State of Tennessee v.Shawn Gibson Delosh

02/22/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 8, 2019 Session
STATE OF TENNESSEE v. SHAWN GIBSON DELOSH
Appeal from the Circuit Court for Dyer County
No. 16-CR-324 R. Lee Moore, Jr., Judge
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No. W2018-00272-CCA-R3-CD
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The Defendant-Appellant, Shawn Gibson Delosh, was convicted by a Dyer County jury
of promoting the manufacture of methamphetamine, see Tenn. Code Ann. § 39-17-
433(a)(1), for which he received a sentence of twelve years, to be served consecutively to
his prior sentences and parole revocations. On appeal, the Defendant argues that (1) the
evidence was insufficient to support his conviction, and (2) the trial court improperly
ordered his sentence to be served consecutively to “all prior sentences and/or parole
revocations.” Upon our review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and J. ROSS DYER, J., joined.
H. Tod Taylor, Assistant District Public Defender, for the Defendant-Appellant, Shawn
Gibson Delosh.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; and Danny Goodman, Jr., District Attorney General, for the Appellee,
State of Tennessee.
OPINION
During the execution of a search warrant at the Defendant’s home, deputies with
the Dyer County Sheriff’s Department found aluminum foil with methamphetamine
residue, a plastic drink bottle (also known as a “shake bottle”/”shake lab”) used to cook
methamphetamine, three empty cans of flammable liquids (also known as “camp fuel”),
and several fire pits/burn piles containing “sludge”/remnants from methamphetamine
cooking. The Defendant admitted to using methamphetamine, but he denied any
knowledge of the production or manufacture of the substance. He was later charged and
convicted of promoting the manufacture of methamphetamine and received a sentence of
twelve years incarcerated, to be served consecutively to “all prior sentences and/or parole
revocations.” The following proof was adduced at trial.
On September 26, 2016, Tim McCraw was contacted regarding rental property
located at 86 Parker Road, Dyersburg, Tennessee (the property), which was leased to
Beth McDonald and the Defendant. He testified that they had lived at the property since
May 2016, and that no other adults lived at the home. McCraw identified several
photographs of his property at trial, which were shown to the jury and admitted as
exhibits. He confirmed that there had been a large party on the property at some point,
which the sheriff’s department “shut down.” Tamika Holman also testified and assisted
deputies during the search of the property. She found “aluminum foil with residue of
used . . . meth” inside a garbage can in a bedroom. She also found a “shake bottle” near
“a pile beside the shed” in the back yard.
Investigator Stoney Hughes of the Dyer County Sheriff’s Office testified that he
had specialized training in the area of clandestine meth labs or “homemade meth labs.”
He assisted in the search of the property and arrived “[j]ust before 11 [a.m.].” The
Defendant and his girlfriend were in the bedroom, and it “took several minutes to get
someone to come to the door.” Investigator Hughes found “aluminum foil that had burn
marks on it, as well as a plastic bag corner,” both of which were indicative of meth use.
Photographs of the items and where they were found were shown to the jury and admitted
into evidence. Investigator Hughes said that the Defendant admitted that the
paraphernalia found inside the house belonged to him, that he was a meth user, and that
“he buys his dope.”
Investigator Hughes also searched the outside of the residence and explained that
Through my experience, when someone is cooking meth, it’s
difficult to discard the remnants of a shake lab or the gas generator. Pretty
much the only way to get rid of the evidence is to attempt to burn it. It’s
very common and one of the things that we do is look for what we call burn
piles. We see if we can locate where they’ve been cooking meth.
He testified that there was a “burn pile” at the southern end of the property, and
that many of the components necessary for the production of methamphetamine had been
destroyed in it. He found a “Dr. Pepper bottle” in the yard between the shed and the
house, which he identified as a gas generator. Investigator Hughes further explained the
significance of the hole in the top of the bottle as follows:
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They’ll stick a tubing into the hole and shake the bottle and the acid
as it mixes the sulfuric acid, as it mixes with the salt will create the
hydrochloric gas and it will go through the tubing and then it’ll go down.
Whatever container they have the liquid in to turn it back into a salt. It’s
called gassing it off.
He confirmed residue from the hydrochloric acid remained inside the bottle. The
bottle was found laying in leaves with nothing on top of it. He also identified several
cans of camp fuel and paint thinner, both flammable liquids commonly used as a solvent
for shake labs, found on the property. No other camping material such as lanterns or gas
stoves used for legitimate purposes were found. The jury was shown a photograph upon
which Investigator Hughes identified where the items were found in the backyard of the
property.
Investigator Hughes opined that the items recovered from the backyard of the
property had not been there for very long because the camping fuel can had no dirt on it.
