State of Tennessee v. Raymond Lee Gibson ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
October 24, 2006 Session
STATE OF TENNESSEE v. RAYMOND LEE GIBSON
Appeal from the Criminal Court for Hamilton County
No. 254704 Rebecca J. Stern, Judge
No. E2006-00450-CCA-R3-CD - Filed April 27, 2007
The defendant, Raymond Lee Gibson, was convicted by a Hamilton County jury of one count of
manufacturing methamphetamine. On appeal, he raises several evidentiary issues for our review and
argues that the evidence is insufficient to support his conviction. After review of the record, we are
not persuaded that the evidentiary issues merit relief, and we hold that the evidence at trial was
sufficient to support the manufacturing conviction. The judgment of conviction is, therefore,
affirmed.
Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.
JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and JOHN EVERETT WILLIAMS, J., joined.
Robin Ruben Flores, Chattanooga, Tennessee, for the Appellant, Raymond Lee Gibson.
Robert E. Cooper, Jr., Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General;
William H. Cox, District Attorney General; and James A. Woods, Jr., Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
The defendant stands convicted of manufacturing methamphetamine, see T.C.A. §
39-17-417 (2006). The conviction is based on the March 28, 2004 discovery and seizure of
numerous items commonly used in the manufacture of methamphetamine inside a bathroom cabinet
in an apartment located at 510 Central Avenue in Chattanooga. Melissa Miller had leased the
apartment, where she resided along with her son, her sister, and the defendant. The defendant was
not present in the apartment when police officers found the incriminating items, and he was not
arrested until several months later. The defendant made no inculpatory admissions or incriminating
statements when arrested.
On August 18, 2004, the Hamilton County Grand Jury returned a one-count
presentment charging the defendant, Ms. Miller, and Aimee Mallett, who was Ms. Miller’s sister,
with unlawful manufacture of methamphetamine. The defendant’s case was severed from that of
his co-defendants, and he was tried on June 28, 2005. A jury found the defendant guilty of the
charged offense, and the trial court sentenced him to a four-year incarcerative sentence to be served
consecutively to an Alabama conviction for which he received a 10-year sentence.
On appeal the defendant assails various evidentiary rulings at trial, which the State
maintains were not properly objected to at trial, but the thrust of the defendant’s argument is that the
State’s evidence is insufficient to link him to the “meth lab.” As we shall explain, the evidence
presented was sufficient to support the manufacturing conviction.
At trial, the State led with the testimony of Chattanooga Narcotics Detective Phillip
Narramore. The defense stipulated to Detective Narramore’s qualifications as a trained narcotics
officer, but at the trial court’s suggestion, the State asked the detective to elaborate on his education
involving methamphetamine manufacturing operations (MMOs). Detective Narramore testified that
during his training at the Drug Enforcement Administration’s Academy in Quantico, Virginia, he
learned how methamphetamine was made, and he actually “cook[ed]” methamphetamine in a
laboratory setting. Furthermore, he received extensive training in dismantling MMOs and the critical
safety factors that must be followed. The detective described the toxic fumes and explosive fumes
commonly encountered.
Detective Narramore testified that the MMOs commonly seen in Hamilton County
are categorized as “red phosphorous labs,” which produce phosgene gas.1 A required ingredient is
pseudoephedrine or ephedrine. Detective Narramore testified that he had previously been accepted
as an expert on MMOs.
On March 28, 2004, Detective Narramore was the assigned “site safety officer” with
the responsibility of supervising the dismantling of an MMO found at 510 Central Avenue,
Apartment 914. The detective went inside the apartment and personally observed component items
for an MMO, such as iodine, tubing, muriatic acid, hydrogen peroxide, mason jars, coffee filters, and
aluminum foil. These items were discovered “underneath the bath sink in the bathroom with [the
cabinet] screwed shut.” In Detective Narramore’s opinion, the materials and equipment he found
under the sink on March 28, 2004, indicated an MMO.
On cross-examination, Detective Narramore testified that he did not participate in any
arrests at the apartment; another officer served as the lead investigator. Detective Narramore was
involved in collecting and cataloguing the items found under the sink. He explained that the items
1
The trial transcripts reflect that when the detective offered this testimony, the defense requested a bench
conference to register a complaint that the State was straying beyond what was needed to set forth the detective’s
expertise with MMOs. The trial court instructed the State to limit its examination. The defense did not request that the
testimony be stricken or that the court admonish the jury regarding the testimony.
