State of Tennessee v. Zachary David Strickland

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 13, 2016
STATE OF TENNESSEE v. ZACHARY DAVID STRICKLAND
Appeal from the Circuit Court for Bedford County
No. 17994 Forest A. Durard, Jr., Judge
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No. M2015-02118-CCA-R3-CD – Filed September 22, 2016
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Defendant, Zachary David Strickland, was convicted of initiation of a process intended to
result in the manufacture of methamphetamine and sentenced to ten years of
incarceration. After the denial of a motion for new trial, Defendant filed an untimely
notice of appeal. In the interests of justice, we waive the timely filing of the notice of
appeal. However, upon review of the evidence presented at trial, we determine that the
evidence was sufficient to support the conviction. Consequently, the judgment of the
circuit court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.
Christopher P. Westmoreland, Shelbyville, Tennessee, for the appellant, Zachary David
Strickland.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Robert J. Carter, District Attorney General; and Mike Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Defendant was indicted in December of 2014 for initiation of a process intended to
result in the manufacture of methamphetamine, in violation of Tennessee Code
Annotated section 39-17-435. The charges arose after Deputy Garcia Jordan of the
Bedford County Sheriff‟s Department went to the home of Teresa Lawson Leverette to
speak with Defendant about an active warrant out of Rutherford County. Sergeant Kevin
Roddy and Lieutenant Nikia Elliott met Deputy Jordan at the mobile home.
Deputy Jordan knocked on the door but did not get an immediate response. After
continuing to knock and to call out Ms. Leverette‟s name, she eventually came to the
door. Deputy Jordan asked if Defendant was at the residence and Ms. Leverette did not
respond “right away.” Ms. Leverette eventually allowed Deputy Jordan and Sergeant
Roddy to enter the residence. Ms. Leverette “pointed to the back bedroom of the
residence.” Defendant “was not actually in the bedroom, he was in the bathroom” which
was accessible through the bedroom of the home. Lieutenant Elliot remained outside the
residence until Defendant was located so that she could monitor the entrances and exits to
the home.
Once Defendant was located, the officers accompanied him to the living room of
the home. Deputy Jordan noticed “two cut straws that were laying on the coffee table in
an ashtray.” He described these items as “something that‟s used quite frequently in
narcotics.” After a discussion with the officers, Ms. Leverette gave permission to search
the residence.
Officers searched the kitchen first. There, they found “a computer that had been
taken apart, the battery from the computer had been pretty much disassembled.” Ms.
Leverette indicated that there may be something in the closet of the back bedroom.
Lieutenant Elliot described the room as a “junk room.” Officers found a “panel that at
one time had been screwed into the wall” that was “partially hanging off.” Inside the
wall there was a blue bag. Inside you could “clearly see the top of a Gatorade bottle
sticking out of the bag.” Lieutenant Elliot described the bottle as a “one pot [meth] lab”
because she also saw residue on the bottle, a coffee filter, and piece of tubing inside the
bottle consistent with meth labs she had seen previously. Officers removed the bag
containing the bottle from the home because they were afraid that it would explode.
Officers eventually recovered seven one-pot meth labs from the closet of the residence.
Officers searched the kitchen again after the discovery of the items in the closet.
Remnants of another meth lab were found in the kitchen along with “ingredients” or
“precursors that would be involved in [making meth],” including muratic acid, lye,
aluminum foil, plastic tubing, fuel containers, coffee filters, empty packages of
pseudoephedrine, and a receipt from Kroger for the purchase of pseudoephedrine.
Officers were able to trace the purchase of pseudoephedrine to Defendant using
surveillance video of the purchase. Officers also found a red “Sharpies container for
needles, where you dispose needles.”
Defendant admitted to Lieutenant Elliot that he had been “staying” at the home for
a few days and that he “had been a meth user for about ten years,” preferring the injection
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of meth. Defendant also told Lieutenant Elliot that he “had never seen anything in the
home that would have led him to believe that there was . . . any meth being produced
there.”
Ms. Leverette indicated that Defendant had been at the house for “a couple of
weeks” and that he typically slept in her bed. Ms. Leverette testified that she allowed
Defendant to make methamphetamine in her home and that she witnessed “segments” of
the process. However, because of the way the “really loud smell” affected her “COPD,”
she stayed in the front of the house while Defendant made methamphetamine at the back
of the house. Sometimes, Defendant was assisted by his ex-girlfriend, Angie Zwarton.
No one stayed in the back bedroom where the methamphetamine was made because of
bedbugs. Occasionally, she would assist Defendant by taking the “Sudafed out of the
blister packs, crush[ing] it up for him a time or two, sitting on the couch, you know, the
pills or whatever.” She identified “shake bottles” recovered from the house and
described how they were used in the process of making methamphetamine. She recalled
seeing Defendant walk around the house shaking the bottles to activate the ingredients
inside but she did not recall seeing Defendant measure ingredients to go into the bottles.
In exchange for allowing Defendant to use her house, she got “free dope.”
