection at ten to

twelve seconds. He acknowledged that a Co-op at that intersection blocked the

view from Highway 51 to the Industrial Road but could not otherwise explain his

son's failure to see the defendant's truck. Haynie, who suffered a broken leg in the

accident requiring the insertion of pins and rods, rebroke the leg several months

later. Still on crutches at the time of trial, he had not been able to work.

Deborah Underwood, who was traveling north on Highway 51 at the

time of the accident, saw the defendant's truck cross the two north-bound lanes

about 150 to 200 feet in front of her. She described the truck's speed as "fast" and

testified that it did not slow down before it reached the intersection. She saw no

indication that either the El Camino or the truck braked or skidded before the

collision took place.

Nioka Laurence Ottinger, the defendant's mother, testified that Billy

Davis was driving her son's truck when the men left her residence shortly before the

accident. She claimed "it was getting dark" at that time.

The defendant, who claimed that it took him about two weeks to regain

his memory of the incident, testified that Davis was driving and that he was sitting in

the middle. He contended that Davis slowed down at the intersection but did not

stop. He remembered that after the collision, he had climbed out the back window

of the truck's cab. He testified that he did not remember talking to Maners or Officer

5
Thompson. The defendant insisted that he never "saw the other vehicle at all ...."

He remembered looking one way and Davis looking the other but denied seeing any

oncoming traffic. When asked on direct whether he remembered whether he was

the driver or the passenger, he testified as follows:

I really believe that I was in the middle because when I
woke up -- I mean, if I'd been driving, you know, I would
have been looking, you know, wouldn't have been any
way that I could have looked, you know, all the way with
two people, you know, right in the cab. And I know I've
seen it over and over in my head because when I come
to it was a sound that Billy was making. It was like he
was trying to breathe and I just won't ever forget the
sound. It was just, you know, trying to breath through
water or something, just real hard to breathe. And he
was laid in my lap and when I slip up, he laid over on
Terry and I got out.

On cross-examination, the following exchange occurred:

Defendant: I remember riding in the truck and I
remember looking but when we had the accident, as far
as I -- the best I can recollect, I was not driving 'cause I--

Prosecutor: Do you remember that or are you just
assuming that?

Defendant: ... The best I can remember, I know
whenever we stopped, I know that Billy was on one side
of me and Terry was on the other and I was in the
middle.

Prosecutor: Whenever you stopped?

Defendant: Whenever the--whenever the accident
occurred -- whenever--like I woke up. I was just kind of
out of it....

Prosecutor: So, you -- you're saying the only thing you
recall is waking up after you came to a stop sideways,
turned sideways, after you flipped?

Defendant: I remember ... like coming down and
looking down the highway.... We like slowed up at the
first intersection like where the stop sign is, we come
down like to the road and Billy was looking back up the
road and he pulled on --

Prosecutor: Who was driving?

6
 Defendant: Billy was driving.

Prosecutor: So now you say you remember Billy driving.

Defendant: I remember that I was sitting in the middle
and I remember looking down the highway. He must
have been driving.

Based on this testimony, the jury found the defendant guilty of the

criminally negligent homicide of Terry Phillips, the aggravated assault of Lemmie

Haynie, and the assault of James Haynie. The trial court sentenced the defendant

to one year for the homicide, two years on the aggravated assault, and eleven

months, twenty-nine days, on the assault. Almost two and a half months later, the

trial court granted the defendant an acquittal on all three convictions.

The standard by which the trial court determines a motion for judgment

of acquittal at the end of all the proof is, in essence, the same standard which

applies on appeal in determining the sufficiency of the evidence after a conviction;

that is, 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

(1979). After a conviction, the state is entitled to the strongest legitimate view of the

evidence and any reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

A motion for judgment of acquittal presents a question of law. State v.

Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983). The trial judge is concerned only

with the "legal sufficiency of the evidence and not with the weight of the evidence."

