State of Tennessee v. Don Woody McGowan ( 2002 )


Menu:
  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    March 12, 2002 Session
    STATE OF TENNESSEE v. DON WOODY MCGOWAN
    Direct Appeal from the Circuit Court for Marion County
    No. 5116-A Thomas W. Graham, Judge
    No. M2001-02866-CCA-R3-CD - Filed June 28, 2002
    Defendant, Don Woody McGowan, was convicted by a Marion County jury of possession of drug
    paraphernalia, a Class E felony. Defendant appeals his conviction, presenting the following issues
    for review: (1) whether the evidence was sufficient to support his conviction; (2) whether he was
    denied a fair trial by the trial court’s denial of his motion to sever the cases when the co-defendant
    failed to appear on the second day of trial; (3) whether the trial judge erred by failing to recuse
    himself; and (4) whether his sentence was proper. After a review of the record, we find that the
    evidence was insufficient to sustain the conviction. The judgment of the trial court is reversed, and
    the case is dismissed.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed.
    THOMAS T. WOODALL , J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
    EVERETT WILLIAMS, JJ., joined.
    Philip A. Condra, District Public Defender, Jasper, Tennessee, for the appellant, Don Woody
    McGowan.
    Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
    James Michael Taylor, District Attorney General; Steve Blount, Assistant District Attorney General;
    and Sherry Gouger, Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    FACTS
    On January 14, 2000, at approximately 6:30 p.m., Officers William Layne and Chad Johnson
    were on patrol in their squad car when they drove by William T. Green’s trailer and noticed
    approximately four or five individuals standing in the front yard. Both recalled that the area around
    1
    Mr. Green’s home was well-lit by street lights. Officer Layne testified that he recognized at least
    four of the individuals as Defendant, Mr. Green, Harvey Layne, and Marty Kilgore. Mr. Kilgore was
    well-known by local authorities because he had evaded arrest on numerous occasions. Officer Layne
    further stated that to his knowledge, Mr. Kilgore had numerous outstanding arrest warrants in Marion
    County. Instead of attempting an arrest, the officers, fearing that a chase might ensue, returned to
    the police station and arranged for backup assistance.
    Approximately one hour later, Officers Layne and Johnson returned to Mr. Green’s trailer
    accompanied by five additional officers from the Marion County Sheriff’s Department. The front
    yard was empty and the trailer appeared dark from the outside. Detective Myers of the Marion
    County Sheriff’s Department and Officer Johnson approached the back door while the other officers
    secured the front entrance. They then knocked and announced “Sheriff’s Department.” Although
    they heard shuffling and rumbling inside the trailer, no one answered the door. After waiting a few
    minutes, Officer Johnson shined his flashlight through a window on the back door. Detective Myers,
    who was positioned closer to the door, saw Mr. Green inside the trailer pointing a small handgun
    towards the back door. He immediately yelled, “he’s got a gun,” and jerked the door open. As
    Detective Myers entered the trailer, he saw Mr. Green “pitch” the pistol and begin walking away
    from the door at a fast pace, heading towards a bedroom that was on the left side of the trailer. At
    the same time, Defendant appeared from a bedroom that was on the opposite end of the trailer.
    Officers ordered Defendant to put his hands up and sit down on the couch. Officer Johnson testified
    that when he entered the trailer, shortly after Detective Myers, Defendant was already sitting on the
    couch. He recalled that the inside of the trailer had a “chemical smell kind of like fuel.” Officer
    Johnson later retrieved a loaded handgun from inside a clothes dryer that was adjacent to the back
    door.
    As the two men were detained, Officer Layne and other officers entered the premises. Officer
    Layne testified that when he entered the back door, he detected a chemical odor and smelled smoke.
    He then heard a loud “pop,” which sounded like a gunshot, come from a bedroom located on the left
    side of the trailer. Unsure if shots had been fired, he and Detective Williams approached the
    bedroom with caution. The room was dimly lit by a small lamp that was connected to an extension
    cord. As Officer Layne opened the door, he noticed a pile of paper burning on top of a red duffel
    bag on the floor and immediately extinguished the fire. Upon closer inspection, he discovered that
    the burning papers were a mixture of coffee filters and paper towels. Noticing that the duffel bag
    was partially unzipped, he could identify some of its contents which included a twenty ounce Sun
    Drop bottle with tubing coming out of the top and a glass jar with brown liquid and coffee filters
    inside. Officer Layne testified that based on his training and experience, these and the additional
    items discovered inside the duffel bag were commonly used to manufacture methamphetamine.
    Officer Johnson testified that the popping sound was later determined to be the cause of one of the
    “gassers” or the “generator” exploding when it caught fire. He explained that a “generator” is
    another name for a bottle with tubing attached to it that would be used to “gas off,” a procedure
    commonly used in manufacturing methamphetamine.
