State of Tennessee v. Mark E. Conner ( 2002 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
September 24, 2002 Session
STATE OF TENNESSEE v. MARK E. CONNER
Appeal from the Criminal Court for Cumberland County
No. 6148A Leon Burns, Jr., Judge
No. E2002-00038-CCA-R3-CD
December 6, 2002
The Defendant, Mark E. Conner, was convicted by a jury of attempting to manufacture
methamphetamine, a Class D felony. In this appeal as of right, the Defendant argues four issues: (1)
whether the evidence was sufficient to sustain his conviction, (2) whether the trial court erred by
denying the Defendant’s motion to exclude the testimony of witnesses Sherri Conner, the
Defendant’s wife and former co-defendant, and Gloria Whitehead, the Defendant’s mother-in-law,
(3) whether the trial court erred by denying the Defendant’s motion to require the State to provide
the Defendant with any statement, arrest history, and prior convictions of the State’s witnesses, and
(4) whether the trial court erred by denying the Defendant’s motion to exclude the State’s
photographs and the Defendant’s request to introduce at trial the remaining photographs that were
provided to the Defendant during discovery. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed
DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.
GLENN, JJ., joined.
Margaret Jane Powers, Crossville, Tennessee, for the appellant, Mark E. Conner.
Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Bill Gibson, District Attorney General; and Terry D. Dycus, Assistant District Attorney General, for
the appellee, State of Tennessee.
OPINION
The Defendant, Mark Conner, and his wife, Sherri Conner, were charged in a single
indictment with one count of manufacturing methamphetamine, a Schedule II controlled substance.
On September 5, 2001, the Defendant was tried before a jury on the amended charge of attempt to
manufacture methamphetamine, and the jury found him guilty of that charge.1 He was sentenced as
a Range I, standard offender to three years, six months, suspended after serving six months. This
appeal followed.
On August 21, 2000, officers with the Crossville Police Department went to the Defendant’s
residence to serve him with a domestic assault warrant. Neither the Defendant nor his wife was at
the residence. However, the police did find a man named Bryan Elmore at the house. Elmore’s
truck was parked outside the house, and in the truck the police found a “hot plate” and a bag full of
chemicals that are associated with the production of methamphetamine. Based upon what they found
in Elmore’s truck, the police located Sherri Conner and received consent to search the residence that
she shared with the Defendant. Inside the house, the officers found cans of carburetor cleaner, a bag
containing several packages of antihistamine tablets and matches, and a bowl containing a white
waxy substance. The officers also searched a shed behind the house. There they found fourteen bags
of garbage, three fifty-five gallon drums full of matchbooks missing their striker plates, cans of
chemicals, including liquid heat, carburetor cleaner, muriatic acid, acetone, and aerosol cans with
tubing attached. When the officers opened one of the garbage bags, a yellow cloud emerged from
the bag.
Detective Mark Rosser was called to the scene due to his training regarding the seizure of
methamphetamine laboratories. He testified that he found several burn piles in the Defendant’s yard
that contained aerosol cans, glass bottles, and plastic tubing. A burned glass coffee pot was in one
of the burn piles.
Billy Joe Mundy, Jr., an agent with the Federal Drug Enforcement Administration, described
how methamphetamine is manufactured. The basic ingredients needed to make methamphetamine
using the “ephedrine reduction method” are ephedrine, red phosphorous, and iodine crystals.
Ephedrine may be extracted from antihistamine tablets by mixing the tablets into a solvent, such as
acetone or ether. Products such as carburetor cleaner or fuel-line antifreeze contain these kinds of
solvents. Red phosphorous is found in the striker plates of matchbooks. Agent Mundy explained
that several products will be present at a methamphetamine laboratory, including bottles of some
product containing acetone, thousands of matches, some form of iodine, hydrogen peroxide, muriatic
acid, and some sort of a “gasser,” which is used to convert the methamphetamine oil into powder.
