State of Tennessee v. Eric Shane Heller

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
April 8, 2008 Session

STATE OF TENNESSEE v. ERIC SHANE HELLER

Direct Appeal from the Circuit Court for Weakley County
No. CR100-2006 William B. Acree, Jr., Judge

No. W2007-01455-CCA-R3-CD - Filed July 24, 2008

The defendant, Eric Shane Heller, was convicted of initiation of a process to manufacture
methamphetamine and possession of methamphetamine with intent to manufacture, sell or deliver,
both Class B felonies. On appeal, the defendant argues that the trial court erred in finding that the
defendant lacked standing to contest the search warrant which led to his arrest, that the evidence was
insufficient to sustain his convictions, and that the trial court erred by issuing a jury instruction on
the flight of the defendant. Following our review of the parties’ briefs, the record, and the applicable
law, we reverse and vacate the judgments of the trial court and dismiss the defendant’s convictions.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed and
Dismissed

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and NORMA
MCGEE OGLE , JJ., joined.

Jeffery T. Washburn, Dresden, Tennessee, for the appellant, Eric Shane Heller.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

I. BACKGROUND

At trial, Marty Plunk testified that he was an investigator with the Weakley County Sheriff’s
Department on May 25, 2006, and was working with fellow investigator Randall McGowan to
apprehend several individuals, including the defendant. The defendant had an arrest warrant pending
for violation of probation. Officer Plunk was aware that the defendant was known to frequent an
automobile repair shop owned by Chad Ferrell. Officer Plunk had a description of the vehicle the
defendant was driving and when the officers drove by the shop, they noticed the defendant’s vehicle
parked behind it. Officers Plunk and McGowan parked close to the shop to conduct surveillance.
Officer Plunk called and spoke with an attorney in the District Attorney’s Office about obtaining a
search warrant for the premises.

Officer Plunk testified that he observed the defendant’s vehicle pulling out from behind the
repair shop, and he believed that the defendant was in the car. Officers Plunk and McGowan stopped
the car which was driven by the defendant’s girlfriend, Sara Webb. Ms. Webb told the officers that
nobody was in the shop and that shop employee Darrell Rogers had been there but had just left.
Officers Plunk and McGowan left Ms. Webb in the company of a female investigator and went back
to the shop and knocked on the door. The investigators noticed that Chad Ferrell’s truck was also
parked behind the shop, where it could not be seen from their prior observation point. After
knocking and getting no response, Officers Plunk and McGowan walked around the shop, identified
themselves loudly as police officers and started to look through windows and cracks in the walls.
At this time, Officer Plunk called the District Attorney a second time. While making the call he
noticed the odor of chemicals associated with a methamphetamine manufacturing laboratory. The
police officers then opened a storm door on the southeast side of the shop and the odor became
noticeably stronger. Officer Plunk called for support from other officers and returned to his office
to draw up a formal search warrant which was approved by a judge. He radioed back to Officer
McGowan who was still on the scene to notify him that he had obtained the warrant. Officer
McGowan informed him that Chad Ferrell had left the shop and had been taken into custody. Mr.
Ferrell told officers that there was no one else in the shop.

Officer Plunk testified that Officer McGowan terminated the phone call quickly after telling
Officer Plunk that a four wheeler had just started up inside the building. Officer Plunk explained
that by informing Officer McGowan that the search warrant was signed, Officer McGowan was
authorized to enter the shop in order to prevent the destruction of evidence or to keep anyone from
getting hurt. Officer Plunk returned to the shop after the officers on the scene had entered, set the
search warrant down on a pool table inside the shop, and began searching the shop office for
evidence of a methamphetamine laboratory.

Officer Plunk testified that he had received training regarding the manufacture of
methamphetamine. Specifically, Officer Plunk had received training in how to dismantle a
methamphetamine laboratory and how to separate the components for recovery by Drug
Enforcement Agency (DEA) personnel. He estimated that he had participated in at least fifty
investigations resulting in the dismantling of methamphetamine laboratories. Based on the smell
around the shop office, Officer Plunk began his search in that area. Officer Plunk found a ladder in
the shop and discovered a crawl space above the office. Using a pole, he was able to retrieve a
camouflaged plastic bucket which had been pushed back into the crawl space. From a concealed
spot next to the bucket, Officer Plunk also retrieved a white, ten-gallon garbage bag. As soon as he
obtained the garbage bag, the strong chemical odor became even stronger. Officer Plunk took the
garbage bag outside and set it on the pavement without opening it. Officer Plunk stated that he
believed the contents of the bag were in the finishing process of methamphetamine manufacture.