-2-
could not be submitted for fingerprint testing because “once [the items] are inside a
methamphetamine lab, they are contaminated [and a] biohazard.” The detective further explained
that once the contaminated items are removed, Occupational Safety and Health Administration
(OSHA) guidelines require them to be sent to Ferguson-Harbour, a company that performs chemical
cleanup. The defense showed the detective a photograph of the defendant, and the detective testified
that he did not recognize the photographed individual.
On redirect examination, Detective Narramore related that pursuant to OSHA
regulations, Ferguson-Harbour destroyed the contaminated items; therefore, nothing remained of the
MMO for the prosecution to physically produce for the jury’s inspection.
Todd Floyd, a Chattanooga police officer formerly assigned to special investigations,
narcotics division, testified that he was certified in disposal of methamphetamine and “working
methamphetamine labs.” In his work, Officer Floyd had interviewed “meth cooks.” Many times,
the officer observed blisters, scars, and burn marks on the methamphetamine cooks’ hands from the
chemicals used to make methamphetamine. He testified that “around their fingernails you will also
start seeing a very strong yellow color and also on the palm of their hands a yellow color from
dealing with the chemicals.” Officer Floyd described the odor associated with an MMO as a “real
acid smell” akin to the smell of “cat urine.”
Officer Floyd was the first person, other than possibly tactical team members, who
entered the apartment and located the MMO. Officer Floyd was dressed in a hazardous materials
protective suit with an independent oxygen supply. Officer Floyd testified that upon entering the
apartment, he found a bedroom on the right side and another bedroom on the left side. Each
bedroom had an attached bathroom. The officer walked into the bedroom and bathroom on the left;
in the bathroom, he discovered that the cabinet doors underneath the sink vanity had been “fastened
with wood screws.” He removed the screws to open the cabinet and discovered an MMO.
According to procedure, he personally carried all of the components outside to a secure perimeter,
where the components were inventoried and later picked up for chemical cleanup. No attempt was
made to fingerprint any of the contaminated components, and Officer Floyd testified that he was not
trained to take fingerprints.
Officer Joseph Harper, who was trained in dismantling MMOs, testified about the
procedure when an MMO is discovered. With the discovery at Apartment 914, he related that the
apartment manager was alerted, and the officers went to every apartment and directed any occupants
to evacuate the area. Officer Harper established the outside perimeter where Officer Floyd brought
the MMO components to be inventoried and later picked up for disposal by Ferguson-Harbour.
Officer Harper read from his inventory the items taken from the apartment, which included Mason
jars full of used coffee filters with iodine residue, 25 feet of tubing, unused coffee filters, a hot plate,
a six-ounce bottle of iodine, 500 matchbooks used to extract red phosphorous, funnels, glass pipe,
“a thirty gallon tote” used to mix substances, Coleman fuel, various jars containing liquid substances,
a can of Red Devil lye, denatured alcohol, a bottle of hydrogen peroxide, aluminum foil, an empty
-3-
muriatic acid container, a crock pot, and “white sludge” suspected of being pseudoephedrine.
Officer Harper took photographs at the scene, and he identified each one for the jury.
Melissa Miller, the individual who rented Apartment 914, testified for the State that
she had twice used methamphetamine. In March 2004, she, her son, her sister, and the defendant
were living in the apartment. Ms. Miller testified that her bedroom and bathroom were on the right
side of the apartment, that a common dining room, living room, and kitchen were in the middle of
the apartment, and that the defendant and Ms. Mallett used the bedroom and bath on the left side of
the apartment.
Ms. Miller testified that she never entered the defendant’s bedroom. She said that
“[f]or the most part . . . [she] was real bad sick . . . [with] a broken back” and that she “stayed in bed
most of the time.” Regarding unusual things that occurred in the apartment, Ms. Miller recalled once
returning from a meal and “smell[ing] fingernail polish remover very strong.” Also, at times she
detected a “real strong odor of cat urine.” Ms. Miller testified that the clothes her sister and the
defendant wore smelled like cat urine, as did their bedroom. Coffee filters appeared in the
apartment, which was unusual because she did not have a coffee maker. She saw Red Devil lye in
the house, which she denied purchasing. Ms. Miller testified that the defendant’s hands “looked
really nasty like they had been burned real bad” and that his clothes “smelled like cat urine or some
kind of chemical smell.”
