State of Tennessee v. Lesa Annette White McCulloch ( 2022 )

06/29/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
March 29, 2022 Session
STATE OF TENNESSEE v. LESA ANNETTE WHITE MCCULLOCH
Appeal from the Criminal Court for Monroe County
No. 16-010CRM Sandra N.C. Donaghy, Judge
No. E2021-00404-CCA-R3-CD
The Defendant, Lesa Annette White McCulloch, appeals her convictions for one count of
initiating the manufacture of methamphetamine, three counts of simple possession of a
controlled substance, one count of possession of marijuana with the intent to sell, and one
count of possession of unlawful drug paraphernalia, and her resulting sixteen-year
sentence. The Defendant argues that (1) the trial court erred by denying the Defendant’s
motion to suppress the evidence seized as a result of the search of the Defendant’s home;
(2) the trial court erred by denying the Defendant’s motion to dismiss for the State’s failure
to preserve material evidence and by declining to issue a special jury instruction; (3) the
trial court erred by failing to instruct the jury on the lesser-included offense of facilitation
of possession of marijuana with the intent to sell; (4) the trial court erred by admitting
evidence of the Defendant’s prior bad acts; (5) the State committed prosecutorial
misconduct during closing arguments by commenting on the Defendant’s intelligence; (6)
the evidence was insufficient to support her convictions; and (7) the trial court erred in
determining her sentencing range and by ordering partial consecutive sentencing.
Following our review, we affirm; however, we remand the case for entry of a corrected
judgment in Count 1 due to a clerical error.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Case Remanded
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and NORMA MCGEE OGLE, JJ., joined.
Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Lesa Annette White
McCulloch.
Herbert H. Slatery III, Attorney General and Reporter; T. Jonathan H. Wardle, Assistant
Attorney General; Stephen D. Crump, District Attorney General; Ashley M. Ervin (at
pretrial motion hearings), and Shari L. Tayloe and Matthew L. Dunn (at trial), Assistant
District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On July 6, 2015, members of the Madisonville Police Department (MPD) and
Monroe County Sheriff’s Office (MCSO) initiated a knock and talk interaction at the
Defendant’s trailer. After the Defendant consented to a search for evidence of
methamphetamine manufacture, the officers found materials and equipment used to
manufacture methamphetamine, and a subsequent search of the Defendant’s purse yielded
two baggies of marijuana, forty pseudoephedrine pills, eleven alprazolam pills, nine
hydrocodone pills, and an oxycodone pill.
The January 2016 term of the Monroe County Grand Jury charged the Defendant
with the following offenses: initiation of methamphetamine manufacture (Count 1);
possession of hydrocodone, a Schedule II controlled substance (Count 2); possession of
oxycodone, a Schedule II controlled substance (Count 3); possession of alprazolam, a
Schedule IV controlled substance (Count 4); possession of marijuana, a Schedule VI
controlled substance, in an amount of more than 0.5 ounces but less than ten pounds with
the intent to sell or deliver1 (Count 5); and possession of unlawful drug paraphernalia
(Count 6). See Tenn. Code Ann. §§ 39-17-408, -17-412, -17-415, -17-417, -17-418, -17-
425, -17-435.
At trial, MPD Detective David Wear, MCSO Deputy Denny Graham, and MPD
Sergeant Daniel Dockery testified regarding the circumstances of the July 6, 2015 search
and its outcome. At the time of the incident in this case, Detective Wear had recently been
promoted and had been working drug cases for about two weeks. At 10:30 p.m., the three
officers and two MPD patrol officers drove to the Defendant’s one bedroom, one bathroom
single-wide trailer. They encountered the Defendant’s live-in boyfriend, David Jacobs,
who was working on a car in the driveway. Detective Wear asked him if the Defendant
was home, and Mr. Jacobs went inside to get her. Detective Wear did not recall if Mr.
Jacobs told him that the Defendant was asleep.
Detective Wear and Deputy Graham testified that they stood on the small front
porch and that Detective Wear spoke with the Defendant through the open front doorway.
Sergeant Dockery stood in the yard and did not hear the conversation. Although neither
Detective Wear nor Deputy Graham recalled the exact wording of the exchange, Detective
1
At trial, the State elected to pursue only the sale portion of Count 5, and the delivery portion was not sent
to the jury.
-2-
Wear stated that he asked the Defendant for consent to search the trailer for “any active
meth labs and/or any items used in the manufacture of methamphetamine.” Deputy
Graham stated that Detective Wear discussed with the Defendant “their activity that had
been going on at the residence.” The officers agreed that the Defendant gave verbal consent
to search; although Detective Wear said that he probably had a consent to search form in
his truck, he did not have the Defendant provide written consent. Detective Wear noted
that he was not required to obtain written consent to search and that he asked the Defendant
for consent because he knew her to be the main tenant or owner of the trailer. None of the
officers were equipped with body cameras, and because none of the police cruisers had
their lights activated, no dashboard cameras recorded the relevant events.
The Defendant’s trailer consisted of a living area partitioned by a bar style counter
into the living room and kitchen, a bathroom, and a bedroom. The relevant items in this
case were all found in the living room, kitchen, and bathroom. The living room contained
a black sofa, a coffee table, and a beige recliner.
Detective Wear, Deputy Graham, and Sergeant Dockery conducted the search.
Within minutes of entering the living room, the officers found a spent or inactive “one-pot
meth lab,” which consisted of a small soda bottle underneath a coffee table, at which point
the Defendant was removed from the trailer for her safety. The Defendant and Mr. Jacobs
were the only people in the trailer.
The quality and number of crime scene photographs was addressed several times
during trial. Detective Wear was the only officer who took photographs, and he attributed
any deficiencies in the photographs or crime scene documentation to his relative
inexperience with drug investigations at the time. The officers generally acknowledged
that they had moved some items to photograph them, although no one could provide detail
other than that they moved the coffee table away from the couch before they found the
meth lab. Even so, the coffee table was pictured within arm’s reach of the couch. They
similarly agreed that not all of the evidence was photographed.
The meth lab was originally found on its side, but the officers stood the bottle
upright for photographs. In addition, Sergeant Dockery was photographed holding the
bottle while wearing gloves before he took it outside. The meth lab contained a dark
material and a white crystalline residue, which were identified as lithium strips from
batteries and ammonium nitrate2 from cold packs, respectively. The officers all noted that
a spent meth lab had completed the chemical reaction necessary to produce
methamphetamine oil, of which there was none remaining in the bottle.
2
Sergeant Dockery also noted that sodium hydroxide, a binder in pseudoephedrine pills, could have been
present in the white residue.
-3-
The testimony and photographs established that on the coffee table, the officers
found digital scales containing a white powder and a “leafy” residue, two unopened cold
packs, a funnel, coffee filters, a small pink bag,3 a small purple and pink striped bag,
“burnt” aluminum foil, an unused roll of aluminum foil, pliers, and a pill crusher. One of
the coffee filters had a math equation written in pencil on it, which Detective Wear
identified as quantities commonly associated with methamphetamine use. A letter
addressed to Mr. Jacobs was also on the coffee table. A pack of razor blades, plastic
baggies, and an extension cord were sitting on the beige recliner.
The small striped bag contained pens, a straw used to ingest narcotics, a health card
and prescription savings card in two different women’s names who were not the Defendant,
and a credit card. The small pink bag contained corner-cut baggies, a pen, a flashlight,
razor blades, small scissors, coffee filters, and three glass smoking pipes. A third pink bag,
which was not pictured on the coffee table, contained coffee filters; Detective Wear noted
that he found three glass methamphetamine pipes wrapped in the filters.4
Among a variety of items strewn across the carpet, the officers found baggies, empty
boxes of allergy medication containing pseudoephedrine, another pair of pliers, and
metallic detritus, some of which was attributed to batteries having been opened in order to
access lithium strips. A plastic shopping bag held plastic bottle caps and a quantity of
green plastic tubing. Detective Wear stated that the bottle caps and tubing were used in
“the gassing process.” “[O]pened” lithium batteries and an emptied cold pack were in a
garbage can, and camp fuel and three bottles of lye, one of which had been opened, were
in shopping bags on the floor.
In the kitchen, a square blue Pyrex dish, two open glass mason jars, and a funnel
with a coffee filter fitted inside it were on the stovetop. One of the glass jars contained a
clear liquid identified by Sergeant Dockery as camp fuel. A hairdryer was plugged in on
the countertop; Detective Wear testified that in the gassing process, the methamphetamine
solids were filtered using a funnel and coffee filter and that typically, a hair dryer could be
used to dry the strained solids. He also stated that in the kitchen, he saw a coffee grinder
“that [was] used to grind up pseudoephedrine pills” and an open box of pseudoephedrine.
3
The small bags appeared to be the type commonly used to hold makeup or school supplies.
4
Several of the items of drug paraphernalia were introduced as exhibits at trial, including sandwich baggies,
the glass pipes, corner-cut baggies, an empty “jewelry bag” containing marijuana residue, the digital scales,
razor blades, a pink camera case containing a marker, a pill case, a “roach clip,” and an unlabeled green pill
bottle.