Officer Plunk testified that the mixture found inside the bag was a pellet, powdery, white
substance, wet and in a semi-liquid state. According to Officer Plunk, several components of
methamphetamine manufacture were found in the bucket, including Liquid Fire, salt, plastic tubing,

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and coffee filters. Some of the coffee filters were wet and contained the smell of a solvent chemical,
possibly denatured alcohol or Coleman camp fuel. In addition, tinfoil strips were found inside a
stove in the shop. The tinfoil strips were eight to ten inches long, two inches wide and folded in the
center. Officer Plunk opined that methamphetamine users place the drug in the crease of the folded
tinfoil, heat underneath the foil until it produces smoke which is then inhaled using a crude tool such
as an ink pen tube or old car antenna. Officer Plunk stated that several of the tinfoil strips appeared
to be used. Officer Plunk also noted that needles, syringes, and scales were found inside the shop.

Officer Plunk testified that he found batteries in a trash can in the shop. The lithium strips
had been removed from the batteries and used. Officer Plunk stated that the white garbage bag and
its contents were placed into a bio-hazard evidence bag and sealed. Also among the recovered items
were more than fifty Ziploc bags with the corners cut out. Officer Plunk stated that
methamphetamine was frequently placed in the bags, twisted into a teardrop shape and sold. Officer
Plunk contacted Special Agent Mike Woodham of the DEA and informed him that Mr. Ferrell and
the defendant had been arrested. The following day, Agent Woodham took possession of the seized
materials for analysis. The most dangerous components of the methamphetamine manufacture
process were documented and then destroyed in compliance with the law. Officer Plunk further
testified that anyone inside the building at the time he and Officer McGowan were yelling,
identifying themselves as police officers, and attempting to gain entry, would have clearly been able
to hear them.

On cross-examination, Officer Plunk testified that there was an outstanding warrant for the
defendant’s arrest and stated that the defendant knew that police were looking for him. Officer
Plunk also stated that one of the vehicles found inside the shop belonged to Sara Webb. Officer
Plunk testified that the manufacturing process used by the defendant was commonly described as
the Nazi or Birch method. Officer Plunk opined that the ammonia was used late in the process to
bind the lithium battery strips with the stripped down ephedrine. He further testified that in either
the Birch or Nazi method, anhydrous ammonia was required to complete the process. Officer Plunk
admitted that no anhydrous ammonia was seized at the crime scene, but Officer Plunk stated that he
smelled a combination of anhydrous ammonia and Coleman camp fuel emanating from the white
garbage bag. Officer Plunk also acknowledged that in the search warrant affidavit he indicated that
he smelled odors related to the production of methamphetamine, “including but not limited to,
anhydrous ammonia, ether, denatured alcohol.” However, no containers were found in the shop
which held any of those components. Officer Plunk asserted that the smells of those substances were
present and emanated from the white plastic garbage bag. Officer Plunk also noted that an empty,
clear, plastic container was found inside the plastic camouflage bucket. Officer Plunk said that he
believed that the chemicals present in that plastic container were poured into the white plastic bag
during the manufacturing process. Officer Plunk clarified that camp fuel, denatured alcohol or ether
could be used interchangeably in the methamphetamine manufacturing process. Officer Plunk
acknowledged that no hydrogen chloride gas generator was seized during the investigation. He
further acknowledged that a hydrogen chloride gas generator was generally required to transform
methamphetamine liquid and gases into powder flakes or “crystals” for consumption.

Officer Plunk testified that the shop owner, Chad Ferrell, was the subject of an ongoing DEA
investigation and admitted to having manufactured several pounds of methamphetamine. Officer

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Plunk stated that a chemical heat reaction was occurring inside the white plastic bag. Police officers
moved the bag outside and set it on the pavement. When the garbage bag was placed inside the bio-
hazard evidence bag, officers noticed that the pavement underneath the garbage had turned black.
Officer Plunk admitted that no Sudafed or ephedrine was recovered from the shop. Officer Plunk
stated that the defendant did not have an ownership interest in the shop. Officer Plunk testified that
with the proper components, methamphetamine could be manufactured within two to four hours.
Officer Plunk stated that investigators were unable to tell whether the material in the garbage bag
was ready to be laid out to dry or whether it was still processing.

Randall McGowan testified that he and Officer Plunk observed the shop belonging to Chad
Ferrell and stopped a vehicle they believed belonged to the defendant after it left the premises. After
questioning Sara Webb, the defendant’s girlfriend, he and Officer Plunk went back to the shop and
attempted to locate the defendant. Officer McGowan testified that he opened a storm door on the
exterior of the building which led into the office. As soon as he opened the storm door, he smelled
the strong chemical odor associated with methamphetamine manufacture.