On cross-examination, the defense established that Ms. Miller had a pending
methamphetamine manufacturing charge arising from the March 28, 2004 incident. She was
scheduled to appear in court on her charges after the defendant’s trial, and she insisted that she
expected no leniency from the State based on her testimony. She was aware that the defendant was
not arrested until several months after the MMO discovery; she stated that the defendant was arrested
after she “informed the police where he was.”
The final proof the State offered was a stipulation with the defense that the apartment
in question was located in Hamilton County.
The defendant did not testify or offer any evidence on his behalf.
From the evidence presented, the jury found the defendant guilty of manufacturing
methamphetamine.
SUFFICIENCY OF THE EVIDENCE
When a defendant challenges the sufficiency of the convicting evidence on appeal,
this court begins with the premise that a guilty verdict “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. Williams, 913
S.W.2d 462, 466 (Tenn. 1996). The State is not only entitled to the strongest legitimate view of the
-4-
evidence on appeal, but it is also entitled to all reasonable and legitimate inferences that may be
drawn from the evidence. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). In determining the
sufficiency of the evidence, this court does not reweigh the evidence, State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978), and we do not substitute our inferences for those drawn by the trier of fact,
State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998). Consequently, when the sufficiency of the
evidence is challenged, “the standard for review by an appellate court is whether, after considering
the evidence in a light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” State v. Smith, 24 S.W.3d 274, 278
(Tenn. 2000) (quoting State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999)); see also Jackson v.
Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2791-92 (1979).
These rules apply to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. State v. Winters, 137 S.W.3d 641,
654 (Tenn. Crim. App. 2003). An accused may be convicted exclusively on circumstantial evidence
only when the facts and circumstances are so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant, State v. Crawford, 225 Tenn. 478, 482, 470 S.W.2d 610,
612 (1971). 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.” Id. at 484, 470 S.W.2d at 613.
Our review of the record in this case discloses that the State’s evidence, attributable
to the testimony of Detective Narramore and Officers Floyd and Harper, did not demonstrate that
the defendant owned, leased, resided, or visited the property where the components for an MMO
were discovered; indeed, the officers’ testimony never addressed anyone’s ownership, leasehold,
residency, or visitation of the property. None of the officers recognized the defendant, and the
officers did not connect the purchase or assembly of any of the seized items to the defendant.
Nothing was introduced to show that methamphetamine was discovered in the apartment.
Officer Harper mentioned that they were “running . . . a gas tech” indicating “that the
environment was extremely hazardous” and had “contaminates in the area.” The State, however,
failed to call anyone from the Tennessee Bureau of Investigation or some other forensic chemical
testing facility to testify that items seized from the apartment tested positive for methamphetamine
or the presence of pseudoephedrine. Pseudoephedrine, a required element in manufacturing
methamphetamine, was not listed among the inventoried items enumerated by Officer Harper in his
testimony. At one point, Officer Harper expressed his suspicion about the chemicals discovered, and
he added that “once these items [were] sent off to the TBI, they were tested positive for
methamphetamine.” However, the trial court sustained the defense objection and instructed the jury
that the officer was “not an expert in chemistry and can’t really make conclusions about chemistry
or the makeup of chemicals or what lab reports may or may not do, what the TBI may or may not
do.”
Moreover, the State offered no testimony regarding the defendant’s appearance when
he was arrested; no incriminating statements were attributed to the defendant, and the State never
-5-
mentioned whether the defendant was in possession of any methamphetamine at the time of his arrest
or at any other time.
Accordingly, all of the evidence that inculpated the defendant was supplied by Ms.
Miller. To be sure, she testified that she never entered the defendant’s bedroom, and she did not
suggest that the defendant was the individual who purchased or brought the coffee filters and Red
Devil lye into the apartment. She certainly never claimed to have witnessed the defendant
manufacturing methamphetamine or possessing or using that drug – or any other illegal substance.2
Ms. Miller did not testify about the officers’ discovery and seizure of the items from her apartment.
