         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     April 10, 2007 Session

      STATE OF TENNESSEE v. CLAUDELL WATKINS CARPENTER

                  Direct Appeal from the Circuit Court for Weakley County
                       No. CR116-2004     William B. Acree, Jr., Judge



                    No. W2006-01399-CCA-R3-CD - Filed March 28, 2008


Following a jury trial, the defendant, Claudell Watkins Carpenter, was convicted of second degree
murder, first degree murder in the perpetration of a burglary, especially aggravated burglary, and
aggravated assault. Additionally, the defendant pled guilty to evading arrest. Pursuant to Tennessee
Rule of Criminal Procedure 29, he filed a motion for judgment of acquittal, which the trial court
subsequently granted as to certain of the convictions, reducing the second degree murder conviction
to voluntary manslaughter and dismissing the first degree murder and aggravated assault convictions.
The defendant then was sentenced as a Range I, standard offender to six years for the voluntary
manslaughter conviction, twelve years for the especially aggravated burglary conviction, and eleven
months, twenty-nine days for the evading arrest conviction, with all sentences to be served
concurrently. Thereafter, the State appealed the trial court’s ruling on the motion for judgment of
acquittal. Rule 29, pursuant to which the defendant filed the motion for judgment of acquittal,
requires that, before a judgment is entered following the granting of a motion for judgment of
acquittal, the court first should rule on the motion for new trial. Accordingly, we remand this matter
to the trial court for disposition of the motion for new trial so that a single appeal will result from
the defendant’s trial. Since judgments were entered prematurely following the court’s granting the
motion, they are set aside, and the jury verdicts for second degree murder (Count 1), first degree
murder in the perpetration of a burglary (Count 2), and aggravated assault (Count 4) are reinstated.
Because the State’s appeal is premature, it is dismissed.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                     Appeal Dismissed

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney
General, for the appellant, State of Tennessee.

Joseph P. Atnip, District Public Defender, for the appellee, Claudell Watkins Carpenter.
                                                       OPINION

                                                         FACTS

        In brief, the facts of this case are that the defendant, an officer of the Weakley County
Sheriff’s Department, suspected that his estranged wife was having an affair. He went to the
apartment where she was living with their two daughters, burst through the front door, fracturing it,
went to a bedroom, where his estranged wife and the victim were located and shot the victim fifteen
times, eight of which were in the back. He was arrested at the scene. Although it is undisputed that
the defendant’s wife and the victim were not having sexual relations when the defendant entered the
apartment, they only were partially clothed, according to defense proof, which was contested by the
State. We will set out the evidence in this matter, although our determinations are based upon the
procedure by which the appeal reached this court, rather than trial testimony.

                                                     State’s Proof

        Renee Carpenter1 testified that she and the defendant were married in 1997 and had two
daughters. In February 2004, they separated because of marital problems, and in June, Renee and
their daughters moved to the Oakwood Apartments in Greenfield.

        On June 15, 2004, Renee took the defendant to a counseling session and, that evening, he
telephoned her at about 9:30 p.m. at her apartment to say goodnight. Approximately an hour later,
the victim, Joe Martin, with whom Renee had begun an affair after she and the defendant separated,
came to her apartment. The defendant previously had asked her about telephone calls she had
received from the victim, and she denied that they were having an affair, saying the victim was
calling to sell drugs to her brother. While the victim was at Renee’s apartment, a man whom she did
not know, knocked on her door, “looked” at her as she opened it, and then turned and walked away.
Renee called to Officer Kevin Klutts, whom she saw in the parking lot, and informed him of the
incident. Shortly thereafter, Officer Klutts came to Renee’s apartment, and the victim went to her
daughters’ bedroom2 while she discussed the incident with Klutts. After Klutts left, Renee went to
the bedroom and told the victim about her conversation with Klutts. As they were talking, she heard
a “loud thump” and got up to investigate. As she reached the bedroom door, Renee saw the
defendant, who pushed her out of the way, and then began shooting the victim, who still was sitting
on one of the beds. She asked the defendant what he was doing, and he replied, “I don’t know. I
think I just fucked up.”



