State of Tennessee v. Laurie Lynn Welch and Roland John Welch

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 13, 2016

STATE OF TENNESSEE v.
LAURIE LYNN WELCH and ROLAND JOHN WELCH

Appeal from the Circuit Court for Maury County
Nos. 21949, 21950 Stella L. Hargrove, Judge
___________________________________

No. M2015-00361-CCA-R3-CD – Filed October 13, 2016
___________________________________

Defendants, Laurie Lynn Welch (“Mrs. Welch) and Roland John Welch (Mr. Welch”),
were convicted of promotion of methamphetamine manufacturing, initiation of
methamphetamine manufacture process, and possession of drug paraphernalia. Mrs.
Welch was sentenced to four years for the promotion charge, eight years for the initiation
charge, and eleven months, twenty-nine days for possession of drug paraphernalia to be
served concurrently for an effective eight-year sentence to be served in the Department of
Correction as a Range I offender. Mr. Welch was sentenced to eight years for the
promotion charge, eighteen years for the initiation charge, and eleven-months, twenty-
nine days for possession of drug paraphernalia to be served concurrently for an effective
eighteen-year sentence to be served in the Department of Correction as a Range II
offender. On appeal, both Defendants argue that: (1) the affidavit in support of the search
warrant did not contain probable cause; (2) the trial court erred by failing to suppress
evidence discovered as a result of a warrantless search and seizure; (3) the evidence was
insufficient to support both Defendants‟ convictions for promotion of methamphetamine
manufacture and initiation of methamphetamine manufacturing process and Mr. Welch‟s
conviction for possession of drug paraphernalia; and (4) Mr. Welch‟s sentence was
excessive. After a thorough review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, J., joined. ROGER A. PAGE, J., not participating.

Lee E. Brooks, Spring Hill, Tennessee (on appeal), and Shara A. Flacy, Ardmore,
Tennessee, (at trial) for the appellant, Laurie Lynn Welch.

Jacob J. Hubbell, Columbia, Tennessee, for the appellant, Roland John Welch.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Patrick Howell,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Suppression Hearing

Detective Bob Zaiden of the Maury County Sheriff‟s Office, Drug Unit, testified
that on July 11, 2012, he received a phone call from a Walgreen‟s pharmacist in
Columbia concerning a suspicious purchase of pseudoephedrine pills. Detective Zaiden
drove to the store parking lot and observed a young man fitting the suspect‟s description
exit the store and get into a small truck with a woman. The two were later identified as
Jonathan Castille and Stephanie Hicks. Mr. Castille and Ms. Hicks next drove to a
nearby Kroger store, and Ms. Hicks walked into the store. Detective Zaiden followed her
inside and observed her purchase a second box of pseudoephedrine. It was Detective
Zaiden‟s experience that those individuals who purchase pseudoephedrine for the purpose
of manufacturing methamphetamine tend to purchase each box at a different store.

Detective Zaiden continued following Mr. Castille and Ms. Hicks after they left
the Kroger parking lot and turned south onto Trotwood Avenue. He decided to stop the
vehicle because the only other store for them to purchase pseudoephedrine would have
been the Rite Aid in Mt. Pleasant. Detective Zaiden explained that any further purchase
by Mr. Castille or Ms. Hicks would have been denied because of their two previous
purchases in Columbia. Detective Zaiden testified that Mr. Castille and Ms. Hicks had
two boxes of pseudoephedrine in their possession at the time of the stop. After they were
advised of their Miranda rights, Mr. Castille admitted that he was buying the
pseudoephedrine to sell to someone named “Glenn,” (later identified as Joseph Glenn
Glover) and Ms. Hicks indicated that they would receive fifty dollars per box from
“Glenn.” Mr. Castille and Ms. Hicks also stated that the pseudoephedrine would be used
to manufacture methamphetamine. Detective Zaiden testified that the information
provided by Mr. Castille and Ms. Hicks was consistent with Detective Zaiden‟s
experience with “smurfs,” who purchase the ingredients for methamphetamine
manufacturers known as “cooks.” He further explained that the legal limitations on the
amount of pseudoephedrine that may be purchased during a certain period of time
prevented “cooks” from buying the quantities of pseudoephedrine that they needed to
manufacture methamphetamine. Therefore, the “cooks” contracted with the “smurfs” to
obtain the necessary ingredients.