Furthermore, she never specifically identified who was in the apartment at that time, and it is
unknown from her testimony when the defendant was last in the apartment. Her testimony, however,
did establish (1) that the defendant had been residing in her apartment, (2) that her sister and the
defendant were cohabiting and using the bedroom and bathroom on the left side of the apartment
where the items seized were located, (3) that their bedroom smelled like cat urine, as did her sister’s
and the defendant’s clothing, and (4) that the defendant’s hands “looked really nasty like they had
been burned real bad.”
No evidence that pointed the accusatory finger at the defendant corroborated Ms.
Miller’s testimony. In Tennessee, a defendant cannot be convicted solely upon the uncorroborated
testimony of an accomplice. See State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001).
There must be some fact testified to, entirely independent of the
accomplice’s testimony, which, taken by itself, leads to the inference,
not only that a crime has been committed, but also that the defendant
is implicated in it; and this independent corroborative testimony must
also include some fact establishing the defendant’s identity. This
corroborative evidence may be direct or entirely circumstantial, and
it need not be adequate, in and of itself, to support a conviction; it is
sufficient to meet the requirements of the rule if it fairly and
legitimately tends to connect the defendant with the commission of
the crime charged.
Bane, 57 S.W.3d at 419 (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)) (emphasis
added).
We are not persuaded, however, that Ms. Miller met the legal definition of an
“accomplice.” The supreme court in State v. Bough, 152 S.W.3d 453 (Tenn. 2004), explained,
An accomplice is one who knowingly, voluntarily, and with common
intent participates with the principal offender in the commission of a
2
The court sustained the defense objection and struck M s. M iller’s testimony that she knew that her sister and
the defendant had a history of manufacturing methamphetamine.
-6-
crime. State v. Lewis, 36 S.W.3d 88, 94 (Tenn. Crim. App. 2000);
Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975). To
satisfy the definition of an accomplice, it is not enough that the
witness merely possess guilty knowledge, is morally delinquent, or
even participated in a distinct but related offense. See State v.
Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990).
Bough, 152 S.W.3d at 464.
The evidence in this case falls short of demonstrating that Ms. Miller knowingly,
voluntarily, and with common intent participated with the defendant in manufacturing
methamphetamine at the apartment. She never admitted witnessing the defendant’s making
methamphetamine, much less knowingly and voluntarily participating in its manufacture. Ms. Miller
never testified that she was aware that the odor of cat urine and burns on an individual’s hands could
be indicators that the individual was manufacturing methamphetamine. However, even if such
information could be imputed to her, it proved no more than her guilty knowledge or moral
delinquency.
In addition, we do not regard Ms. Miller to be an accomplice merely because she was
jointly indicted with the defendant. See Ripley v. State, 189 Tenn. 681, 227 S.W.2d 26, 29 (1950).
Language can be found that a test for whether a witness is an accomplice is whether the witness
could have been indicted for or convicted of the offense. See Bough, 152 S.W.3d at 464 (“could
have been convicted”); Pennington v. State, 478 S.W.2d 892, 897 ( Tenn. Crim. App. 1971) (“could
be indicted”). Certainly, no evidence appeared in this case that Ms. Miller stood convicted of
methamphetamine manufacturing, and under the “could be indicted” formulation, the evidence that
could have led to an indictment must have been, but was not, shown. The mere fact of indictment,
as in this case, without some underlying evidence to gauge the basis for the indictment is insufficient.
That said, we still must consider whether the evidence, so viewed, is legally sufficient
to support the manufacturing conviction. The defendant was convicted of manufacturing a Schedule
II controlled substance in violation of Code section 39-17-417(a)(1), which states that it is a crime
for a person knowingly to manufacture a controlled substance. See T.C.A. § 39-17-417(a)(1) (2006).
As provided by Code section 39-17-408(d)(2), methamphetamine is a Schedule II controlled
substance. Id. § 39-17-408(d)(2). At the time of the offense, “[m]anufacture” was defined as the
production, preparation, propagation, compounding, conversion or
processing of a controlled substance, either directly or indirectly by
extraction from substances of natural origin, or independently by
means of chemical synthesis, and includes any packaging or
repackaging of the substance or labeling or relabeling of its container,
except that “manufacture” does not include the preparation or
compounding of a controlled substance by an individual for the
individual’s own use.
