          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.




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       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.




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       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.




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                              __________________________________
                              PAUL G. SUMMERS, Judge


CONCUR:




_________________________________
JOE B. JONES, Presiding Judge




_________________________________
DAVID G. HAYES, Judge




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