Id.; see also State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995). The

evidence must be viewed in the light most favorable to the state. Adams, 916

S.W.2d at 473. "An appellate court must apply the same standard as a trial court

7
when resolving issues predicated upon the grant or denial of a motion for judgment

of acquittal." Id. at 473.

A Class D aggravated assault occurs when the defendant recklessly

commits an assault and causes serious bodily injury. Tenn Code Ann. § 39-13-

102(a)(2) (Supp. 1993). Assault occurs when a person "[i]ntentionally, knowingly, or

recklessly causes bodily injury to another." Tenn. Code Ann. § 39-13-101(a)(1).

Reckless conduct, a requirement for each of the two offenses, is defined as follows:

[A] person ... acts recklessly with respect to
circumstances surrounding the conduct or the result of
the conduct when the person is aware of but consciously
disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The risk
must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care
that an ordinary person would exercise under all the
circumstances as viewed from the accused person's
standpoint.

Tenn. Code Ann. § 39-11-302(c) (emphasis added).

Criminally negligent homicide is "[c]riminally negligent conduct which

results in death." Tenn. Code Ann. § 39-13-212. Criminal negligence is defined as

follows:

[A] person ... acts with criminal negligence with respect to
the circumstances surrounding that person's conduct or
the result of that conduct when the person ought to be
aware of a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The risk
must be of such a nature and degree that the failure to
perceive it constitutes a gross deviation from the
standard of care that an ordinary person would exercise
under all the circumstances as viewed from the accused
person's standpoint.

Tenn. Code Ann. § 39-11-302(d) (emphasis added). The comments to this section

describe subsection(d) as "in line with case law of Tennessee on the degree of

negligence required for criminal culpability. The proposition that criminal liability be

based on a higher degree of negligence than that required for civil liability is well

8
settled." Sentencing Commission Comments to Tenn. Code Ann. § 39-11-302(d)

(citing Claybrook v. State, 51 S.W.2d 499 (Tenn. 1932); Hiller v. State, 50 S.W.2d

225 (Tenn. 1932); Copeland v. State, 285 S.W. 565 (Tenn. 1926)).

It is undisputed that the death of Terry Phillips and the injuries to the

Haynies were caused by the automobile wreck. The issue is whether the evidence

is sufficient to sustain a finding of recklessness for the assault convictions or

criminal negligence for the homicide conviction. "[W]hat differentiates recklessness

from criminal negligence is the degree of awareness--that is, recklessness includes

awareness, but disregard, of a risk while criminal negligence involves a lack of

awareness when one should be aware." State v. Butler, 880 S.W.2d 395, 398

(Tenn. Crim. App. 1994). If an element of an offense is that the defendant acted

with criminal negligence, "that element is also established if a person acts

intentionally, knowingly, or recklessly." Tenn. Code Ann. § 39-11-301(a)(2). The

definitions of negligence and recklessness both require a "substantial and

unjustifiable risk" for which the disregard of (for recklessness) or ignorance of (for

negligence) "constitutes a gross deviation from the standard of care that an ordinary

person would exercise under all the circumstances as viewed from the accused

person's standpoint." Tenn. Code Ann. § 39-11-302(c), (d). In this case, the central

issue is whether the defendant's conduct amounted to a "gross deviation from the

standard of care."

In our view, the proof presented at trial supported a finding of the

recklessness necessary to support each of the two assault convictions. A

reasonable juror could have concluded that the defendant, as driver of the vehicle,

disregarded the stop sign at the intersection. There was evidence that the

defendant, a resident of that general area of the county, was aware of the four-lane

9
highway, the stop sign, and the distance from his point of entry through the median

to the point of impact. Yet, despite having two clear opportunities, the defendant

never slowed his truck as he drove over three lanes of traffic and a median strip.

This, in our view, warranted the jury's conclusion that the defendant was aware of

and consciously disregarded the risk that a collision would occur. These facts are

similar to those considered by this court in State v. Ramsey, 903 S.W.2d 709, 712

(Tenn. Crim. App. 1995): "[t]here is no other conclusion but that the defendant was

aware of the substantial and [un]justifiable risk that an accident could ensue ... and

that he consciously disregarded that risk by driving in such a manner."