-7-
Id. § 39-17-402(15) (amended 2005). As emphasized in State v. David Long, No. W2003-02522-
CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Jackson, Mar. 4, 2005), “[t]he conduct prohibited by
the statute is that of ‘manufacturing.’” (Emphasis added.)
We have canvassed relevant case law regarding methamphetamine manufacturing
convictions. A clear case of methamphetamine manufacturing arose in State v. Franklin Darnell
Brown, Jr., No. W2003-01863-CCA-R3-CD (Tenn. Crim. App., Jackson, Sept. 16, 2004), when the
defendant was “caught in the act of manufacturing methamphetamine” as evidenced by “a plastic
bag containing ephedrine tablets, coffee filters, plastic tubing, rubber gloves, and pliers in the
defendant’s sleeping quarters,” by “a white box that had been used as a container for ether or
anhydrous ammonia, salt, glass containers, funnels, spoons, paper towels, cotton balls, coffee filters,
and Rooto, a product mixed with salt to ‘gas’ methamphetamine,” in the shed behind the defendant’s
house, by “small containers with white residue believed to have been used for crushing pills and a
glass jar of nearly finished methamphetamine,” and by “a twenty-pound propane tank that had been
used to store anhydrous ammonia,” in a nearby log cabin. Id., slip op. at 1-2, 3. At trial, one of the
officers testified that the glass jar of partially manufactured methamphetamine found in the shed
required only “fifteen to thirty minutes . . . gas time and drying time” to be a finished product. Id.,
slip op. at 2. The court concluded that the interruption of the defendant’s advanced manufacturing
efforts by the police did not defeat his conviction. See id., slip op. at 3.
In State v. Michael Joseph Cook, No. W2002-01924-CCA-R3-CD (Tenn. Crim. App.,
Jackson, June 27, 2003), drug task force officers discovered evidence of methamphetamine
production in a remote wooded area accessible to the public. The officers monitored the area, and
at a later time, they found the defendant and a companion in the area with the defendant’s truck
parked nearby. See id., slip op. at 1. The officers smelled a strong odor of ether, and approximately
six feet from the truck, they found a closed one-gallon glass jar containing some of the ingredients
necessary to manufacture methamphetamine. They also discovered a short distance from the truck
an empty container that smelled like anhydrous ammonia, empty boxes of suphedrine, and a duffle
bag containing ether, pliers, “liquid fire,” coffee filters, tubing, glass jars, and lithium batteries. A
baggie containing processed methamphetamine had been hidden underneath the front bumper of the
defendant’s truck. Id., slip op. at 1-2. This court sustained the defendant’s manufacturing
conviction, pointing to evidence (1) that, with the exception of anhydrous ammonia, all ingredients
necessary to manufacture methamphetamine were found in the immediate area of the defendant’s
vehicle, (2) that packaging for suphedrine was near the truck, (3) that the closed glass jar likely
contained anhydrous ammonia and crushed suphedrine tablets, (4) that a nearby empty container
smelled like ammonia, (5) that the duffle bag contained MMO materials, and (5) that processed
methamphetamine was hidden in the defendant’s vehicle. See id., slip op. at 4.
In State v. Blair, 145 S.W.3d 633 (Tenn. Crim. App., 2004), the defendant was found
at a campsite with much of the equipment and chemicals commonly used to make
methamphetamine; iodine and anhydrous ammonia, however, were not among the chemicals found.
See id., 636-37. One of the officers at the scene detected the odor of ether emanating from a closed
cooler, which, when opened, was found to contain a “red bucket containing a liquid and something
-8-
floating in the liquid.” Id. Subsequent testing identified the floating substance in the red bucket as
pseudoephedrine. One of the state’s experts testified that the pseudoephedrine in the red bucket was
an immediate precursor to making methamphetamine, and in the expert’s opinion the defendant was
manufacturing methamphetamine. See id., at 637. On appeal, the court sustained the defendant’s
conviction even though processed methamphetamine was not found at the camp site and even though
pseudoephedrine was not, at the time, classified by statute as a immediate precursor to
pseudoephedrine.3 The court explained that “the fact that pseudoephedrine is not listed does not
mean it is not [in fact] an immediate precursor to the drug, i.e., a substance from which the drug is
derived,” and the court held that “based upon the expert’s opinion and the evidence found at the
campsite, a rational jury could have found beyond a reasonable doubt that the defendant was guilty
of manufacturing methamphetamine.” Id., at 639.
