         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                    Assigned on Briefs March 30, 2010 at Knoxville

    STATE OF TENNESSEE v. GEORGE WASHINGTON MATTHEWS

                 Appeal from the Criminal Court for Davidson County
                      No. 2004-D-3131     Seth Norman, Judge




                 No. M2009-00692-CCA-R3-CD - Filed August 13, 2010




J AMES C URWOOD W ITT, J R., J., concurring.

               I concur in the court’s opinion and express the view that the pivot upon which
the appeal in this case teeters is very finely pointed.

               One can understand the trial judge’s comment, “I think it’s a question for the
jury and the jury did set the amount,” to express his view that the evidence was sufficient to
go to the jury and to support legally a verdict of guilty. In the proper context, a judge’s
reference to the quantum of evidence being a jury question merely expresses the traditional
test for whether the evidence is legally sufficient – whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App.
P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Winters, 137 S.W.3d 641,
654 (Tenn. Crim. App. 2003).

               Upon reviewing the context in which the comment was made in this case,
however, it is clear that the arguments preceding the comment were directed toward the
weight of the evidence. In arguing the defendant’s motion for a new trial, counsel
specifically and narrowly claimed that, in light of the testimony about the contraband’s
weighing .05 grams with a margin of error of .01 grams, the weight of the evidence did not
support the verdict. The prosecutor joined the issue. In this context, the trial court opined
that the question was one for the jury. I concur that, in context, the trial court “absolved itself
of its responsibility to act as the thirteenth juror.” See State v. Carter, 896 S.W.2d 119, 122
(Tenn. 1995). In this situation, a new trial is required.
      JAMES CURWOOD WITT, JR., JUDGE




-2-