Officer McGowan testified that Officer Plunk left to obtain a search warrant. After Officer
Plunk left, Chad Ferrell emerged from the building and was taken into custody. Mr. Ferrell informed
the police officers that no one else was in the building. Officer McGowan and other officers on the
scene waited about an hour until Officer Plunk called Officer McGowan and told him that the search
warrant had been signed. As he waited for authorization to enter the premises, Officer McGowan
stated that he heard a vehicle, believed by the officers to be a four-wheeler or motorcycle, start up
and run for a while before being shut off by someone inside. After Officer Plunk called and
indicated that the warrant had been executed, Mr. Ferrell provided Officer McGowan with a key to
the office door. As Officer McGowan went to open the door, the defendant opened it from the inside
and was taken into custody. Officer McGowan testified that the odor of methamphetamine
manufacture was so strong that officers had to open the sliding bay doors to the shop to ventilate it
before conducting their search.

On cross-examination, Officer McGowan stated that when he entered the shop, he did not
notice if there were paint cans or gas cans or other items which could generate an odor. He stated
that what he mainly noticed was the strong smell of methamphetamine manufacture; anhydrous
ammonia, ether and denatured alcohol. Officer McGowan admitted that police did not find any
containers holding any of those substances. He stated that Mr. Ferrell had a history of involvement
with methamphetamine. Officer McGowan also stated that he was familiar with an investigation
involving Mr. Ferrell wiring large sums of money to California. Officer McGowan admitted that
the majority of the items attributed to the manufacture of methamphetamine were located in the
ceiling above the office, although a few items, including the lithium battery strips, had been burned
in a wood stove near the office. However, the stove was cold and Officer McGowan was able to
reach in and retrieve the lithium battery strips. Officer McGowan testified that a few items were
found outside underneath a concrete slab.

Mike Woodham testified that he was a Special Agent with the United States Drug
Enforcement Administration (DEA). He stated that the federal government was already involved
in an ongoing investigation of Chad Ferrell for the distribution of significant quantities of

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methamphetamine. Since DEA officers were already working on a case against Mr. Ferrell, it was
agreed that Agent Woodham would take any new case and combine it with the pending case. He
stated that he came to the crime scene and picked up the evidence directly from Officer Plunk.
Special Agent Woodham testified that the seized substances were sent to Miami for testing. He also
stated that the DEA was waiting on the U.S. Attorney’s Office to take the case to the grand jury.

On cross-examination, Agent Woodham testified that his department had been involved in
at least one investigation of Mr. Ferrell prior to this incident. Agent Woodham was aware that Mr.
Ferrell had received shipments of drugs from California, and in exchange, had sent large quantities
of money back. Agent Woodham stated that as a general rule, his decision as to whether to conduct
an investigation was based on what the United States Attorney’s Office wanted to prosecute.

Elizabeth Atkins testified that she was a forensic chemist with the DEA and had performed
a gas chromatograph mass spectrometer and infrared spectrophotometer analysis of the substance
sent to her by Special Agent Woodham. She stated that the substance weighed 76.8 grams and that
the substance contained methamphetamine, a Schedule II drug. Ms. Atkins explained that Schedule
I drugs were the most addictive and had no medicinal value. She further explained that as the
Schedule number of a drug increases, that drug is generally considered less addictive and
correspondingly, possesses an increased medicinal value.

On cross-examination, Ms. Atkins testified that the amount of methamphetamine contained
in the substance was believed to be less than one percent. She stated that if any amount of
methamphetamine was present in the substance, she was obligated to report it, no matter how small
a quantity. She also testified that the substance did not contain, as far as she could see, any
anhydrous ammonia. The substance was an off-white powder when she received it. Ms. Atkins
described the substance as an “inert substance” with a very small quantity of methamphetamine in
it.

Pam Belew testified that she was the Circuit Court Clerk for Weakley County. She stated
that in May of 2006, the defendant was arrested and appeared in General Sessions court before being
released on bond. Later that year, the court record indicated that Judge William B. Acree issued a
capias warrant and revoked the bond for the defendant after he failed to appear for a court-ordered
report date on October 26, 2006. She stated that the defendant appeared at all other scheduled
hearings prior to the October 26, 2006 hearing date.

Darrell Rogers testified that he was a mechanic who worked at the shop owned by Chad
Ferrell. He stated that he worked on a car owned by Sara Webb on May 25, 2006 and that the
defendant would meet him to assist him with the car. He stated that Ms. Webb’s car was located
inside the shop and had been there for two or three weeks because parts had been ordered from
overseas. He stated that the white Mercury Cougar that Officers Plunk and McGowan had identified
as belonging to the defendant had actually been loaned to Ms. Webb while her car was being
repaired.