In State v. James Castile, No. M2004-02572-CCA-R3-CD (Tenn. Crim. App.,
Nashville, June 28, 2006), a Ramada hotel front desk clerk called the police to report a chemical
smell coming from one of the rooms. The defendant refused to consent to the officers’ searching
his room, but after obtaining a search warrant, officers discovered “numerous items and substances
associated with the manufacturing of methamphetamine, including eleven packages of
psuedoephedrine, a hot plate, a notebook containing a formula for methamphetamine, water purifier,
five thermometers, a coffee grinder, tubing, plastic baggies[,] three bags of methamphetamine with
a total weight of about 4.75 grams[,] . . . chemicals common to the methamphetamine manufacturing
process, such as acetone, methyl alcohol, drain opener, salt[,] and two jars of a clear substance later
identified as liquid ephedrine in a chemical solvent.” Id., slip op at 2, 5. The defendant admitted
manufacturing methamphetamine for his personal use, but he insisted that at the time of his arrest
that he “did not have the anhydrous ammonia or the lithium required to complete the process.” Id.,
slip op. at 6. The defendant conceded, however, “that he had completed the first step in the process
by extracting the pseudoephedrine in a solution that was contained in the jars found at the hotel
room.” Id. On appeal, the court affirmed the defendant’s conviction even though the defendant was
not in possession of two products required to complete the process. Relying on the officers’
testimony and the defendant’s admissions, the court ruled that “it is clear a reasonable jury could
have concluded that the appellant was at least engaged in the ‘preparation’ ‘of a controlled
substance.’” See id., slip op. at 11.
On the other hand, in State v. David Long, No. W2003-02522-CCA-R3-CD (Tenn.
Crim. App., Jackson, Mar. 4, 2005), the court held that the evidence was legally insufficient to
support a manufacturing conviction and remanded the case for trial on the lesser included offense
of attempted manufacturing of methamphetamine. See id., slip op. at 4, 6-8. In that case, the
defendant was stopped while driving, whereupon the officer “immediately noticed boxes and blister
packs of pseudoephedrine scattered on the floor and a can of ether starting fluid sticking out of a
3
In 2005, the legislature amended Code section 39-17-402 by adding a new subsection (13) and redesignating
former subsections (13) through (26) as (14) through (27). See 2005 Tenn. Pub. Acts ch. 18, § 17. The new subsection
(13) provides that “immediate methamphetamine precursor” means, in relevant part, “ephedrine, pseudoephedrine, or
phenylpropanolamine.” Id. W e note that no corresponding change was made to code section 39-17-408(f), which lists
“phenylacetone” as the immediate precursor to methamphetamine. Id. § 39-17-408(f)(1) (2006).
-9-
plastic bag.” See id., slip op. at 2. A search of the trunk “yielded fourteen blister packs of
Sudafedrin, six boxes of Sudafed, and approximately ten boxes of Wal-fed, with corresponding
receipts dated October 9, [the same day as the stop]” along with “three cans of starting fluid,
aluminum foil, . . . phosphorous matches[,]. . . instructional materials for the manufacture of
methamphetamine, which the proof suggested were obtained from internet sources, and a drug pipe
in the briefcase.” Id. In reversing the defendant’s conviction, the court explained,
At trial, [the arresting officer] admitted that he did not smell
ether or ammonia at the scene or see any lab equipment utilized in the
manufacturing of methamphetamine in the truck. Moreover, the
record fails to establish any evidence of production, compounding,
converting, processing, or extraction of any controlled substance.
Indeed, none of the cold medicines had been removed from the blister
packs or boxes in which they had been purchased.
The facts relevant to manufacturing establish that the
Appellant was in possession of a large quantity of cold remedy
medications containing pseudoephedrine, three cans of starting fluid,
recipes for manufacturing methamphetamine, phosphorous matches,
and a small quantity of methamphetamine. The Appellant asserts that
there was no evidence whatsoever that he had begun the process of
manufacturing. He concedes that while he “may have fully intended
to manufacture a controlled substance at some future date,” he was
not manufacturing when arrested.