-4-
A photograph from the bar area of the kitchen showed a box of “Zephrex-D” gel
capsule allergy medication, which contained a symbol indicating that it could not be used
to make methamphetamine. Detective Wear noted that none of the pseudoephedrine pills
recovered from the Defendant’s purse were gel capsules.
The Defendant’s bathroom contained a standing oscillating fan pointing toward the
partially open shower curtain, lighter fluid, and a pair of scissors; a window inside the
shower area was open and had a screen hanging crookedly from it. Detective Wear and
Sergeant Dockery explained that the gassing process produced hazardous fumes and that
ventilation was important. A “beer bottle gasser” was also found in the bathroom near the
bottom of the fan, but it was not photographed. Sergeant Dockery explained that the
gassing process involved the release of hydrogen chloride gas and that ventilation was
important. He stated that the hydrogen chloride and ammonia involved in an active meth
lab had strong smells, and Detective Wear noted that he did not detect these smells when
approaching the Defendant’s trailer.
Detective Wear stated that he collected a composition notebook5 labeled as “Lesa’s
sh-t book”; although he could not recall where in the trailer he found it, he affirmed that it
came from the trailer. He identified a page from the book, which contained individuals’
names, telephone numbers, and a series of numbers, some of which were preceded by dollar
signs.6 When asked whether he had personal knowledge about whether the notebook
referred to drugs or maintaining the Defendant’s garden, Detective Wear stated, “Well, I
can tell you that the names in the ledger book[,] at the same timeframe I was dealing with
the same people referenced in illegal drug activity.” Detective Wear agreed that some of
the notebook entries referred to ladies clothing, light bulbs, and gardening supplies.
Sergeant Dockery testified that the presence of corner-cut baggies, digital scales, scissors,
and the composition notebook indicated illegal drug distribution.
Detective Wear testified that an open red purse near the couch was not photographed
and that he saw marijuana “in plain view . . . from the point of it being opened.” The
officers took the purse outside and searched it on the hood of a police cruiser truck with
the Defendant present. In the purse, officers found two similarly-sized baggies of
marijuana, eleven alprazolam pills, nine hydrocodone pills, one oxycodone pill, a baggie
with thirty pseudoephedrine pills, and a baggie of ten pseudoephedrine pills. The officers
did not photograph the Defendant’s purse or its contents, but the pills were sent to the
Tennessee Bureau of Investigation (TBI) for analysis. The purse itself was not collected
as evidence and was returned to the Defendant or her mother.
5
The witnesses also referred to the notebook as a ledger book.
6
The notebook page was published to the jury, but it was not included in the appellate record.
-5-
Detective Wear testified that after reading the Defendant her Miranda rights, she
acknowledged ownership of the purse, admitted having bought the cold packs and
marijuana, and stated that she purchased the lye as a drain cleaner because of a plumbing
problem. The Defendant claimed that while she was asleep on the sofa, someone had come
into her home and planted the meth lab underneath the coffee table.
Sergeant Dockery was certified as an expert in methamphetamine investigation and
explained the manufacturing process, including household substances used to make
methamphetamine like pseudoephedrine, ammonium nitrate, lithium batteries, lye,
camping fuel, lighter fluid, mason jars, plastic tubing, coffee filters, and twenty or thirty-
two-ounce plastic bottles. He stated that all the necessary components to manufacture
methamphetamine were present in the Defendant’s trailer aside from the methamphetamine
oil and a solvent, which he theorized was the camp fuel in the mason jar.
The officers testified that although the active manufacturing process had concluded,
the remaining substances in the meth lab were volatile and hazardous such that they could
not be tested or retained as evidence. Sergeant Dockery and Detective Wear stated that the
spent meth lab, lye, unused cold packs, plastic tubing, pliers, camp fuel, Pyrex dish, funnel,
and mason jars were destroyed, which was standard practice. In addition, the coffee filters,
pliers, scissors, and empty pseudoephedrine boxes were collected as trash and destroyed
because they had been used to manufacture methamphetamine. Detective Wear said that
although an empty box of pseudoephedrine was not dangerous, “it could be hazardous.”
Detective Wear, who was certified as a meth lab technician in 2015 after the incident
in this case, stated that it was impossible to store a spent meth lab as evidence because
lithium was easily combustible when combined with water and that ammonium nitrate was
“in itself . . . dangerous.” When asked whether he would “recover things” from a meth lab
by opening it and pouring the contents through a coffee filter, Detective Wear responded
negatively and noted that “[t]hat’s a good way to blow it up.” The officers acknowledged
that other than Sergeant Dockery’s wearing gloves while handling the meth lab, they did
not wear protective equipment during the search, although they opened the living room
windows to increase ventilation.
Detective Wear stated that the items were not tested for fingerprints prior to their
destruction; he noted that he did not feel a need to fingerprint any of the items because the
Defendant and Mr. Jacobs lived at the trailer, and the items were spread through the trailer
in plain view. It was not standard practice to test anything other than the liquid in an
unspent meth lab and that that no such liquid was present in this case.
-6-
TBI forensic scientist Ashley Cummings, an expert in drug identification, testified
that she analyzed some7 of the pills taken from the Defendant’s purse. The pills tested as
thirty pseudoephedrine tablets, 17.07 grams8 of marijuana in two plastic baggies, one
oxycodone tablet, one dronabinol tablet, eleven alprazolam tablets, and nine hydrocodone
tablets.
Upon this evidence, the Defendant was convicted as charged. A sentencing hearing
was held on January 22, 2019.
After the conclusion of proof at the sentencing hearing, the trial court applied four
enhancement factors to the Defendant—(1) the Defendant had a previous history of
criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range; (8) the Defendant, before trial or sentencing, failed to comply with the
conditions of a sentence involving release into the community; (10) the Defendant had no
hesitation about committing a crime when the risk to human life was high; and (13) at the
time the felony was committed, the Defendant was released on bond. See Tenn. Code Ann.
§ 40-35-114. No mitigating factors were found to be applicable to the Defendant. See
Tenn. Code Ann. § 40-35-113. Regarding consecutive sentencing, the trial court
determined that the Defendant had an extensive record of criminal activity. See Tenn.
Code Ann. § 40-35-115.
Ultimately, the trial court imposed an effective sentence of sixteen years in
confinement. The trial court sentenced the Defendant as a Range II, multiple offender to
twelve years for initiating the manufacture of methamphetamine, a Class B felony. She
was also sentenced to eleven months and twenty-nine days for each of her simple
possession convictions and for her drug paraphernalia conviction; all of which were to be
served concurrently with her twelve-year sentence for initiating the manufacture of
methamphetamine. Finally, relative to her possession of marijuana with the intent to sell,
the trial court imposed a Range III, persistent offender sentence of four years for the Class
E felony, and that four-year sentence was aligned consecutively to the twelve-year sentence
for the methamphetamine conviction.9
7
Ms. Cummings stated that TBI policy was to test three samples per case and that due to the unusual
circumstances in this case, she tested five of the seven items submitted. It appears from the record that she
did not test the second bag of ten suspected pseudoephedrine pills or a suspected dronabinol pill.
8
Ms. Cummings noted that one-half of one ounce was 14.19 grams.
9
At the sentencing hearing, the Defendant also received an agreed-upon four-year sentence in another case
where she pled guilty to promoting the manufacture of methamphetamine. The trial court aligned that
sentence consecutively to the sentences in this case because the Defendant committed that offense while on
bond.
-7-
The Defendant’s motion for new trial was denied. The Defendant timely appealed.
ANALYSIS
The Defendant argues that (1) the trial court erred by denying the Defendant’s
motion to suppress the evidence seized as a result of the search of the Defendant’s home;
(2) the trial court erred by denying the Defendant’s motion to dismiss for the State’s failure
to preserve material evidence and by declining to issue a special jury instruction; (3) the
trial court erred by failing to instruct the jury on the lesser-included offense of facilitation
of possession of marijuana with the intent to sell; (4) the trial court erred by admitting
evidence of the Defendant’s prior bad acts; (5) the State committed prosecutorial
misconduct during closing arguments by commenting on the Defendant’s intelligence; (6)
the evidence was insufficient to support her convictions; and (7) the trial court erred in
determining her sentencing range and by ordering partially consecutive sentencing. We
will consider each issue in turn.
I. Suppression
The Defendant contends that the trial court erred by denying her motion to suppress,
arguing that the trial court made findings of fact not supported by the record, and
accordingly, this court should reweigh its credibility determinations and find that the
Defendant did not consent to the search and that the search exceeded the scope of any valid
consent given when the officers searched the Defendant’s purse and the composition
notebook. The State responds that the trial court properly denied the motion to suppress.
On appellate review of suppression issues, the prevailing party “is entitled to the
strongest legitimate view of the evidence adduced at the suppression hearing as well as all
reasonable and legitimate inferences that may be drawn from the evidence.” State v.
Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996)). Questions about “the assessment of witness credibility, the weight and
value of evidence, and the resolution of evidentiary conflicts are entrusted to the trial court”
as the trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the trial
court “makes findings of fact in the course of ruling upon a motion to suppress, those
findings are binding on appeal unless the evidence in the record preponderates against
them.” Id. Conversely, a trial court’s conclusions of law, along with its application of the
law to the facts, are reviewed de novo without any presumption of correctness. Id.Both the federal and state constitutions offer protection from unreasonable searches
and seizures with the general rule being “that a warrantless search or seizure is presumed
unreasonable and any evidence discovered subject to suppression.” Talley, 307 S.W.3d at
-8-
729 (citing U.S. Const. amend. IV; Tenn. Const. art. I, § 7). As has often been repeated,
“the most basic constitutional rule in this area is that ‘searches [or seizures] conducted
outside the judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment–subject to only a few specifically established
and well delineated exceptions.’” Coolidge v. New Hampshire, 403 U.S. 443, 454-55
(1971) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); see also State v. Berrios,
235 S.W.3d 99, 104 (Tenn. 2007).
Before trial, the Defendant filed a motion to suppress the evidence obtained during
the search, alleging that she did not give effective consent and, alternatively, that the
officers’ search exceeded the scope of her consent. At a June 16, 2017 pretrial motion
hearing, Detective Wear testified consistently with his trial testimony. In addition, he
stated that he and Deputy Graham were wearing street clothes and badges when they
approached the trailer. Detective Wear was carrying a gun in a holster on his belt.
Detective Wear did not recall whether he carried a taser, but he noted that the MPD officers
in uniform would have carried one.
Detective Wear testified that the Defendant’s trailer sat between twenty and thirty
feet from the road and that he pulled his unmarked police truck into the driveway, but the
other officers would have had to park on the street. He estimated that the officers had two
unmarked vehicles and three marked police cruisers at the trailer. Detective Wear had not
been to the trailer previously, although he had interacted with the Defendant and knew her.
Detective Wear testified that all MPD officers were issued “a Glock 45, 21, [an]
AR-15,” and a shotgun. He noted that he kept his guns in his police truck. Detective Wear
stated that neither he nor Deputy Graham drew their weapons, verbally threatened the
Defendant, or physically touched her.
Detective Wear stated that he arrived at the trailer at 10:30 p.m. and that he did not
have a search warrant or proof of illegal activity. He said, though, that Deputy Graham
told him that the Defendant had a meth lab. Detective Wear assumed that Deputy Graham
obtained the information from a confidential informant. Detective Wear did not recall if
Mr. Jacobs mentioned that the Defendant was asleep, but he allowed for the possibility.
He acknowledged that he did not record his conversation with Mr. Jacobs.
Detective Wear testified that he spoke to the Defendant from her front porch and
that both the front and screen doors were open. He stated that the Defendant responded to
his questions and seemed “oriented to the conversation.” Detective Wear did not recall the
phrasing the Defendant used when giving consent for the search. Detective Wear stated
that the Defendant was not under arrest at that time, that she was not handcuffed, and that
none of the police vehicles had their lights or sirens activated.
-9-
Detective Wear did not remember telling Defendant that if she did not consent to
the search, they would obtain a search warrant; asking the Defendant if all of the officers
could enter; or asking Mr. Jacobs for consent to search. He stated his impression that the
Defendant was the primary resident of the trailer. Neither officer conveyed to the
Defendant that a confidential informant told Deputy Graham about a meth lab’s being in
her home.
Detective Wear denied smelling any fumes as he approached the trailer and spoke
to the Defendant. Detective Wear stated that the items in the trailer were not found together
and that he did not test the items for fingerprints.
Detective Wear testified that during the search, the Defendant was outside the
house. He stated that until they found the one-pot meth lab, the Defendant was not
handcuffed and was free to leave. He noted that they found the meth lab at the location
Deputy Graham described within minutes of entering the home.
Detective Wear acknowledged that he was six feet, one inch tall and weighed 340
pounds, whereas the Defendant was a “small” woman and about five feet, six or seven
inches tall. He said that the Defendant’s front porch was small, that Officer Dockery stood
at the foot of the porch, and that he and Deputy Graham stood on the porch at the front
door.
Detective Wear acknowledged that in his police report, he did not refer to the
Defendant’s purse and that instead, he referred to items having been found in the
Defendant’s possession. Detective Wear stated that the officers observed marijuana in
plain view inside the purse on the couch; he did not remember which of them found it.
Detective Wear acknowledged that he never asked the Defendant for consent to search the
purse or obtained a warrant to search the purse.
Detective Wear stated that an on-call magistrate was usually available and that it
took between one and two hours to produce a warrant and ten minutes to drive to the
magistrate’s home. He denied attempting to obtain a search warrant based upon Deputy
Graham’s information, which was communicated the afternoon or evening before the
search. Deputy Graham similarly did not attempt to obtain a warrant.
The Defendant also testified at the suppression hearing. She stated that on July 6,
2015, at about 5:30 p.m., she was asleep on the couch when the police came to her door
“the first time,” although she also referred to being awake at 10:30 p.m. The Defendant
said that Mr. Jacobs came to the door from outside and told her that the police wanted to
talk to her. The Defendant stated that as she “raised up” and tried to roll over and get up
from the couch, Detective Wear, Deputy Graham, and Sergeant Dockery were standing
-10-
inside her front door. She denied having spoken to any of the officers previously. The
Defendant stated that when she stood up and walked toward the door, Detective Wear said
that they were going to “look in” the house and instructed the Defendant to sit back down
on the couch. The Defendant stated that at this point, she was wearing her purse on her
shoulder and that she sat down on the couch. According to the Defendant, Deputy Graham
told her that he was going to move the coffee table and would not tell her why. When he
moved the table, the Defendant saw a bottle that “[she] didn’t know nothing [sic] about at
all whatsoever.”
The Defendant testified that when she was asleep, her purse was beside her on the
couch. She stated that Detective Wear told her to stand up and go outside and that she
placed the purse strap on her shoulder and walked outside. At some point thereafter,
Detective Wear asked for the Defendant’s purse; the Defendant intended to give the purse
to her mother, who was “coming around the corner,” but Detective Wear took it from her
shoulder. The Defendant stated that the purse was zipped closed, “folded over and
snapped.” She affirmed that Detective Wear first opened the purse outside the home.
On cross-examination, the Defendant testified that she knew nothing about the meth
lab under the coffee table. She acknowledged that the table was directly in front of the
couch where she was sleeping. The Defendant stated that she did not know what was in
the bottle, and she claimed to have never seen or “interacted with” meth labs before. The
Defendant said that her prior methamphetamine convictions were only for “possession or
something like that.” When asked whether she was convicted in 2011 of promoting the
manufacture of methamphetamine, the Defendant stated that she was charged with that
offense, although she later acknowledged that she had, in fact, been convicted. The
Defendant further acknowledged a previous conviction for possession of drug
paraphernalia.
The Defendant testified that she was the sole owner of her purse and that she chose
to take it outside during the search. The Defendant stated that although her mother owned
the trailer, the Defendant and Mr. Jacobs lived there together. The Defendant said that she
knew how to make soap from lye and brew beer, but that she was not in the practice of
making them.
At a later hearing, the trial court made oral findings of fact and conclusions of law.
The court noted that a factual dispute existed between Detective Wear’s testimony that the
Defendant came to the door, and the Defendant’s testimony that she was asleep and awoke
to the officers standing inside her living room. The court noted the “unreasonable police
conduct” of conducting a knock and talk at 10:30 p.m. and the court’s surprise that
Detective Wear could not recall and had not documented the Defendant’s words when
-11-
giving consent to search. The court also noted that the Defendant admitted to giving
consent and that the ultimate issue was the voluntariness of the consent.
The trial court questioned the Defendant’s credibility, noting that the Defendant’s
claim that she was sleeping on the couch with her purse on her shoulder was “highly
improbable” and that it was “problematic” that the Defendant seemingly did not have the
purse on her shoulder when she came to the door to talk to the officers. The court also
noted the Defendant’s testimony that she knew nothing about meth labs in spite of having
prior methamphetamine-related arrests and “perhaps” convictions.
The trial court credited Detective Wear’s testimony, noting that he candidly
admitted to not having used a camera in spite of having one in his police cruiser and failing
to include the details of the conversation in his reports. The court found that Detective
Wear’s “admission of what [the court] perceived to be sloppiness” lent him credibility and
stated that it accredited Detective Wear’s testimony over that of the Defendant. The court
found that the Defendant freely and voluntarily gave consent without coercion.