Sara Webb testified that she was dating the defendant at the time and had been at the shop
on May 25, 2006. She stated that at around 1:00 or 1:30 p.m., she arrived at the shop and observed

5
Chad Ferrell coming out of the woods behind the shop with a bucket and a backpack. She followed
Mr. Ferrell into the shop and saw the defendant in the shop office. She stated that Darrell Rogers
was supposed to be working on her car that day and that the defendant was there to help him.
However, Darrell Rogers was not at the shop at that time. She stated that she and the defendant had
been to the shop on previous occasions while her car was being worked on.

Ms. Webb testified that at one point she and the defendant walked into the shop and observed
Mr. Ferrell spray painting the bucket he had carried in from the woods. Ms. Webb was familiar with
the smell of a methamphetamine lab. She stated that the shop did not smell like a methamphetamine
laboratory, and she did not observe the manufacturing of any methamphetamine. However, she was
able to smell the spray paint used by Mr. Ferrell to paint the bucket. She stated that she was only
at the shop for twenty or thirty minutes before leaving. She admitted that soon after leaving the
shop, she was pulled over by Officers Plunk and McGowan and she told them that the defendant was
not present at the shop. She admitted that she had used methamphetamine in the past but had
received successful treatment to get off of the drug. Ms. Webb testified that she and the defendant
ended their relationship some time prior to trial. She stated that she never saw what Mr. Ferrell did
with the bucket after painting it or what was in the bucket. She also stated that she never saw the
defendant with the bucket or the backpack in his possession.

On cross-examination, Ms. Webb testified that she lied to the officers about the defendant’s
presence at the shop because she knew there was a warrant out for his arrest. She stated that the
defendant rode with Mr. Ferrell to the shop that day. Ms. Webb did not know whether the defendant
had been out in the woods with Mr. Ferrell prior to her arrival. She stated that it was commonplace
for methamphetamine manufacturers to complete at least some of the manufacturing process in the
woods before moving the final stages of the process indoors. Ms. Webb stated on re-cross
examination that although she had an idea as to what Mr. Ferrell was doing with the bucket and the
backpack, she did not ask any questions.

The defendant testified that on May 25, 2006, he received a call from Mr. Ferrell informing
him that the last of the parts needed to complete a repair of Ms. Webb’s vehicle had arrived. Mr.
Ferrell agreed to pick the defendant up and bring him to the shop where he was going to meet Darrell
Rogers to work on the car. The defendant testified that his original plan was to simply provide the
parts to Mr. Rogers and then leave. However, Mr. Rogers did not arrive for some time, and in the
interim, Ms. Webb came to see him about depositing money in the bank. The defendant stated that
he knew that Officers Plunk and McGowan were looking for him. He asked Mr. Ferrell if he had
anything illegal in his shop and told Mr. Ferrell that the police were looking for him based on an
outstanding arrest warrant.

The defendant testified that when Mr. Ferrell brought the bucket and the backpack into the
building, he had a bad feeling and instructed Ms. Webb to go ahead and leave without him. He
stated that if he had been caught with Ms. Webb, it would have been a violation of her probation.
He stated that after Ms. Webb left, he was pretty much stuck at the shop without a way to leave.
According to the defendant, he attempted to call Mr. Rogers to tell him to come on up to the shop.
The defendant stated that after Ms. Webb’s departure, he heard about her stop on a police scanner
inside the shop. Within ten to fifteen minutes of Mr. Ferrell bringing the bucket and backpack into

6
the shop, police surrounded the building and were knocking on the door. The defendant refused to
open the door because of the warrant for his arrest. The defendant reiterated several times that he
had no interest in the business and that his only involvement with Mr. Ferrell was that he let him
work on Ms. Webb’s car. He did not see any anhydrous ammonia or usable lithium strips in the
shop. He also did not smell anhydrous ammonia or ether. The defendant did not see a white plastic
garbage bag and did not know anything about the items placed above the office in the crawl space.

The defendant testified that the warrant for his arrest pertained to a misdemeanor probation
violation for possession of less than a quarter ounce of marijuana. Specifically, the defendant failed
to appear for a meeting with his probation officer regarding the marijuana violation. The defendant
stated that because he knew officers had a warrant for his arrest, he was not going to voluntarily
surrender himself to authorities. The defendant stated that the reason that he did not appear for his
scheduled court-ordered hearing on October 26, 2006 was because he learned from his attorney that
he would be arrested at the courthouse for outstanding warrants originating in Kentucky. He
testified that he had come to court for all of his other court appearances while out on bond.

The defendant testified that he was not involved in initiating a process of methamphetamine
manufacture. He stated that he had not been out in the woods with Mr. Ferrell at any point on May
25, 2006. He stated that he was in the office for about an hour-and-a-half before Ms. Webb arrived.

