State v. Magness, No. M2003-02990-CCA-R3-CD (TN 9/28/2004)
| Decision Date | 28 September 2004 |
| Docket Number | No. M2003-02990-CCA-R3-CD.,M2003-02990-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. KEVIN MAGNESS. |
| Court | Tennessee Supreme Court |
Appeal from the Circuit Court for Warren County; No. F-9129; Larry B. Stanley, Jr., Judge.
Judgment of the Circuit Court Modified, Case Remanded.
Steven R. Roller, McMinnville, Tennessee, and Donald Capparella, Nashville, Tennessee, for the appellant, Kevin Magness.
Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Clement Dale Potter, District Attorney General; and Larry G. Bryant, Assistant District Attorney General, for the appellee, State of Tennessee.
Joseph M. Tipton, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
A Warren County Circuit Court jury convicted the defendant, Kevin Magness, of manufacturing more than one hundred grams of methamphetamine, a Class B felony, and the trial court sentenced him as a Range I, standard offender to eight years in confinement. The defendant appeals, claiming that (1) the evidence is insufficient to support his conviction, and (2) the trial court erred by allowing into evidence the manner by which the state calculated the weight of the substance containing methamphetamine. We hold that the evidence is sufficient to show felonious manufacturing but that an incorrect standard was used to calculate the weight of the controlled substance. We modify the defendant's conviction to reflect a conviction for a Class C felony, and we remand the case to the trial court for resentencing.
This case relates to the defendant's manufacturing methamphetamine on June 12, 2002. At trial, Warren County Sheriff's Deputy Stewart Caldwell testified that he received a tip that the defendant was operating a methamphetamine laboratory ("meth lab") at his house on Old Shelbyville Road. He said that he and Warren County Sheriff's Deputy Kevin Murphy decided to investigate by driving to the defendant's house. Deputy Caldwell testified that they drove into the defendant's driveway, parked, and approached the house. He said the defendant came out of his house and asked them why they were there. Deputy Caldwell said he explained to the defendant that he had received information that someone at the defendant's address was manufacturing methamphetamine and asked the defendant for permission to search the premises. He said the defendant consented to the search.
Deputy Caldwell testified that they went to the defendant's barn and began to search. He said he found a "large garbage bag containing trash from a meth lab" as soon as he began to search. He said the trash consisted of "brake cleaner and coffee filters that were stained." Deputy Caldwell testified that they stopped the search upon finding what they believed to be evidence of a meth lab.
Deputy Murphy testified that when they stopped the search, he advised the defendant of his Miranda rights and that, upon their request, the defendant signed a consent form allowing the deputies to continue searching the barn. Deputy Murphy said that after the defendant consented in writing, other law enforcement officers arrived at the defendant's home to conduct the search. He said that during the search, he found layered liquids of what he believed to be iodine.
Deputy Murphy testified that he had been responsible for the evidence log during the search of the barn. He said many different items were found during the search which are used in the process of manufacturing methamphetamine. He testified that these items included (1) a jar containing a layered liquid, (2) two twenty ounce bottles containing layered liquids, (3) iodine crystals, (4) Red Devil lye, (5) a respirator, (6) a tea jug containing red residue, (7) "several matchbooks with striker pads missing," (8) stained coffee filters, (9) a chemical suit, (10) rubbing alcohol, (11) cans of brake cleaner, and (12) an exhaust system. He testified in meticulous detail as to how each of these items is used in order to manufacture methamphetamine.
Warren County Sheriff's Department Lieutenant Jody Cavanaugh testified that he obtained a search warrant in order to search the defendant's house and that the search of the house revealed over four hundred eighty diet and sinus pills containing pseudoephedrine, a substance critical to manufacturing methamphetamine. Lieutenant Cavanaugh also explained how the items discovered in the barn were used in the methamphetamine manufacturing process.
Warren County Sheriff's Deputy Daniel Chisam testified that he was involved in the investigation of the defendant's barn. He said he had received meth lab investigation and interdiction training from the Drug Enforcement Administration at a week-long program in Quantico, Virginia. He said that as a result of this enhanced training, he was certified to investigate "clandestine meth labs." He also testified as to how the items discovered in the barn and in the house are used in the methamphetamine manufacturing process. On cross-examination, Deputy Chisam conceded that only one of the three bottles found in the barn tested positive for methamphetamine and that the bottle which did test positive lacked one step from being completed in order for the drug to be capable of being consumed. Deputy Chisam said the layered bottle would have to "be gassed off, using muratic acid or salt." He explained, "What this gas does is evaporate the brake cleaner and turn the liquid into a powder." Deputy Chisam also conceded that there was no way of knowing for certain how much methamphetamine would result after the final step was completed, and that until the final step was completed, the drug could not be ingested.
David Brown of the Tennessee Bureau of Investigation, Forensic Services Division testified that he tested the substances sent to him by the Warren County Sheriff's Department. Agent Brown said that the testing revealed one of the substances contained methamphetamine and that the total weight of the substance containing methamphetamine was 101.1 grams. On cross-examination, Agent Brown acknowledged the substance containing methamphetamine was not consumable until the brake cleaner was removed.
The defendant testified that he had made methamphetamine in the past for his own personal use because he did not want to die from using methamphetamine manufactured by someone else. He said that he was not currently using or making methamphetamine and that the items recovered from his barn were either related to his work or they were "from other people doing it." The defendant denied ever making methamphetamine in his barn, and he said he did not know how the substance containing methamphetamine got into his barn.
The jury convicted the defendant of manufacturing methamphetamine over one hundred grams. After finding no applicable enhancement factors, the trial court sentenced the defendant to a term of eight years in the Department of Correction, the presumptive minimum sentence for a Range I, standard offender convicted of a Class B felony.
The defendant claims that the evidence is insufficient to support his conviction. Specifically, he argues that the state failed to prove that he intended to sell or deliver the methamphetamine. The defendant argues that the only evidence before the jury was his admission to having made methamphetamine for his own personal use in the past and that even if the jury did not believe him, the state failed to prove he was guilty of anything other than making methamphetamine for his own use.
Our standard of review when the 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, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence; rather, we presume 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). In Tennessee, questions about witness credibility are resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A conviction for manufacture of methamphetamine over one hundred grams requires proof that the defendant knowingly manufactured the substance. See T.C.A. § 39-17-417(a)(1) (2003). "Manufacture" is defined as
the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, . . . except that "manufacture" does not include the preparation or compounding of a controlled substance by an individual for the individual's own use . . . .
Id. at § 39-17-402(14).
The defendant argues that the state failed to prove the element of manufacture because there was no evidence introduced at trial that would prove the manufacture of the methamphetamine was not for the defendant's own use. However, the defendant is mistaken as to who has the burden of proof regarding this exception. Tennessee Code Annotated section 53-11-410(a) provides,
It is not necessary for the state to negate any exemption or exception in parts 3 and 4 of this chapter or title 39, chapter 17, part 4, in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under parts 3 and 4 of this chapter or title 39, chapter 17, part 4. The burden of proof of any exemption or exception is upon the person claiming it.
(Emphasis added). Pursuant to section 53-11-410(a), the defendant had the burden to prove the exception...
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