Relative to the scope of the search, the trial court found that components of a meth
lab could be secreted in a bag such as a purse and that although the Defendant could have
limited her consent to the house excluding her purse, she “failed to do that.” The court
noted the State’s argument that the marijuana in the purse was in plain view and stated that
the court had no information about the purse’s size and whether it was open. The court
stated that it did not place “very much weight” on the plain view theory because “little
things like a baggie full of a green plant material probably would fall to the bottom [of a
purse] and get lost.” The court noted that even if the Defendant was carrying her purse at
the time of the initial search, once the meth lab was found, it could be searched incident to
her arrest. The court mentioned the officers’ “peculiar” decision to remove the purse from
the house to search it in the Defendant’s presence, but concluded that in light of the
“extreme expectation of privacy” in a purse, it was precautionary. The court denied the
motion to suppress.
In a subsequent written order denying the motion to suppress, the trial court
reiterated that it resolved any factual dispute in the testimony in favor of Detective Wear,
noting that the Defendant’s cross-examination testimony “led this [c]ourt to find the
testimony not to be credible,” and that it relied on Detective Wear’s testimony to find that
the Defendant gave voluntary consent free from coercion. The court also found that
because components of methamphetamine manufacture could fit in a purse, the
Defendant’s consent to search extended to her purse.
The trial court’s determination that the Defendant voluntarily consented to the
search turned on its finding that Detective Wear was more credible than the Defendant.
-12-
The Defendant points out in her appellate brief some of the court’s oral findings of fact as
evidence that the court abused its discretion by denying the motion to suppress. Although
we agree that the court misstated some of the testimony—in particular, that the Defendant
ever admitted to having given verbal consent to the officers and that the Defendant was
wearing her purse while she was asleep—the record reflects that the court’s credibility
determinations were based upon facts supported by the hearing testimony. The court
specifically cited Detective Wear’s candor that he should have recorded his conversation
with the Defendant. Similarly, the court found that the Defendant was not credible in part
because she denied knowing anything about methamphetamine manufacture in spite of a
past conviction for promoting methamphetamine manufacture. Because the court’s
credibility determinations were supported by the record, we conclude that the court did not
abuse its discretion by finding that the Defendant gave effective consent for the search.
Relative to the scope of the search, we agree with the trial court that even if the
officers had not seen marijuana in plain view in the Defendant’s purse, it was a container
that could have held smaller items used in methamphetamine manufacture—indeed, the
Defendant had forty pseudoephedrine pills inside the purse—and that consequently, the
purse was covered by the Defendant’s initial consent. We also agree that even if we
accepted the Defendant’s account of having taken the purse outside the trailer with her, it
was undisputed that the officers searched the purse after having found the meth lab,
justifying a search for more methamphetamine-related items incident to the Defendant’s
arrest. The trial court properly denied the motion to suppress, and the Defendant is not
entitled to relief on this basis.
Relative to the composition notebook, generally, grounds for a motion to suppress
must be raised before trial unless “good cause” can be shown. See Tenn. R. Crim. P.
12(b)(2)(C). The record reflects that at trial, defense counsel objected to testimony
regarding the ledger book, stating that he had not been notified of the notebook’s existence
until one week before trial. The primary objection appears to have been to laying an
adequate foundation for the origin of the book and speculation as to the meaning of its
contents, but counsel also argued that the notebook was outside the scope of the search.
The trial court agreed with defense counsel that books were not within the scope of a
search for components of methamphetamine manufacture but then found that the
Defendant did not object to the seizure of the book at the crime scene. The court noted that
it did not know if the Defendant had the opportunity to object or whether she limited the
scope of the search verbally at any point. The court finally stated, “I think it goes to the
weight to be given this,” and overruled the objection.
Regardless, in the motion for new trial, the Defendant only raised a general issue
regarding the admission of testimony about the ledger book. At the motion for new trial
-13-
hearing, defense counsel framed the issue as a complaint that the police witness
characterized the notebook as a ledger and that the witness connected it to drug
transactions. Because the Defendant failed to raise a suppression issue related to the
composition notebook at the motion for new trial, it has been waived. See Tenn. R. App.
P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error”). Further, because the notebook or a copy
of its pages are not included in the record on appeal, it is unclear what happened in the trial
court, and plain error review is unwarranted. See State v. Page, 184 S.W.3d 223, 230-31
(Tenn. 2006) (setting forth the required factors for plain error relief). The Defendant is not
entitled to relief on this basis.
II. Ferguson
The Defendant contends that the trial court erred by denying her pretrial motion to
dismiss on the basis of the State’s failure to preserve evidence, arguing that because the
Defendant disclaimed ownership of the items, some of the items were nonhazardous, and
“[f]ingerprints taken from the meth lab components could have proven to be wholly
exculpatory,” the State had a duty to preserve them. Relatedly, the Defendant argues that
the trial court erred by declining to issue a special instruction to the jury as a curative
measure. The State responds that it was not required to preserve hazardous materials and
that all of the destroyed evidence was potentially contaminated by the meth operation.
Likewise, the State argues that no need for a special jury instruction existed.
In State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), our supreme court “explained that
the loss or destruction of potentially exculpatory evidence may violate a defendant’s right
to a fair trial.” State v. Merriman, 410 S.W.3d 779, 784 (Tenn. 2013) (citing Ferguson, 2
S.W.3d at 915-16). The court rejected a “bad faith” analysis in favor of “a balancing
approach in which bad faith is but one of the factors to be considered in determining
whether the lost or destroyed evidence will deprive a defendant of a fundamentally fair
trial.” Id. at 785. Our supreme court “observed that fundamental fairness, as an element
of due process, requires a review of the entire record to evaluate the effect of the State’s
failure to preserve evidence.” Id. at 784-85 (citing Ferguson, 2 S.W.3d at 914, 917).
To facilitate this “balancing approach,” our supreme court ruled that the trial court
must first “determine whether the State had a duty to preserve the evidence” and observed
that the State’s duty to preserve was “limited to constitutionally material evidence.”
Merriman, 410 S.W.3d at 785. The court held that to be “constitutionally material,” the
evidence “must potentially possess exculpatory value and be of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably available
means.” Id. (citing Ferguson, 2 S.W.3d at 915, 918). “If the trial court determines that the
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State had a duty to preserve the evidence, the court must determine if the State failed in its
duty.” Id. (citing Ferguson, 2 S.W.3d at 917).
If the trial court concludes that the State lost or destroyed evidence that it had a duty
to preserve, the trial court must then consider three factors to determine the appropriate
remedy for the State’s failure: “(1) [t]he degree of negligence involved; (2) [t]he
significance of the destroyed evidence, considered in light of the probative value and
reliability of secondary or substitute evidence that remains available; and (3) [t]he
sufficiency of the other evidence used at trial to support the conviction.” Merriman, 410
S.W.3d at 785 (quoting Ferguson, 2 S.W.3d at 917). “If the trial court concludes that a
trial would be fundamentally unfair without the missing evidence, the trial court may then
impose an appropriate remedy to protect the defendant’s right to a fair trial, including, but
not limited to, dismissing the charges or providing a jury instruction.” Id. at 785-86.
Before trial, the Defendant filed a motion to dismiss based upon the improper
destruction of evidence, arguing that the meth lab bottle and its contents should have been
subjected to fingerprints and chemical analysis. During the pretrial motion hearing on the
motion to suppress, the trial court also received evidence relative to the Defendant’s motion
to dismiss. At the beginning of the hearing, the Defendant argued that the meth lab and its
contents should have been tested to confirm the contents and obtain fingerprints from the
exterior because the lab was no longer active and therefore no longer dangerous.
Detective Wear testified at the hearing that he had worked on the scene of about 100
meth labs before his September 2015 certification as a meth lab technician. He testified
consistently with his trial testimony that many items at the Defendant’s trailer were
destroyed without having been fingerprint tested. Detective Wear described the spent meth
lab and its contents consistently with Sergeant Dockery’s trial testimony. He stated that
the meth lab was in “a very volatile state” and that meth labs never became “safe as far as
the chemical process,” noting that lithium was highly combustible and that ammonium
nitrate and camp fuel were dangerous. Detective Wear stated that the beer bottle gasser
would have contained muriatic acid, another hazardous chemical, during the gassing
process, although he did not note any substances in the gasser in the Defendant’s bathroom.
Detective Wear acknowledged having sent liquid from a meth lab to be tested by
the TBI in one instance occurring after the Defendant’s case. Detective Wear noted,
though, that the meth lab container itself was not preserved as evidence. Detective Wear
stated that in the Defendant’s case, the liquid had “already been pulled” from the meth lab.
When asked why the entire bottle could not be sent to the TBI, Detective Wear responded
that the bottle was “a bomb.” Detective Wear stated that all of the seized items were
destroyed that night after the methamphetamine task force officer responded to the scene,
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although paraphernalia like “corner-cut baggies, three glass smoking pipes, digital scales,
[and] razor blades” were retained as evidence.
Detective Wear affirmed that he advised the Defendant of her Miranda rights prior
to the destruction of the meth-related evidence and that she denied ownership of the items.
Mr. Jacobs was similarly advised and denied ownership of the items.