         1
          Because Renee Carpenter and the defendant share the same last name, we will refer to her as “ Renee.” We
intend no disrespect by this reference, but do so to avoid using her entire name in each reference to distinguish her from
the defendant.

         2
             Renee testified that her daughters were sleeping in her bedroom that night instead of their room.

                                                            -2-
        Officer Kevin Klutts testified that on June 15, 2004, he was dispatched to the Oakwood
Apartments at about 11:00 p.m. and spoke with a resident, Tiffany Cash, who said that an unknown
male was knocking on apartment doors. Officer Klutts located the man, Brian Seiber, and went to
Renee’s apartment to take her complaint against Seiber. When he returned to the parking lot, Klutts
saw a sheriff’s department car pull into the parking lot, stop near a green Impala, and then pull into
a parking space. When the driver got out of the vehicle, Officer Klutts recognized that it was the
defendant, who was wearing blue jeans and a dark-colored t-shirt. The defendant first tried to open
the door of Renee’s car and then went upstairs to her apartment. Shortly afterwards, Klutts heard
“a series of loud bangs,” that sounded as if someone were beating on a door. Hearing a woman
scream, he ran up the stairs, and saw that the frame of the door to Renee’s apartment was “fractured
like someone had busted the door in.” The defendant, with a pistol in his right hand, exited the
apartment, laid his gun down on the stairwell, held his hands away from it, saying, “I’m done.”
Officer Klutts handcuffed the defendant, and Renee came out of the apartment screaming, “What
have you done?” Officer Klutts placed the defendant in his patrol car, escorted Renee to the
apartment of Tiffany Cash, and then returned to Renee’s apartment. In the bedroom, he found the
victim, who was wearing blue jean shorts and a shirt, lying on the floor between the beds. After
Brad Hardin, a first responder, and other officers arrived on the scene, Officer Klutts returned to his
vehicle and discovered the right rear window broken out and the defendant gone. Klutts said that
he collected the defendant’s gun as evidence and denied that he unzipped or unbuttoned the victim’s
shorts.

       Greenfield Police Lieutenant Danny Smith testified that he was called to the scene, where
he spoke with Officer Klutts. He checked the victim’s identification and determined that he was Joe
Martin. He saw that the victim’s shorts were unzipped but pulled up. He retrieved the defendant’s
weapon from Officer Klutts and ejected the magazine. Two bullets remained in the weapon, one in
the magazine and one in the chamber. Lieutenant Smith said that the weapon could fire thirteen to
fourteen shots without reloading.

        Tennessee Bureau of Investigation Special Agent Valerie Troutt testified that she was called
to the scene and observed that the victim had several gunshot wounds. She identified a photograph
she made at the scene which showed the victim with his shorts unbuttoned and unzipped and his shirt
cut off. Agent Troutt said that she took possession of the defendant’s weapon, a Glock Model 35,
.40 caliber semi-automatic pistol with a fifteen-round capacity magazine, and took a statement from
Renee. After the defendant was taken into custody several hours later, she interviewed him. The
defendant told her that he had heard his wife was having an affair with the victim, but each had
denied it to him. On the evening of June 15, several hours after speaking on the phone with his wife,
the defendant drove to her apartment and saw the victim’s car in the parking lot. He called the
dispatcher and confirmed with the tag number that it was the victim’s vehicle. He then went to
Renee’s apartment, and, in his words, “push[ed] in the door.” He found Renee and the victim in bed
together, but they were “not going at it.” He said that the victim jumped up, causing him to believe
that the victim was “coming after” him. The defendant said that he did not remember shooting the
victim.