The State relies upon State v. Barton Derek Grande, No.
W2002-01893-CCA-R3-CD (Tenn. Crim. App. at Jackson, Sept. 2,
2003), for the proposition that the evidence is sufficient to support the
conviction if a defendant is in possession of the necessary ingredients
for manufacturing methamphetamine in addition to the finished
product. We find this reliance misplaced based upon the facts of the
case. In Grande, the defendant was found in a car from which a
strong odor, consistent with the manufacturing of methamphetamine,
was emanating. Inside the trunk, officers found ether, lithium
batteries, sulfuric acid, bags of pseudoephedrine in powder form,
pseudoephedrine in tablet form, a propane cylinder, tubing, jars
containing an ether and anhydrous ammonia mix, and a quantity of
methamphetamine.
The facts in the present case are clearly distinguishable. The
conduct prohibited by the statute is that of “manufacturing.” From
the facts before us, we cannot conclude that the Appellant did more
-10-
than possess some, but not all, of the ingredients necessary for the
manufacture of methamphetamine.
Id., slip op. at 7.
We distill from these cases several principles to guide us through what is obviously
a fact-intensive inquiry. The absence of processed methamphetamine or the interruption of an
obviously ongoing chemical process that otherwise would yield a finished product is not fatal to the
State’s prosecution. Also, a successful prosecution does not require proof that a defendant was in
possession of each and every ingredient necessary to manufacture methamphetamine. Conversely,
mere possession of some ingredients necessary to manufacture methamphetamine, without more,
does not translate automatically into illegal manufacturing. In David Long, the ingredients possessed
by the defendant were unopened and/or had not been obviously used or previously consumed, and
the officer found no “lab equipment utilized in the manufacturing of methamphetamine in the
[defendant’s] truck.” David Long, slip op. at 7. Whether the presence of precursor ingredients is
required for a manufacturing conviction has not been squarely addressed. See State v. Bradley
Lonsinger, No. M2003-03101-CCA-R3-CD (Tenn. Crim. App., Nashville, Jan. 5, 2005) (defendant
charged and convicted for the attempted manufacture of methamphetamine; evidence sufficient even
though no processed methamphetamine and no ephedrine or pseudoephedrine were found in the
house; deputies found 37 items associated with the manufacture of methamphetamine, and two of
the HCL generators were still smoking when the deputies discovered them). However, evidence that
a precursor is undergoing chemical alteration, such as soaking in a chemical solvent, carries
substantial weight.
In the instant case, the most glaring difficulty is the State’s failure to present a
forensic chemist to verify the presence of methamphetamine or pseudoephedrine in the “white
sludge” or other liquids discovered in Ms. Miller’s apartment. The trial court sustained the defense
objection to Officer Harper’s suspicions or opinions regarding the chemical composition of the
seized items. However, the officers were permitted to give their opinions that what they discovered
in Ms. Miller’s apartment was a “methamphetamine lab.” We have carefully reviewed the officers’
testimony in this case and the photographic exhibits of what the officers discovered. Unlike in David
Long, many of the items had been partially or completely used, such as a tin container and a Mason
jar containing used coffee filters with iodine residue; a pyrex dish, funnels, and a glass pipe with
iodine residue; striker plates torn from matchbooks soaking in a liquid; multiple Mason jars
containing various amounts of liquid-type substances; a one-gallon can of denatured alcohol, one-
half full; a one-gallon can of camp fuel, one-eighth full; a 32-ounce bottle of hydrogen peroxide,
one-half full; and an empty muriatic-acid quart container. Also, distinct from David Long, “lab
equipment” was found in the apartment, such as a gas generator consisting of a two liter bottle with
tubing attached. From this evidence and with the officers’ expert testimony about the process of
manufacturing methamphetamine, we are convinced that reasonable jurors could find beyond a
reasonable doubt that methamphetamine had been manufactured in Ms. Miller’s apartment.
-11-
Even so, the State never elicited specific testimony regarding when the last
manufacturing process had occurred in the apartment. Because, however, the evidence did show that
a “gas tech” that was operated at the scene indicated “that the environment was extremely
hazardous” and had “contaminates in the area,” it is reasonable to conclude that the manufacturing
process had occurred recently.