Due to a discovery oversight, the hearing was continued until September 19, 2017,
to allow defense counsel to review crime scene photographs. During that hearing,
Detective Wear was recalled as a witness and identified the crime scene photographs of the
meth lab standing upright on the carpet, a closer angle of the meth lab, the coffee table with
one of the pink makeup bags open, the coffee table showing the purple and pink striped
bag zippered shut, the kitchen bar area with the box of Zephrex-D medication, and the
kitchen stove area.
The hearing was continued again until February 27, 2018. At this hearing, the
Defendant for the first time argued that the non-hazardous items in the house should have
been preserved for testing. The trial court found that the pseudoephedrine box on the
kitchen counter had “no value” to the meth lab and that the box could have contained
exculpatory evidence such as fingerprints; the court noted, however, that the value was
“slight” because multiple people touched items purchased at a store. The court stated that
other similar pieces of evidence were “not inherently dangerous” and that it would consider
those items using the Ferguson factors.
The trial court found that as a result of the search, the police discovered a scene
“replete” with items involved in methamphetamine manufacture and that the police “chose
not to collect and save” them. The trial court cited this court’s decision in Scott Benjamin
Carroll, Jr. v. State, No. M2015-00363-CCA-R3-PC, 2015 WL 8529464, at *6 (Tenn.
Crim. App. Dec. 11, 2015), for the proposition that “if there [were] photographs of the
meth components that those photographs . . . could be introduced and because of the
hazardous contents of the meth lab that those photographs [were] a suitable alternative that
should [have] come in.” The trial court also noted Carroll’s conclusion that “when
evidence is just too dangerous to preserve . . . the State has no duty to preserve” it. The
court acknowledged that the Defendant’s case was different because the meth lab was
“defunct” or “spent,” but it found that common sense dictated that the remaining substances
were corrosive, caustic, or otherwise hazardous. The court found that “those things such
as the pseudoephedrine box [were] part and parcel” to the manufacturing process and that
it was likely that all of the items were contaminated. The court also found that the crime
scene photographs were a suitable alternative and that a Ferguson jury instruction was not
justified. The court denied the Defendant’s motion to dismiss. In a subsequent written
order denying the motion to dismiss, the trial court found that the State had no duty to
-16-
preserve hazardous items and that because all of the items onsite were potentially
contaminated and photographic evidence existed as a substitute, no Ferguson violation
occurred.
After the close of the proof at trial, the Defendant requested a special jury instruction
pursuant to Ferguson in light of Detective Wear’s trial testimony about the various items
destroyed by the methamphetamine task force. The trial court denied the request, finding
that the relevant items “[had] been determined to be hazardous material” and relying on its
reasoning in the pretrial motion to dismiss.
On appeal, the Defendant relies on this court’s opinion in State v. Lonnie T.
Lawrence and Patrick D. Pickett, No. E2007-00114-CCA-R9-CD, 2008 WL 704355, at
*10-13 (Tenn. Crim. App. Mar. 17, 2008), abrogated on other grounds by Merriman, 410
S.W.3d at 790, for the proposition that the State has the duty to preserve untainted
components from a meth lab site and that the Defendant’s ability to test the untainted
evidence for fingerprints was material to preparation of a defense. The Defendant names
several photographed items and cites to Detective Wear’s trial testimony regarding their
safety as evidence that the items, some of which were sealed and in shopping bags from
their purchase, could have been collected and fingerprinted. The Defendant also notes that
in one photograph, an officer was holding one of the small pink bags in his bare hand,
indicating that some things in the trailer were not contaminated by the meth lab.
The Defendant’s case is distinguishable from Lawrence because the
methamphetamine lab and associated components were not split between a shed and a
residence but rather permeated a small living area. Importantly, the trial court in Lawrence
relied upon officer testimony about the dangerousness or lack thereof of several destroyed
items and made findings of fact that some of the items were uncontaminated. See 2008
WL 704355, at *11. The court also heard evidence that the disputed items could have
been fingerprinted safely.
In contrast, in this case, the Defendant’s initial motion to dismiss raised the
destruction of the spent meth lab, and defense counsel only raised an argument about the
other items in the house during arguments after Detective Wear’s testimony was complete.
Perhaps, due to the limited scope of the Defendant’s motion, Detective Wear was not asked
detailed questions about the safety of the individual items other than the contents of the
meth lab bottle, and no one testified about the ability of the items to be fingerprinted other
than to state that they had not been so tested. Although the trial court commented at the
hearing that some of the items photographed were not inherently dangerous, its written
order indicated that all of the items in the house were potentially contaminated and that the
State had no duty to preserve them. “[T]rial courts speak through their written orders,” and
to the extent that the trial court’s oral findings may conflict with its written order, we will
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focus our review on the written order. State v. Westley A. Albright, No. M2016-01217-
CCA-R3-CD, 2017 WL 2179955, at *7 (Tenn. Crim. App. May 16, 2017), aff’d, 564
S.W.3d 809 (Tenn. 2018) (citing Williams v. City of Burns, 465 S.W.3d 96, 119 (Tenn.
2015)). The record supports the court’s finding that the State had no duty to preserve
potentially contaminated evidence. The Defendant is not entitled to relief on this basis.
III. Prior Bad Acts Evidence
The Defendant contends that the trial court erred by admitting evidence of her prior
bad acts, specifically that the police came to the trailer because they had information that
a meth lab was inside and that the composition notebook contained names of individuals
who were involved in illegal drug activity. She argues that the trial court did not follow
the procedure prescribed in Tennessee Rule of Evidence 404(b); that the evidence was
irrelevant to any material issue at trial because the police did not rely upon the information
to enter the trailer; that the jury’s guilty verdict in Count 5, possession of marijuana with
the intent to sell, proves that the Defendant was prejudiced by the evidence because only a
small amount of marijuana was involved; and that the trial court’s curative instruction early
in trial was insufficient to mitigate the prejudicial effect of the evidence given repeated
references to it later in the trial.
The State responds that the Defendant has not adequately identified the evidence to
which she objects; that the information prompting the police to visit the Defendant’s trailer
is not evidence of other bad acts, but rather the exact criminal activity leading to the
Defendant’s charges in this case; that the trial court sustained an objection to some of the
testimony; and that the Defendant did not base objections to other specified testimony on
Rule 404(b).
The admission of evidence of other bad acts by the Defendant is governed by
Tennessee Rule of Evidence 404(b). Generally speaking, “[e]vidence of a person’s
character or trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion.” Tenn. R. Evid. 404(a). To admit such
evidence, the rule specifies four prerequisites:
(1) The court upon request must hold a hearing outside the jury’s presence;
(2) The court must determine that a material issue exists other than conduct
conforming with a character trait and must upon request state on the record
the material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear and
convincing; and
(4) The court must exclude the evidence if its probative value is outweighed
by the danger of unfair prejudice.
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Id. When, the trial court substantially complies with the procedural requirements of Rule
404(b), this court will overturn the trial court’s ruling only when there has been an abuse
of discretion. See State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005).
At the beginning of Detective Wear’s trial testimony, he stated that Deputy Graham
conveyed to him that there was “a possible meth lab . . . at the residence of [the
Defendant].” Defense counsel requested a bench conference and moved for a mistrial,
arguing that the statement was hearsay and “evidence of another crime[.]” After the State
responded that the statement was not offered for the truth of the matter asserted, defense
counsel argued that the State should have requested a jury-out hearing before presenting
evidence of another crime. The State responded that the evidence was not governed by
Rule 404(b) because a possible meth lab was the crime being investigated. After a jury-
out hearing in which the arguments were reiterated for the record, the trial court found that
the evidence was not proof of a prior bad act. However, the court considered the matter
further and noted that the “cleanest” way for Detective Wear to have communicated his
reason for going to the trailer would have been to say that he received information from
another officer without specifying what that information was.10 Accordingly, the court
issued a curative instruction to the jury to disregard the question and answer.
The Defendant identifies two other exchanges during trial in her appellate brief as
improper testimony of prior bad acts. The first occurred during defense counsel’s cross-
examination of Detective Wear, when counsel asked him if he had “any personal
knowledge of whether the ledger book had anything to do with meth, drugs, or [the
Defendant’s] maintaining her garden.” Detective Wear responded, “Well, I can tell you
that the names in the ledger book[,] at the same timeframe I was dealing with the same
people referenced in illegal drug activity.” Defense counsel requested a mistrial, and the
trial court found that Detective Wear was responding to the question counsel asked.
Defense counsel did not mention Rule 404(b) or other bad acts evidence during the bench
conference and instead referred to the testimony as hearsay.
The second exchange occurred during Deputy Graham’s direct examination, in
which he stated that when Detective Wear and the Defendant conversed in her doorway,
Deputy Graham “[w]itnessed conversation about their activity that had been going on at
the residence.” Defense counsel requested a bench conference and stated that Deputy
Graham “did the same thing that [Detective] Wear did. Talked to her about activity that
was going on at the residence[.]” Counsel noted that because Detective Wear had already
10
The trial court stated several times that the statement was not offered for its truth, but also called Deputy
Graham to testify during the jury-out hearing about his source of the information. The court concluded that
Deputy Graham’s information was unreliable because a confidential informant described an active meth
lab when the Defendant’s trailer only contained a spent meth lab.