Detective Zaiden advised Mr. Castille and Ms. Hicks that they had committed the
crime of promoting the manufacture of methamphetamine. The two gave a written
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statement and agreed to make a controlled delivery of the pseudoephedrine to “Glenn.”
Detective Zaiden followed Mr. Castille and Ms. Hicks to a predetermined location where
Mr. Castille and Ms. Hicks and their vehicle were searched. A recorded call was placed
to Mr. Glover, and Mr. Castille and Ms. Hicks indicated to him that their vehicle had
broken down on Highway 43 and that Mr. Glover would have to meet them there to pick
up the pseudoephedrine. Officers observed the area on Highway 43 and used listening
devices for the transaction. Approximately twenty to thirty minutes later, a white Dodge
Dakota truck driven by Mr. Glover arrived at the scene on Highway 43. Mr. Glover‟s
wife, Karen Glover, was also in the vehicle. Mr. Glover walked up to the passenger side
of Mr. Castille‟s and Ms. Hick‟s vehicle and received the two boxes of pseudoephedrine
from them. Mr. Glover promised to pay them the following day.

Detective Zaiden testified that Mr. Glover drove away, and Detective Zaiden and
other officers began following him. Mr. Glover was eventually stopped on Enterprise
Drive in Mt. Pleasant. Detective Zaiden advised Mr. and Mrs. Glover that they had
participated in a controlled buy of pseudoephedrine pills. Mr. Glover was initially
uncooperative but Mrs. Glover was cooperative. Both of them eventually agreed to make
a controlled delivery of the two boxes of pills to Defendants, Roland John Welch and
Laurie Welch. Detective Zaiden met Mr. and Mrs. Glover at a predetermined location
where they were searched along with their vehicle. Mr. Glover placed a call to
Defendants but no one answered, so a text was sent to Defendants. Contact was later
made with Mrs. Welch, and Mr. Glover told her, “Well, I have those two things for you,”
and Mrs. Welch replied, “Yeah, come on. Come on over.” Detective Zaiden testified
that the “two things” referred to the two boxes of pseudoephedrine. The call was
recorded and played to the jury. Detective Zaiden testified that before the delivery, the
Lawrence County Sheriff‟s Drug Unit arrived to assist with the transaction because they
were familiar with Mr. Welch, and they provided background information on him.
Detective Zaiden, Detective Stanfield, and Mr. Glover then drove by Defendants‟
residence on South Old Highway 43 in Detective Stanfield‟s car in order for Mr. Glover
to point the house out to them, and they drove back to the predetermined location. Two
detectives then drove to the area to observe any traffic going in or out of Defendants‟
house.

At approximately 11:00 p.m., Mr. Glover alone drove back to Defendants‟ house
to deliver the two boxes of pseudoephedrine. Officers followed Mr. Glover to the house
and watched him walk inside. Mr. Glover remained inside the residence for
approximately thirty-three minutes, as stipulated by the parties at trial. Mr. Glover was
observed exiting Defendants‟ house, and he drove back to the predetermined location to
be searched. Detective Zaiden testified that Mr. Glover informed him that he was going
to be paid for the pseudoephedrine with methamphetamine and that Defendants were
going to manufacture methamphetamine. Detective Zaiden testified:
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 Well, at that time, then that‟s when I advised the other members that we
needed to make contact with the occupants before they used the pills that
we delivered and start the initiation the process of - - to manufacture
methamphetamine with those pills.

Detective Zaiden further testified that there are inherent dangers in the manufacture of
methamphetamine because hazardous materials are used that can be “very toxic” and “it
can be very dangerous to a person that‟s untrained or around these toxic chemicals, and
these active ingredients would - - could cause some serious injuries; which we‟ve had
some officers injured in the past because of these hazardous materials.”