    2
    The trailer was described as being sixty feet long, and contained a living room, bathroom and
    kitchen. It had two small bedrooms on opposite ends of the trailer. The bedrooms were also
    separated from the main living space by a small hallway. The trailer did not have any power source,
    and the only source of electricity was an extension cord that ran from the trailer to Harvey Layne’s
    home, located on an adjacent lot. Office Johnson estimated that the distance from the back door,
    where officers first entered the trailer, to the bedroom where the red duffel bag was discovered was
    approximately four to five feet. He further testified that a rough estimate of the distance between
    the couch, where Defendant was initially detained, and the bedroom with the red duffel bag was
    approximately thirty feet, the length of half the trailer.
    After obtaining a search warrant, Detective Myers and Officer Layne returned to the trailer
    and conducted a thorough search of the premises. Officer Layne inspected the bag’s contents and
    photographed the evidence. He also inspected and photographed other items in the house including
    a crock pot with white residue, which was discovered in the kitchen, and a box of matches. Officer
    Layne compiled a list of the items found in the red duffel bag which included the following:
    ephedrine pills, coffee filters which contained a residue, two bottles, two twenty ounce coke bottles
    with tubing coming out of them, a quart fruit jar with coffee filters, a gallon jug of muriatic acid, one
    bottle of heet, a funnel, a coffee pot with residue on it, a square dish with red powder residue, two
    jars with a clear liquid in them, and assorted tubing and jars that contained an oil substance.
    Crosby Jones, a Special Agent with the Drug Enforcement Agency, testified that on January
    14, 2000, he was summoned to Mr. Green’s residence in his official capacity as a site safety officer.
    As a site safety officer, it is his responsibility to enter alleged laboratories where hazardous material
    is manufactured and take samples, process the samples, and ensure that the hazardous substance is
    disposed of in the proper manner. His duties also include overseeing officers at the scene to ensure
    that they are performing their jobs properly, and ensuring that the samples are retrieved properly.
    Agent Jones testified that he has received specialized training about the production of
    methamphetamine. He testified that his training has included learning the process for manufacturing
    methamphetamine under laboratory controlled conditions and also under “home-made” laboratory
    conditions, which are commonly seen in fieldwork. He then described the procedure for “cooking”
    methamphetamine, explaining that many chemicals used to produce methamphetamine can be found
    at any grocery store.
    Agent Jones testified that he personally unpacked the red duffel bag and assessed the
    contents. He also confirmed that the bag contained the majority of the ingredients used to “cook”
    methamphetamine, including the following: 150 pseudoephedrine tablets, glass jars, two bottles of
    12 ounce Heet line antifreeze, two plastic bottles with attached tubing, coffee filters, red phosphorus
    on a matchbook cover, lye, Coleman Fuel, one gallon jug of muriatic acid, two glass coffee pots, two
    quart empty jars, one single eye burner, one blue glass bowl containing white sludge material, one
    iron skillet with brown color residue, one crock pot containing an off white powder residue, and one
    Pyrex cooking dish containing off white powder residue. He admitted that officers did not discover
    iodine, an ingredient commonly used in the manufacturing process, in the trailer. However, he
    3
    explained that this was not uncommon because during the manufacturing process, iodine cooks out
    completely. Thus, the absence of the raw substance would not be uncommon. However, he testified
    that he found traces of iodine on coffee filters that were in the bag and strewn around the room.
    On cross-examination, Agent Jones further admitted that he did not find acetone, another
    ingredient required to produce methamphetamine. However, he testified that he did discover a clear
    liquid in a jar which he believed was acetone. Although it was not tested, he was able to recognize
    the smell of acetone, which is commonly used as a fingernail polish remover. Furthermore, although
    the trailer failed to contain a heat source, which is needed to “cook” the final solution, he stated that
    this step can be bypassed by combining iodine, red phosphorus, and a water solution to create natural
    heat.
    Detective Myers, assisted by Agent Jones, retrieved a liquid sample from two containers that
    were removed from the red duffel bag. The first sample was retrieved from a glass jar which
    contained a brown liquid and coffee filters, and the second sample was retrieved from a plastic bottle
    with a hose protruding out of it. Each sample was placed in a glass container and sealed with a lid.
    Then, each sample was placed in a plastic bottle and capped. Finally, each sample was packaged in
    a bag and submitted to Officer Layne for storage until the samples could be submitted to the crime
    lab for testing. The coffee filters were also submitted to the crime lab for testing. Officer Layne
    testified that he observed as each sample was inspected, retrieved, labeled, stored, and then recorded
    on a log sheet.
    Detective Williams, acting as custodian, transported the evidence to and from the Tennessee
    Bureau of Investigation’s Crime Laboratory located in Chattanooga, Tennessee. He testified that
    based on his knowledge, the samples that he received from the scene did not come from Defendant.
    He further stated that on January 14, 2000, the temperature inside the trailer was colder than the
    temperature outside.
