State Of Tenn. v. Banks
| Decision Date | 26 July 2010 |
| Docket Number | No. M2008-01823-CCA-R3-CD,No. 35,186,35,186,M2008-01823-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. NORMAN EUGENE BANKS |
| Court | Tennessee Court of Criminal Appeals |
James H. Threet, III, Manchester, Tennessee, for the appellant, Norman Eugene Banks.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Charles Michael Layne, District Attorney General; and Jason M. Ponder, Assistant District Attorney General, for the appellee, the State of Tennessee.
Defendant, Norman Eugene Banks, was indicted for initiation of a process intended to result in the manufacture of methamphetamine, a Class B felony, in count one of the indictment, and possession of drug paraphernalia, a Class A misdemeanor, in count two. Following a bench trial, the trial court as trier of fact found Defendant guilty of the lesser included offense of attempt to initiate of a process intended to result in the manufacture of methamphetamine, a Class C felony, and possession of drug paraphernalia. The trial court sentenced Defendant as a Range II, multiple offender, to eight years for his Class C felony conviction and eleven months, twenty-nine days for his misdemeanor conviction, to be served concurrently for an effective sentence of eight years. On appeal, Defendant argues that (1) the trial court erred in denying his motion to dismiss the indictment based on his assertion that the language in Tennessee Code Annotated section 39-17-435 is unconstitutionally vague and overbroad; (2) the statutory presumption created in Tennessee Code Annotated section 39-17-435 is unconstitutional; (3) the offense of attempt to initiate a process intended to result in the manufacture of methamphetamine is not a recognizable offense in Tennessee; and (4) the evidence is insufficient to support Defendant's conviction of possession of drug paraphernalia. After a thorough review, we affirm the judgments of the trial court.
Tenn. R. App. P. Appeal as of Right; Judgments of the Circuit Court Affirmed
OPINION
Agent Lee Nettles testified at the bench trial that he has been a member of the 14th Judicial District Drug Task Force for approximately nine years, and that he is primarily involved in methamphetamine investigations. Agent Nettles said that he attended training sessions on the manufacture of methamphetamine at the United States Drug Enforcement Agency's ("DEA") Clandestine Laboratory School in Quantico, Virginia. Agent Nettles stated that he has also conducted seminars on methamphetamine use and manufacturing for the public as well as other police officers.
In 2006, Agent Nettles alerted various stores in Tullahoma about the ingredients necessary to manufacture methamphetamine and asked the businesses to note the license tag numbers of individuals who purchased a large quantity of any of the listed ingredients. On March 30, 2006, a grocery store contacted the Coffee County Communications Center after a male and a female had purchased a large quantity of match boxes and relayed the license tag number of the couple's vehicle.
Agent Nettles determined that the vehicle was registered in Defendant's name. Agent Nettles drove to Defendant's residence, and Defendant acknowledged that he had recently purchased matches at the grocery store. Defendant showed Agent Nettles the matches which were still in the back of Defendant's truck. Agent Nettles explained that the red phosphorus on the striker plate of the match boxes is a chemical used in the manufacture of methamphetamine, and methyl alcohol is used to extract the red phosphorus from the striker plate. A bottle of Heet antifreeze was also in the back of truck. Agent Nettles stated that one of the components of the antifreeze is methyl alcohol.
Defendant consented to a search of his property. Agent Nettles found two glass jars in the back of one of the trucks on the property. One jar was sealed with a cap. Based on his experience and training, Agent Nettles said that the substance in the jar was a combination of tincture of iodine, hydrogen peroxide, and an acid. Agent Nettles explained that the liquid form of iodine cannot be used to manufacture methamphetamine. Therefore, hydrogen peroxide and acid are mixed with the iodine to generate the formation of crystals which could be used in the manufacturing process. Agent Nettles testified that he observed crystals in the bottom of the sealed jar indicating that iodine, hydrogen peroxide, and acid had been combined in that jar.
The other jar was open with a funnel inserted into the neck of the jar and a coffee filter inside the funnel. Agent Nettles said that the filter showed traces of both iodine andhydrogen peroxide, and an empty hydrogen peroxide bottle was also in the back of the truck.