Detective Zaiden did not know how the officers got into Defendants‟ residence but
when Detective Zaiden arrived, he was advised by Detective Rob Wagonschutz that there
were two occupants in the residence and that there was an active methamphetamine
(“meth”) lab in the house. Everyone was taken outside on the porch, and Detective
Zaiden advised Defendants that he was going to obtain a search warrant for their
residence. He thought that it took “maybe close to two hours” to get the search warrant.
Detective Zaiden testified that it generally takes an hour to make a batch of
methamphetamine.

After obtaining the search warrant, Detective Zaiden drove back to Defendants‟
residence and advised them of their Miranda rights. He also gave Defendants a copy of
the search warrant. Mr. Welch made the following statement, “It is what it is.” Mrs.
Welch told Detective Zaiden that she smoked marijuana but did not “mess” with
methamphetamine. Detective Zaiden testified that during the search, “an active cook
bottle” used to make methamphetamine was found in the house. He said that the
methamphetamine in the bottle was in the “finished stages of it.” Detective Zaiden
testified that the bottle contained eight to ten ounces of what appeared to be “meth oil.”
He sent a sample of the substance in the bottle to the Tennessee Bureau of Investigation
(TBI) Crime Lab for analysis. The two boxes of pseudoephedrine delivered by Mr.
Glover were found in the room where both Defendants had been located. After the
search, Defendants‟ residence was placed under quarantine. Detective Zaiden spoke to
Mrs. Welch again the following day and advised her of her Miranda rights. She
requested an attorney, and Detective Zaiden did not ask her any further questions.

On cross-examination, Detective Zaiden testified that at the time he obtained the
search warrant, he did not know if there were additional ingredients other than the two
boxes of pseudoephedrine in the house that could be used to manufacture
methamphetamine. Mr. Glover had told him that, “Mr. Welch was going to manufacture
meth so [Mr. Glover] could get paid with it.”
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 Detective Zaiden testified that officers entered Defendants‟ home before the
search warrant had been issued because of a threat to the officers and the potential
destruction of evidence. When asked if there were any other reasons why officers
entered the residence without a warrant, Detective Zaiden testified: “Well, we didn‟t
want them to initiate the process to manufacture methamphetamine with the precursors
that we just delivered.” He stated that it would have resulted in the destruction of
evidence. Detective Zaiden noted that the Glovers “made an understanding with the
Welch[]s that they deliver boxes there and they would receive methamphetamine for
those boxes.” Detective Zaiden admitted that there was no smell of methamphetamine
coming from the residence when the officers initially entered. He said that he would
have obtained a search warrant for the residence even if officers had not gone inside
because of the delivery of the two boxes of pseudoephedrine by Mr. Glover.

Trial

Detective Zaiden‟s trial testimony mirrored that of his testimony at the
suppression hearing of events that led to the issuance of a search warrant for Defendants‟
residence. Detective Zaiden testified that the Lawrence County Sheriff‟s Office Drug
Unit assisted with securing the scene at Defendants‟ residence while Detective Zaiden
obtained the search warrant. When asked why the residence was secured before the
search warrant was obtained, Detective Zaiden testified: “Because believe it or not, when
we deliver that box to them, we‟re actually in the process of promoting
methamphetamine. So we cannot allow those boxes to be used in the manufacture
process.”

Detective Zaiden testified that when he arrived back at Defendants‟ residence with
the search warrant, he advised both Defendants of their Miranda rights. Mr. Welch
explained to Detective Zaiden that he had “told another officer that there was a cook
bottle in the house.” Detective Zaiden testified that a “cook bottle” is the “actual
apparatus that is used to manufacture meth in the process of manufacturing meth.” He
further explained that the bottle is usually some type of two-liter bottle in which all of the
ingredients to manufacture methamphetamine are placed inside and mixed together. It is
also known as the “shake and bake” method.

Detective Zaiden testified that he functioned as the “Evidence Clerk” during the
search of the residence and logged in all of the evidence that was found. In addition to
the “cook bottle” containing clear liquid, officers also discovered an ammunition can
which contained the following items: seven packages of plastic tubing; two packages of
coffee filters; one black meth pipe; one opened instant cold pack; a one-gallon bottle of
muriatic acid; a one-gallon can of lantern fuel; one gas generator bottle; two one-pound
5
bottles of lye; one small funnel; one measuring cup; one small tin can with eleven lithium
batteries; five used coffee filters; and four bottle caps. Detective Zaiden explained that
all of the items are commonly used in the manufacture of methamphetamine.