At the time of his arrest, Defendant was not in possession of any
methamphetamine. Ms. Leverette testified that it was not unusual for there to be no
methamphetamine in the house. At the time, both she and Defendant were “IV drug
users . . . doing very large doses.” She explained that serious addicts “want to keep up
that same amount of high” or “try to get a larger high, a bigger high.” When they ran out
they “found a way to get more.” Ms. Leverette testified that she pled guilty to initiating a
process to manufacture methamphetamine and did not get a deal to testify against
Defendant.
Chad Webster, a detective with the Bedford County Sheriff‟s Department was
called to the scene. When he arrived, he put on a hazard suit and mask. He identified the
bottles found in the closet as consistent with one pot methamphetamine processing labs.
Detective Webster took the bottles outside and laid them on the ground. Detective
Webster observed other components of methamphetamine production in the mobile home
including aluminum foil and “empty containers for the cold packs, which actually
contained ammonium nitrate.” He explained that ammonium nitrate is used in the
production of methamphetamine in the “one pot meth lab” cooking method.
Shane George, a member of the Shelbyville Police Department and 17th Judicial
Drug Task Force observed and reviewed the items that were taken from Ms. Leverette‟s
residence. In his opinion “obviously there was meth production that was taking place.”
He explained that pseudoephedrine was the “precursor” used in the items taken from the
house and that, when combined with “other agents and reagents,” including lighter fluid
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and cold packs, it “affect[ed] the chemical change on that pseudoephedrine.” In making
methamphetamine, “you‟re taking the precursor, the pseudoephedrine, the petroleum-
based product, the ammonium nitrate. Next [you] would be [combining those with] the
sodium hydroxide or the drain cleaner.” Agent George explained that you combined all
those items with the “lithium out of the lithium battery” and a little bit of water. He
noted that it was common to use a “drink bottle” as the “reactionary vessel.” The water
reacts with the lithium and the entire concoction “starts bubbling and rolling” and it is
“pretty violent inside the bottle.” The “cook” has to monitor the reaction and “burp” the
bottle by allowing gases inside the bottle to escape so that too much pressure does not
build up inside the bottle and blow up. Once the reaction “tapers out,” the cook has to
convert the mixture into a solid by pouring “muratic acid” into another bottle and adding
“strips of aluminum foil.” This process creates hydrochloric gas. Coffee filters are used
to separate the meth oil into another container that is usually made of glass. Then, the
hydrochloric gas is introduced to the meth oil by the using plastic tubing. When the meth
oil and the hydrochloric gas mix, the meth crystalizes and falls to the bottom of the glass
container. Once that step is finished, the coffee filters are again used to separate the
finished meth from the petroleum product by drying or heating it. According to Agent
George, “almost every part of the step . . . was present in Ms. [Leverette‟s] house.” In his
experience, the “components that were located inside the house . . . clearly spell[ed] out
meth cook.”
The jury found Defendant guilty as charged in the indictment. The trial court
sentenced Defendant to ten years in incarceration. Defendant filed a timely motion for
new trial, which the trial court denied. Defendant filed an untimely notice of appeal.
Analysis
Notice of Appeal
At the outset, the State argues that because Defendant‟s notice of appeal was
untimely and because he has provided no excuse justifying waiver of the timeliness of the
motion, all of his arguments on appeal are waived. Defendant does not address this issue.
Under Tennessee Rule of Appellate Procedure 4(a), the notice of appeal must be
filed “within 30 days after the date of entry of the judgment appealed from.” However,
Rule 4(a) also states that “in all criminal cases the „notice of appeal‟ document is not
jurisdictional and the filing of such document may be waived in the interest of justice.”
Tenn. R. App. P. 4(a).
Our review of the record reveals that the trial court denied the motion for new trial
on September 21, 2015. Defendant had thirty days after the date of entry of that
judgment to file a notice of appeal. In other words, Defendant had until October 21,
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2015, to file the notice of appeal. The notice of appeal was filed by Defendant on
October 27, 2015, six days late. Although Defendant has not requested this Court waive
the untimely notice of appeal nor explained the late-filing of the notice of appeal, we
nevertheless will consider the issue raised by Defendant in the interest of justice.
Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence on the basis that the only
evidence offered by the State connecting him to the methamphetamine was the
uncorroborated testimony of Ms. Leverette and that he was never in possession of
anything illegal. Further, Defendant insists that the State failed to prove that a
“commercial product was modified pursuant to the statutory requirement to support a
conviction of Initiation of a Process to Manufacture Methamphetamine.” The State
disagrees.
When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979). The jury‟s verdict replaces the presumption of innocence with
one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence
introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d
247, 277 (Tenn. 2002). The prosecution is entitled to the “strongest legitimate view of
the evidence and to all reasonable and legitimate inferences that may be drawn
therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v.
Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions concerning the “credibility of the
witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact.” State v. Wagner, 382 S.W.3d
289, 297 (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). “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.” Reid, 91
S.W.3d at 277 (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). It is not the
role of this Court to reweigh or reevaluate the evidence, nor to substitute our own
inferences for those drawn from the evidence by the trier of fact. Id. The standard of
review is the same whether the conviction is based upon direct evidence, circumstantial
evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).