                                                 -3-
        Dr. Feng Li testified that he performed an autopsy on the victim, concluding that the cause
of death was multiple gunshot wounds. He said that the victim had fifteen separate wounds, eight
of which had entered his back. He said that some of the wounds were consistent with the victim and
the defendant both standing upright, while some were consistent with the victim sitting upright in
bed and the defendant standing over him.

        The parties stipulated that the gunshot residue on the victim’s shirt showed that at least one
of the shots was fired within four feet of him.

          Alisa Fuller testified that she saw the defendant at the Weakley County Sheriff’s Department
on April 16, 2004, when she was charged with DUI. The defendant gave her a card with his home
phone number and called her several times. On two occasions, he told her that he thought his wife
was cheating on him and that he would kill the person he caught her with. Fuller said the defendant
called her from jail after his arrest, saying that he “would plead insanity because of his medication
. . . and the problems that he’d had in the past.” The defendant told her that he did not remember the
shooting but that he knew his wife was cheating on him.

                                            Defense Proof

        First Responder Brad Hardin and Deputy Candace Floyd testified that they were the next to
arrive on the scene after Officer Klutts. Both said that the victim’s pants were unbuttoned and
unzipped when they arrived, and Hardin acknowledged that he either tore or cut the victim’s shirt
in an effort to treat his wounds.

        Billy Smith testified that he was a close friend of the defendant’s, but they had a “falling out”
because the defendant wanted to carry his badge and gun when they went out. Weakley County
Sheriff’s Deputies Keith Hazelwood, Mark Black, Randy Crocker, and Danny Browning testified
that the defendant was a good officer and that it was not unusual for officers to carry their badges
and weapons while off duty.

        The defendant testified that, following his discharge from the Army, he joined the Weakley
County Sheriff’s Department in April 2001. He had twice been called back to active duty, and he
and Renee separated following his second deployment. The defendant said that he was taking Paxil,
an antidepressant, at the time of the shooting. He denied that he had a physical relationship with
Alisa Fuller but admitted that he had been unfaithful to his wife in the past. He had suspected that
his wife was having an affair but did not know with whom. On the evening of June 15, fearing that
something was wrong because Renee did not answer the telephone, he drove from his home in
Gleason to her apartment in Greenfield. There, he saw a car, which he believed belonged to the
victim, and called the dispatcher to make certain. Because Renee had told him that the victim was
a drug dealer, he then went to her apartment either to make the victim leave or to get his daughters
out. He hit the door with his shoulder to open it and went to the bedroom, where he saw his wife’s
“nude behind” and the victim “stuffing his penis back in his pants.” The victim stood up, and the
defendant pulled his weapon but did not remember firing it. The defendant denied that he had gone


                                                  -4-
to the apartment to assault or shoot the victim and said that, previously, they had parted on good
terms.

       On cross-examination, the defendant acknowledged that he did not tell Agent Troutt or Dr.
Moragne, who evaluated him, that he was concerned about the victim’s selling marijuana. He also
acknowledged that he did not tell Agent Troutt or Dr. Moragne that he saw his wife’s “nude behind”
or the victim’s “stuffing his penis back in his pants.” He explained that it was later when he
remember those occurrences.

                                            ANALYSIS

         As we will explain, we have concluded that this matter must be remanded to the trial court
so that the procedures of Tennessee Rule of Criminal Procedure 29 be followed, that is, the motion
for new trial be disposed of before entry of the judgments following the court’s granting of the
motion for judgment of acquittal.

         The version of Rule 29 of the Tennessee Rules of Criminal Procedure in effect at the time
of the defendant’s trial and the court’s ruling on his motion for a judgment of acquittal required that
a trial court first dispose of a motion for new trial before entering a judgment resulting from the
granting of a motion for judgment of acquittal:

       If the jury returns a verdict of guilty or is discharged without having returned a
       verdict, a motion for judgment of acquittal may be made or renewed within 30 days
       of the date the order of sentence is entered or within such further time as the court
       may fix during the 30-day period. . . . If a verdict of guilty is returned the court may
       on such motion, set aside the verdict and after disposing of a motion for a new trial
       enter judgment of acquittal. The [S]tate shall have the right of appeal where the court
       sets aside a verdict of guilty and enters a judgment of acquittal.