On cross-examination, the defendant testified that during a portion of the time he was waiting
for Mr. Rogers, he and Mr. Ferrell worked on the cylinder head he was planning to install in Ms.
Webb’s car. He stated that although it was approximately one hundred degrees in the shop, he did
not open the large bay doors to the shop for ventilation and did not spend much time working on the
cylinder. In the time remaining before Ms. Webb arrived, the defendant waited in the air-
conditioned office while Mr. Ferrell went in and out of the building. The defendant informed Mr.
Ferrell that the police were looking for him. Mr. Ferrell assured him that the shop was clean and told
him “that there was nothing illegal or messed up in the shop.” The defendant testified that he started
the four-wheeler because he thought about escaping, and he believed that he had been set up by Mr.
Ferrell.

The defendant testified that he had previously been arrested for possession of
methamphetamine. He stated that he had cooperated and assisted police officers in the past and had
those charges had been removed. With regard to the outstanding arrest warrant for his probation
violation, the defendant stated that he had been in contact with his bail bondsman and “was going
to take care of it” sooner or later.

After deliberation, the jury found the defendant guilty of initiation of a process to
manufacture a controlled substance and for possession with intent to manufacture, sell or deliver
methamphetamine, both Class B felonies. The defendant received a twelve-year sentence for each
conviction. In addition, the defendant was fined $2,000.

II. ANALYSIS

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 On appeal, the defendant argues that the trial court erred by failing to grant the defendant’s
motion to suppress, that there was insufficient evidence to sustain the convictions against the
defendant, and that the trial court erred by giving a flight instruction to the jury.

A. Motion to Suppress

The defendant filed a pre-trial motion to suppress and argued that the search warrant was
invalid because the grounds stated by the affiant, Officer Plunk, were fraudulently or recklessly
made. The trial court denied the defendant’s motion and determined that the defendant lacked
standing to contest the warrant and that Officer Plunk’s statements were proper.

In reviewing a trial court’s determinations regarding a suppression hearing, “[q]uestions of
credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18,
23 (Tenn. 1996). Thus, “a trial court’s findings of fact in a suppression hearing will be upheld unless
the evidence preponderates otherwise.” Id. Nevertheless, appellate courts will review the trial
court’s application of law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001). Furthermore, the state, as 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 that evidence.” Odom, 928 S.W.2d at 23. “In evaluating the correctness of
a trial court’s ruling on a pretrial motion to suppress, appellate courts may consider the proof
adduced both at the suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn.
1998).

The defendant argues that he had standing to contest the validity of the search warrant
because the warrant listed him personally as an individual, and as such, he had an expectation of
privacy in his person. One who challenges the reasonableness of a search or seizure has the initial
burden of establishing a legitimate expectation of privacy in the place to be searched. State v. Oody,
823 S.W.2d 554, 560 (Tenn. Crim. App. 1991). One who does not have such an expectation of
privacy lacks “standing” to challenge the search. See State v. Patterson, 966 S.W.2d 435, 441 n. 5
(Tenn. Crim. App. 1997). A person who is a “casual visitor” or a “transient party guest” does not
have a reasonable expectation of privacy in the host’s residence or apartment. See United States v.
Dix, No. 94-4065, 1995 WL 351182 (6th Cir., June 9, 1995) (“As a casual, albeit frequent, visitor
to his sister’s apartment, who did not keep clothing there, who did not receive mail there, and who
had no key, Dix had no reasonable expectation of privacy in the premises.”). There are seven factors
to be considered when determining if a legitimate expectation of privacy exists:

(1) ownership of the property; (2) whether the defendant has a possessory interest in
the thing seized; (3) whether the defendant has a possessory interest in the placed
[sic] searched; (4) whether the defendant has the right to exclude other[s] from the
place; (5) whether he has exhibited a subjective expectation that the place would
remain free from intrusion by the state; (6) whether the defendant took normal
precautions to maintain his privacy; and (7) whether he was legitimately on the
premises.

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Oody, 823 S.W.2d at 560 (citing United States v. Haydel, 649 F.2d 1152 (5th Cir. 1981)).