When describing the types of gassers that people use, Mundy said, “A lot of people in this area were
taught to manufacture in a whistler coffee pot . . . it’s a telltale sign in this area that they actually
manufacture in a whistler coffee pot.” Agent Mundy also stated that burn piles are common in areas
near methamphetamine labs, as the manufacturers must dispose of large amounts of waste.
The Defendant’s wife, Sherri Conner, testified that she moved out of their residence on
August 18, 2000, because of an argument she had with the Defendant. Her mother, Gloria
Whitehead, testified that Ms. Conner came to live with her a few days before August 21, 2000. Ms.
Conner returned to the house she shared with the Defendant on August 19 and 20, 2000, to find the
1
The State dismissed the charge against Sherri Conner.
-2-
Defendant and retrieve some of her belongings. She testified that, on those dates, none of the
chemicals or other items that the police found in the house or shed on August 21 were present. She
explained the burn piles in the yard by saying that when she and the Defendant moved into the house,
the yard was full of debris. Therefore the Defendant gathered up all the trash in the yard, which
consisted of spray cans and bottles, and burned it. Ms. Conner testified that about a week after the
police discovered the methamphetamine lab at her house, she and the Defendant and her daughter
left Tennessee due to problems with their extended families and went to Mississippi and Arkansas.
They returned in January 2001 because her ex-husband had filed for temporary emergency custody
of her daughter.
The Defendant testified that he left his home on August 18, 2000, as a result of an argument
with his wife. On that date, none of the materials that the police found on August 21 were there.
He explained that there were burn piles in the yard where he had been gathering and disposing of
trash. The Defendant denied manufacturing methamphetamine or giving anyone permission to
manufacture methamphetamine in his home.
The Defendant first argues that the evidence is insufficient to support his conviction for
attempt to manufacture methamphetamine. Tennessee Rule of Appellate Procedure 13(e) prescribes
that “[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable
doubt.” Evidence is sufficient if, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d
274, 278 (Tenn. 2000). In addition, because conviction by a trier of fact destroys the presumption
of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden
of showing that the evidence was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (Tenn.
1963); see also State v. Buggs, 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d
185, 191 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See
Tuggle, 639 S.W.2d at 914. 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, not the appellate
courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).
The Defendant contends that the evidence is insufficient to support his conviction for two
reasons. First, he was not present in his house for several days prior to August 21, when the police
discovered the methamphetamine lab in his house. Second, the police were at the Defendant’s house
-3-
on August 19 and 20, but they did not find items that were used to manufacture methamphetamine.
However, the evidence shows that many items that are common in the manufacture of
methamphetamine were found in and around the Defendant’s residence. A few items were located
in the house, but most of the items, including cans of chemicals, numerous bags of garbage
containing “chemicals,” three drums filled with matchbooks, and plastic tubing were found in the
shed behind the Defendant’s house. Furthermore, several burn piles were located on the Defendant’s
property that contained aerosol cans and glass jars. Agent Mundy testified that all of these items are
consistent with methamphetamine laboratories. From this evidence, a rational trier of fact could
have concluded beyond a reasonable doubt that the Defendant was guilty of attempting to
manufacture methamphetamine. This issue is without merit.
Next, the Defendant argues that the trial court erred by denying his motions to exclude the
testimony of witnesses Sherri Conner and Gloria Whitehead. He contends that because neither
witness was listed on the indictment or provided through discovery, the trial court should not have
allowed their testimony. Furthermore, the Defendant asserts that the court should have excluded the
testimony of Sherri Conner because the State improperly severed the case against her on the morning
of trial.
Tennessee Code Annotated section 40-17-106 states:
It is the duty of the district attorney general to endorse on each indictment or
presentment, at the term at which the same is found, the names of such witnesses as
the district attorney general intends shall be summoned in the cause, and sign such
indictment or presentment name thereto.