In addition to the items in the ammunition can, officers also found additional
plastic tubing; a razor blade with residue that field-tested positive for methamphetamine;
eight aluminum “boats,” which are pieces of aluminum foil used to ingest
methamphetamine; a case with a glass pipe; a small black electronic scale commonly
used to measure methamphetamine to sell; two metal grinders with marijuana residue; a
white pill bottle with burnt marijuana cigarettes; a hemostat with a burnt marijuana
cigarette; a glass marijuana pipe; a plastic bag with marijuana; a package of rolling
papers; a white electric blender commonly used to grind pseudoephedrine pills; three
surveillance cameras; a package of AA lithium batteries; a Pentax cell phone with
charger; a black electronic scale; and pipe cutters. Detective Zaiden testified that pipe
cutters are commonly used to open lithium batteries. The officers also found the two
marked boxes of pseudoephedrine that were delivered to the residence by Mr. Glover.
The two boxes were hidden under the couch in the living room. The receipt from where
Mr. Castille had originally purchased one of the boxes of pseudoephedrine was also
there. The officers found a plate, scale, spoon, and two paper cards with residue in a
room where the “cook bottle” was located.

All hazardous materials were removed from the house, and Detective Zaiden
informed Defendants that they were each being placed under arrest. When Detective
Zaiden asked Mr. Welch about the items, Mr. Welch responded: “It is what it is.” Mrs.
Welch told Detective Zaiden that she only smoked marijuana. When asked about
methamphetamine, Mrs. Welch responded that she did not “f--k with this sh-t.”
Detective Zaiden testified that Mrs. Welch was allowed back inside the house to get a
change of clothing. The residence was then placed under quarantine. Detective Zaiden
sent a sample of the clear liquid from the “cook bottle” to the TBI Crime Lab to be
analyzed, and a crystal substance was also sent to the lab.

Special Agent Laura Cole of the TBI Crime Lab, Drug Chemistry Section,
testified that she tested a grey crystal substance which was determined to be Methylone,
which is a synthetic drug known as a “bath salt.” Special Agent Cole also tested the
sample of the liquid from the “cook bottle.” The first test that she performed revealed the
presence of methamphetamine, and a second test confirmed that methamphetamine was
present. Special Agent Cole testified that the substance was 16.90 grams. She also noted
that the liquid was not a finished product.

Lieutenant Kenneth Seibold of the Spring Hill Police Department was working
with the Drug Task Force on July 11, 2012. He and Detective Wagonschutz watched
6
Defendants‟ residence after Mr. Glover delivered the boxes of pseudoephedrine. After
Mr. Glover left the house, Lieutenant Seibold and other officers secured the residence
while Detective Zaiden went to get a search warrant. Lieutenant Seibold testified that he
did not look for any evidence while in the residence and that he only secured the
occupants of the house. He thought that there were approximately six officers who
helped secure the house. Lieutenant Seibold testified that Detective Wagonschutz
advised him that they had found a “meth lab” in the house. Lieutenant Seibold said, “So
we knew at that point that we have to get people out of the house. And so the entire
process took about 10 minutes, give or take a few.” He further testified:

In this particular instance, we‟re securing it because we know they‟re
prepping to make methamphetamine. And what we don‟t want to have
happen, that we‟ve had happen in the past, is a box be delivered - -
because the boxes is [sic] an essential part of methamphetamine. What
we don‟t want to have happen is knowing that there‟s an active lab.

I breathe the - - I had to inhale the vapors and the acid from it before and
had to go to the hospital. It‟s not a fun experience at all.

Methamphetamine is a very nasty drug. The whole process to do the
meth - - methamphetamine is nasty. So to avoid that, at the earliest
convenience, we secure it before that - - hopefully before that happens
and wait for the search warrant.

Lieutenant Siebold testified that when he passed one of the doorways to the left inside the
house, he noticed a smell that was consistent with what he had smelled from investigating
other methamphetamine labs.