-19-
testified about having gone to the trailer based upon Deputy Graham’s information, Deputy
Graham did not have to specify what kind of activity it was in order to create an inference
of illegal activity. The trial court overruled the objection, finding that Deputy Graham had
not violated the court’s prior rulings. Similarly, counsel did not base his objection on Rule
404(b) on this occasion.
Because the Defendant did not make contemporaneous objections to the latter two
exchanges on the basis of Rule 404(b), this issue has not been properly preserved for appeal
and has been waived. See Tenn. R. App. P. 36(a). In addition, the Defendant’s motion for
new trial did not raise any issue with Detective Wear’s testimony that the composition
notebook contained names of other individuals involved in drug activity. The motion for
new trial asserted that the trial court erred by allowing witnesses to reference the notebook
as a ledger book. At the motion for new trial hearing, the Defendant specified that she was
objecting to the law enforcement witnesses’ characterizing the composition notebook as a
ledger without further evidence that it was, in fact, a ledger. Issues may not be raised for
the first time on appeal, and this issue has been waived. See Tenn. R. App. P. 36(a).
Throughout the trial, motion for new trial, and appeal, the Defendant has
characterized Detective Wear’s reference to Deputy Graham’s information that a meth lab
was possibly inside the Defendant’s trailer as evidence of another “potential pending
criminal case[]” or uncharged criminal conduct. However, as the State has correctly
maintained throughout the proceedings, Deputy Graham’s information clearly refers to the
investigation that brought the officers to the Defendant’s door. It was not another bad act—
it was the offense for which the Defendant was on trial. The Defendant is not entitled to
relief on this basis.
IV. Closing Argument
The Defendant contends that the prosecutor committed misconduct by commenting
on the Defendant’s intelligence during rebuttal argument. The State argues that the
Defendant has waived consideration of this issue for failure to contemporaneously object
and, alternatively, that the prosecutor was entitled to respond to the defense’s entreaty to
the jury to consider common sense and conclude that the Defendant did not know about
the meth lab because she consented to the search.
Generally, the failure to lodge a contemporaneous objection during closing
argument waives the issue on appeal. See State v. Jordan, 325 S.W.3d 1, 58 (Tenn. 2010);
State v. Banks, 271 S.W.3d 90, 132 n.30 (Tenn. 2008); State v. Reid, 164 S.W.3d 286, 344
n.3 (Tenn. 2005) (appendix); State v. Reid, 91 S.W.3d 247, 284 (Tenn. 2002); State v.
Larkin, 443 S.W.3d 751, 813 (Tenn. Crim. App. 2013); see also United States v. Young,
470 U.S. 1, 13 (1985) (the United States Supreme Court applying plain error review to
-20-
improper closing argument claims where neither party made a timely objection to preserve
the issue for review). However, in State v. Hawkins, a death penalty case, the defendant
raised four instances of alleged misconduct in closing statements, none of which drew a
contemporaneous objection and only two of which were raised in the motion for new trial.
519 S.W.3d 1, 48 (Tenn. 2017). The Tennessee Supreme Court applied plenary review to
the two issues raised in the motion for a new trial, one of which had been the subject of a
previous motion in limine. Id.The issue of whether a defendant is entitled to plenary or only plain error review of
improper argument which was not objected to but was preserved in a motion for new trial
is an issue currently before the Tennessee Supreme Court. See State v. Tyler Ward Enix,
No. E2020-00231-CCA-R3-CD, 2021 WL 2138928, at *15 (Tenn. Crim. App. May 26,
2021), perm. app. granted (Tenn. Oct. 13, 2021). Regardless of whether we apply plain
error or plenary review, the Defendant is not entitled to relief.11 See State v. Charvaris
Donte Newsom, No. M2020-00681-CCA-R3-CD, 2021 WL 1753409, at *19 (Tenn. Crim.
App. May 4, 2021), perm. app. denied (Tenn. Sept. 22, 2021); State v. Martell Smith, No.
M2019-01575-CCA-R3-CD, 2020 WL 6603467, at *7 (Tenn. Crim. App. Nov. 12, 2020),
perm. app. denied (Tenn. Mar. 17, 2021) (both cases concluding that the defendant was not
entitled to relief regardless of whether plain error or plenary review was applied to the
statements from closing argument).
Our supreme court has consistently opined on prosecutorial misconduct regarding
closing arguments as follows:
The basic purpose of closing argument is to clarify the issues that must be
resolved in a case. State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008). While
“argument of counsel is a valuable privilege that should not be unduly
restricted,” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975), “such . . .
arguments must be temperate, based upon the evidence introduced at trial,
relevant to the issues being tried, and not otherwise improper under the facts
or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003); Coker v.
State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995); see also State v.
Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). Because closing
argument affords an opportunity to persuade the jury, 11 David L. Raybin,
Tennessee Practice: Criminal Practice and Procedure § 29.2, at 97 (2008),
leeway should be given regarding the style and substance of the argument.
Banks, 271 S.W.3d at 131; State v. Cauthern, 967 S.W.2d 726, 737 (Tenn.
1998). Hence, counsel may employ “forceful language in their closing
11
We will engage in plenary review because it is the less onerous standard for the Defendant to meet and
neither standard entitles the Defendant to relief. By doing so, we did not intend to imply that plenary review
is the proper standard.
-21-
arguments, as long as they do not stray from the evidence and the reasonable
inferences to be drawn from the evidence.” Banks, 271 S.W.3d at 131.
State v. Sexton, 368 S.W.3d 371, 418-19 (Tenn. 2012).
The court has also advised that a criminal conviction should not be lightly
overturned solely on the basis of the prosecutor’s closing argument. Banks, 271 S.W.3d
at 131 (citing United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57 S.W.3d
411, 425 (Tenn. 2001) (holding that a prosecutor’s improper closing argument does not
automatically warrant reversal)). “An improper closing argument will not constitute
reversible error unless it is so inflammatory or improper that if affected the outcome of the
trial to the defendant’s prejudice.” Id. (citing Thacker, 164 S.W.3d at 244 (appendix); State
v. Cribbs, 967 S.W.2d 773, 786 (Tenn. 1998)); see also Reid, 164 S.W.3d at 321.
As explained by our supreme court in Sexton, there are five general areas of
potential prosecutorial misconduct related to closing argument:
(1) It is unprofessional conduct for the prosecutor intentionally to misstate
the evidence or mislead the jury as to the inferences it may draw. (2) It is
unprofessional conduct for the prosecutor to express his personal belief or
opinion as to the truth or falsity of any testimony or evidence or guilt of the
defendant. (3) The prosecutor should not use arguments calculated to inflame
the passions or prejudices of the jury. (4) The prosecutor should refrain from
argument which would divert the jury from its duty to decide the case on the
evidence, by injecting issues broader than the guilt or innocence of the
accused under the controlling law, or by making predictions of the
consequences of the jury’s verdict. (5) It is unprofessional conduct for a
prosecutor to intentionally refer to or argue facts outside the record unless
the facts are matters of common public knowledge.
Sexton, 368 S.W.3d at 419 (citing Goltz, 111 S.W.3d at 6 (citations omitted)); see also
American Bar Association, Standards Relating to the Prosecution Function and the Defense
Function §§ 5.8-5.9 (1970). A prosecutor “should also refrain from calling the defendant
derogatory names.” State v. Carruthers, 35 S.W.3d 516, 578 (Tenn. 2000) (citing Cauthern,
967 S.W.2d at 737).
The record reflects that in closing, defense counsel stated the following:
. . . I want you to use your common sense. Let’s start with that.
-22-
If as has been stated [the Defendant] knew everything that was going
on in her house with these items that are right in front of the door, the short
distance away and under the table and all over all this table and all over the
kitchen cabinets and having an open purse on the couch that has marijuana
sticking out of it, do you think . . . that if she knew what was there she would
have said yes in any form or fashion that could have been construed to allow
these officers into the house? Think about it. No keeps them out. Yes invites
them into this world that they have where they saw all of these things she
knew about. A meth lab, materials to make meth, a purse that has marijuana
just hanging out of it. All of these that are plainly visible the minute you step
through that doorway.
Defense counsel asserted throughout the remainder of his closing argument that had the
Defendant known about the meth lab and its components, she would not have allowed the
officers to search the trailer.
During the State’s rebuttal, the prosecutor stated the following:
And [defense counsel] says use your common sense. If she knew that
stuff was in her house, she would have never let them in. Well, we’re not
saying [the Defendant] was smart. We’re not saying that [the Defendant]
wasn’t maybe using her pills she had in her pocketbook. But we are saying
that she did consent to let these officers in her house. And there’s no proof
otherwise that she didn’t do that.
After the jury retired to deliberate, defense counsel objected to the prosecutor’s
comment on the Defendant’s intelligence and requested a mistrial. The prosecutor argued
that the statement was a response to defense counsel’s assertion that the Defendant could
not have known about the items in her house if she gave consent. The trial court found that
although the State’s comment was “harsh,” it was not unfairly prejudicial and did not rise
to the level of necessitating a mistrial.