Our determination that the defendant was reckless in the operation of

his truck leads us to the inevitable conclusion that the defendant was also criminally

negligent. See Tenn. Code Ann. § 39-11-301(a)(2). Thus, there was sufficient

evidence to support all three convictions.

The defendant makes the argument that the proof, while adequate to

establish civil liability, does not reach the level of negligence required to sustain a

criminal conviction. He relies on a long line of cases which hold that a mere

accident will not suffice to establish criminal negligence:

It is true in such cases allowance must be made
for misadventure or accident, as distinguished from
culpable negligence; and that, to support a conviction of
crime, the accused must have been guilty of a higher and
grosser degree of negligence than that which merely
suffices to support a judgment in a civil case.

To convict a motorist of homicide by negligence, it
is, of course, not enough to prove that he was guilty
merely of a want of due care, inadvertence, or
inattention, but it must be shown that his negligence in
driving was such that he knew or reasonably should have
known that it might endanger human life, and that the
death charged was the natural and probable result of
such negligence.

10
Roe v. State, 358 S.W.2d 308, 314 (Tenn. 1962) (citations omitted); see also Newby

v. State, 388 S.W.2d 136 (Tenn. 1965); Potter v. State, 124 S.W.2d 232 (Tenn.

1939); State v. Norris, 874 S.W.2d 590 (Tenn. Crim. App. 1993); State v. Timothy

Gose, No. 03C01-9406-CR-00244 (Tenn. Crim. App., at Knoxville, Jan. 29, 1996).

The defendant makes a compelling argument. While the defendant

may not have intended the disastrous results of the collision, intent is not required to

sustain a finding of either recklessness or criminal negligence. In the numerous

cases in which automobile accidents have lead to convictions for either criminally

negligent or reckless homicide, the unifying strand is that the risk is of such a nature

and degree that injury or death is likely and foreseeable.

In State v. William Terry Martin, No. 01C01-9602-CC-00067 (Tenn.

Crim. App., at Nashville, Jan. 31, 1997), the defendant was convicted of vehicular

homicide, a Class C felony defined as a reckless killing by the operation of an

automobile. See Tenn. Code Ann. § 39-13-213(a)(1). In Martin, the proof

established that the defendant had drifted into the lane of on-coming traffic several

times. A witness saw the defendant's "head drop to the side of the headrest and

snap back several times." Martin, slip op. at 8. The defendant eventually drifted

over the center line and collided with an on-coming car, causing the death of the

driver of the other car. Our court found sufficient evidence:

Continuing to operate his vehicle on a two-lane highway,
at dusk, after losing control several times suggests that
the Defendant was aware of, yet disregarded the risks of
his conduct. ... 'The test appears to be whether or not
the driver, violating the highway statute ... does so
consciously, or under circumstances which would charge
a reasonable prudent person with appreciation of the fact
and the anticipation of consequences injurious or fatal to
others.'

Id., slip op. at 9 (quoting Trentham v. State, 206 S.W.2d 291, 292 (Tenn. 1947)

11
(emphasis added)).

In State v. Ramsey, the defendant was convicted of criminally

negligent homicide. The proof presented at trial showed that the defendant was

driving at an excessive speed2 on a familiar road when his car veered slightly into

the lane of oncoming traffic. The defendant's car was driven back into its correct

lane when "the centrifugal force of the defendant's car entering a right turn and its

speed caused it to enter the opposite lane of traffic again, ... hitting a ... pick-up

truck." Id., 903 S.W.2d at 711. Our court found the evidence sufficient: "[t]here is

no other conclusion but that the defendant was aware of the substantial and

[un]justifiable risk that an accident could ensue from driving fast and carelessly on a

hilly, curvy road and that he consciously disregarded that risk by driving in such a

manner." Id. at 712. The court found there was a "substantial and [un]justifiable

risk" that injury would ensue.