    Brett Trotter, a forensic chemist for the Chattanooga Regional Crime Laboratory, testified
    that on February 22, 2000, he performed a drug analysis on two liquid samples, brown in color. His
    initials were placed on the bag which contained the evidence. He testified that both samples tested
    were positive for traces of methamphetamine, a Schedule II controlled substance. Alex Brodhag,
    also a forensic chemist at the TBI Crime Laboratory in Chattanooga, analyzed the coffee filters
    submitted as evidence in this case. He testified that the coffee filters contained a small amount of
    powdery residue. When tested, the residue on the coffee filters revealed the presence of
    methamphetamine. Adam Gray, another forensic chemist who tested a sample from the second
    coffee filter submitted, testified that the residue found on the filter also tested positive for
    methamphetamine.
    The State rested its case.
    Defendant was the sole witness for the defense. He testified that on January 14, 2000, he
    traveled to Whitewell to visit with friends. He stated that on that evening, he visited his brother-in-
    4
    law, Harvey Layne. While there, he, Mr. Layne and Mr. Green, and Mr. Green’s girlfriend, Angie,
    were standing outside Mr. Layne’s home talking. Although Defendant admitted that he was
    acquainted with Mr. Kilgore, he denied being with Mr. Kilgore on January 14, 2000. He further
    denied seeing a patrol car drive by Mr. Layne’s residence.
    After talking for awhile, he and Mr. Green went to the store to purchase a beer. Upon their
    return, they discovered that Mr. Layne had gone inside his home. Mr. Green then invited Defendant
    into his trailer, located next door, to wait for Mr. Layne to return. He stated that he entered the trailer
    and sat down on the couch. Angie also accompanied them into the trailer, and she and Mr. Green
    disappeared into a back bedroom. Within minutes, Angie reappeared and left. Defendant stated that
    only moments later, the back door flew open and someone yelled at him to “hit the floor.”
    Defendant testified that he immediately got down on the floor until he was later ordered to sit on the
    couch. As he “hit the floor,” he heard a “pop” inside the trailer which sounded like a gunshot. He
    then yelled, “I’m over here on the floor, don’t shoot me.” He testified that he was unable to see who
    entered the trailer or whether they had guns. He denied hearing anyone knock on the door. He
    further testified that the couch in the living room faces the front door and that he did not see Mr.
    Green approach the back door with a gun. Defendant stated that he was in the trailer less than fifteen
    minutes before police entered, and that he did not go through the trailer and was unaware of its
    contents. He also testified that he never saw the red duffel bag in the back bedroom and did not
    remember smelling anything inside the trailer, or seeing any smoke.
    In February 2000, Defendant was indicted, along with his co-defendant, William T. Green,
    for criminal attempt to manufacture a Schedule II controlled substance; unlawful possession of a
    weapon with intent to employ it in the commission of the offense of attempt to manufacture a
    Schedule II controlled substance; felony possession of drug paraphernalia; and possession of a
    legend drug without a prescription. Later, the trial court dismissed both Count II (unlawful
    possession of a weapon), and Count IV (unlawful possession of a legend drug), against Defendant,
    and Count IV against the co-defendant.
    Defendant was acquitted of attempt to manufacture a Schedule II controlled substance, but
    was convicted of possession of drug paraphernalia with intent to deliver and fined $3,000.00. On
    November 6, 2000, Defendant was sentenced as a Range II, multiple offender, and received the
    maximum four year sentence. Defendant’s fine was later reduced from $3,000.00 to $500.00.
    Defendant filed a timely notice of appeal to this Court.
    ANALYSIS
    I.      Sufficiency of the Evidence
    Defendant argues that the evidence was insufficient to sustain his conviction for possession
    of drug paraphernalia. We agree.
    5
    When evaluating the sufficiency of the evidence, we must review the evidence, in the light
    most favorable to the prosecution, to determine if “any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt.” State v. Keough, 
    18 S.W.3d 175
    , 180-
    81 (Tenn. 2000) (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979)). A guilty verdict shall be set aside on appeal if the evidence was insufficient to support the
    findings of guilty beyond a reasonable doubt. Tenn. R. App. P. 13(e). The burden rests with
    Defendant to prove that the evidence was insufficient to support the verdict returned by the trier of
    fact. See State v. Tuggle, 
    639 S.W.2d 913
    , 914 (Tenn. 1982).
    On appeal, the prosecution is entitled to the strongest legitimate view of the evidence in the
    record, as well as all reasonable and legitimate inferences that may be drawn from the evidence. See
    Keough, 18 S.W.3d at 181 (citing State v. Bland, 
    958 S.W.2d 651
    , 659 (Tenn. 1997)). “A guilty
    verdict by the jury, approved by the trial court, accredits the testimony of the witnesses for the State
    and resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. The trier
    of fact resolves all questions concerning witnesses’ credibility, the weight and value to be given the
    evidence, and all factual issues; the evidence will not be reweighed or reevaluated. See id.; State v.