Defendant unlocked the cab of his truck, and Agent Nettles found a gallon of muriatic acid, a gallon of iodine, and a pint of iodine. Agent Nettles found bottles of isopropyl alcohol, or rubbing alcohol, and hydrogen peroxide in Defendant's bathroom. Agent Nettles said that isopropyl alcohol can be used to extract red phosphorus from the striker plates of match boxes, and it also can be used to break down ephedrine pills into a usable form. In the kitchen, Agent Nettles found a bottle of lye which is used to raise the pH of cooked methamphetamine. Agent Nettles found another full can of Heet in the trunk of a vehicle, and three cans of Brake Kleen inside a box in a garbage can. Agent Nettles stated that Brake Kleen contains ether and can be used to extract methamphetamine oil from the lye. Also in the garbage can was an empty box of Histafed, a cold and allergy medicine containing pseudoephedrine, with a drug store bag. The label on the bag was dated March 27, 2006, or three days before the search of Defendant's property, and it listed Defendant as the purchaser of the medicine. Agent Nettles also found a two-liter bottle wrapped in black tape inside the garbage can and plastic tubing in the kitchen. Agent Nettles explained that these items can be used in the extraction process. Photographs of the items found during the search were introduced as exhibits at trial without objection.
O n cross-examination, Agent Nettles acknowledged that he did not find any pills containing ephedrine or pseudoephedrine on Defendant's property, and there was no evidence that methamphetamine had been recently manufactured on the premises. Agent Nettles acknowledged that he did not submit the substances in either glass jar for analysis. Agent Nettles said that he followed DEA policy concerning the investigation and dismantling of potential methamphetamine labs. Accordingly, a hazardous materials team was called to the site and all substances which could be used in the production of methamphetamine, including the substances in the jars, were immediately destroyed.
Agent Nettles said that he spent approximately two hours conducting the search, and acknowledged that he did not wear protective clothing during this process. Agent Nettles said that he could have preserved a sample of the substances found in the two glass jars before the jars were destroyed because the contents of the jars were not dangerous. Agent Nettles said, however, that a sample was unnecessary because the Tennessee Bureau of Identification's laboratory did not analyze substances, only drugs. Moreover, Agent Nettles stated that he would not have allowed Defendant to take a sample from the glass jars for private analysis because DEA policy required the immediate destruction of the jars as part of a potential methamphetamine lab.
At the conclusion of the bench trial, the trial court, as trier of fact, found that the State did not prove beyond a reasonable doubt that Defendant had combined two substances thatcould be used in the manufacture of methamphetamine and, therefore, found Defendant not guilty of the charged offense. See T.C.A. § 39-17-435(c). The trial court, however, found Defendant guilty beyond a reasonable doubt of the attempt to initiate a process intended to result in the manufacture of methamphetamine.
Defendant argues that the trial court erred in not granting his motion to dismiss the indictment charging the methamphetamine offense against him. Defendant contends that the language of Tennessee Code Annotated section 39-17-435(c) is vague and overly broad and violates his due process rights because it does not put an individual on clear notice of what conduct is prohibited under the statute. The State argues first that Defendant has waived appellate review of this issue by failing to include it in his motion for new trial. Alternatively, the State contends that the statute in question is not unconstitutionally vague.
A motion for new trial was not required in this case because the trial was a bench trial. See Tenn. R. App. P. 3(e) (); McCormic v. Smith, 650 S.W.2d 804, 806 (Tenn. 1983); State v. Randy Lee Salyer, No. E2008-01461-CCA-R3-CD, 2009 WL 1798381, at *2 (Tenn. Crim. App., at Knoxville, June 24, 2009), no perm. to appeal filed; State v. Daryl Dewitt Godwin, No. W2008-00346-CCA-R3-CD, 2008 WL 5070130, at *4 (Tenn. Crim. App., at Jackson, Dec. 2, 2008), no perm. to appeal filed.
In the case sub judice, however, defense counsel indicated to the trial court at the conclusion of the bench trial that he would file a motion for new trial in order to more fully develop his argument that the attempt to initiate a process intended to result in the manufacture of methamphetamine is not a lesser included offense of the initiation of a process. Thus, the motion for new trial focused only on the issue of whether the State had proved Defendant guilty of any offense based on...
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