In Reed v. State, 110 S.W.2d 308 (Tenn. 1937), also involving a head-

on collision, the court found the evidence sufficient to support a conviction for

involuntary manslaughter:

In the case before us, in view of the traffic on this
highway, this collision was not only a probable result but
almost an inevitable result of such negligence as the
defendant's. Likewise we think the act of defendant in
undertaking to pass this truck, turning out to his left in
heavy and closely approaching opposing traffic, was an
act malum in se. It was an act on par with firing a gun
into a crowded street, or dropping a heavy object into
such a street from a tall building.

Reed, 110 S.W.2d at 308-09 (emphasis added). The graphic language of the Reed

case expresses the essence of the cases where a car wreck has supported a

2
The speed limit was thirty-five miles per hour. Witnesses speculated the defendant had
been driving anywhere from fifty to eighty miles per hour. The parties simply stipulated the defendant
was sp eeding. Ramsey, 903 S.W.2d at 712.

12
homicide conviction: the risk must be of such a nature and degree that injury or

death is very likely. This type of language is used repeatedly in the cases finding

the evidence sufficient. Our supreme court reiterated the rule: "[I]t must be shown

that his negligence in driving was such that he knew or reasonably should have

known that it might endanger human life, and that the death charged was the natural

and probable result of such negligence." State v. Johnson, 541 S.W.2d 417, 419

(Tenn. 1976) (quoting Roe v. State, 358 S.W.2d 308, 314 (Tenn. 1962) (emphasis

added)). See also Crawley v. State, 413 S.W.2d 370 (Tenn. 1967); Newby v. State,

388 S.W.2d 136 (Tenn. 1965).

The defendant has relied on the holding in State v. Timothy Gose, No.

03C01-9406-CR-00244 (Tenn. Crim. App., at Knoxville, Jan. 29, 1996), a case in

which the court found the evidence insufficient to support a conviction for vehicular

homicide. The defendant-driver asked his passenger "to check out the passing

gear." The defendant suddenly pressed the gas pedal causing the passing gear to

engage. The vehicle accelerated and the right wheels veered off the road. When

the defendant tried to correct the direction of the vehicle, his brakes locked, the

vehicle fishtailed and, despite the defendant's efforts, slid sideways into a dump

truck traveling in the opposite direction. The defendant, who was traveling between

45 and 53 miles per hour in a 40 miles per hour zone, explained that he was

distracted only momentarily when his passenger dropped a cigarette to the floor of

the vehicle.

Our court found the evidence insufficient because, "in the light most

favorable to the State ..., the conduct of Gose does not constitute a gross deviation

from the standard of care .... The mainstay of the state's case was speed.... While

this exceeded the posted speed, it did not, standing alone, constitute gross

13
negligence or recklessness. Rather, it constituted a want of due care, inadvertence,

and inattention." Gose, slip op. at 3 (internal quotation marks omitted). In Gose, it

was deemed unforeseeable that traveling slightly over the speed limit would result in

the death of the driver of the approaching dump truck. There was a "want of due

care," but the risk of death was not a probable or likely consequence.

State v. Clarence Cunningham, No. 01C01-9309-CC-00291 (Tenn.

Crim. App., at Nashville, July 14, 1995), is another case where our court found the

evidence insufficient. In Cunningham, the defendant was convicted of criminally

negligent homicide when a passenger in his truck "inexplicably" leapt from the

defendant's moving vehicle, suffered head injuries, and died. There was testimony

that the victim stated she wanted to exit the vehicle immediately before she leapt out

the passenger side window. Our court found the evidence insufficient:

[The] defendant [did not] anticipate[] that the victim would
jump from the moving vehicle. ... It is not sufficient to
say, with perfect hindsight, that the defendant should
have known that the victim would jump from his vehicle.
To affirm this conviction we must ... find that [the
defendant] failed to perceive that his conduct presented
an unjustifiable risk to the victim. Furthermore, the
failure to perceive the risk must have been a gross
deviation from the standard of care that an ordinary
person would exercise under the circumstances. We
cannot find such a failure in this case.