    Cabbage, 
    571 S.W.2d 832
    , 835 (Tenn. 1978); State v. Pappas, 
    754 S.W.2d 620
    , 623 (Tenn. Crim.
    App. 1987). The standard for appellate review is the same whether the conviction is based upon
    direct or circumstantial evidence. See State v. Vann, 
    976 S.W.2d 93
    , 111 (Tenn. 1998).
    Defendant contends that although the evidence was sufficient to support a finding that the
    items seized were drug paraphernalia, the State failed to prove his “possession, either actual or
    constructive.” He further argues that his mere presence at the residence is insufficient, by itself, to
    support the conviction.
    A conviction of possession of drugs or drug paraphernalia may be based upon either actual
    or constructive possession. See State v. Cooper, 
    736 S.W.2d 125
    , 129 (Tenn. Crim. App. 1987)
    (citing State v. Williams, 
    623 S.W.2d 121
    , 125 (Tenn. Crim. App. 1981)). In discussing the nature
    of constructive possession in a similar context, this Court has stated that before a person can be
    found to constructively possess drugs or drug paraphernalia, it must appear that the person has “the
    power and intention at a given time to exercise dominion and control over . . . [the drugs or drug
    paraphernalia] either directly or through others.” State v. Transou, 
    928 S.W.2d 949
    , 955-56 (Tenn.
    Crim. App. 1996) (citing Cooper, 736 S.W.2d at 129). However, mere presence in an area where
    the drugs are discovered is not, standing alone, sufficient to support a conviction for possession. See
    id. at 956. “Likewise, mere association with a person who does in fact control the drugs or property
    where the drugs are discovered is insufficient to support a finding that the person possessed the
    drugs.” See id.
    Viewed in the light most favorable to the State, this Court finds that the evidence at trial was
    insufficient to convict Defendant of felonious possession of drug paraphernalia beyond a reasonable
    doubt. First, the officers acknowledged that Defendant did not reside in the residence in which the
    drug paraphernalia was found. Second, the officers did not find the drug paraphernalia on
    Defendant’s person. Third, Detective Myers, the first officer into the trailer, testified that Defendant
    6
    was seen and detained upon exiting a bedroom on the opposite side of the trailer from where the drug
    paraphernalia was later discovered. Furthermore, officers failed to discover any evidence connecting
    Defendant with the trailer or its contents. In addition, Detective Williams, another officer on the
    scene, testified that there was no evidence to connect Defendant with the drug paraphernalia, “just
    that he was there.” Defendant’s mere presence in co-defendant’s trailer is not, standing alone,
    sufficient to support a conviction of possession of drug paraphernalia. See Cooper, 736 S.W.2d at
    129. Nor was his mere association with co-defendant, the person who controlled the property where
    the drug paraphernalia was discovered, sufficient to support his conviction. See Whited v. State, 
    483 S.W.2d 594
     (Tenn. Crim. App. 1972); Dishman v. State, 
    460 S.W.2d 855
    , 858 (Tenn. 1970).
    The State concedes that although Defendant’s mere presence in the trailer was insufficient
    to support a conviction, the “logical force” of the evidence was sufficient to support a finding that
    Defendant “intended to exercise dominion and control over the duffel bag of meth lab
    paraphernalia.” This is mere speculation. Although it is well established that circumstantial
    evidence alone may be sufficient to support a conviction, see State v. Richmond, 
    7 S.W.3d 90
    , 91
    (Tenn. Crim. App. 1999), before an accused may be convicted of a criminal offense based
    exclusively upon circumstantial evidence, “it must establish such a certainty of guilt of the accused
    as to convince the mind beyond a reasonable doubt that [the defendant] is the one who committed
    the crime.” State v. Crawford, 
    470 S.W.2d 610
    , 612 (1971) (quoting Pruitt v. State, 
    460 S.W.2d 385
    , 390 (1970)). In other words, “[a] web of guilt must be woven around the defendant from which
    he cannot escape and from which facts and circumstances the jury could draw no other reasonable
    inference save the guilt of the defendant beyond a reasonable doubt.” Crawford, 470 S.W.2d at 613.
    We find that this evidence does not exclude every other reasonable hypothesis save the guilt of
    [Defendant]. See id. In sum, we find that the evidence was insufficient to sustain Defendant’s
    conviction. In the event of further review, we will address Defendant’s remaining three issues on
    appeal.
    II.    Motion to Sever
    Defendant contends that the trial court erred by denying his motion to sever his trial.
    Defendant claims that due to the overwhelming amount of evidence against co-defendant Green, the
    trial court should have severed his case to “promote a fair determination of his guilt or innocence.”
    We disagree.
    Defendant presented two motions to sever his trial from co-defendant, both of which were
    denied by the trial court. The first motion was presented before the trial began, and the second
    motion was presented orally, during the trial, when co-defendant failed to reappear on the second
    day of trial. Severance of defendants is allowed pursuant to Rules 13(b) and 14(c) of the Tennessee
    Rules of Criminal Procedure. Rule 14(c)(2)(i) and (ii) of the Tennessee Rules of Criminal Procedure
    provides that the court shall grant a severance of defendants, before or during trial, if deemed
    appropriate to promote or achieve a fair determination of the guilt or innocence of a defendant.