Lieutenant Siebold testified that it took a couple of hours for Detective Zaiden to
return with the search warrant. Everyone, including Defendants, waited outside until
Detective Zaiden returned. Lieutenant Siebold testified that he took photographs after the
search began.

Detective Wagonschutz testified that he participated in securing Defendants‟
residence. He said:

[A] secured operation is when we do a controlled delivery of
pseudoephedrine. We take certain steps to make sure that it is going to
be used for an illicit purpose.

7
 When we secure the residence, in order to keep from violating the law,
ourselves, when we deliver a box of pseudoephedrine we can‟t allow that
person to turn Sudafed into meth, because then we will have aided in that
crime.

So we sought guidance from the D.A.‟s on the best way to - - to do these
operations, and we were directed that upon delivery and it‟s been
confirmed that the box was delivered, then we immediately secure the
residence, detain everybody, and then apply for a search warrant to go
back and search the residence for the pills and the warrant - - other items
that would have been used to produce meth using those pills.

Detective Wagonschutz testified that upon entering the residence, he cleared a
section of the house to make sure that there were no threats or armed individuals hiding
in the house. In a room to his right, Detective Wagonschutz testified that he smelled the
“odor of a meth lab somewhere in that vicinity.” He found a “methamphetamine one pot
cook bottle” in a trash can in the “little computer room.”

Joseph Glenn Glover testified that he and Defendants are acquaintances, and he
had visited their residence. On July 10, 2012, Mr. Glover said that he was driving
through Mt. Pleasant when he was pulled over by police. He had received two boxes of
pseudoephedrine pills from “another guy and girl.” Mr. Glover testified that he planned
to trade the pills to Mr. Welch in exchange for methamphetamine. He said that the
officers gave him the option of either being arrested or delivering the pills to Mr. Welch.
Mr. Glover agreed to deliver the pills.

Mr. Glover testified that he placed a call to Defendants‟ cell phone, and Mrs.
Welch answered. He told Mrs. Welch, “I‟ve got a couple of them. Are you still up?”
Mr. Glover testified that when he asked Mrs. Welch if he could drop a couple of “them”
off, she replied, “Good. Come on.” Mr. Glover testified that he drove his white Dodge
Dakota truck to Defendants‟ residence. He said that he walked inside the house, sat
down and began talking to Defendants. Mrs. Welch was in the room the entire time
sitting on the couch. Mr. Glover testified that he placed the two boxes of
pseudoephedrine on a table in the room. Mr. Welch told Mr. Glover that he would see
him the following day to reimburse Mr. Glover for the pills. Mr. Glover understood that
to mean that he would receive methamphetamine in exchange for the pills. Mr. Glover
then left the residence and met with officers who searched him. He noted that he had
been given a recorder which he returned to the officers.

On cross-examination, Mr. Glover acknowledged that he had been drinking earlier
in the day. He also drank some moonshine and smoked marijuana at Defendants‟
8
residence. Mr. Glover noted that his wife had previously been in the truck with him, but
she did not participate in the delivery of the boxes of pills.

Analysis

I. Sufficiency of Affidavit Supporting the Search Warrant

Defendants contend that the search warrant in this case was not supported by
probable cause because the information set out in the affidavit does not meet the two-
prong test set out in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637
(1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)
(“Aguilar–Spinelli ”), as adopted in State v. Jacumin, 778 S.W.2d 430, 437 (Tenn. 1989),
concerning the proof of the reliability of a confidential informant. Mr. Welch further
argues that the statements contained in the affidavit are fatally conclusory, do not relate
to him, and do not specifically indicate illegal activity.

A trial court‟s factual findings on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996). Furthermore, questions about the “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.” Id. “We afford to the party prevailing in
the trial court the strongest legitimate view of the evidence and all reasonable and
legitimate inferences that may be drawn from that evidence.” State v. Keith, 978 S.W.2d
861, 864 (Tenn. 1998). However, we review a trial court‟s application of the law to the
facts under a de novo standard of review. State v. Williams, 185 S.W.3d 311, 315 (Tenn.
2006).