Cunningham, slip op. at 4-5. In Cunningham, it was not foreseeable that the victim

would jump from the moving vehicle; the victim's actions were described as

"inexplicabl[e]." Id., slip op. at 3. Thus, there was insufficient evidence to support

the defendant's conviction.

In Crawley v. State, 413 S.W.2d 370 (Tenn. 1967), the evidence was

found to be insufficient when the defendant's vehicle struck the rear end of a second

vehicle, which was parked partially on a highway, and then struck the victim, who

14
was standing beside the vehicle. The accident occurred at night. Observing that

the state needed to offer proof that "the death charged was the natural and probable

result of such negligence," the court found the evidence insufficient to support a

conviction for involuntary manslaughter. Id. at 373 (quoting with approval Roe, 358

S.W.2d at 295). Again, the death of the victim was not deemed to be predictable in

these circumstances.

Thus, this court must conclude that when one disregards a stop sign

and enters a four-lane, divided highway, and, without slowing down, crosses through

a median connector, the risk of injury is surely "substantial and unjustifiable." We

conclude there is sufficient evidence to support all three convictions.

We must now determine the appropriate remedy. Both parties have

filed supplemental briefs addressing the thirteenth juror rule and the appropriate

procedure to follow when a conviction is subsequently reinstated by the appellate

court. Rule 33(f), Tenn. R. Crim. P., provides, in part, as follows: "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." In interpreting Rule 33(f), our supreme court has held

as follows:

Rule 33(f) 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) (emphasis added). "The

purpose of the thirteenth juror rule is to be a 'safeguard ... against a miscarriage of

justice by the jury.'" State v. Moats, 906 S.W.2d 431, 434 (Tenn. 1995) (quoting

State v. Johnson, 692 S.W.2d 412, 415 (Tenn. 1985) (Drowota, J., dissenting)).

15
 In Carter, our supreme court established the standards for determining

whether the trial judge has performed his role as thirteenth juror:

[N]o explicit statement on the record is required by the
trial judge that the duty has been performed.
Accordingly, where a motion for new trial is denied
without a statement, an appellate court may presume
that the trial judge approved the jury's verdict as the
thirteenth juror.

896 S.W.2d at 120.

The state argues the trial judge has already performed his role as

thirteenth juror and accredited the jury's verdict; therefore, no remand is needed and

the jury's verdict and the defendant's sentence should be reinstated. The defendant

contends that when the trial judge granted an acquittal, he rejected the jury's verdict;

therefore, the remedy must be a new trial. In our view, however, the trial judge has

not yet exercised his responsibility as a thirteenth juror.

Had the trial judge entered judgment and then denied the motion for

new trial, our inference would be that he acted as thirteenth juror. See Carter, 896

S.W.2d at 122. Yet, in this instance, the defense motion for new trial, which

included an allegation that the verdict was not supported by the weight of the

evidence, was not addressed. The acquittal rendered the issue moot.

We also reject the notion that the trial judge has implicitly fulfilled his

duties as thirteenth juror. This court rejected a similar argument in State v.

Dankworth:

There are important distinctions between the
setting aside of a verdict under Rule 33(f) and a
judgment of acquittal under Rule 29 of the Tennessee
Rules of Criminal Procedure. To resolve a motion for a
judgment of acquittal under Rule 29, the trial court must
examine the sufficiency of the evidence. In determining
the sufficiency, a court considers the evidence presented

16
 at trial in the light most favorable to the prosecution and
determines whether any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt. The court does not reweigh or
reevaluate the evidence. Nor does a court substitute its
inferences for those drawn by the trier of fact from the
evidence. If the trial judge determines that the evidence
is insufficient to support a jury's guilty verdict beyond a
reasonable doubt, a judgment of acquittal is granted.
The state may not retry the defendant but has the right of
appeal.
Rule 33(f) requires the trial judge to independently
weigh the evidence and assess the witness' credibility.
The trial judge must be personally satisfied with the
verdict.

Dankworth, 919 S.W.2d 52, 56 (Tenn. Crim. App. 1995) (citations omitted).