    7
    The grant or denial of a motion for severance of defendants is a matter that rests within the
    sound discretion of the trial court. See State v. Burton, 
    751 S.W.2d 440
    , 447 (Tenn. Crim. App.
    1988). This Court will not disturb the trial court's decision to deny or grant a severance of
    co-defendants absent clear abuse of that discretion. See State v. Woods, 
    806 S.W.2d 205
    , 211
    (Tenn. Crim. App. 1990). “The exercise of that discretion will not be reversed absent an affirmative
    showing of prejudice.” State v. Ensley, 
    956 S.W.2d 502
    , 508 (Tenn. Crim. App. 1996). In other
    words, the record must reveal that “the defendant was clearly prejudiced to the point that the trial
    court's discretion ended and the granting of [a] severance became a judicial duty.” Parham v. State,
    
    885 S.W.2d 375
    , 383 (Tenn. Crim. App. 1994).
    We find no abuse of discretion. At the conclusion of the evidence, the trial court issued the
    following jury instruction:
    Now, ladies and gentlemen, you should give separate consideration to each
    defendant. Each is entitled to have his case decided on the evidence and the law
    which is applicable to that particular defendant. Any evidence which was limited to
    a particular defendant should not be considered by as to any other defendant.
    The jury is presumed to have followed the instructions of the trial court. See State v. Cribbs,
    
    967 S.W.2d 773
    , 784 (Tenn. 1998). In order to overcome this presumption, the defendant must show
    by clear and convincing evidence that the instruction was not followed. See State v. Newsome, 
    744 S.W.2d 911
    , 915 (Tenn. Crim. App. 1987). Defendant has failed to present evidence to overcome
    this presumption. On the contrary, the record reveals that although both defendants were charged
    with attempt to manufacture a Schedule II controlled substance, the co-defendant was convicted and
    Defendant was acquitted. Defendant is not entitled to relief on this issue.
    III.    Failure to Recuse
    Defendant next contends that the trial judge erred by denying his motion for recusal. He
    claims that the trial judge should have recused himself because his “impartiality could reasonably
    be questioned.”
    After the trial, but prior to sentencing, Defendant filed a motion for recusal based on the trial
    judge's prior representation and personal opinion of Defendant. The motion was based on a
    comment made during a lunch with the trial judge, district attorney, and defense counsel present in
    another county during a break in an unrelated matter. During the lunch, the trial court made the
    comment that he had represented the Defendant some 20 to 25 years previously in a case where
    Defendant was acquitted. The trial court observed that the then district attorney made the comment
    that Defendant would be back in court “every day from that day on.” At the hearing on the motion
    to recuse, the trial court remarked “[a]nd [the district attorney] was somewhat right.” Immediately
    after making this statement, Defendant’s counsel was stating that the court arguably had a negative
    view of Defendant and that was the reason for filing the motion to recuse. The trial court interposed
    at the motion for recusal, and the following was stated on the record:
    8
    THE COURT:           (Interposing) Heck, I remember - - I remember him as
    far anything that would be prejudicial I remember him
    - - his involvement with the killing of what was his
    name, Bubba?
    GENERAL GOUGER:      Bubba Winchester.
    THE COURT:           Bubba Winchester, and everybody in the county knew
    that. I mean, you know, he was actually indicted and
    was on the lam for years.
    [DEFENSE COUNSEL]:   No, sir, he was not on the lam.
    THE COURT:           He wasn’t?
    [DEFENSE COUNSEL]:   No, sir, he was not on the lam, and that’s absolutely
    not correct. In point of fact, - -
    THE COURT:           (Interposing) He was out of county, but under
    indictment for a long, long time.
    [DEFENSE COUNSEL]:   Judge, I think and you know since the Court’s brought
    up that - - that particular matter. That matter was set
    for trial, if my memory serves me correctly and I
    haven’t gone - - we were appointed to represent Mr.
    McGowan in that case and I want to say it was in ‘89,
    ‘90. That case was set for trial and Mr. McGowan,
    there was an offer made in that case, shortly before
    trial, it was rejected. I want to say this was around the
    time that [the district attorney’s wife] died, but I may
    be confusing my time frames, that [she] died,
    sometime maybe that week-end or whatever, but Mr.
    McGowan was not on the lam. He was prepared to go
    to trial on that case that was set for trial.
    THE COURT:           Maybe - - maybe he was out of the county by exile or
    something, I remember some comments about it.
    ***
    THE COURT:           Well, obviously nothing ever occurred from it. I
    mean, the State whatever the situation the State
    decided to drop further prosecution because there was
    9
    never any ultimate resolution other than a dismissal or
    something, what happened to it?