The trial court determined that the defendant lacked standing to challenge the search warrant.
We conclude that the evidence preponderates against the finding of the trial court only with regard
to the defendant’s standing to challenge the search of his person. Because the defendant was directly
identified as the object of the search warrant, he possesses the requisite standing to challenge a
search of his person. An individual has a reasonable expectation of privacy in his or her person.
State v. Cothran, 115 S.W.3d 513, 521 (Tenn. Crim. App. 2003) (citing State v. Transou, 928
S.W.2d 949, 958 (Tenn. Crim. App. 1996)). However, we conclude that the evidence does not
preponderate against the trial court’s ruling that he lacked standing to challenge a search of the
property belonging to Mr. Ferrell because he had no reasonable expectation of privacy or a
possessory interest in the property. The defendant was not an owner of the shop, he had no
possessory interest in the shop, no right to exclude others from entering, and no reasonable
expectation that the shop would remain free from governmental invasion. See Oody, 823 S.W.2d
at 560. In our view, of the seven factors enumerated in Oody, the defendant only qualified under
factor (7), that he was legitimately on the premises. See id. The defendant was legitimately on the
premises because he was picked up by Mr. Ferrell who brought him to the shop to work on Ms.
Webb’s car. However, it is clear from the evidence and from the defendant’s own statements that
he was only on the premises as a “casual visitor.” See Dix, 1995 WL 351182 at *2. The defendant
stated at trial:

I don’t have - it’s not my business. I don’t have no interest in the business. Chad
[Ferrell] let’s me park a vehicle, or work on a vehicle there, or something like that.
But other than that, I have no interest in this shop. I have no control over what he’s
hid in his shop or what he does in his shop.

Therefore, we conclude that the trial court did not err in determining that defendant lacked standing
to challenge the search of the property or premises on which methamphetamine and contraband were
discovered. Even though the defendant had standing to challenge the search of his person, he still
lacked standing to challenge the search of the property, and because the incriminating drug-related
materials were found on the property and not on the defendant’s person, we need not address the
validity of the search warrant on its merits.

B. Sufficiency of the Evidence

The defendant argues that the evidence was insufficient to sustain his convictions for
initiation of methamphetamine manufacture and for possession of methamphetamine with intent to
deliver.

Upon review, we reiterate the well-established rule that once a jury finds a defendant guilty,
his or her presumption of innocence is removed and replaced with a presumption of guilt. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the
burden of demonstrating to the appellate court why the evidence will not support the jury’s verdict.
State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). To meet this burden, the defendant must establish that no “rational trier of fact” could

9
have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003); see Tenn. R. App. P. 13(e).
In contrast, the jury’s verdict, approved by the trial judge, accredits the state’s witnesses and resolves
all conflicts in favor of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is
entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. Carruthers, 35 S.W.3d at 558. Questions concerning the credibility of
the witnesses, conflicts in trial testimony, the weight and value to be given the evidence, and all
factual issues raised by the evidence are resolved by the trier of fact and not this court. State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the
evidence. State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Likewise, we do not replace the jury’s
inferences drawn from the circumstantial evidence with our own inferences. State v. Reid, 91
S.W.3d 247, 277 (Tenn. 2002).

A defendant may be convicted on the basis of direct or circumstantial evidence or a
combination of both. State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003); see also State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In fact, circumstantial evidence
alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn.
1987). However, the circumstantial evidence “must be so strong and cogent as to exclude every
other reasonable hypothesis save the guilt of the defendant, and that beyond a reasonable doubt.”
State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971). “A web of guilt must be woven around the
defendant from which he cannot escape and from which facts and circumstances the jury could draw
no other reasonable inference save the guilt of the defendant beyond a reasonable doubt.” Id. at 613.

“Possession” may be actual or constructive and may be proven by circumstantial evidence.
See State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001); State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim.
App. 2000). Constructive possession requires proof that a person had the power and intention at a
given time to exercise dominion and control over the drugs either directly or through others. Shaw,
37 S.W.3d at 903 (citing State v. Patterson, 966 S.W.2d 435, 444 (Tenn. Crim. App. 1997)). In
essence, “constructive possession is the ability to reduce an object to actual possession.” State v.
Ross, 49 S.W.3d 833, 845-46 (Tenn. 2001) (citations omitted). However, the mere presence in an
area where drugs are discovered, or the mere association with a person who is in possession of drugs,
is not, alone, sufficient to support a finding of constructive possession. Shaw, 37 S.W.3d at 903
(citing Patterson, 966 S.W.2d at 445). The intention to sell or deliver drugs may be inferred from
the amount of the drug possessed by the accused along with other relevant facts surrounding the
arrest. See Tenn. Code Ann. § 39-17-419; see also State v. John Fitzgerald Belew,
W2004-01456-CCA-R3-CD, 2005 WL 885106, *5 (Tenn. Crim. App., at Jackson, Apr. 18, 2005)
(noting that the jury can infer intent to sell or deliver when amount of controlled substance and other
relevant facts surrounding arrest are considered together).