Tenn. R. Crim. P. 29(c) (2005).

       The trial court’s written order on the defendant’s motion for judgment of acquittal is as
follows:

               This case is before the Court upon the defendant’s motion for a judgment of
       acquittal.

              The defendant was indicted for premeditated murder, felony murder,
       especially aggravated burglary, and aggravated assault. This case was tried to a jury,
       and the jury found the defendant guilty as indicted except for the premeditated
       murder count. As to that count, the jury found the defendant guilty of the lesser
       included offense of second degree murder.



                                                 -5-
        In the defendant’s motion for judgment of acquittal, he seeks a reduction of
the second degree murder conviction to voluntary manslaughter and a dismissal of
the felony murder conviction.

        On June 15, 2004, the defendant shot and killed Joe Martin. The defendant
broke the door of the apartment of his estranged wife, found Martin and his wife
partially undressed and shot him numerous times.

       The defendant and his wife, Susan Renee Carpenter, married in 1997. They
had two daughters who were 9 and 7 years of age at the time of the trial. The
defendant was a deputy in the Weakley County Sheriff’s [D]epartment and was a
member of the [N]ational [G]uard. He had been called to active duty on two
occasions.

        The defendant and his wife separated in February of 2004. During the
separation, the defendant provided financial support to his wife and daughters. On
June 11, 2004, the defendant’s wife and his two daughters moved into an apartment
in Greenfield, Tennessee. The defendant helped them move into the apartment.

       The defendant’s wife testified that she was trying to end the marriage.
However, she attended three counseling sessions with the defendant[,] the last of
8which was on the day of the shooting. In the week preceding the shooting, she
made approximately 50 telephone calls to the defendant. One call was for 21 minutes
and another was for 20 minutes.

         The defendant’s wife began a sexual relationship with Joe Martin after she
left the defendant. When questioned by the TBI after the homicide, she denied the
relationship because she was afraid the truth might assist the defendant in his
defense. About two months later, she told the agent she had a sexual relationship
with Martin.

       According to the defendant’s wife, Joe Martin was a drug dealer. She told the
defendant of Martin’s involvement with drugs before the homicide and told a TBI
agent of this afterwards.

        On the night of June 15, 2004, the defendant talked with his wife by
telephone. After sleeping for a period of time, the defendant woke up and attempted
to telephone his wife. He could not reach her. According to the defendant, he left
for his wife’s apartment to check on her and his daughters.

       Before leaving his home, the defendant put on his badge and gun. Several
deputies in the sheriff’s department testified that it was not unusual for a police



                                        -6-
            officer to carry his gun and badge while off duty and that this was permissible under
            the sheriff’s department’s policy.

                    After arriving at the apartment complex, the defendant observed a vehicle
            near his wife’s apartment. He radioed the sheriff’s department and learned that this
            was Martin’s vehicle. The defendant testified that he was going to make Martin
            leave or he was going to take his children from the apartment.

                    After arriving at the apartment, he hit the apartment door with his shoulder,
            broke it open, and entered the apartment. He noticed lights on in a bedroom and
            went into it. The defendant testified he saw his wife’s nude behind and saw Joe
            Martin stuffing his penis into his pants. The defendant’s wife denied that she was
            partially unclothed or that Martin had taken his penis out of his pants. However, four
            police officers who went to the scene testified that Martin’s pants were unbuttoned
            and unzipped, and the testimony of the defendant’s wife was not credible considering
            her denial of her relationship with Martin. Upon entering the bedroom, the defendant
            drew a gun and shot and killed Joe Martin. According to the testimony of the
            medical examiner, there were 15 gunshot wounds[,] eight of which were to the back.3

                    After shooting Martin, the defendant left the apartment and met an officer of
            the Greenfield [P]olice [D]epartment who was at the apartments to investigate a
            separate complaint. The defendant laid down his weapon and was handcuffed by the
            officer. The officer put the defendant into the police car and went to the scene of the
            homicide. Later, he found that the defendant had broken the window of the police
            car and had escaped. The defendant was apprehended the next day.