He said that the meth lab was “a couple of weeks [old] at most” because the bottle still
had white residue inside and the outside was clean. A video showing Investigator
Hughes “neutralize” the shake bottle meth lab was also played for the jury and admitted
into evidence. Asked if there was anything in the backyard area of the property to
indicate that the residents would use that area, Investigator Hughes said there were toys, a
swing set, and a trampoline that had been closer to the house. He estimated the cost of “a
ball” or a gram of methamphetamine was $50 or $75. He confirmed that Investigator
Ricky Gregory found the cans of camp fuel and paint thinner. He further agreed that
certain components necessary to produce methamphetamine were not found on the
property including “pseudophed pills,” blister packs, and lithium batteries. However,
ammonium nitrate and sodium hydroxide were presumed to be within the sludge. He
confirmed that the Defendant admitted he was a meth user; however, he denied any
knowledge of the items found outside the house.
Chief Glen Cook with the Dyer County Sheriff’s Department was present during
the search of the property and was responsible for securing the property and moving all
individuals to the front living room area of the house. He said the Defendant, Beth
McDonald, three girls, and a juvenile boy were present at the time of the search. He
observed the Defendant to be “nervous,” “agitated,” and “under the influence.” He took
a video recording with his phone showing Investigator Hughes neutralize the shake lab.
While he recorded the process, he observed a “sort of reaction” because it was “bubbling
or fizzing.”
Investigator Rick Gregory of the Dyer County Sheriff’s Department testified that
he was experienced in investigating clandestine meth labs and that he was present during
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the search of the property. While searching the perimeter of the property, he observed
several items related to the manufacture of methamphetamine including a Dr. Pepper
bottle and confirmed that it was a gas generator. He further observed two empty cans of
Coleman type stove fluid, which he found laying in the bushes. He also found paint
thinner within “a 10 or 12 foot radius” of the camp fluid. He said these items were found
“35 to 40 feet” from the house.
Defense Proof. The Defense recalled Tim McCraw, who clarified that there were
two sheds on his rental property. He explained two photographs of the sheds that were
taken from different angles. Tracy Jones, an investigator for the Defendant, testified that
he had taken the photographs of the sheds on the property a few days prior to trial. He
said some of the photographs showed garbage that was behind “a little creek bank or
something.” Danny Fowlkes, the Dyer County Register of Deeds, testified that the last
time a house was registered with his office as quarantined was in 2014.
At the time of the search, Beth McDonald had lived at the property with the
Defendant, her three children and her oldest daughter, Aliegha Landers, and her
boyfriend, Shawn Phillips. She testified that they had lived there since April. Although
she was aware that the Defendant had used methamphetamine in the past, she had not
observed any illegal activity on the property. She confirmed that a large party occurred
on the property “towards the end of June,” with three or four hundred guests. She
identified photographs that were admitted into evidence showing (1) a party and a
bonfire; (2) her daughter and her boyfriend from the night of the party; (3) guests at the
party using fire batons; and (4) set up for the party and DJ equipment. She said they had
“several” bonfires at the party and used camping fuel and gasoline to ignite them. Shawn
Phillips and Aliegha Landers testified consistently with the testimony of Beth McDonald.
Aliegha Landers also testified that she had never witnessed “any cooking of
methamphetamine by anyone” while they lived at the property. She said the party
occurred in June 2016, approximately three months before the search of the property.
At the beginning of the Defendant’s testimony, he was shown the photograph of
the Dr. Pepper bottle and explained that he had never seen it. He confirmed that the party
occurred on the property in June and that camping fuel and other “facilitants” were used
to start the bonfire. He denied any knowledge of “meth sludge” as described by
Investigator Hughes. Asked “You have heard the people testify that you have used
methamphetamine?” The Defendant replied, “Yes. I don’t . . . I don’t know, you know,
that I have used it.” He confirmed that he told the police that he “bought [his] dope,” and
explained he did so because it was cheaper than making it. He said he was purchasing
meth for $30 a gram rather than buying the ingredients, which cost over $100. He denied
cooking methamphetamine. According to the Defendant, before finding anything on the
property, Investigator Hughes told the Defendant that he “put [the Defendant] in prison
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last time, [and] he was going to put [the Defendant] in prison this time too.” On cross-
examination, the Defendant agreed that he had been addicted to methamphetamine for
almost fifteen years. He further agreed that upkeep of the property was his responsibility
and that his brother was paid to mow the lawn.