1. Initiation of A Process to Manufacture Methamphetamine

In the instant case, the defendant was convicted of one count of initiation of a process to
manufacture methamphetamine. Tennessee Code Annotated section 39-17-435 states in pertinent
part:

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 (a) It is an offense for a person to knowingly initiate a process intended to result in
the manufacture of any amount of methamphetamine.

(b) It shall not be a defense to a violation of this section that the chemical reaction
is not complete, that no methamphetamine was actually created, or that the process
would not actually create methamphetamine if completed.

(c) For purposes of this section, “initiates” means to begin the extraction of an
immediate methamphetamine precursor from a commercial product, to begin the
active modification of a commercial product for use in methamphetamine creation,
or to heat or combine any substance or substances that can be used in
methamphetamine creation.

(d) Expert testimony of a qualified law enforcement officer shall be admissible for
the proposition that a particular process can be used to manufacture
methamphetamine. For purposes of this testimony, a rebuttable presumption is
created that any commercially sold product contains or contained the product that it
is represented to contain on its packaging or labels.

(e) A person may not be prosecuted for a violation of this section and of
manufacturing a controlled substance in violation of § 39-17-417 based upon the
same set of facts.

Tenn. Code Ann. §39-17-435(a)-(e).

When viewed in a light most favorable to the prosecution, we conclude that the evidence was
not sufficient to sustain the defendant’s conviction for initiation of a process to manufacture
methamphetamine. We do not dispute that the prosecution was able to demonstrate several of the
required statutory elements for initiating the manufacture of methamphetamine. The record reflects
that police officers discovered raw materials and commercial products in Ferrell’s shop which could
be used as precursor ingredients and components in the methamphetamine manufacturing process.
The white garbage bag recovered by police officers clearly contained chemicals and ingredients
undergoing a chemical reaction. See Tenn. Code Ann. § 39-17-435(c). It is immaterial that only
trace amounts of methamphetamine were detected in the substance located in the white garbage bag.
See id. at (b). In addition, Officer Plunk was able to provide expert testimony regarding the
methamphetamine manufacturing process based on his training and experience. See id. at (d).

However, the prosecution failed to establish that the defendant was the individual responsible
for violating the statute. First, the defendant had no possessory interest in the shop where the
substances and drug-making materials were discovered. Second, no drugs, drug manufacturing
materials or other items were found on the defendant’s person. Third, and perhaps most importantly,
no proof was presented that showed that the recovered substances and drug materials were in the
defendant’s actual or constructive possession or that he was involved in any preparation,
modification, or extraction process to manufacture methamphetamine. See State v. Williams, 623

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S.W.2d 121, 125 (Tenn. Crim. App. 1981); see also Cooper, 736 S.W.2d at 129. Fourth, testimony
and other evidence offered at trial implicated Mr. Ferrell, the actual owner of the property where the
commercial precursor products and semi-liquid, methamphetamine substance were discovered. Any
inference of possession arising from the recovered materials should be imputed to Mr. Ferrell rather
than to the defendant. See Transou, 928 S.W.2d at 956. Fifth and finally, the evidence demonstrated
that Mr. Ferrell may have initiated the methamphetamine manufacturing process in the woods prior
to the arrival of police officers, and without any involvement by the defendant. Because the record
is devoid of evidence establishing the defendant possessed the substances found or participated in
a process to manufacture methamphetamine. The prosecution failed to prove the defendant’s guilt
pursuant to Tennessee Code Annotated section 39-17-435.

Because there was no indication that the defendant possessed the drugs, his mere presence
at the shop or his association with Mr. Ferrell is insufficient to support a finding that the defendant
possessed the drugs. See Cooper, 736 S.W.2d at 129; Dishman v. State, 460 S.W.2d 855, 858 (Tenn.
Crim. App. 1970). Clearly, the evidence does not exclude every other reasonable explanation and
is not sufficient to permit the jury to infer that the defendant was guilty beyond a reasonable doubt.
See Crawford, 470 S.W.2d at 612-613. As such, we conclude that the evidence was insufficient to
permit a rational trier of fact to sustain the defendant’s conviction for initiation of methamphetamine
manufacture beyond a reasonable doubt. Therefore, we reverse the defendant’s conviction for
initiation of a process to manufacture methamphetamine.

2. Possession with Intent to Sell or Deliver

The defendant was also convicted of possession of methamphetamine with intent to sell or
deliver.

Before we consider whether the evidence was sufficient to sustain the defendant’s conviction
on this charge, we are compelled to address an error committed by the prosecution when it charged
the defendant under both Tennessee Code Annotated sections 39-17-435 and 39-17-417.
Specifically, Tennessee Code Annotated section 39-17-435(e) states that “[a] person may not be
prosecuted for a violation of this section and of manufacturing a controlled substance in violation
of § 39-17-417 based upon the same set of facts.” In addition, Tennessee Pattern Jury Instruction
31.15, Comment 2, states that “[a] person may not be prosecuted for a violation of [Tenn. Code Ann.
§ 39-17-435] and also for a violation of [Tenn. Code Ann. § 39-17-417].” Although we are unaware
of a case in which this specific statutory conflict has been addressed, it appears from the plain
language of section 39-17-435 that the prosecution erred by trying the defendant under both statutes.

