        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs February 23, 2010

   STATE OF TENNESSEE v. ANDREW REGINALD MACKINNON
                Direct Appeal from the Circuit Court for Sevier County
                     No. 13164-11       Richard R. Vance, Judge




                 No. E2009-00093-CCA-R3-CD - Filed March 30, 2011



N ORMA M CG EE O GLE, J., dissenting.

       I respectfully disagree with the majority’s conclusion that the judgment must be
vacated and the case remanded for a new hearing. Given that the Defendant does not raise
any issue regarding the trial court’s failure to determine the implied consent law violation,
that no prejudice has been demonstrated, and that the trial court acted as the thirteenth juror,
I would address the issues raised on appeal.

        As the majority correctly notes, Tennessee Code Annotated section 55-10-
406(a)(4)(A) (2006) (amended 2010) provides that the trial court, not a jury, is to determine
the noncriminal implied consent issue.            In State v. Lee Stanley Albright, No.
E2007-02671-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 960, at **1-2 (Knoxville, Dec.
8, 2008), the defendant argued that his jury trial for violation of the implied consent law was
improper. However, a panel of this court concluded that although our Code did not
specifically authorize the right to a jury trial for a noncriminal violation of the implied
consent law, a jury trial, where the trial judge acted as the thirteenth juror pursuant to
Tennessee Rule of Criminal Procedure 33(d), was proper. See Lee Stanley Albright, No.
E2007-02671-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 960, at **11-12 (Knoxville, Dec.
8, 2008). Moreover, the court noted that “Tennessee Courts have routinely affirmed
judgments entered pursuant to a jury’s finding of an implied consent violation.” Id. at *10
(citing State v. Taylor, 70 S.W.3d 717, 721 (Tenn. 2002); State v. Thomas Lee Phillips, No.
E2004-00760-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 807 (Knoxville, Aug. 3, 2005);
State v. Michael Trew, No. E2003-01915-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 1015
(Knoxville, Nov. 17, 2004). Just recently, in State v. Jimmy Daniel Prater, No.
M2009-00527-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 967, at *15 & n.2 (Nashville,
Nov. 16, 2010), a panel of this court once again affirmed a defendant’s “conviction” for
violating the noncriminal implied consent law.
       Unlike the defendant in Stanley Lee Albright, the Defendant in this case does not raise
any issue regarding the jury’s finding that he violated the implied consent law. To be sure,
the State’s having to convince a twelve-member jury that a defendant has violated the law
is a benefit many defendants would not contest.

        In any event, the trial court acted as the thirteenth juror in this case, expressly
approving the jury’s verdict and overruling the new trial motion. See Tenn. R. Crim. P. 33(d)
(stating that a trial court may grant a new trial after a guilty verdict “if it disagrees with the
jury about the weight of the evidence”). According to the majority, “there is nothing in the
record to show that the trial court made an independent determination based on the
evidence.” However, upon a trial court’s acting as the thirteenth juror, “we must presume
that the trial judge independently evaluated the physical evidence and the testimony of the
witnesses at trial, weighed the credibility of that evidence as provided by Rule 33[(d)], and
found no reason to overturn the jury’s verdict.” State v. Fredrico L. Horton, No.
M2006-01318-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 533, at *21 (Nashville, July 5,
2007); State v. Linda Kay Batts, No. W2006-00419-CCA-R3-CD, 2007 Tenn. Crim. App.
LEXIS 286, at **9-10 (Jackson, Apr. 4, 2007), perm. to appeal denied, (Tenn. 2007). Given
that the appellant did not raise the issue, that no prejudice can be demonstrated, and that the
trial court acted as the thirteenth juror, I would not vacate the judgment or remand the case
for a new hearing.




                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE
