IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 3, 2014
STATE OF TENNESSEE V. KENNETH JAMES MORRIS
Appeal from the Circuit Court for Weakley County
No. 2013-CR-22 William B. Acree, Jr., Judge
No. W2013-02298-CCA-R3-CD - Filed December 2, 2014
Kenneth James Morris (“the Defendant”) was convicted by a jury of manufacture of a
Schedule II controlled substance within a drug-free zone and promotion of methamphetamine
manufacture. The trial court sentenced the Defendant to 15 years. On appeal, the Defendant
challenges the sufficiency of the evidence supporting his convictions and claims the jury
improperly weighed certain testimony and incorrectly assessed the credibility of a witness.
After a thorough review of the record and the applicable law, we affirm the judgments of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OBERT L. H OLLOWAY, JR., J., delivered the opinion of the Court, in which A LAN E. G LENN
and R OBERT W. W EDEMEYER, JJ., joined.
Beau E. Pemberton, Dresden, Tennessee (at trial and on appeal), for the appellant, Kenneth
J. Morris.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Thomas
A. Thomas, District Attorney General; Colin Johnson (at sentencing); and Kevin McAlpin
(at trial), Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
A Weakley County Grand Jury indicted the Defendant on one count of manufacture
of a Schedule II controlled substance within a drug-free zone,1 one count of initiation of a
process intended to result in the manufacture of methamphetamine, and one count of
promotion of methamphetamine manufacture. The Defendant proceeded to a jury trial on
April 23, 2013. The indicted offense of initiation of a process intended to result in the
manufacture of methamphetamine was dismissed at trial.
Proof at Trial
On October 12, 2012, Dresden Police Officer Steven Howe and Lieutenant Chris
Crocker assisted Probation Officer Justin Tubbs in the “extraction” of Michael Roney, a
registered sex offender, from a house located at 614 Linden Street in Dresden where Mr.
Roney’s GPS tracking device indicated he was living. The house was across the street from
a public school. When the three officers arrive at the home, Officer Howe positioned himself
at the back corner, while Officer Tubbs and Lieutenant Crocker knocked on the front door.
As he was moving into position, Officer Howe saw two silhouettes in a window and heard
two male voices. After being alerted that the other officers had contact, Officer Howe walked
to the front of the house. Approximately six or seven feet from the front door, he smelled an
“overwhelming” odor that he recognized as that of a methamphetamine laboratory. The
Defendant was removed from the home by Lieutenant Crocker. Officer Howe and Officer
Tubbs entered the home to search for Mr. Roney. They found him in a “back portion of the
house behind a curtain” which was being used as a door. When Mr. Roney opened the
curtain, Officer Howe spotted “foil sliders” and methamphetamine pipes on top of a coffee
table. Mr. Roney was removed from the house and placed under arrest.
Officer Howe advised Mr. Roney and the Defendant of their rights. The Defendant
consented in writing to a search of his home.2 Rather than proceed with the search, Officer
Howe requested Weakley County Sheriff’s Department Investigator Randall McGowan to
come to the scene. After verifying no other individuals were in the house and securing the
scene, Investigator McGowan decided to obtain a search warrant. During the execution of
the search warrant, the officers discovered two bags of methamphetamine, “one-pot”
1
Under Tennessee law, a drug-free zone is defined as “the grounds or facilities of any school or [the
area] within one thousand feet (1,000') of the real property that comprises a public or private elementary
school, middle school, secondary school, preschool, child care agency, or public library, recreational center,
or park.” Tenn. Code Ann. § 39-17-432(b)(1) (2010).
2
The Defendant wrote and signed a statement in the presence of the officers, which Officer Howe
identified at trial. In his statement, the Defendant consented to a search of his home and asserted that he did
not know Mr. Roney was a sex offender.
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methamphetamine bottles,3 scales, methamphetamine ingredients,4 a heating device,
laboratory equipment, various drug paraphernalia, and a “50-gallon drum” containing twelve
to eighteen used methamphetamine bottles.5 Two of the one-pot methamphetamine bottles
were actively producing methamphetamine. Altogether, the officers found more than
nineteen grams of methamphetamine. Officer Howe stated “in this house, you couldn’t stick
your arms out without touching some piece of a meth lab.” According to Officer Howe’s
measurements, the house was approximately 584 feet from the public school building and
approximately 126 feet from the school property.
On cross-examination, Officer Howe identified the bags of methamphetamine, foil
slides, pipes, punches, and tubing as evidence found in the front bedroom where Mr. Roney
was hiding and where he had spotted the two silhouettes from outside. Officer Howe
testified that he found a barrel containing used methamphetamine bottles and some of the
Defendant’s clothing in the rear bedroom. He also noted that the officers discovered
ephedrine in used methamphetamine bottles and a hidden duffle bag containing laboratory
equipment. He did not believe Mr. Roney could have brought all of the evidence into the
home in one night. Officer Howe acknowledged that he could not determine how long the
bottles producing methamphetamine had been active, nor could he determine how long the
other one-pot methamphetamine bottles had been at the house. He explained that eight
months before the search, he smelled a methamphetamine laboratory odor near the home but
could not confirm the source. He and other officers subsequently watched the Defendant’s
home for one month, but nothing occurred in that time that would have allowed him to
initiate a case.
Investigator McGowan testified that he had substantial experience in
methamphetamine detection, arrests, cleanup, and investigations. On October 12, 2012, he
3
Officer Howe described the “one-pot” method as a “streamlined” method of producing
methamphetamine. He explained that, in the past, methamphetamine laboratories were very large and
required a substantial amount of equipment. The one-pot method is a new method in which all of the
methamphetamine ingredients are placed in one or two bottles for production. Although this was Officer
Howe’s first one-pot method case, he stated that the old method and the one-pot method smell the same,
though the one-pot method does not produce as strong of an odor as the old method.
4
These ingredients included salt, Red Devil lye, “Coleman lantern fluid and filters,” and various
chemicals.
5
At trial, Officer Howe identified several of these items in various photographs taken at the scene.
Specifically, he identified the two bags of methamphetamine found in the front bedroom, (continued)
the “50-gallon drum with numerous one-pot cook bottles in it,” various parts of the laboratory that were
placed in the yard for collection, methamphetamine being produced in a soda bottle, and various
methamphetamine ingredients.
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responded to Officer Howe’s request for assistance at the Defendant’s home. Investigator
McGowan identified items used to manufacture methamphetamine from photographs taken
at the scene. In particular, he identified a two-liter bottle containing ephedrine pills covered
in camp fuel as “an active bubbling, cooking one-pot meth lab.”6 Investigator McGowan
stated that he cleaned up eighteen used one-pot methamphetamine bottles and twelve
homemade gas generators. Based on his experience, he believed the amount of
methamphetamine discovered would be worth approximately $2,000.
On cross-examination, Investigator McGowan noted that bottles were found in all
areas of the home except for one bedroom. One active methamphetamine bottle was
discovered behind a chair in the living room. He acknowledged that the one-pot method is
a portable method of methamphetamine production, and that there is no way to determine if
all of the methamphetamine was made at the Defendant’s home or who was producing
methamphetamine.
Special Agent Brock Sain, a forensic scientist with the Tennessee Bureau of
Investigation (“TBI”) in Memphis, testified as an expert in the field of drug identification
forensic chemistry. At trial, he identified a sealed package containing two exhibits that he
analyzed. He determined that the first exhibit contained 19.20 grams of methamphetamine
and that the second exhibit contained 0.10 grams of methamphetamine.
Sharon Bowers Lambwood, the Defendant’s aunt, testified that she was the owner of
the home at 614 Linden Street. After moving to Martin, Tennessee in 2002, she allowed the
Defendant to live in the home. Ms. Lambwood acknowledged that the Defendant was living
in the home at the time of his arrest, but she testified that “he wasn’t there very much.” She
was not aware of anyone else living there.
Jeff Kelly, the assistant director of schools for the Weakley County School System,
testified that the system operates Dresden Middle School and Dresden Elementary in the
same building on Linden Street and Highway 22.
Mr. Roney testified the Defendant’s home was across the street from a school. Mr.
Roney said he was prescribed pseudoephedrine the day before his arrest, and the Defendant
was using it to manufacture methamphetamine in the home on the night of October 12, 2012.
Mr. Roney testified that he did not know how to manufacture methamphetamine.
6
Investigator McGowan also referred to this type of “meth lab” as the “shake and bake method.”
He confirmed that this method speeds up the manufacturing process, as it takes approximately two hours to
produce methamphetamine. However, he explained that the duration of the manufacture depends on the
manufacturer’s expertise. He also testified that the new method produces the same smell as the old method.