The record supports the trial court’s determination that the State’s remark was not
so inflammatory as to affect the verdict to the Defendant’s detriment. The evidence at trial
overwhelmingly established the Defendant’s guilt, either directly or by a theory of criminal
responsibility; we note that defense counsel rigorously cross-examined the witnesses and
that closing arguments were generally passionate in this case. Defense counsel relied
heavily on the theme of common sense in his closing, and the State was entitled to respond
to it. We do not think that any impropriety in the State’s characterization of common sense
as indicative of intelligence affected the verdict, and the Defendant is not entitled to relief
on this basis.
-23-
V. Jury Instructions
The Defendant contends that the trial court erred by declining to instruct the jury on
the State’s duty to preserve evidence and facilitation as a lesser-included offense of
possession of marijuana with the intent to sell. The State responds that the jury was
properly instructed.
A defendant is entitled to “a correct and complete charge of the law governing the
issues raised by the evidence presented at trial.” State v. Brooks, 277 S.W.3d 407, 412
(Tenn. Crim. App. 2008) (citing State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App.
1995)). “In criminal cases, a trial court’s duty to accurately instruct the jury on relevant
legal principles exists without request.” State v. Benson, 600 S.W.3d 896, 902 (Tenn.
2020). “Questions involving the propriety of jury instructions are mixed questions of law
and fact” which this court reviews de novo with no presumption of correctness. Id.(citing State v. Cole-Pugh, 588 S.W.3d 254, 259-60 (Tenn. 2019) (citing State v. Perrier,
536 S.W.3d 388, 396 (Tenn. 2017)).
In determining whether a jury instruction correctly, fully, and fairly sets forth the
applicable law, we review the instruction in its entirety. Id. (citing State v. Guy, 165
S.W.3d 651, 659 (Tenn. Crim. App. 2004)). “Phrases may not be examined in isolation.”
Id. (citing State v. Dellinger, 79 S.W.3d 458, 502 (Tenn. 2002)). An instruction results in
prejudicial error “if it fails to fairly submit the legal issues or if it misleads the jury as to
the applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997).
As we have discussed above, after the trial court indicated that it would instruct the
jury on criminal responsibility, the Defendant requested that the court also instruct
facilitation as a lesser-included offense. The court responded that it did not believe the
“evidence [was] legally sufficient . . . to support facilitation” or that a reasonable jury would
find facilitation rather than criminal responsibility. In support of this position, the court
cited to State v. Robinson, 146 S.W.3d 469 (Tenn. 2004), in which our supreme court held
that a facilitation instruction was not required when no reasonable jury could conclude that
the defendant had the knowledge required for facilitation but lacked the intent required for
criminal responsibility.
“A person is criminally responsible for the facilitation of a felony, if, knowing that
another intends to commit a specific felony, but without the intent required for criminal
responsibility . . . , the person knowingly furnishes substantial assistance in the commission
of the felony.” Tenn. Code Ann. § 39-11-403(a). The facilitation statute applies to a person
who provides substantial assistance in the commission of a felony, but who does so
“without an intent to promote, assist in, or benefit from the commission of the felony.”
State v. Ely, 48 S.W.3d 710, 720 (Tenn. 2001).
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Relative to Count 5, possession of marijuana with the intent to sell, the evidence at
trial did not establish facts that would support a conviction for facilitation. The marijuana
was found in the Defendant’s purse, and no evidence indicated that Mr. Jacobs or another
third party had access to the purse. We agree with the trial court that the proof did not
suggest that the Defendant had provided substantial assistance to a third party’s possession
of marijuana with the intent to sell it, while also not intending to promote, assist in, or
benefit from it.
VI. Sufficiency of the Evidence
The Defendant contends that the evidence is insufficient to support her convictions
for initiation of the manufacture of methamphetamine, simple possession of hydrocodone,
oxycodone, and alprazolam, and possession of marijuana with the intent to sell,12 arguing
that we should consider only the evidence that would have been admitted if her motion to
suppress the search of the trailer and her purse were successful, had her objections to “other
bad acts” testimony been sustained, and had the trial court penalized the State for
destroying evidence. In addition, she asks this court to reweigh the evidence and find that
it was not adequately proven that the Defendant, instead of Mr. Jacobs, personally initiated
the manufacture of methamphetamine. The State responds that this is not the correct
standard of review.
An appellate court’s standard of review when a defendant questions the sufficiency
of the evidence on appeal 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). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “Regardless of the propriety of the
admission of the challenged evidence, the sufficiency of the convicting evidence must be
examined in light of all the evidence presented to the jury, including that which may have
been improperly admitted.” State v. Gilley, 297 S.W.3d 739, 763 (Tenn. Crim. App. 2008)
(citing State v. Longstreet, 619 S.W.2d 97, 100-01 (Tenn. 1981)).
A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
12
The Defendant does not dispute the sufficiency of the evidence relative to her possession of unlawful
drug paraphernalia conviction.
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evidence is insufficient to support the jury’s verdict.” Id.; see State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). The standard of proof is the same whether the evidence is direct
or circumstantial. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise,
appellate review of the convicting evidence “is the same whether the conviction is based
upon direct or circumstantial evidence.” Id. (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)). The duty of this court “on appeal of a conviction is not to contemplate
all plausible inferences in the [d]efendant’s favor, but to draw all reasonable inferences
from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).
“It is an offense for a person to knowingly initiate a process intended to result in the
manufacture of any amount of methamphetamine.” Tenn. Code Ann. § 39-17-435(a).
Initiates is defined as “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.” Tenn. Code Ann. § 39-17-435(c).
Relative to this case, it is an offense to “knowingly possess” a controlled substance.
Tenn. Code Ann. § 39-17-418(a). Hydrocodone and oxycodone are Schedule II controlled
substances; alprazolam is a Schedule IV controlled substance. Tenn. Code Ann. §§ 39-17-
408(b)(1)(F), (M); -17-412(c)(2). “[A] person . . . acts knowingly with respect to the
conduct or to circumstances surrounding the conduct when the person is aware of the nature
of the conduct or that the circumstances exist.” Tenn. Code Ann. § 39-11-302(b).
It is also an offense to possess a controlled substance with the intent to sell it. Tenn.
Code Ann. § 39-17-417(a)(4). Marijuana is a Schedule VI controlled substance. Tenn.
Code Ann. § 39-17-415(a)(1).
“Possession may be actual or constructive.” State v. Williams, 623 S.W.2d 121,
125 (Tenn. Crim. App. 1981). Constructive possession occurs when a person knowingly
has the “power and the intention at a given time to exercise dominion and control over an
object, either directly or through others.” Id. (quoting United States v. Craig, 522 F.2d 29(6th Cir. 1975)). The mere presence of a person in an area where drugs are discovered is
not, alone, sufficient to support a finding that the person possessed the drugs. State v.
Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987) (citations omitted). However, as
stated above, circumstantial evidence alone may be sufficient to support a conviction. State
v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577
(Tenn. Crim. App. 1993). Further, it is permissible for the jury to draw an inference of
intent to sell or deliver when the amount of the controlled substance and other relevant
facts surrounding the arrest are considered together. Tenn. Code Ann. § 39-17-419.
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The State correctly observes that our sufficiency review is based upon the evidence
presented to the jury regardless of its admissibility. See Gilley, 297 S.W.3d at 763. In the
light most favorable to the State, the evidence at trial established that after the Defendant
consented to the police search of her trailer for evidence of methamphetamine manufacture,
officers found in the living room, kitchen, and bathroom a multitude of items used to
manufacture and package methamphetamine. In particular, the area of the coffee table
directly beside where the Defendant claimed to have been sleeping contained lithium
batteries that had been taken apart, empty boxes of pseudoephedrine allergy medication,
new and drained cold packs, digital scales, plastic corner-cut baggies, pliers, scissors, a
spent one-pot meth lab containing byproducts of a completed methamphetamine cook,
razor blades, coffee filters, a funnel, and bags containing camp fuel, multiple bottles of lye,
small makeup bags containing drug paraphernalia, and plastic tubing. The kitchen and
bathroom also contained components of methamphetamine manufacture and were set up
to facilitate a methamphetamine cook. The Defendant and Mr. Jacobs were the only people
inside the trailer, and the jury was instructed on criminal responsibility. The jury heard
ample testimony from the police officers about the purpose of the items inside the house,
and defense counsel cross-examined them at length about perceived deficiencies in the
investigation. The jury also heard from Detective Wear that the Defendant denied knowing
anything about the meth lab and asserted that someone planted it underneath the coffee
table while she was asleep. By the guilty verdict, the jury discredited this theory.
Credibility determinations are the province of the finder of fact and will not be disturbed
on appeal. See Bland, 958 S.W.2d at 659. The evidence is sufficient to support the
Defendant’s conviction for initiation of methamphetamine manufacture.