    [DEFENSE COUNSEL]:            Well . . . .
    THE COURT:                    Was he retired after that case or what?
    [DEFENSE COUNSEL]:            Judge, I honestly can’t tell you what - - -
    THE COURT:                    (Interposing) Don’t remember.
    ***
    [DEFENSE COUNSEL]:            Well, that’s what I’m observing, Your Honor, is that
    [co-defendant] did not come back til the second day of
    trial, and at that time we made a – we asked the Court
    to sustain our motion to sever or made another motion
    to sever in the case as to Mr. McGowan. So I just
    basically think that the Court may have some
    misinformation about Mr. McGowan as evidence here
    today with the matter of Mr. Winchester’s case were
    Mr. McGowan was not on the lam - - - -
    THE COURT:                    (Interposing) Well, it’s not misinformation it may be
    saying on the lam is a little broad, but he certainly was
    connected with it, indicted for it, and you know, it was
    up in the air for a long time is all I knew.
    [DEFENSE COUNSEL]:            So that’s the basis of - - for this motion to recuse that
    the Court may have a negative view of Mr. McGowan
    as a result of a lot of maybe information, some
    correct, some not correct, and I felt it appropriate as
    his attorney to bring that to the Court’s attention and
    respectfully request the Court recuse itself from
    further considerations in the sentencing and the
    motion for new trial, and the things that will
    obviously follow.
    Following the above argument and discussion on the record, the trial court ruled denying the
    motion to recuse, stating as follows:
    THE COURT:                     The Court knows what it has in its own heart, sounds
    like a political candidate, doesn’t it? And in his case
    10
    there’s - - the Court has no bias as far as mistreating
    him. It’s hard to be a judge in a rural district and not
    know about people’s past criminal contact with the
    system. I mean, gosh, if we had to recuse every time
    we knew of somebody’s past deeds that may or may
    not be viewed in a good light, I mean we wouldn’t be
    able to try about half of the people we have in here,
    they’re all repeat offenders. So anyway I deny your
    motion.
    During the motion for new trial hearing, the following occurred while defense counsel was
    arguing that the evidence was insufficient to sustain the conviction:
    THE COURT:                     (Interposing) No, reasonable - - -
    [DEFENSE COUNSEL]:             Except guilt. Except guilt. Not that you can think of
    a reason to convict him, but that the evidence must
    exclude every other reasonable explanation. That
    evidence was not here. This was as weak a case as
    I’ve seen the State of Tennessee bring as far as Don
    Woody McGowan’s concerned.
    THE COURT:                     One of his many cases.
    [DEFENSE COUNSEL]:             Well, which brings us to some more thoughts that
    there was some statement made here in the courtroom
    that are not correct. Dealing with a totally unrelated
    case years ago and was not ever resulting in any kind
    of conviction yet - - - -
    THE COURT:                     (Interposing) Well, the jury didn’t have any of that
    before them - - -
    Finally, we note that at the beginning of the hearing on the motion to recuse, the following
    transpired:
    [DEFENSE COUNSEL]:             What I was wanting to bring to the Court’s attention
    is in a case that the Court tried recently involving - -
    it’s case number 5116, Don Woody McGowan, and
    Judge - - -
    THE COURT:                     His name came up again today I noticed.
    11
    GENERAL GOUGER:                  And guess where.
    [DEFENSE COUNSEL]:               Yes.
    THE COURT:                       At a crack - - at a meth lab.
    [DEFENSE COUNSEL]:               I’ve been practicing law 28 years and this to my
    knowledge is the first time I’ve asked a Court to
    recuse itself. So I’m treading in areas that I’m not
    accustomed to doing.
    THE COURT:                       Okay.
    First, we note that normally, the proper time for Defendant to raise the issue of recusal would
    have been pre-trial, not prior to sentencing. A motion to recuse that is filed after the trial begins is
    waived. See Thompson v. State, 
    958 S.W.2d 156
    , 172 (Tenn. Crim. App. 1997). However, because
    Defendant claims that the trial judge’s apparent partiality was discovered several weeks after the
    trial, we will address Defendant’s claims on the merits.
    The decision of whether to grant a recusal rests within the discretion of the trial judge and
    will not be overturned on appeal unless clear abuse of that discretion appears on the face of the
    record. See State v. Hines, 
    919 S.W.2d 573
    , 578 (Tenn. 1995). A motion to recuse should be
    granted if the judge has any doubt as to his or her ability to preside impartially in the case, or
    whenever he or she believes that his or her impartiality can reasonably be questioned. Tenn. Sup.
    Ct. R. 10, Canon 3(E); see Lackey v. State, 
    578 S.W.2d 101
    , 104 (Tenn. Crim. App. 1978).