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On cross-examination, Mr. Roney confirmed that he pleaded guilty to initiation of a
process intended to result in the manufacture of methamphetamine because he provided the
pseudoephedrine, but he denied ever manufacturing the drug.
Officer Howe was recalled as a witness. Concerning the condition of the house, he
stated, “The magnitude of how many articles [were] in this house, this was like one of the
worse [sic] ones I’ve ever been in where you can’t walk without hitting on something.
There’s no way you can live in this house and not know what’s taking place.”
On cross-examination, Officer Howe testified that he confiscated Mr. Roney’s cell
phone on the night of the arrest and that the phone contained evidence indicating that
individuals were going to come by to purchase or manufacture methamphetamine. To
Officer Howe’s knowledge, the Defendant did not have a cell phone. Officer Howe added
that the Defendant was “high” when they arrived on the scene.
At the conclusion of the State’s proof, the Defendant moved for a judgment of
acquittal, and the trial court denied the motion. The defense then proceeded with its case-in-
chief.
Cherie Roney, a friend of the Defendant and the sister of Mr. Roney, testified that she
met the Defendant through Samantha Vanwinkle, her neighbor at Southfield Apartments.
The Defendant spent time at her apartment and sometimes would stay overnight because his
toilet did not work and his home had no air conditioning or water. She testified that Mr.
Roney was homeless and would spend time at the Defendant’s home, even if the Defendant
was absent. Ms. Roney admitted that she had never been in the Defendant’s home.
Samantha Vanwinkle testified that she had lived at the Southfield Apartments on
Linden Street for approximately five years and had known the Defendant for two years. She
testified that she had never seen the Defendant intoxicated or using drugs and knew of no
evidence suggesting that he used drugs. According to Vanwinkle, Mr. Roney sometimes
would stay at the Defendant’s home. She admitted that she had never been to the Defendant’s
home.
The Defendant testified he had lived at his Aunt’s home at 614 Linden Street for
fifteen years. At the time of his arrest, he was working in Martin. He said he drove to work
in a truck owned by a co-worker who did not have a driver’s license. He claimed he returned
home in the late evening of October 10, 2012, and slept until approximately 10:30 the next
morning. He claimed that he “never really turned on any lights [and] never paid attention to
the house.” The Defendant was at his home all day resting and watching television.
Sometime before dark, Mr. Roney came by asking to borrow money. Mr. Roney walked with
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the Defendant to a gas station to buy cigarettes. After buying the cigarettes, the Defendant
and Mr. Roney walked to a Dollar General store, where Mr. Roney got in a man’s truck.
Before leaving, Mr. Roney asked the Defendant if he was going to return home that night.
The Defendant claimed he told Mr. Roney he was going back to Martin. The Defendant
explained the reason he said he was not going home was because he “just wanted a peaceful
night at home” and Mr. Roney “gets on [his] nerves.”
According to the Defendant, he walked from the Dollar General to his home and
arrived at dusk. He stated that sometime in the middle of the night Mr. Roney came in
through the back door with some type of backpack or duffle bag. The Defendant said Mr.
Roney was out of breath, sweating, and looking out the window. Mr. Roney said he had been
at Southfield Apartments doing laundry and thought somebody was calling the police on him
because he was not allowed to be there. Mr. Roney told the Defendant that he was there to
pick up some clothes before going to his Aunt Darla’s home. Mr. Roney then went to the
back bedroom, where, according to the Defendant, he had been staying for approximately
five months. Shortly thereafter, there was a knock at the door, and the Defendant told Mr.
Roney his ride had arrived. Mr. Roney was in his room and did not respond. The Defendant
claimed that he went to the door and twice asked who was there, but he did not receive a
reply. He told the person knocking to go to the other door, because he had coffee in his hand
and needed both hands to open the door. The Defendant again yelled to Mr. Roney that his
ride had arrived before going to the front door and speaking with Officer Howe.
The Defendant stated that there were issues with the plumbing, heating, air, and
kitchen floor of the home. The Defendant also explained there was a lot of trash because his
garbage service had been cancelled, but he asserted that he personally did not accumulate
much trash. The Defendant testified that he stayed at the home one or two times per month.
He said he was “around in [his] yard every day” but “hardly ever” went inside. The
Defendant claimed he did not regularly purchase pseudoephedrine, but he had purchased it
in the past to treat allergies.