                   During the trial, the defendant timely moved for a judgment of [] acquittal
            and timely renewed that motion after the verdict was returned.

                    A judgment of acquittal must be entered if the evidence is insufficient to
            sustain a conviction of the offense for which the defendant is charged.

                    The defendant first argues that the evidence was insufficient so sustain a
            conviction for second degree murder and that the Court should set aside the jury
            verdict and find the defendant guilty of voluntary manslaughter. Second degree
            murder is a knowing killing of another whereas voluntary manslaughter is the
            intentional or knowing killing of another in a state of passion produced by adequate
            provocation sufficient to lead a reasonable person to act in an irrational manner (see
            T.C.A. § 39-13-201 and T.C.A. § 39-13-211).



            3
                The defendants’ daughters were in a separate bedroom at the time of the shooting and did not witness the
incident.

                                                             -7-
        The defendant contends that he had no intention of killing Joe Martin and did
so only after finding Martin and his wife in a compromising situation. The defendant
relies upon the case of State v. Thornton, 730 S.W.2d 309 (1987). In Thornton, the
defendant saw his estranged wife kissing another man. He left, got his gun, and
returned to his wife’s home. He watched them from her backyard for about an hour
and observed them kissing again. The defendant kicked through the locked front
door of the house, entered and found his wife and the victim nude. He took pictures
of them and then shot the victim. The jury found the defendant guilty of first degree
murder.

        The Supreme Court of Tennessee set aside the conviction of murder in the
first degree and remanded the case to the trial court for sentencing of the defendant
for voluntary manslaughter. The Supreme Court said in part:

       “It has long been a well-settled legal principal that the commission of
       unlawful sexual intercourse with a female relative is an act obviously
       calculated to arouse ungovernable passion, and that the killing of the
       seducer or adulterer under the circumstance or in the heat of passion
       constitutes voluntary manslaughter, and not murder, in the absence of
       evidence of actual malice.”

        This Court has carefully reviewed the evidence in this case and finds no
evidence of actual malice. Although separated from his wife, the defendant was in
constant contact with her and their children. After awakening and being unable to
reach her, he went to her apartment and found Joe Martin to be in the apartment.
After finding them in a[] semi-nude condition, he shot Martin 15 times.

        The Court finds as a matter of law that there was no evidence of malice and
that the evidence is insufficient to sustain a conviction for second degree murder.
The Court finds as a matter of law that the killing was in a state of passion produced
by adequate provocation sufficient to lead a reasonable person to act in an irrational
manner, and, accordingly, enters a verdict of voluntary manslaughter as to the first
count.

        The defendant next argues that the evidence was insufficient to sustain a
conviction for felony murder and that the Court should set aside the jury verdict and
dismiss this count. The defendant argues that the State has failed to prove the
requisite mens rea, and, therefore, the defendant is not guilty of the felony murder
charge.

       Felony murder is a killing of another committed in the perpetration of or
attempt to perpetrate certain crimes including the crime of burglary. No culpable
mental state is required for conviction except the intent to commit the enumerated


                                         -8-
        offense. (T.C.A. § 39-13-202) As pled by the State in this case,4 the defendant
        committed a burglary by entering the building without the effective consent of the
        property owner and by assaulting Joe Martin. (T.C.A. § 39-14-402) A person
        commits an assault who intentionally, knowingly or recklessly causes bodily injury
        to another (T.C.A. § 39-13-101), and as pled by the State, the assault occurred when
        the defendant shot and killed Joe Martin.

