State of Tennessee v. Gary Harris

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST 1996 SESSION
September 6, 1996
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9510-CC-00319
Appellee, )
) Grainger County
V. )
) Hon. Ben W. Hooper II, Judge
)
GARY HARRIS, ) (Manufacturing Marijuana)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Edward Cantrell Miller Charles W. Burson
District Public Defender Attorney General & Reporter
Lu Ann Ballew Timothy F. Behan
Assistant Public Defender Assistant Attorney General
P.O. Box 416 Criminal Justice Division
Dandridge, TN 37725 450 James Robertson Parkway
Nashville, TN 37243-0493
Alfred C. Schmutzer, Jr.
District Attorney General
Charles E. Atchley
Asst. Dist. Attorney General
Sevier County Courthouse
Sevierville, TN 37862
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
A jury found Gary Harris guilty of manufacturing marijuana in violation of
Tennessee Code Annotated 39-17-417. Harris appeals and presents the
following issues for our review:
I. Whether the evidence is sufficient to sustain the conviction; and
II. Whether the verdict is supported by the weight of the evidence.
We affirm.
The appellant rented a house on a 42-acre farm owned by Evelyn Sharp.
Ms. Sharp raised cattle on the rest of the farm. She visited the farm daily to feed
the cattle and take care of farm chores. During a routine visit, Ms. Sharp saw
what she thought to be marijuana in the back of the appellant’s truck. The truck
was parked approximately 60 to 70 feet from the appellant’s house. Ms. Sharp
promptly left to go get the sheriff.
Approximately thirty minutes later, Ms. Sharp returned with Officer Todd
Loveday of the Grainger County Sheriff’s Department. The plants that Ms.
Sharp had earlier observed had been moved to some nearby brush. Officer
Loveday confirmed that these plants were marijuana. He also noticed a single
marijuana leaf in the back of the appellant's truck. Upon further investigation,
Officer Loveday located a total of 32 potted marijuana plants near or around this
same area. He also noticed a “beaten path in the grass” from the appellant’s
house to where the marijuana was found. He proceeded up to the house and
questioned the appellant about the plants. The appellant admitted that he
owned the truck but denied having any knowledge of the plants and could not
explain how the plants got in such close proximity to his house.
-2-
Officer Loveday confiscated all 32 plants. The plants were photographed
but never sent to a toxicologist to confirm that they were in fact marijuana. Two
days later the appellant was arrested for the production of marijuana.
At trial, the state’s proof included testimony of Ms. Sharp and Officer
Loveday. Both witnesses testified as to what they had seen that day at the
property. Furthermore, Officer Loveday testified that he was certain, based upon
his experience and training, that the plants he confiscated were marijuana. The
photographs of the plants were admitted into evidence.
The appellant attempted to show that the plants were never tested by a
certified toxicologist and, thus, never proven to be marijuana. In addition, the
appellant attempted to show that access to the property was unlimited and that
the state had failed to prove that he was the person who planted the marijuana.
The jury was not persuaded and returned a verdict of guilty.
SUFFICIENCY OF THE EVIDENCE
The appellant contends that the evidence presented at trial is insufficient
to support his conviction. Great weight is afforded a verdict reached by a jury in
a criminal trial. A jury verdict approved by the trial judge accredits the state’s
witnesses and resolves all conflicts in favor of the state. State v. Williams, 657
S.W.2d 405, 410 (Tenn. 1983). On appeal, the state is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Moreover, a guilty verdict removes the presumption of innocence which the
appellant enjoyed at trial and raises a presumption of guilt on appeal. State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of
overcoming this presumption of guilt. Id.-3-
Where sufficiency of the evidence is challenged, the relevant question for
an appellate court 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 or crimes beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319 (1979); State v. Duncan, 698 S.W.2d 63, 67
(Tenn. 1985); Tenn. R. App. P. 13(e). The weight and credibility of the
witnesses’ testimony are matters entrusted exclusively to the jury as the triers of
fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); Byrge v. State, 575
S.W.2d 292, 295 (Tenn. Crim. App. 1978).
The evidence was sufficient to sustain the appellant’s conviction. The
state presented strong circumstantial evidence that the appellant was growing
marijuana. The testimony of both Ms. Sharp and Officer Loveday provided
enough evidence from which a jury could have concluded the appellant produced
marijuana beyond a reasonable doubt.
WEIGHT OF THE EVIDENCE
The appellant next contends that the verdict was not supported by the
weight of the evidence. Presumably, the appellant is arguing that the trial judge
failed to perform his role as thirteenth juror pursuant to Rule 33(f) of the
Tennessee Rules of Criminal Procedure.
Rule 33(f) provides that the trial court may grant a new trial if it views the
verdict to be contrary to the weight of the evidence. This rule applies to the trial
court and does not give this Court independent authority to act as a thirteenth
juror. State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). The fact
that this Court has no independent authority to function as a thirteenth juror does
not negate the obligation to review the trial court’s action under Rule 33(f) for
error. Therefore, if the record reflects that the trial court disagreed with the
-4-
verdict or otherwise expressed dissatisfaction with the verdict, it is error for the
trial court to refuse to grant a new trial. State v. Carter, 896 S.W.2d 119, 122
(Tenn. 1995). Also, a new trial may be granted on appeal in circumstances in
which the trial court absolved itself of its responsibility to consider the evidence
as a thirteenth juror. Burlison, 868 S.W.2d at 719. Conversely, once the trial
court approves the verdict as the thirteenth juror and imposes judgment, the
review of the evidence on appeal is quite limited, requiring the accrediting of the
testimony of the witnesses for the state and the resolution of evidentiary conflicts
in favor of the state. Grace, 493 S.W.2d at 476.
The record reflects that the trial court considered the evidence in its role of
the thirteenth juror and denied the appellant’s request for an acquittal or new
trial. The appellant’s contention is that the weight of the evidence is contrary to
the verdict, a position with which the trial court disagreed.
Both issues raised by the appellant are without merit. The judgment of
the trial court is affirmed.
-5-
__________________________________
PAUL G. SUMMERS, Judge
CONCUR:
_________________________________
JOE B. JONES, Presiding Judge
_________________________________
DAVID G. HAYES, Judge
-6-