On cross-examination, the Defendant testified that he never saw any
methamphetamine-related materials in the home. The Defendant identified his footstool
from a photograph. The photograph entered as an exhibit showed a foil strip, a candle, an
ashtray full of cigarettes, matches, tin foil, and a screwdriver sitting on the footstool. He
claimed the only items on the footstool when he spoke with the officers were coffee and a
food wrapper. The Defendant explained that Mr. Roney occupied the back bedroom, but
when the Defendant was not at home, Mr. Roney stayed in the den. The Defendant claimed
the barrel containing used methamphetamine bottles was located in Mr. Roney’s room.
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On rebuttal, the State once again called Officer Howe. He explained that the evidence
was not all confined in the back bedroom where Mr. Roney was staying. He stated, “[Y]ou
walk through the house and you go in a room, you can’t look up that you don’t see some part
of a meth lab.” Officer Howe reiterated that the methamphetamine items were found
throughout the home, including the common areas.
At the close of proof, the jury deliberated and returned a verdict of guilty for
manufacture of a Schedule II controlled substance within a drug-free zone and for promotion
of methamphetamine manufacture. The court sentenced the Defendant to fifteen years for
manufacture and two years for promotion, with the two years running concurrently. The
Defendant subsequently filed a motion for a new trial, which the trial court denied. He now
appeals, arguing that the evidence is insufficient to support his convictions, and that the jury
incorrectly assessed the credibility and improperly weighed the testimony of Mr. Roney.
Analysis
Sufficiency of the Evidence
Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R. App. P. 13(e).
In a jury trial, the weight and credibility given to the testimony of witnesses, and the
reconciliation of conflicts in that testimony, are questions of fact best determined by the jury
since they saw and heard the witnesses, and by the trial judge who concurred in and approved
the verdict. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This Court will not reweigh
the evidence. Id. On review, the “State must be afforded the strongest legitimate view of the
evidence and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).
A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and the defendant has the burden of illustrating why the evidence is
insufficient to support the jury’s verdict.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997);
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Our standard of review “is the same
whether the conviction is based upon direct or circumstantial evidence.” State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).
The Defendant argues on appeal that the evidence presented at trial is insufficient to
support his convictions for manufacture of a Schedule II controlled substance within a drug-
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free zone and for promotion of methamphetamine manufacture. We review each count in a
multi-count indictment separately. See State v.Tony Scott Walker, No. 02C01-9704-CC-
00147, 1997 WL 746433 (Tenn. Crim. App. Dec. 3, 1997) at *5; Wiggins v. State, 498
S.W.2d 93-94 (Tenn. 1973). We will discuss the sufficiency of the evidence for each
conviction in turn.
Manufacture of a Schedule II Controlled Substance Within a Drug-free Zone
In Tennessee, it is an offense to knowingly manufacture a controlled substance. Tenn.
Code Ann. § 39-17-417(a) (Supp. 2012). Methamphetamine is classified as a Schedule II
controlled substance. See Tenn. Code Ann. § 39-17-408(d)(2) (Supp. 2012). “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, and includes any packaging or repackaging of the substance or
labeling or relabeling of its container, except that ‘manufacture’ does not
include the preparation or compounding of a controlled substance by an
individual for the individual’s own use.
Tenn. Code Ann. § 39-17-402(15) (Supp. 2012).
It is a Class B felony to knowingly manufacture point five (0.5) or more grams of
methamphetamine. See Tenn. Code Ann. § 39-17-417(a)(1) and (c)(1) (Supp. 2012).
Knowingly manufacturing point five (0.5) or more grams of methamphetamine in a drug-free
zone is a Class A felony. Tenn. Code Ann. § 39-17-432(b)(1) (2010). Under Tennessee law,
“the grounds or facilities of any school or within one thousand feet (1,000') of the real
property that comprises a public or private elementary school, middle school, secondary
school, [or] preschool,” is a drug-free zone. Id.
Viewing the evidence in a light most favorable to the State, we conclude that the proof
presented at trial is sufficient to sustain the Defendant’s conviction for manufacture of a
Schedule II controlled substance within a drug-free zone. Officer Howe testified that, before
entering the Defendant’s home, he saw two male silhouettes talking in the den, where
methamphetamine was later discovered. The Defendant and Mr. Roney were confirmed to
be the only two individuals present when the officers arrived. Officer Howe also testified
that he smelled an “overwhelming” odor of methamphetamine as he approached the front
door. After executing the search warrant, the officers discovered a significant amount of
evidence of methamphetamine manufacture, including more than nineteen grams of finished
methamphetamine, used methamphetamine bottles that had “crusted over,” a heating device,
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lantern fuel, lye, salt, a methamphetamine pipe, scales, ephedrine, and two active
methamphetamine soda bottles. Officer Howe explained that there was so much evidence
of methamphetamine manufacture that “[t]here’s no way you can live in [the] house and not
know what’s taking place.”