The last aspect of evidence sufficiency we must examine is whether the State proved
that the defendant was the individual who manufactured the methamphetamine. The record is silent
on the whereabouts of the defendant the day that the officers entered the apartment. We are mindful
that Ms. Miller provided her observations concerning the defendant’s hands and of the odor of his
clothing, but she never specified when she made these observations.
We recognize that we are not dealing with the first-hand perceptions of the officers
at the scene; the officers did not testify about the defendant’s hands or that his clothing smelled like
cat urine. These observations were supplied by Ms. Miller, who never professed knowledge of how
to manufacture methamphetamine. See also State v. Marise, 197 S.W.3d 762 (Tenn. 2006) (under
statute requiring State to prove chemical composition of anhydrous ammonia, held that “olfactory
observations of the officers may not be enough, standing alone, to convict”). Without more, a
witness’s description of an odor as “cat urine” is somewhat tenuous and speculative as a means of
carrying the State’s burden of proving that the defendant manufactured methamphetamine. For
instance, in State v. Patricia Marie Jenson, No. M2003-02848-CCA-R3-CD, slip op. at 2 (Tenn.
Crim. App., Nashville, June 21, 2005), one of the officers who participated in the raid of a “crack
house” testified that the crack-cocaine smoke he encountered was “disgusting,” and he compared the
smell to that of “male cat urine.” In Bradley Lonsinger, slip op. at 3, 7, one of the arresting officers
described the odor associated with methamphetamine manufacture as similar to the odor of battery
acid.
In the present case, however, Ms. Miller not only described an odor emanating from
the defendant that, according to the evidence, could be associated with manufacturing
methamphetamine, but also she described his hands as marred by burns, a circumstance that also,
according to the evidence, suggests manufacturing methamphetamine. We hold that the convergence
of these circumstances provides a core of identity evidence that supports the verdict. The jury had
the prerogative of believing Ms. Miller’s testimony, and the jury obviously chose to do so. That
testimony along with other evidence in this case is sufficient to support the conviction.
EVIDENTIARY ISSUES
The defendant raises several evidentiary issues. He argues that the testimony
regarding the “general characteristics” of an MMO and “meth cooks” was more prejudicial than
probative, thereby rendering the jury’s verdict a product of speculation. He neither elaborates on this
argument nor provides citations to the record where proper objections were registered. This issue
has been waived. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b); see Tenn. R. Evid.
-12-
103(a)(1) (providing that a timely objection for purposes of preserving the issue for appeal must state
“the specific ground of objection if the specific ground was not apparent from the context”).
The defendant also argues that the State failed to offer any lab technicians to identify
the nature or composition of the substances seized from the apartment. This argument, couched as
an evidentiary complaint, is moot inasmuch as we have addressed the State’s failure of proof in this
particular case as not defeating the sufficiency of the evidence to support the manufacturing
conviction.
Last, the defendant complains that Ms. Miller was not listed as a witness on the
presentment and that the State failed to provide a proper disclosure to the defense that Ms. Miller
would be testifying at trial. Code 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 the witnesses as the district attorney general intends shall be summoned in the cause, and
sign each indictment or presentment name thereto.” T.C.A. § 40-17-106 (2006). This statute is
directory only. Houston v. State, 567 S.W.2d 485 (Tenn. Crim. App. 1978). Failure of the State to
list witnesses on the indictment is not a sufficient basis for reversal of a judgment, absent a showing
of prejudice to an accused. State v. Crabtree, 655 S.W.2d 173 (Tenn. Crim. App. 1983).
In our opinion, the State was not require to list Ms. Miller as a witness on the
presentment. She was an indicted co-defendant, although her case was severed from that of the
defendant. The purpose of Code section 40-17-106 is to limit the possibility of surprise and to
provide the defendant a basis upon which to prepare a theory of defense against his accusers. See
State v. Street, 768 S.W.2d 703, 710-11 (Tenn. Crim. App. 1988). That danger did not exist in this
case.
CONCLUSION
Based upon the foregoing, the defendant’s conviction for manufacturing
methamphetamine is affirmed.
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
-13-