Notwithstanding the error committed by the prosecution, we review the record to determine
whether the evidence was sufficient to sustain the defendant’s conviction. Tennessee Code
Annotated section 39-17-417(a)(4) provides that “(a) [i]t is an offense for a defendant to knowingly
. . . . (4) possess a controlled substance with intent to manufacture, deliver or sell the controlled
substance.” “Delivery” is statutorily defined as “the actual, constructive, or attempted transfer from
one person to another of a controlled substance.” Tenn. Code Ann. § 39-17-402(6). This court has
previously concluded that the trier of fact is entitled to consider the circumstances surrounding a
“delivery” in order to determine if the defendant actually sold or delivered drugs:

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 With regard to a determination of the defendant’s intent to sell or deliver, proof of
intent usually consists of circumstantial evidence and the inferences that can be
reasonably drawn from that evidence. See Hall v. State, 490 S.W.2d 495, 496
(Tenn.1973); State v. Charles Benson, No. M2003-02127-CCA-R3-CD, 2004 WL
2266801, at *2 (Tenn. Crim. App. at Nashville, Oct. 8, 2004) (noting that the
defendant’s culpable mental state is most often proven by circumstantial evidence
and inferences drawn from the surrounding circumstances).

Belew, 2005 WL 885106 at *5. As noted previously, in order for the jury to draw an inference
supporting an intent to sell or deliver, jurors may only do so “when the amount of the controlled
substance and other relevant facts surrounding the arrest are considered together.” Id.

A threshold issue before this court is a determination of whether the defendant knowingly
possessed the drugs with intent to manufacture, sell or deliver. As previously noted, a defendant’s
mere presence in an area where drugs or paraphernalia are discovered does not show possession.
Cooper, 736 S.W.2d at 129; see also Whited v. State, 483 S.W.2d 594 (Tenn. Crim. App. 1972);
Dishman v. State, 460 S.W.2d 855, 858 (Tenn. Crim. App. 1970). Likewise, mere association with
a person who controls the drugs or property where the drugs are discovered is not sufficient to
support a finding that the person possessed the drugs. Id.

In the instant case, the record is devoid of evidence establishing the defendant’s actual or
constructive possession of any of the recovered materials or components to the substance in the
white garbage bag or to any aspect of the manufacturing process. See Williams, 623 S.W.2d at 125;
see also Cooper, 736 S.W.2d at 129. The record is devoid of any facts which would allow the jury
to infer that the defendant, and not Mr. Ferrell, was the individual who possessed and controlled the
materials recovered during the search or was the person responsible for mixing the chemicals in the
white garbage bag. Because it is impossible to ascertain whether the defendant was in possession
of those materials, much less involved in the manufacture of the substance, it is even more difficult
to infer beyond a reasonable doubt that the defendant possessed the requisite intent to sell or deliver
the substance. Furthermore, Elizabeth Atkins, the DEA’s forensic chemist, could only testify that
the trace amount of methamphetamine recovered from the substance in the white garbage bag was
less than one percent of the total 76.8 gram amount. This amount was so negligible as to almost be
unascertainable, and in our view, did not constitute a meaningful quantity for purposes of sale or
delivery. In addition, Ms. Atkins was unable to discern what stage of the manufacturing process had
been completed after analyzing the substance. Testimony was offered demonstrating that officers
were unable to find the necessary chemicals and essential machinery which would have been used
to complete the process and render it ready for use. Specifically, police officers were unable to
locate a hydrogen gas generator or anhydrous ammonia, two key components used in the end stages
of the manufacturing process. Therefore, we conclude that the defendant is entitled to dismissal of
his conviction for possession of methamphetamine with intent to manufacture, sell or deliver.

C. Flight Instruction

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 The defendant contends that the trial court committed reversible error by instructing the jury
on flight. Specifically, the defendant argues that the flight instruction to the jury created an
impermissible, rebuttable inference of guilt. However, having already concluded that the
defendant’s convictions should be reversed, we decline to address the propriety of the trial court’s
instruction on flight or to address the question of whether any error committed by the court in issuing
such an instruction constituted reversible error.

CONCLUSION

For the aforementioned reasons, the judgments of the trial court are reversed and the case is
dismissed.

___________________________________
J.C. McLIN, JUDGE

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