Likewise, after the meth lab had been discovered, the police searched the
Defendant’s purse after seeing two baggies of marijuana in plain view; they discovered a
number of different kinds of pills in plastic baggies. Subsequent testing of some of the
pills revealed that they were alprazolam, hydrocodone, oxycodone, and pseudoephedrine.
The marijuana was confirmed during testing as well. The police witnesses noted that the
digital scales in the trailer also contained a leafy residue and that the almost identical size
of the two baggies of marijuana were consistent with their being intended for resale. The
evidence is sufficient to support the Defendant’s convictions for simple possession of
alprazolam, hydrocodone, and oxycodone, and for possession of marijuana with the intent
to sell. The Defendant is not entitled to relief on this basis.
VII. Sentencing
The Defendant contends that the trial court erred by sentencing her as a Range II,
multiple offender for the Class B felony conviction of initiating the manufacture of
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methamphetamine13 and for ordering consecutive service of the twelve-year sentence for
initiating the manufacture of methamphetamine and the four-year sentence for possession
of marijuana with the intent to sell.14 Relative to consecutive sentencing, she argues that
many of her prior convictions occurred more than twenty years ago, that several
convictions were based upon behavior occurring within one week, and that she developed
a drug addiction following the end of an abusive marriage and the death of her young
daughter. The Defendant notes that the trial court in rendering its sentencing ruling urged
the Defendant to seek treatment while incarcerated and start fresh upon release. According
to the Defendant, due to her substance abuse problem, she would benefit from a treatment
program, rather than an extended period of incarceration. The State responds that the trial
court did not err in determining the Defendant’s range classification and did not abuse its
discretion in ordering consecutive sentences.
Before a trial court imposes a sentence upon a convicted criminal defendant, it must
consider: (1) the evidence adduced at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5)
evidence and information offered by the parties on the enhancement and mitigating factors
set forth in Tennessee Code Annotated sections 40-35-113 and 40- 35-114; (6) any
statistical information provided by the Administrative Office of the Courts as to Tennessee
sentencing practices for similar offenses; (7) any statement the defendant wishes to make
on the defendant’s own behalf about sentencing; and (8) the result of the validated risk and
needs assessment conducted by the department and contained in the presentence report.
Tenn. Code Ann. § 40-35-210(b). When an accused challenges the length, range, or
manner of service of a sentence, this court reviews the trial court’s sentencing
determination under an abuse of discretion standard accompanied by a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012); see also State v. Joseph
Cordell Brewer, III, No. W2014-01347-CCA-R3-CD, 2015 WL 4060103, at *7-8 (Tenn.
Crim. App. June 1, 2015) (applying an abuse of discretion standard to trial court’s
determination of range classification). This standard of review also applies to consecutive
sentencing determinations. State v. Pollard, 432 S.W.3d 851, 860-61 (Tenn. 2013).
This court will uphold the trial court’s sentencing decision “so long as it is within
the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-
13
The Defendant does not challenge her Range III classification relative to her possession of marijuana
with the intent to sell conviction.
14
The Defendant likewise does not challenge the imposition of the consecutive sentencing of this case with
her agreed-upon four-year sentence in the other case where she pled guilty to promoting the manufacture
of methamphetamine.
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10. Moreover, under such circumstances, appellate courts may not disturb the sentence
even if we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn.
2008). The burden of showing that a sentence is improper is upon the appealing party. See
Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also State v. Arnett, 49
S.W.3d 250, 257 (Tenn. 2001).
To be considered as a Range II, multiple offender for a Class B felony conviction,
a defendant would have to have at least two prior convictions “within the conviction class,
a higher class, or the next two (2) lower felony classes.” Tenn. Code Ann. § 40-35-
106(a)(1). In determining the number of prior convictions, “convictions for multiple
felonies committed within the same twenty-four-hour period constitute one (1)
conviction,” except where “the statutory elements include . . . threatened bodily injury to
the victim or victims.” Tenn. Code Ann. § 40-35-106(b)(4). A trial court must determine
beyond a reasonable doubt that the defendant has the requisite number of prior felony
convictions to qualify as a Range II offender. Tenn. Code Ann. § 40-35-106(c).
In addition to the presentence report, the State introduced several certified copies of
judgments of conviction for felonies at the sentencing hearing. Five of those judgments of
conviction reflected felony convictions committed on five different offense dates: in Blount
County for promoting the manufacture of methamphetamine on January 31, 2011 (a Class
D felony); and in Monroe County for sale of a counterfeit controlled substance on April 9,
1996 (a Class E felony); sale of Schedule IV drugs on February 24, 1996 (a Class D felony);
sale of more than 0.5 ounces of marijuana on February 20, 1996 (a Class E felony), and
sale of cocaine in an amount less than 0.5 grams on February 18, 1996 (a Class C felony).
Accordingly, the trial court did not err in concluding that the Defendant had the requisite
convictions for sentencing as a Range II, multiple offender for purposes of her conviction
for initiating the process of manufacturing methamphetamine.
Next, when reviewing a trial court’s imposition of consecutive sentences, a
“presumption of reasonableness applies,” which gives “deference to the trial court’s
exercise of its discretionary authority to impose consecutive sentences if it has provided
reasons on the record establishing at least one of the seven grounds listed in Tennessee
Code Annotated section 40-35-115(b).” Pollard, 432 S.W.3d at 861. “Any one of [the]
grounds [listed in section 40-35-115(b)] is a sufficient basis for the imposition of
consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d 735 (Tenn. 2013)).
The imposition of consecutive sentencing is subject to the general sentencing
principles that the overall sentence imposed “should be no greater than that deserved for
the offense committed” and that it “should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed[.]” Tenn. Code Ann. § 40-35-103(2), (4).
Further, “[s]o long as a trial court properly articulates reasons for ordering consecutive
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sentences, thereby providing a basis for meaningful appellate review, the sentences will be
presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Pollard, 432
S.W.3d at 862 (citing Tenn. R. Crim. P. 32(c)(1)) (“The order [for consecutive sentences]
shall specify the reasons for this decision and is reviewable on appeal.”); see also Bise, 380
S.W.3d at 705.
Here, the trial court found that the fifty-two-year-old Defendant had an extensive
criminal record. See Tenn. Code Ann. § 40-35-115(b)(2). In addition to the five felony
convictions noted above, the State also introduced certified copies of judgments and
various documents reflecting multiple misdemeanor convictions. Trial courts can consider
prior misdemeanors in determining whether a defendant has an extensive record of criminal
activity because Tennessee Code Annotated section 40-35-115(b)(2) does not distinguish
between felonies and misdemeanors. See Dickson, 413 S.W.3d at 748 n.12.
Those judgments and documents entered reflected that in Monroe County, the
Defendant had February 2017 convictions for shoplifting, criminal trespass, theft under
$500, driving on a suspended license, driving without insurance, and three counts of simple
drug possession; a September 2010 conviction for shoplifting; a January 2009 conviction
for driving under the influence (“DUI”), second offense15; a February 2009 conviction for
disorderly conduct; a November 2007 conviction for disorderly conduct; a July 2000
conviction for driving on a revoked license, second offense; a July 1999 conviction for
DUI, second offense; a May 1998 conviction for DUI; a June 1998 conviction for public
intoxication; a February 1996 conviction for public intoxication; October 1996 convictions
for public intoxication and possession of drug paraphernalia; a January 1995 conviction for
public intoxication; and a May 1993 conviction for leaving the scene of an accident. In
addition, the Defendant in Loudon County had November 2010 convictions for failure to
appear and two counts of simple drug possession and November 2007 convictions for
violating the open container law and reckless endangerment.
The trial court noted the multiple convictions that had been presented at the
sentencing hearing reflecting the Defendant’s criminal history of felonies and
misdemeanors. The record clearly supports the application of the extensive criminal
history factor for consecutive sentencing. While many of the Defendant’s prior felony
convictions may have been from 1996, she had one new felony conviction in 2011.
Moreover, she had twelve misdemeanor convictions since 2010. Though the trial court did
urge the Defendant to seek treatment for her drug problem while incarcerated, this
statement did not somehow negate the validity of its consecutive sentencing determination.
The trial court also commented that it could not allow “that treatment to be in the
15
This was initially charged as the Defendant’s third offense but was later amended to a second offense for
reasons that are unclear from this record.
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community” and had to protect society from further criminal conduct by the Defendant.
Based upon the Defendant’s criminal history, the overall sentence was reasonably related
to the severity of the offenses involved in this case. Accordingly, the trial court did not
abuse its discretion in imposing partial consecutive sentences based on the Defendant’s
extensive criminal record.
VIII. Clerical Error
Our review of the record indicated that the judgment form in Count 1, initiation of
the manufacture of methamphetamine, does not have a box checked reflecting that the
offense is methamphetamine related. Upon remand, the trial court should enter a corrected
judgment for Count 1 with the aforementioned box checked.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed. However, we remand the case for the entry of a corrected judgment
in Count 1.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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