Tennessee Code Annotated section 39-17-435 provides the elements of the offense
of initiation of a process intended to result in the manufacture of methamphetamine:
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(a) It is an offense for a person to knowingly initiate a process
intended to result in the manufacture of any amount of methamphetamine.
(b) It shall not be a defense to a violation of this section that the
chemical reaction is not complete, that no methamphetamine was actually
created, or that the process would not actually create methamphetamine if
completed.
(c) For purposes of this section, “initiates” means to begin the
extraction of an immediate methamphetamine precursor from a commercial
product, to begin the active modification of a commercial product for use in
methamphetamine creation, or to heat or combine any substance or
substances that can be used in methamphetamine creation.
Possession, in Tennessee, may be actual or constructive. State v. Shaw, 37 S.W.3d
900, 903 (Tenn. 2001). Additionally, one may be in possession (of an item) alone or
jointly with others. State v. Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984).
Constructive possession means to have “the power and intention at a given time to
exercise dominion and control over [the contraband] either directly or through others.”
Shaw, 375 S.W.3d at 903 (quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim.
App. 1997)). This Court has stated, however, that “[t]he mere presence of a person in an
area where drugs are discovered is not, alone, sufficient.” State v. Bigsby, 40 S.W.3d 87,
90 (Tenn. Crim. App. 2000) (citing State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim.
App. 1987)). “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.” Cooper, 736 S.W.2d at 129.
Of course, a criminal defendant in Tennessee cannot be convicted solely on the
uncorroborated testimony of an accomplice. State v. Bane, 57 S.W.3d 411, 419 (Tenn.
2001) (citing State v. Stout, 46 S.W.3d 689, 696 (Tenn. 2001); State v. Bigbee, 885
S.W.2d 797, 803 (Tenn. 1994)). This principle has been described as follows:
[T]here 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. It is not necessary
that the corroboration extend to every part of the accomplice‟s evidence.
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The corroboration need not be conclusive, but it is sufficient if this
evidence, of itself, tends to connect the defendant with the commission of
the offense, although the evidence is slight and entitled, when standing
alone, to but little consideration.
Bigbee, 885 S.W.2d at 803 (quoting State v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim.
App. 1992)). Whether sufficient corroboration exists is for the jury to determine. State v.
Shaw, 37 S.W.3d 900, 903 (Tenn. 2001).
Viewed in a light most favorable to the State, the proof at trial established that
Defendant had been living at the mobile home of Ms. Leverette for about two weeks.
When officers came to the residence to execute a warrant, Defendant was found in the
bathroom adjacent to the bedroom where seven “one-pot meth labs” were found in a
panel in the wall. Ms. Leverette testified that she allowed Defendant to make
methamphetamine in her home in exchange for free drugs. Various items used in the
manufacture of methamphetamine were found in the mobile home including: lye, muratic
acid, coffee filters, plastic tubing, aluminum foil, and empty pseudoephedrine blister
packs. Officers located used needles in a “Sharpies” container and two cut straws used,
according to Ms. Leverette, for snorting methamphetamine. In the trashcan of the mobile
home, police recovered a receipt from Kroger for pseudoephedrine, purchased three days
prior to the search of the residence. A review of the surveillance video from Kroger
showed that Defendant purchased the pseudoephedrine. Further, empty pseudoephedrine
blister packs were found in the trash along with at least one “meth lab.” Finally,
Defendant admitted to officers that he used methamphetamine and that he preferred to
inject the drug. These facts were sufficient for the jury to determine that Defendant
initiated a process to make methamphetamine. The evidence that Defendant purchased
the pseudoephedrine provided corroboration to Ms. Leverette‟s testimony. Moreover,
Defendant, by living in the house and admitting to using methamphetamine, could have
been deemed to have constructively possessed the items in the house used to make the
methamphetamine.
To the extent that Defendant argues that the evidence is somehow insufficient
because the trial court failed to provide a definition for “commercial product” in its
instruction to the jury, we note that Defendant failed to object to the jury instructions as
given by the trial court at trial. Thus, any issue with regard to the jury instructions is
waived. See State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (finding that a Defendant
waives the right to object to merely incomplete, as opposed to erroneous or inaccurate,
jury instructions if not raised at trial). Defendant does not provide the allegedly proper
definition of “commercial product” that should have been submitted to the jury. Our
review of the jury instructions reveals that the trial court instructed the jury with language
that mirrored the statute defining the offense for which Defendant was on trial.
Moreover, the jury heard Agent George testify at length regarding the process by which
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methamphetamine is manufactured, including an explanation that the pseudoephedrine
was the key ingredient in the production of methamphetamine. Additionally, Ms.
Leverette testified that she helped Defendant on several occasions by taking Sudafed out
of the blister packs and crushing the pills. We determine that it was entirely reasonable
for the jury to conclude that Defendant had initiated the process for “extraction of an
immediate methamphetamine precursor from a commercial product, to begin the active
modification of a commercial product for use in methamphetamine creation, or to heat or
combine any substance or substances that can be used in methamphetamine creation.”
Defendant is not entitled to relief on this issue.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
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TIMOTHY L. EASTER, JUDGE
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