In State v. Adams, 916 S.W.2d 471, 477 (Tenn. Crim. App. 1995), this

court reversed the trial judge's grant of a judgment of acquittal, remanded for a

ruling on all issues raised in the motion for new trial, and then consideration of the

evidence as thirteenth juror:

[T]he record reflects that the trial court did not rule upon
the merits of these issues. Thus, it would be unfair to the
appellee to finalize this lawsuit without giving the
appellee and the state the opportunity to argue the merits
of the issues raised in the motion for a new trial, and
having the trial court resolve these issues.

Adams, 916 S.W.2d at 477.

In Moats, our supreme court ruled that "an appellate court must grant

a new trial when the record contains statements by the trial court expressing

dissatisfaction or disagreement with the weight of the evidence or the jury's verdict,

or statements indicating that the trial court misunderstood its responsibility or

authority to act as the thirteenth juror." Moats, 906 S.W.2d at 435-36. The court

declined to remand the case for the trial judge to perform its role as thirteenth juror,

primarily because "[t]he more time that passes between the trial and the trial court's

evaluation of the evidence as the thirteenth juror, the less meaningful the 'safeguard'

17
becomes." Id. at 435. The supreme court was concerned that the trial judge would

be hindered in exercising its responsibility because of the passage of time. Id. at

434-35.

In Moats, our supreme court implied that a thirteenth juror

determination after a remand may not always "insure that the purpose and

protection of the thirteenth juror rule" is protected. Id. at 435. However, the trial

judge, after being asked to fulfill its role as thirteenth juror, merely deferred to the

jury verdict: "I don't feel it is appropriate for me to overturn that jury's conclusion...."

Id. at 433. The circumstances here are almost identical to those in Adams, where

the thirteenth juror function had been pre-empted by the entry of a judgment of

acquittal.

In a recent case, State v. Ronnie W. Nail, No. 03C01-9406-CR-00197 (Tenn.

Crim. App., at Knoxville, May 19, 1997), the trial judge had been defeated in his re-

election effort before he was able to rule on a motion for new trial; his successor

denied the motion for new trial. On appeal, this court, while acknowledging that the

successor judge could exercise thirteenth juror responsibility, granted a new trial on

the basis that the successor judge could not fulfill the role of thirteenth juror in that

case because there was no record of the trial available for review:

[T]he successor judge would need to determine the
extent to which witness credibility was a factor in the
case and the extent to which he had sufficient knowledge
or records before it in order to decide whether the
credible evidence, as viewed by the judge, adequately
supported the verdict. If these determinations could not
be made by the successor judge, the verdict could not be
approved and a new trial should have been granted.

Nail, slip op. at 7 (citations omitted). In State v. Bilbrey, 858 S.W.2d 911 (Tenn.

Crim. App. 1993), this court ruled that a successor to the trial judge who began the

proceeding could, if sufficiently familiar with the record, preside until the conclusion

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of the case. Implicit in the Nail ruling is that a judge whose first exposure to the

case was presiding over the motion for new trial could rule on the motion if the

record was available so long as witness credibility was not an overriding issue. Only

eighteen months have passed since the trial of this case. The entire record,

including the arguments of counsel and the ruling on the motion for judgment of

acquittal, is available for the trial judge to review, if necessary, to refresh his

memory. In our view, the more practical remedy is for the trial judge to be given the

opportunity for exercising his duties under the thirteenth juror rule, and consider all

grounds in the motion for new trial.

For these reasons, we remand this case to the trial court to act as

thirteenth juror, to rule upon the motion for new trial, and to consider sentencing

alternatives if appropriate.3

__________________________________
Gary R. Wade, Judge

CONCUR:

_______________________________
Joe B. Jones, Presiding Judge

_______________________________
Curwood Witt, Judge

3
W hile there is a referen ce to the C orrection s Man agem ent Cor poration fo r a
recommendation on alternative sentencing, the trial court never ruled on the appropriateness of an
alternative s entenc e.

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