State of Tennessee v. Terry R. Cary ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 1, 2009
STATE OF TENNESSEE v. TERRY R. CARY
Direct Appeal from the Circuit Court for Madison County
No. 08-389 Donald H. Allen, Judge
No. W2009-00583-CCA-R3-CD - Filed March 18, 2010
The defendant, Terry Cary, was convicted by a Madison County jury of promoting the
manufacture of methamphetamine, a Class D felony, and sentenced as a career offender to
twelve years in the Department of Correction. On appeal, the defendant raises the single
issue of sufficiency of the evidence. Following review of the record, we affirm the judgment
of conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and J.C. M CL IN, JJ., joined.
George Morton Googe, District Public Defender, and Gregory D. Gookin, Assistant Public
Defender (on appeal); and Roger A. Staton, Jackson, Tennessee (at trial), for the appellant,
Terry R. Cary.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; James
G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
The instant crime for which the defendant stands convicted arose from his actions
of buying multiple boxes of over-the-counter medications containing pseudoephedrine.
Multiple witnesses testified and explained that since a change in Tennessee law, products
containing pseudoephedrine are now kept behind the pharmacy counter and, in order to
purchase these products, a customer is required to produce a valid driver’s license and sign
for the product. These records are kept electronically at each individual store and later
transmitted to a central database accessible to law enforcement.
Beth Beard, a pharmacist from Walgreens, testified that on August 15, 2006, the
defendant purchased a forty-eight-count box of Wal-Act, a generic drug containing 2.88
grams of pseudoephedrine. The defendant returned to the same Walgreens on August 19,
2006, and purchased a ten-count box of Sudafed, which contained 2.4 grams of
pseudoephedrine. Walton Shearin, a Wal-Mart pharmacist, testified that on August 15, 2006,
the defendant purchased a twenty-count box of Equate brand medication, which contained
2.4 grams of pseudoephedrine. On August 20, 2006, the defendant again purchased a
twenty-count box of medication, containing 2.4 grams of pseudoephedrine, from Wal-Mart.
Finally, on August 22, 2006, the defendant went to a different Walgreens and purchased a
ninety-six-count box of Wal-Phed D, which contains 2.88 grams of pseudoephedrine,
according to Megan Cawthon, a certified pharmacy technician. Each witness testified that
the defendant produced a driver’s license issued in his name and signed for each of the
purchases.
During a subsequent investigation, the defendant was interviewed by Investigators
Jackie Benton of the Jackson Police Department’s Narcotics Unit and Paul Moore of the
Tennessee Bureau of Investigation. During the interview, the defendant acknowledged that
he knew how to manufacture methamphetamine and that he knew how “many pills it took
in order to produce ounces or more of” the drug. The defendant also explained to the
investigators the process he used for manufacturing methamphetamine.
Based upon these facts, a Madison County grand jury returned a one-count indictment
charging the defendant with promoting the manufacture of methamphetamine. Following
a jury trial, the defendant was convicted as charged. After a subsequent sentencing hearing,
the trial court imposed a twelve-year sentence to be served in the Department of Correction.
The court denied the defendant’s motion for new trial, and this timely appeal followed.
Analysis
On appeal, the defendant has raised the single issue of sufficiency of the evidence.
Specifically, he argues that the evidence presented was insufficient to establish that the
defendant “bought those [specific] boxes of pseudoephedrine with the intent to use them in
manufacturing methamphetamine.” In considering the issue of sufficiency of the evidence,
we apply the rule that where the sufficiency of the evidence is challenged, the relevant
question for the reviewing court is “whether, after viewing the evidence in the light most
favorable to the [State], any rational trier of fact could have found the essential elements of
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the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the
credibility of witnesses, the weight and value to be given the evidence, and all factual issues
are resolved by the trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). This court will not reweigh or reevaluate the evidence presented. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978).
“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State
v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption
of innocence with which a defendant is initially cloaked and replaces it with one of guilt so
that, on appeal, a convicted defendant has the burden of demonstrating that the evidence is
insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). These rules are applicable
to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Tennessee Code Annotated section 39-17-433 provides, in relevant part, that:
(a) It is an offense for a person to promote methamphetamine manufacture.
A person promotes methamphetamine manufacture who:
(2) Purchases or possesses more than nine (9) grams of an
immediate methamphetamine precursor with the intent to
manufacture methamphetamine or delivers the precursor
to another person whom they know intends to
manufacture methamphetamine, or with reckless
disregard of the person’s intent. . . .
T.C.A. § 39-17-433(a)(2) (2006). Again, the defendant argues that no evidence was
presented which established that he had the intent to manufacture methamphetamine with the
boxes of pseudoephedrine he purchased in August of 2006. He contends that the only way
the State was able to “tie” him to any sort of methamphetamine-related criminal activity was
his statement to investigators that he was familiar with the process of how the drug is
produced.
Following review of the record, we do not find the defendant’s argument to be
persuasive. His argument ignores that proof of intent can and usually does consist of
circumstantial evidence and the inferences which can reasonably be drawn from the evidence
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presented. State v. Hall, 490 S.W.2d 495, 496 (Tenn. 1973). The proof presented
established that, in five separate transactions in an eight-day period, the defendant purchased
one hundred and ninety-four over-the-counter tablets containing 12.96 grams of
pseudoephedrine. Based upon the type of pill purchased, the quantity of pills purchased, and
the short time period in which they were purchased, it was reasonable for a rational trier of
fact to infer that the defendant was purchasing such a large quantity of pseudoephedrine with
the intent to manufacture methamphetamine. That reasonable inference was only bolstered
by the evidence presented that the defendant gave a statement to investigators admitting that
he knew how to manufacture methamphetamine, even bragging that he could produce more
than the normal amount based upon the method he employed. Based upon this evidence, we
conclude that the evidence presented was more than sufficient to support the conviction.
CONCLUSION
Based upon the foregoing, the judgment of conviction is affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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