Investigator Hughes was recalled and testified that both sheds on the property
were searched, no meth components were found, and nothing from those structures was
recovered at the time of the search. He further explained that houses are registered to be
quarantined only when there is an active meth lab found inside the house. Because the
entirety of this meth lab was found outside the house, it was not quarantined. He stated
the grass underneath the Dr. Pepper bottle was still alive when it was recovered, which
indicated that the meth lab was “very recent” or “no more than a couple of weeks.”
Investigator Hughes did not recall making the statements attributed to him by the
Defendant at the time of the search.
Following deliberation, the jury found the Defendant guilty of promoting the
manufacture of methamphetamine.
Sentencing Hearing. At the November 6, 2017 sentencing hearing, the
Tennessee Department of Correction’s investigation report and West State Corrections’
supervision report were admitted into evidence without objection. The trial court asked
counsel for the Defendant if there were “any exceptions from the defense to [the
presentence reports],” and counsel responded, “Judge, I don’t believe that there was any
exceptions[.]” However, during her sentencing argument, counsel for the Defendant
argued:
Range is a beyond a reasonable doubt standard. We believe the
issue of probation and parole is a beyond a reasonable doubt issue also, and
we don’t think that—by not putting up any evidence here today, we don’t
think the State’s proven, beyond a reasonable doubt, that my client was on
parole at the time. So, we’re asking the Court to make the 12-year sentence
concurrent with the sentence that he’s doing now.
In response, the State insisted that parole had been established, at a minimum, by
the Defendant’s testimony at trial. The trial court determined that with “eight prior
felony convictions and two prior misdemeanor convictions . . . [the Defendant was] a
career offender.” The court applied enhancement factor (1), that the defendant has a
previous history of criminal convictions or criminal behavior, in addition to those
necessary to establish the appropriate range, see Tenn. Code Ann. § 40-35-114(1), and no
mitigating factors. The court stated, “It is an extremely long history of criminal
convictions and behavior, rehabilitation does not appear to be good. He has a long
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history of criminal conduct, confinement is necessary to avoid depreciating the
seriousness of the offense.” Noting that the Defendant was in fact on parole for his prior
sentence when the instant crime occurred, the court imposed a twelve year sentence,
which, by law, was ordered to be served consecutively to his prior sentence. On
December 4, 2017, the Defendant filed a motion for new trial, which was denied by the
trial court. It is from this order that the Defendant now appeals.
ANALYSIS
I. Sufficiency of the Evidence. The Defendant argues that the evidence is
insufficient to support his conviction. Specifically, the Defendant argues that, at best, the
evidence “indicates [] possession or sale of a narcotic rather th[a]n promotion of the
manufacture of methamphetamine.” The Defendant asserts that the State failed to prove
that the Defendant “had his hands on any of” the evidence and failed to prove that he was
in “constructive possession” of the evidence. The State responds that the evidence,
including materials used to cook methamphetamine and the Defendant’s own admissions
that he bought and used methamphetamine, was sufficient to sustain the Defendant’s
conviction. The State also argues that the evidence was sufficient to show that the
Defendant exercised dominion and control over his residence and property, and that the
jury could conclude that he was in actual or constructive possession of the
methamphetamine evidence. Upon our review, we agree with the State.
In resolving this issue, we apply the following well-established standard of review.
The State, on appeal, is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the
evidence, the standard of review applied by this court is “whether, after viewing 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.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial
court or jury shall be set aside if the evidence is insufficient to support the finding by the
trier of fact of guilt beyond a reasonable doubt.” Guilt may be found beyond a
reasonable doubt in a case where there is direct evidence, circumstantial evidence, or a
combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343
S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must evaluate the credibility of the
witnesses, determine the weight given to witnesses’ testimony, and reconcile all conflicts
in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). When reviewing
issues regarding the sufficiency of the evidence, this court shall not “reweigh or
reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). This
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court has often stated that “[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 (citing State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973)). A guilty verdict also “removes the presumption of innocence
and replaces it with a presumption of guilt, and the defendant has the burden of
illustrating why the evidence is insufficient to support the jury’s verdict.” Id. (citing
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).
Here, the Defendant was convicted of promoting the manufacture of
methamphetamine. An individual is guilty of promoting methamphetamine manufacture
if he or she “[s]ells, purchases, acquires, or delivers any chemical, drug, ingredient, or
apparatus that can be used to produce methamphetamine, knowing that it will be used to
produce methamphetamine, or with reckless disregard of its intended use[.]” Tenn. Code
Ann. § 39-17-433(a)(1). “‘Manufacture’ means 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[.]” Tenn. Code Ann. § 39-17-402.
The Defendant does not dispute that items consistent with promoting the
manufacture of methamphetamine were found on his property at the time of the search.