An affidavit establishing probable cause is an indispensable prerequisite to the
issuance of a search warrant. See, e.g., Tenn. Code Ann. § 40-60-103; Tenn. R. Crim. P.
41(c); State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998); State v. Moon, 841 S.W.2d
336, 338 (Tenn. Crim. App. 1992). Such probable cause “must appear in the affidavit
[itself] and judicial review of the existence of probable cause will not include looking to
other evidence provided to or known by the issuing magistrate or possessed by the
affiant.” Moon, 841 S.W.2d at 338; see also Henning, 975 S.W.2d at 295. To
sufficiently make a showing of probable cause, an affidavit “must set forth facts from
which a reasonable conclusion might be drawn that the evidence is in the place to be
searched.” State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993). However, a decision
regarding the existence of probable cause requires that the affidavit contain “more than
mere conclusory allegations by the affiant.” State v. Stevens, 989 S.W.2d 290, 293
(Tenn. 1999); see also Moon, 841 S.W.2d at 338.

9
 Furthermore, when “probable cause for a search is based upon information from a
confidential informant, there must be a showing in the affidavit of both (1) the
informant‟s basis of knowledge and (2) his or her veracity.” State v. Powell, 53 S.W.3d
258, 262 (Tenn. Crim. App. 2000); see also Jacumin, 778 S.W.2d at 432, 435-36
(utilizing the standard set out in Spinelli, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637
(1969) and Aguilar, 378 U.S. 108, 84 S.Ct. 1509, 12 L. Ed. 2d 723 (1964)). To
sufficiently make such showings, the affidavit must include facts permitting the
magistrate to determine: (1) “whether the informant had a basis for his information that a
certain person had been, was, or would be involved in criminal conduct or that evidence
of crime would be found at a certain place” and (2) whether the informant is inherently
credible or “the reliability of his information on the particular occasion.” Moon, 841
S.W.2d at 338. Again, the courts have stressed that conclusory statements absent
supportive detail will not suffice to establish these requirements. See, e.g., id. at 339.
However, “independent police corroboration” may compensate for deficiencies. See
Jacumin, 778 S.W.2d at 436; Moon, 841 S.W.2d at 340.

Case law warns against a hyper-technical application of the Aguilar-Spinelli test,
and this court has previously provided that “[t]he requisite volume or detail of
information needed to establish the informant‟s credibility is not particularly great.”
State v. Lowe, 949 S.W.2d 300, 305 (Tenn. Crim. App. 1996). However, precedent also
provides that “the affiant must provide some concrete reason why the magistrate should
believe the informant.” Id.

In his affidavit in support of the search warrant in this case, Detective Zaiden
averred as follows:

Within the past twenty[-]four hours your affiant and members of the
Maury County Drug Unit [(MCSDU)] were contacted by a Walgreens
pharmacy in Columbia TN via phone. Your affiant was advised that an
individual was in their store purchasing a box of pseudoephedrine pills.
Your affiant and members of the MCSDU were able to observe this
individual exit Walgreens pharmacy and enter into their vehicle and
drive to the Kroger pharmacy where individual #2 in this vehicle had
entered into the Kroger pharmacy. Members of the MCSDU were able
to observe individual #2 purchase a box a pseudoephedrine pills and
return to the vehicle where the first individual was waiting. A vehicle
stop was conducted with the individuals #1 and #2. These two
individuals were cooperative and advised your affiant that these two
boxes of pseudoephedrine pills that [sic] were purchased for another
person(s), would then take these boxes to another person(s) [sic] with the
intent to manufacture methamphetamine. The two cooperating
10
individuals #1 and #2 advised that they were given money and direction
on what items to purchase. Individuals #1 and #2 would be receiving a
sum of money for these two boxes of pseudoephedrine pills. The
cooperating individuals #1 and #2 agreed to make a controlled delivery
to the individuals. A controlled delivery of the boxes was made with the
other individuals #3 and #4. After the controlled delivery was made a
vehicle stop was conducted with these individuals #3 and #4 in Mt.
Pleasant, TN. After making contact with individuals #3 and #4, they
became cooperative and advised that these boxes of pseudoephedrine
pills were going to be delivered to a person that was going to use them in
the manufacturing of methamphetamine. Individuals #3 and #4 agreed
to make a controlled delivery of these pseudoephedrine pills to the
person‟s known to them as John and [Laurie] Welch. Cooperating
individuals #3 and #4 placed a phone call to John and [Laurie] Welch
that was unanswered. The cooperating individuals #3 and #4 did send a
text message to John and [Laurie] Welch stating that they had a “couple
of those things if you want.” The cooperating individuals received a
phone call from a person known to them as [Laurie] and this
conversation was recorded. Your affiant was able to listen to the phone
call and heard a female, identified as [Laurie], tell the cooperating
individual(s) that it was “ok to come over.” The cooperating individuals
and their vehicle were searched for illegal narcotics and contraband.
None were found. The cooperating individuals were armed with an
electronic audio recording device so that the transaction will be recorded
as it took place. The members of the MCSDU followed cooperating
individual(s) and witnessed the individual(s) enter the residence located
at 8982 S Old Hwy 43 Mt. Pleasant TN. A short time later the
cooperating individual(s) were observed leaving the residence located at
8982 S Old Hwy 43 and enter into their vehicle and driving away. Your
affiant met with the cooperating individual(s) at a predetermined location
where the cooperating individual(s) advised that the delivery of the
pseudoephedrine pills was made to the individuals known to them as
John and [Laurie] Welch. The cooperating individual(s) and their
vehicle were searched for illegal narcotics and contraband. None were
found. I was able to retrieve the electronic audio recording device the
cooperating individual(s) were armed with. The cooperating
individual(s) advised that the Persons known to them as John and
[Laurie] Welch were going to manufacture methamphetamine. Your
affiant believes that based on the above described facts and
circumstances that there will be probable cause that evidence in violation

11
 of Tennessee drug laws will be found at 8982 Old Hwy 43 Mt. Pleasant
TN.

Concerning the affidavit, the trial court held:

All right, my ruling is this: the motion is denied. Under a common sense
reading of the four corners of this document, under the affidavit and
support of a search warrant, the Court finds that in the totality of the
circumstances set out in the affidavit that there is enough, sufficient
probable cause to believe that this warrant should be issued insofar as the
Welch‟s residence.

There‟s no argument or motion as to the incorrectness of the residence,
where the meth would be found or cooked. There maybe three errors
insofar as that one name; However, there is John and Jane Doe
provision.

The Court finds that Aquilar and Spinelli, the two prongs are satisfied.
The motion is overruled.

We conclude that the observations by the cooperating individuals were
corroborated by the detectives prior to the search warrant being applied for pursuant to
Detective Zaiden‟s affidavit. Detective Zaiden observed Cooperating Individuals #1 and
#2 (Mr. Castille and Ms. Hicks) purchasing boxes of pseudoephedrine pills from two
different pharmacies. After a stop of their vehicle, Cooperating Individuals #1 and #2
advised Detective Zaiden that the two boxes of pills were purchased for another person
with the intent to manufacture methamphetamine. The affidavit also indicated that the
two individuals said that they were given money and direction on what items to purchase.
They also stated they would be receiving a sum of money for the two boxes of pills.
Cooperating Individuals #1 and #2 agreed to deliver the two boxes of pills to Cooperating
Individuals #3 and #4 (Mr. and Mrs. Glover). After the controlled delivery was made to
Cooperating Individuals #3 and #4, their vehicle was stopped by the officers, and those
individuals said that the two boxes of pseudoephedrine pills were going to be delivered
for the purpose of manufacturing methamphetamine to Defendants, John and “Karen”
Welch. We point out that John is Mr. Welch‟s middle name, and Mrs. Welch‟s name is
erroneously listed as Karen in the affidavit rather than Laurie. Detective Zaiden correctly
wrote Mrs. Welch‟s name as Laurie Lynn Welch at the top of the affidavit.