“The purpose of this statute is to prevent surprise to the defendant at trial and to permit the defendant
to prepare his or her defense to the State’s proof.” State v. Kendricks, 947 S.W.2d 875, 883 (Tenn.
Crim. App. 1996). However, “[s]ection 40-17-106 is directory only and does not necessarily
disqualify a witness whose name does not appear on the indictment from testifying.” State v. Harris,
839 S.W.2d 54, 69 (Tenn. 1992).
The State’s failure to include a witness’ name on the indictment will not
automatically disqualify the witness from testifying. A defendant will be entitled to
relief for nondisclosure only if he or she can demonstrate prejudice, bad faith, or
undue advantage. The determination of whether to allow the witness to testify is left
to the sound discretion of the trial judge.
Kendricks, 947 S.W.2d at 883 (citations omitted).
In this case, the Defendant has failed to show how the State’s failure to disclose its witnesses
Sherri Conner and Gloria Whitehead was in bad faith, resulted in an undue advantage to the State,
or prejudiced the Defendant. Instead, the Defendant states the bare conclusion that the nondisclosure
“resulted in obvious prejudice to the Appellant and undue advantage to the State.” However, the
record reflects that the witnesses’ testimony actually benefitted the Defendant. Sherri Conner, the
-4-
Defendant’s wife, testified that neither she nor her husband ever manufactured methamphetamine
or gave anyone permission to do so in their home. Both women testified that, when they went to the
Defendant’s house on each of the two days prior to August 21, none of the items that the police
recovered, such as the chemicals, were there. Because the Defendant has made no showing of
prejudice to his defense or bad faith or undue advantage on the part of the State, we find that the trial
court did not abuse its discretion by allowing Sherri Conner and Gloria Whitehead to testify.2
The Defendant also contends that the trial court should have excluded the testimony of Sherri
Conner because the State improperly severed her case on the morning of the Defendant’s trial. The
Defendant argues that the State violated Tennessee Rule of Criminal Procedure 14(a), which
mandates that a motion by the State for severance of defendants may be granted only prior to trial,
except by consent of the defendant.3 Decisions to consolidate or sever offenses or defendants are
to be reviewed for an abuse of discretion. See State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
First, we note that the record on appeal contains no reference to any order of the trial court
addressing the issue of the severance of the charge against Sherri Conner. Second, the Defendant
cites no authority to support his argument that improperly severing Ms. Conner’s charge would
render her testimony inadmissible against the Defendant. The Defendant does not explain why
allowing Ms. Conner to testify constituted an abuse of the trial court’s discretion. Furthermore, he
fails to show that he has suffered any prejudice as a result of Ms. Conner’s testimony. Therefore,
the trial court did not commit reversible error by allowing the witness to testify, and this issue is
without merit.
The Defendant next argues that the trial court erred by denying his motion for an order
requiring the State to provide the Defendant with any statement, arrest history, or prior convictions
of the State’s witnesses, specifically Gloria Whitehead and Sherri Conner. However, there is no
copy of the motion or argument of the motion in the record. It is the duty of the appellant to prepare
a transcript of the evidence and proceedings as is necessary to convey a fair, accurate, and complete
account of what transpired regarding the issues presented on appeal. See Tenn. R. App. P. 24(b);
State v. Robinson, 73 S.W.3d 136, 154 (Tenn. Crim. App. 2001). Moreover, the Defendant failed
to adequately argue this issue in his brief. He cites no case law, he does not refer to the record, and
he neglects to mention whether any statements, prior arrests, or prior convictions existed or what the
substance of them may have been. However, rather than treat this issue as waived pursuant to
Tennessee Court of Criminal Appeals Rule 10(b), we will briefly address the Defendant’s
contention.
2
The Defendant also briefly argues that the trial court’s denial of his motion to exclude the testimony of the two
witnesses violates Tennessee Rule of Criminal Procedure 16 . However, Rule 16 “does not require nor authorize pretrial
discovery of the names and addresses of the State’s witnesses.” Harris, 839 S.W.2d at 69.