Instead, he insists that the State failed to establish constructive possession of the
contraband. In this vein, we recognize that possession may be actual or constructive. See
State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013) (citing State v. Shaw, 37 S.W.3d
900, 903 (Tenn. 2001)). If possession is deemed to be constructive, there must be proof
that the accused had “‘the power and intention at a given time to exercise dominion and
control over . . . [the drugs] either directly or through others.’” Id. (internal citations
omitted). The mere presence of an individual in an area where drugs are found is not
sufficient, standing alone, to find constructive possession. Id. (citing State v. Bigsby, 40
S.W.3d 87, 90 (Tenn. Crim. App. 2000)). Moreover, constructive possession depends on
the totality of the circumstances in each case. It may be proven by circumstantial
evidence. Tenn. Code Ann. § 39-17-419 (2006) (stating that possession may be inferred
from “relevant facts surrounding the arrest”). Circumstantial evidence is sufficient to
sustain a defendant’s conviction even if the evidence does not “remove every reasonable
hypothesis except that of guilt.” Id. (citing State v. Dorantes, 331 S.W.3d 370, 381
(Tenn. 2011) (quoting United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006)).
Viewed in the light most favorable to the State, the proof adduced at trial showed
that deputies from a specialized drug unit conducted a search on the Defendant’s
property, during which they found tools and ingredients indicative of methamphetamine
manufacture. Specifically, they found aluminum foil with methamphetamine residue in
the Defendant’s bedroom, a “shake bottle” or “shake lab” used to cook
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methamphetamine, three empty cans of flammable liquids, and several fire pits/burn piles
containing “sludge”/remnants from methamphetamine cooking. The bottle or gas
generator, the two empty cans of Coleman type stove fluid, and the paint thinner were all
located within “35 to 40 feet” from the Defendant’s house. The “shake bottle lab” was
described as “fresh” or made within “a couple of weeks” because it still had hydrochloric
acid inside, was not covered in debris, and the grass beneath it was alive. Moreover, the
Defendant, as the property lessor, was responsible for the upkeep of the property. He
testified that his brother mowed the lawn of the property, and that the Defendant
frequently went into the yard to play with the children. Based on this evidence, a
reasonable juror could infer that the Defendant exercised dominion or control over the
shake bottle and other items indicative of methamphetamine production that were found
in close proximity of his home. Accordingly, we conclude that the evidence was
sufficient for a jury to convict the Defendant of promoting the manufacture of
methamphetamine, and he is not entitled to relief on this issue.
II. Sentencing. In a single paragraph, the Defendant contends that “a
determination of mandatory consecutive sentencing pursuant to Rule 32(c)(3)(A) of the
Rules of Criminal Procedure for a felony committed while on parole for a felony should
[] be proven beyond a reasonable doubt.” He specifically argues that the trial court
abused its discretion in imposing a consecutive sentence because “[t]he only proof of the
Defendant’s parole status . . . was via hearsay in the T.D.O.C. presentence report.” He
further argues that the report contained unreliable hearsay and should not have been
admitted. In response, the State argues, and we agree, that the trial court properly
imposed consecutive sentencing in this case.
We apply an abuse of discretion standard, accompanied by a presumption of
reasonableness, to consecutive sentencing determinations. State v. Pollard, 432 S.W.3d
851, 860 (Tenn. 2013). Rule 32 of the Tennessee Rules of Criminal Procedure provides,
in relevant part, as follows:
(3) Mandatory Consecutive Sentences. When a defendant is convicted of
multiple offenses from one trial or when the defendant has additional
sentences not yet fully served as the result of convictions in the same or
other courts and the law requires consecutive sentences, the sentence shall
be consecutive whether the judgment explicitly so orders or not. This rule
shall apply:
(A) to a sentence for a felony committed while on parole for a felony[.]
Tenn. R. Crim. P. 32(c)(3)(A).
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At the top of the sentencing hearing, the trial court specifically asked if there were
objections to the presentence report, and the parties indicated there were none. However,
defense counsel voiced her concern that the State had failed to establish “beyond a
reasonable doubt” that the Defendant was on parole at the time of the offense. The
presentence report showed, among other things, that the Defendant “was under parole
supervision for his conviction in Dyer Circuit #11CR161 when he committed his instant
offense in Dyer Circuit Court #16CR324.” Given the information in the presentence
report, consecutive sentencing was mandatory, and the trial court properly imposed a
twelve-year sentence consecutive to the prior unrelated parole. The Defendant is not
entitled to relief.
CONCLUSION
Based on the foregoing reasoning and analysis, the judgment of the trial court is
affirmed.
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CAMILLE R. MCMULLEN, JUDGE
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