    Moreover, recusal is warranted “when a person of ordinary prudence in the judge's position, knowing
    all of the facts known to the judge, would find a reasonable basis for questioning the judge's
    impartiality.” Alley v. State, 
    882 S.W.2d 810
    , 820 (Tenn. Crim. App. 1994). In other words, the
    determining standard is an objective one, not a subjective one. See id. at 820. Courts must avoid
    the appearance of partiality as well as partiality itself. See id. at 823. Furthermore, any comments
    made by the trial court must be construed in the context of all the facts and circumstances to
    determine whether a reasonable person would construe those remarks as indicating partiality on the
    merits of the case. See id. at 822. However, we note that a judge is in no way disqualified merely
    because he has participated in other legal proceedings against the same person. See Hines, 919
    S.W.2d at 578 (citing King v. State, 
    391 S.W.2d 637
    , 642 (1965)).
    Initially, we note that it would not be unusual for a trial judge, particularly in a rural area, to
    be aware that a defendant had previous charges, as well as the disposition of those charges. Such
    knowledge certainly does not mandate recusal. However, if a trial judge, on the record, expresses
    an unfavorable opinion about a defendant’s alleged prior criminal conduct in an unrelated matter
    which has not been adjudicated or is inconsistent with the disposition of the matter, then there is an
    objective appearance of partiality even though the judge can be subjectively fair and impartial.
    Recusal is required in such a situation.
    12
    The crux of the issue before this court is whether the trial judge’s remarks could reasonably
    be interpreted as simply relating to the defendant’s prior procedural history, or whether the judge was
    expressing an unfavorable opinion of the defendant based upon the judge’s perception of
    unadjudicated prior conduct in unrelated matters. We view this issue from an objective perspective.
    The defendant was facing sentencing for a felony. The trial judge stated at the motion
    hearing: he “remember[ed the defendant’s] involvement with the killing of Bubba [Winchester];”
    “everybody in the county knew that;” the defendant was “on the lam for years;” and although it may
    be “saying on the lam is a little broad, ... he certainly was connected with it....” We believe these
    remarks were unfortunate and certainly called into question from an objective perspective an
    appearance of partiality as it relates to sentencing. Nevertheless, we do note that the trial judge
    spoke in his ruling about the difficulty of a rural trial judge not being aware of a defendant’s “past
    criminal contact with the system.” Certainly, this is true.
    The issue of recusal is a close one as it relates to sentencing, although the issue is moot in
    light of our dismissal for insufficiency of the evidence. Had we not dismissed, we would remand
    for resentencing by a different judge, and would not address the sentencing issues raised by
    Defendant.
    IV.    Sentencing
    Finally, Defendant challenges the trial court's denial of alternative sentencing. Specifically,
    he argues that because he was convicted of a Class E felony, the trial court erred by ordering his
    sentence to be served in the Tennessee Department of Correction. He also contests the method of
    service and length of the sentence.
    When the defendant challenges the length, range, or manner of service of a sentence, this
    Court conducts a de novo review of the record with a presumption that the determinations made by
    the sentencing court were correct. See Tenn. Code Ann. §§ 40-35-401(d), -402(d) (1997).
    "However, the presumption of correctness which accompanies the trial court's action is conditioned
    upon the affirmative showing in the record that the trial court considered the sentencing principles
    and all relevant facts and circumstances." State v. Ashby, 
    823 S.W.2d 166
    , 169 (Tenn. 1991). In
    conducting a de novo review, this court must consider (a) all the evidence at trial and the sentencing
    hearing, (b) the presentence report, (c) the sentencing principles, (d) the arguments of counsel, (e)
    the nature and characteristics of the offenses, (f) any statutory mitigating and enhancement factors;
    (g) any statement that the Defendant made on his own behalf, and (h) the defendant’s potential for
    rehabilitation. See Tenn. Code Ann. §§ 40-35-102, -103, -210(b) (1997). The burden of showing
    that a sentence was improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401(d),
    Sentencing Commission Comments.
    The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
    the minimum within the applicable range unless there are enhancement or mitigating factors present.
    Tenn. Code Ann. § 40-35-210(c) (1997). Where one or more enhancement factors apply but no
    mitigating factors exist, the trial court may sentence above the presumptive sentence, but still within
    13
    the range. See id. at § 40-35-210(d) (1997). Should both enhancement and mitigating factors exist,
    the trial court must begin sentencing at the presumptive sentence (i.e., the midpoint of the range for
    Class A felonies and the minimum sentence in the range for Class B, C, D, and E felonies), enhance
    the sentence within the range as appropriate for the enhancement factors and then reduce the
    sentence within the range as appropriate for the mitigating factors. See id. at § 40-35-210(e) (1997).
    Because the record in this case indicates that the trial court properly considered the sentencing
    principles and all relevant facts and circumstances, our review is de novo with a presumption of
    correctness.