Furthermore, Investigator McGowan testified that he immediately recognized items
used to manufacture methamphetamine upon entering the home. Though he had seen
hundreds of methamphetamine laboratories, he referred to the Defendant’s home as “quite
a bit bigger than [he] normally f[ou]nd.” He testified that the one-pot methamphetamine
bottles were found in all areas of the home except for one bedroom. He also stated that he
was at the Defendant’s home for a few hours before the officers arrived. Further, Mr. Roney
asserted that he did not know how to manufacture methamphetamine and had never
manufactured it in the past. Mr. Roney stated that he was aware that methamphetamine was
being manufactured by the Defendant in the home on the day of his arrest. Additionally,
Officer Howe testified that the Defendant’s home was 126 feet from public school property
and 584 feet from the public school building. Therefore, the methamphetamine was
manufactured in a drug-free zone. Accordingly, we hold that there was sufficient evidence
from which a rational trier of fact could determine that the Defendant was guilty of
manufacturing methamphetamine within a drug-free zone.
Promotion of Methamphetamine Manufacture
The Defendant also challenges the sufficiency of the evidence for his conviction of
promotion of methamphetamine manufacture, a Class D felony. See Tenn. Code Ann. § 39-
17-433(f) (Supp. 2012). An individual commits promotion of methamphetamine
manufacture if he or she:
(1) Sells, purchases, acquires, or delivers any chemical, drug, ingredient, or
apparatus that can be used to produce methamphetamine, knowing that it will
be used to produce methamphetamine, or with reckless disregard of its
intended use [.]
Tenn. Code Ann. § 39-17-433(a)(1) (Supp. 2012).
The evidence supporting the Defendant’s conviction for methamphetamine
manufacture also supports Defendant’s conviction for promotion of methamphetamine
manufacture. Specifically, Officer Howe and Investigator McGowan testified that equipment
and ingredients used to manufacture methamphetamine, in addition to finished
methamphetamine and active one-pot methamphetamine bottles, were found throughout the
Defendant’s home, including in the common areas. Further, Mr. Roney testified that he gave
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the Defendant pseudoephedrine to manufacture methamphetamine in the home on the night
of their arrest. Based on this evidence, the State established a reasonable inference that the
Defendant acquired and possessed the components necessary to manufacture
methamphetamine, and the jury was free to accept that reasonable inference.
In light of this evidence, we conclude that there was sufficient evidence for a rational
trier of fact to convict the Defendant of promotion of methamphetamine manufacture.
Credibility of Mr. Roney
The Defendant also argues that the jury incorrectly assessed Mr. Roney’s credibility
and gave improper weight to his testimony.7 As previously stated, the weight and credibility
given to the testimony of witnesses, and the reconciliation of conflicts in that testimony, are
questions of fact. Bland, 958 S.W.2d at 659. It is not the role of this Court to reevaluate the
evidence or substitute its own inferences for those drawn by the jury. State v.Winters, 137
S.W.3d 641,655 (Tenn. 2004)(citations omitted). The jury considered Mr. Roney’s testimony
and criminal background, determined his credibility, and weighed the value of the testimony.
We decline to disturb the jury’s findings by considering any testimonial inconsistencies and
prior criminal convictions. Accordingly, the Defendant is not entitled to relief as to this
issue.
CONCLUSION
For the reasons set forth above, we affirm the judgments of the trial court.
_________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
7
The Defendant specifically asserts that “[t]he [t]rial [c]ourt [c]ommitted [r]eversible [e]rror [i]n
[s]ustaining [t]he [j]ury’s [v]erdict.” However, to the extent the Defendant attempts to raise a thirteenth juror
issue, he has waived such issue by failing to support that issue with any references to supporting legal
authority. See Tenn. Ct. Crim. App. R. 10(b). Furthermore, “the accuracy of the trial court’s thirteenth juror
determination is not a subject of appellate review.” State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995).
(citing State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993)).
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