                The mens rea required for a felony murder conviction is summarized in two
        recent Tennessee Supreme Court cases. The Court, in State v. Buggs, 995 S.W.2d
        102 (Tenn. 1992), citing State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996) stated:

                          “The prevailing view is that in order for the felony-murder
                 doctrine to be invoked, the actor must intend to commit the
                 underlying felony at the time the killing occurs; there is no felony-
                 murder where the felony occurs as an afterthought following the
                 killing. . .

                         In the typical case of felony murder, there is no malice in
                 “fact” with respect to the homicide; the malice is supplied by the
                 “law”. There is an intended felony and an unintended homicide. The
                 malice which plays a part in the commission of the felony is
                 transferred by the law to the homicide. As a result of the fictional
                 transfer, the homicide is deemed committed with malice. Id. at 296.

                          If an accused had no intent to commit the underlying felony
                 at the time of the killing, the basis for the felony-murder rule does not
                 apply.”

                The evidence in this case does not support a finding that the defendant
        entered the apartment with the intent to commit an assault, or after entering, he
        intentionally assaulted Joe Martin. The assault relied upon by the State for the felony
        murder count is the infliction of 15 gunshot wounds which caused Martin’s death.
        That is, the assault and the homicide are the same act. In count one, the jury found
        the defendant not guilty of premeditated murder and thus found that he did not
        intentionally kill Joe Martin. To find the defendant guilty of felony murder would
        mean that the defendant intentionally assaulted Joe Martin, but he unintentionally
        killed him. Such a result is not possible. The explanation for the inconsistency is
        that the jury was charged that it could find the defendant guilty of assault by reckless
        conduct. This charge was in error. The Court concludes the evidence is insufficient



        4
         According to the State’s attorney, count two must be read in conjunction with count three to determine the
elements of burglary relied upon by the State.

                                                       -9-
       to establish the defendant intentionally committed the felony of burglary and is
       insufficient to support a verdict of felony murder.

               Notwithstanding the foregoing, there is another reason the felony murder
       conviction must be dismissed. As the felony murder count was pled by the State, the
       State was only required to prove: (1) that the defendant unlawfully and feloniously
       killed Joe Martin; and (2) he did so after entering a building and committing an
       assault; and (3) the assault was committed by intentionally, knowingly or recklessly
       causing bodily injury.

              The problem is that the felony murder count as pled by the State can be
       committed by reckless means. According to the statute and the case law, a felony
       murder cannot be committed in the absence of intentional conduct. That is, it is
       necessary that the defendant have the intent to commit the underlying felony. A
       felony committed by reckless conduct cannot be the basis for a felony murder
       conviction under Tennessee law.

              Because of the manner in which the felony murder count was pled, the verdict
       must be set aside.

               There is one other issue which was not raised in the defendant’s motion for
       judgment of acquittal. The defendant was found guilty of aggravated assault of Joe
       Martin (count four). The aggravated assault charge arises from the same act as the
       homicide. The defendant cannot be convicted of both. Therefore, the court, sua
       sponte, dismisses the aggravated assault count.

              In summary, a judgment of conviction will be entered as to count one for the
       crime of voluntary manslaughter, and counts two and four are dismissed.

              A sentencing hearing has previously been scheduled for June 29, 2006, and
       the defendant will be sentenced for the crimes of voluntary manslaughter and
       especially aggravated burglary.

               IT IS SO ORDERED.

         The record in this matter shows that the defendant was found guilty on November 2, 2005,
of the various offenses, that he filed a motion for judgment of acquittal on November 10, 2005, and
a motion for new trial on December 1, 2005. The lengthy and detailed order granting the motion for
judgment of acquittal was entered on May 25, 2006. The judgments in this matter were signed by
the trial court on June 29, 2006. The State filed a notice of appeal that same day, contesting the
relief granted pursuant to the motion for judgment of acquittal. The motion for new trial was, and
presumably still is, pending. For that reason, as we will explain, this matter must be remanded to
the trial court.