3
W e note that “prior to trial” has been interpreted to mean “sometime earlier than ‘the day of the trial when the
jury is waiting in the hall.’” Spicer v. State, 12 S.W .3d 438, 444 n.6 (Tenn. 2000) (quo ting State v. Hamilton, 628
S.W .2d 742, 744 (Tenn. Crim. App. 198 1)).
-5-
First of all, with respect to the Defendant’s request for statements made by the State’s
witnesses, Tennessee Rule of Criminal Procedure 16(a)(2) expressly states that “statements made
by state witnesses or prospective state witnesses” are not subject to discovery. Rather, Rule 26.2 of
the Tennessee Rules of Criminal Procedure provides that the statements of a witness other than the
defendant shall be provided to the opposing party after the witness has testified on direct
examination. The Tennessee Supreme Court has held “the State has no obligation to produce
statements of a witness until the conclusion of the witness’ testimony on direct examination.” State
v. Taylor, 771 S.W.2d 387, 394 (Tenn. 1989). As the Defendant made no request after the witnesses
testified on direct examination, he was not entitled to those statements.
Likewise, the State was not obligated to provide the Defendant with prior arrests or
convictions of its witnesses. The Defendant cites to Tennessee Code Annotated section 40-32-
101(c)(3), which states in pertinent part, “Release of arrest histories of a defendant or potential
witness in a criminal proceeding to an attorney of record in the proceeding shall be made to such
attorney upon request.” However, chapter 32 addresses the destruction or release of records upon
dismissal or acquittal, not the duty of the State to provide records as a part of discovery. Indeed, this
Court has held that “[n]either Criminal Procedure Rule 16 nor the decisional law in this state
imposes on the state a duty to obtain and provide the arrest histories of its witnesses. Moreover, it
has been settled that section 40-32-101(c)(3) does not create or provide a pretrial remedy for the
discovery of arrest histories from the state.” State v. David Johnson, No. W1998-00687-CCA-R3-
CD, 2001 Tenn. Crim. App. LEXIS 222, at *18-19 (Jackson, March 14, 2001) (citations omitted).
Therefore, the State had no duty to provide prior arrests and convictions of its witnesses to the
Defendant, and the trial court did not err by denying the Defendant’s motion. This issue is without
merit.
Finally, the Defendant asserts that the trial court erred by denying his motion to exclude over
one hundred photographs, of which only sixteen were actually offered into evidence by the State.
Furthermore, the Defendant argues that the trial court erred by denying his attempt to enter the
balance of the photographs into evidence. Only the sixteen photographs were made part of the
record on appeal. These sixteen photographs that were introduced by the State depicted the
chemicals, cans, bottles, bags of waste, and burn piles that were located in and around the
Defendant’s house. Photographs of these items that were found at a defendant’s residence and are
peculiar to the manufacture of methamphetamine are certainly relevant to a prosecution for attempt
to manufacture methamphetamine. “The decision to admit the photographs lies in the discretion of
the trial court and will not be reversed absent a clear showing of an abuse of that discretion.” Harris,
839 S.W.2d at 73. We conclude that the ruling of the trial court was not an abuse of discretion and
the photographs were properly admitted. The record is inadequate with respect to the balance of the
photographs that the Defendant requested be admitted. Apparently, these are photographs that the
Defendant received from the State during discovery. In his brief, the Defendant states that “some
of [the photographs] proved to be of sites other than those of this occurrence and others bore a ‘date
stamp’ three weeks prior to August 21, 2000.” The Defendant is arguing that the reliability of the
sixteen photographs is called into question by the other, unrelated photographs that the Defendant
-6-
received along with the sixteen. However, in the absence of a complete record, which would include
the photographs in question, we must presume that the trial court was correct in its ruling.
Accordingly, this issue is without merit.
The judgment of the trial court is affirmed.
___________________________________
DAVID H. WELLES, JUDGE
-7-