    Defendant was convicted of possession of drug paraphernalia, a Class E felony. He was
    sentenced as a Range II offender. The possible range of punishment for a Range II, multiple offender
    is two to four years for a Class E felony. Tenn. Code Ann. § 40-35-112(b) (5) (Supp. 2001). The
    trial court imposed the maximum sentence of four years in the custody of the Department of
    Correction. Defendant does not contest his Range II offender status. In fact, he states, “[t]hat
    finding is more than amply supported by the record.” However, Defendant claims that because his
    conviction is for a Class E felony, he should be afforded an alternative sentence. He further argues
    that the trial court failed to enunciate on the record which considerations in Tennessee Code
    Annotated section 40-35-103 warranted confinement.
    Tennessee Code Annotated § 40-35-102 (5) provides as follows:
    In recognition that state prison capacities and the funds to build and maintain them
    are limited, convicted felons committing the most severe offenses, possessing
    criminal histories evincing a clear disregard for the laws and morals of society, and
    evincing failure of past efforts at rehabilitation shall be given first priority regarding
    sentencing involving incarceration[.]
    A defendant who does not fall within this class of offenders “and who is an especially
    mitigated offender or standard offender convicted of a Class C, D, or E felony is presumed to be a
    favorable candidate for alternative sentencing in the absence of evidence to the contrary.” Tenn.
    Code Ann. § 40-35-102(6) (1997). Furthermore, “[t]he trial court must presume that a defendant
    sentenced to eight years or less and not an offender for whom incarceration is a priority is subject
    to alternative sentencing and that a sentence other than incarceration would result in successful
    rehabilitation . . . .” State v. Byrd, 
    861 S.W.2d 377
    , 379-80 (Tenn. Crim. App. 1993); see also Tenn.
    Code Ann. § 40-35-303(a) (Supp. 2001). However, if the court is presented with “evidence
    sufficient to overcome these presumptions, then it may sentence the defendant to confinement
    according to the statutory provision.” State v. Ashby, 
    823 S.W.2d 166
    , 169 (Tenn. 1991). Evidence
    sufficient to overcome the presumption includes evidence showing that:
    (A) [c]onfinement is necessary to protect society by restraining a defendant
    who has a long history of criminal conduct;
    (B) [c]onfinement is necessary to avoid depreciating the seriousness of the
    offense or confinement is particularly suited to provide an effective deterrence to
    others likely to commit similar offenses; or
    14
    (C) [m]easures less restrictive than confinement have frequently or recently
    been applied unsuccessfully to the defendant[.]
    Tenn. Code Ann. § 40-35-103(1)(A)-(C) (1997).
    The presumption in favor of alternative sentencing may be overcome by facts contained in
    the pre-sentence report, evidence presented by the State, the testimony of the accused or a defense
    witness, or any other source, provided it is made a part of the record. See State v. Parker, 
    932 S.W.2d 945
    , 958 (Tenn. Crim. App. 1996). Additionally, a court should consider the defendant's
    potential or lack of potential for rehabilitation when determining if an alternative sentence would be
    appropriate. See Tenn. Code Ann. § 40-35-103(5) (1997). A court may also apply the mitigating
    and enhancement factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114,
    as they are relevant to sentencing considerations in Tennessee Code Annotated section 40-35-103.
    See id. at 40-35-210(b) (5) (Supp. 2001).
    We find that Defendant’s sentence was proper. Defendant, as a Range II multiple offender,
    is not entitled to a presumption that he is a favorable candidate for alternative sentencing under
    Tennessee Code Annotated section 40-35-102(6). Moreover, Defendant is not entitled to alternative
    sentencing, based on the sentencing consideration listed in Tennessee Code Annotated section
    40-35-103(1)(A), (C). At the sentencing hearing, the State introduced into evidence, without
    objection, the pre-sentence report. Defendant did not put on any proof. The pre-sentence report
    indicated that Defendant has a lengthy history of criminal conduct including six prior felony
    convictions including second degree burglary, third degree burglary, petit larceny, felony sale of
    marijuana and aggravated assault, and two prior misdemeanor convictions. The report also indicates
    that in at least two instances, Defendant committed prior offenses while on probation or parole for
    another offense. The trial court, relying on the pre-sentence report, held that Defendant has an
    extensive history of criminal convictions or criminal behavior in addition to those necessary to
    establish the appropriate range and that his failure to comply with the conditions of a sentence
    involving release into the community precluded any lesser sentence or alternative sentencing. See
    Tenn. Code Ann. § 40-35-114(1), (8) (Supp. 2001). Because Defendant has a “long history of
    criminal conduct” and because “measures less restrictive than confinement” have failed, we conclude
    that Defendant is not entitled to an alternative sentence. See id. at §40-35-103(1)(A), (C).
    Defendant is not entitled to relief on this issue.
    CONCLUSION
    Accordingly, because the evidence was insufficient to sustain the conviction, the judgment
    of the trial court is reversed and the case is dismissed. Furthermore, if the evidence had been
    sufficient to sustain the conviction, this matter would have been remanded for a new sentencing
    hearing.
    ___________________________________
    THOMAS T. WOODALL, JUDGE
    15