                                               -10-
          As we have set out, Tennessee Rule of Criminal Procedure 29(c) provides that “[i]f a verdict
of guilty is returned the court may on such motion, set aside the verdict and after disposing of a
motion for a new trial enter judgment of acquittal.” The purpose of first “disposing of a motion for
new trial” is obvious.5 In the event this court’s ruling on the judgment of acquittal is adverse to the
defendant, the trial court could properly, upon remand, rule upon the pending motion and grant a new
trial, finding the verdict is against the weight of the evidence. See Tenn. R. Crim. P. 33(d). Thus,
rather than have the judgment of acquittal and the grant of a new trial be reviewed by two different
panels of this court, resulting in protracted delay, Tennessee Rule of Criminal Procedure 29(d)(2)
requires the trial court to enter a ruling on the motion for new trial so that the two rulings can be
reviewed in a single consolidated appeal.6

        Accordingly, we remand to the trial court for disposition of the pending motion for new trial
as directed by Rule 29(d)(2).

         We note that, in our review of the motion for judgment of acquittal, the trial court appears
to have made determinations, in part based upon its view of the weight of the evidence. However,
in considering such a motion, a court is to consider the “legal sufficiency of the evidence and not .
. . the weight of the evidence.” State v. Thompson, 88 S.W.3d 611, 615 (Tenn. Crim. App. 2000).
Thus, in considering such a motion, the trial court instead must consider the evidence in the light
most favorable to the State, as explained by this court in State v. Blanton, 926 S.W.2d 953, 957-58
(Tenn. Crim. App. 1996):

         When the trial court is presented with a motion for judgment of acquittal, the only
         concern is the legal sufficiency, as opposed to the weight, of the evidence. State v.
         Campbell, 904 S.W.2d 608 [(Tenn. Crim. App. 1995)]. To determine whether the
         evidence is insufficient to sustain the conviction, the trial court must consider “the
         evidence introduced by both parties, disregard any evidence introduced by the
         accused that conflicts with the evidence adduced by the State, and afford the State the
         strongest legitimate view of the evidence, including all reasonable inferences which
         may be drawn from the evidence.” Id. (citing State v. Hall, 656 S.W.2d 60, 61 (Tenn.
         Crim. App. 1983)).



         5
           In the present appeal, an issue is whether the trial court erred in reversing the conviction and dismissing the
indictment count for murder in the perpetration of a burglary, one of the bases for this action being that the jury was
erroneously instructed as to “assault.” In the direct appeal of the defendant’s conviction for especially aggravated
burglary, the identical issue again would be raised.

         6
            The Advisory Commission Comments to Rule 29 state that the purpose of allowing a thirty-day time period
for the filing of a motion for judgment of acquittal, after the verdict is returned, is to permit both the judgment of acquittal
and the ruling on the motion for new trial to be filed together, “indeed, the commission anticipates that this will be the
case.” See also Tenn. R. Civ. P. 50(c) (which is similar in scope and purpose with the criminal rule); Fed. R. Crim. P.
29(d) (the federal counterpart of our Rule 29(d)(2)).




                                                             -11-
        In making its determinations in this matter as to the defendant’s motion for new trial, the trial
court should follow the procedure set out in Tennessee Rule of Criminal Procedure 33, regarding the
motion for new trial, including Rule 33(d), which provides, in part, that “[t]he trial court may grant
a new trial following a verdict of guilty if it disagrees with the jury about the weight of the
evidence.”

                                           CONCLUSION

        Based upon the foregoing authorities and reasoning, we conclude that the State’s appeal in
this matter is premature. Accordingly, the matter is remanded to the trial court for a ruling on the
motion for new trial and, then, entry of judgments resulting from the court’s rulings. Since these
judgments were entered prematurely following the court’s granting the motion for judgment of
acquittal, they are set aside, and the jury verdicts for second degree murder (Count 1), first degree
murder in the perpetration of a burglary (Count 2), and aggravated assault (Count 4) are reinstated.


                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE




                                                  -12-