Detective Zaiden observed a call placed from Cooperating Individuals #3 and #4
to Defendants that went unanswered. He then observed a text that was sent by the
cooperating individuals to Defendants stating that the cooperating individuals had a
12
“couple of those things if you want.” Detective Zaiden was present when Cooperating
Individuals #3 and #4 received a phone call from “Karen” (Laurie Welch), and the
conversation was recorded. Detective Zaiden listened to the phone call and heard Mrs.
Welch tell the cooperating individuals that it was “ok to come over.” A controlled
delivery of the two boxes of pseudoephedrine, that was recorded and monitored by law
enforcement officers, took place at Defendants‟ residence located at 8982 Old Hwy 43 in
Mt. Pleasant. The cooperating individual(s) left Defendants‟ residence and met Detective
Zaiden back at a predetermined location. They advised Detective Zaiden that the
delivery of the two boxes of pseudoephedrine was made to Defendants, John and “Karen”
Welch. They also said that Defendants were going to manufacture methamphetamine.
The cooperating individuals‟ knowledge of the activities at Defendants‟ residence, as
corroborated by Detective Zaiden‟s observations, satisfy the basis of knowledge prong, as
well as the credibility and reliability prong of the Aguilar–Spinelli test. We also note that
Detective Zaiden included in the affidavit the following concerning production of
methamphetamine:

As a member of the Tennessee Methamphetamine Task Force, I have
been trained in the detection and identification of illicit
methamphetamine laboratories. As a member of the Maury County
Sheriff‟s Department‟s Drug Unit, I have actively investigated and
successfully prosecuted over one hundred methamphetamine production
cases. During said investigations, I have found that person‟s [sic] who
illicitly produce methamphetamine will have in their possession in their
residence and/or on their property, other chemicals and apparatus used in
the production of methamphetamine. The chemicals used to produce
methamphetamine are purchased in larger quantities than is needed to
produce methamphetamine at one time. Therefore, the excess chemicals
are stored for [a] later date. Many of the apparatus used in the illicit
production of methamphetamine will contain residual evidence long
after the production of methamphetamine is complete.

Although corroboration of more than a few minor elements of the informant‟s
information is necessary, especially if the elements relate to non-suspect behavior, State
v. Smotherman, 201 S.W.3d 657, 664 (Tenn. 2006), the events observed by the police
need not supply probable cause by themselves or point unequivocally toward guilt.
Moon, 841 S.W.2d at 341. The observations by police are sufficient if they provide an
“„unusual and inviting explanation,‟” even though the observations are “„as consistent
with innocent as with criminal activity.‟” Id. (quoting Wayne R. LaFave, Search and
Seizure, § 3.3(f) at 683 (2d ed. 1987)).

13
 We conclude that the affidavit sufficiently establishes probable cause for the
search. Defendant is not entitled to relief on this issue.

II. Warrantless Entry into Defendants’ Residence

Next, Defendants argue that the officers‟ warrantless entry into their residence to
secure their persons and freeze the scene while the search warrant was obtained
constitutes an independent violation of the right against unreasonable search and seizure.

Both the Fourth Amendment of the United States Constitution and Article I,
Section 7 of the Tennessee Constitution prohibit “unreasonable searches and seizures.”
The purpose and intent of Article I, Section 7 is identical with that of the Fourth
Amendment, which is to “safeguard the privacy and security of individuals against the
arbitrary invasions of government officials.” Randolph, 74 S.W.3d at 334 (quoting
Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967));
State v. Gonzalez, 52 S.W.3d 90, 95 (Tenn. Crim. App. 2000).

A warrantless search is presumed unreasonable under both the federal and state
constitutions, and evidence seized from the warrantless search is subject to suppression
unless the state demonstrates by a preponderance of the evidence that the search was
“conducted pursuant to one of the narrowly defined exceptions to the warrant
requirement.” State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998); see Coolidge v. New
Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Probable cause
and exigent circumstances must exist in order to justify an officer's warrantless entry into
a private residence. Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d
599 (2002). Exigent circumstances may occur in three situations: “(1) when officers are
in „hot pursuit‟ of a fleeing suspect; (2) when the suspect presents an immediate threat to
the arresting officers or the public; or (3) when immediate police action is necessary to
prevent the destruction of vital evidence or thwart the escape of known criminals.” State
v. Steven Lloyd Givens, No. M2001-00021-CCA-R3-CD, 2001 WL 1517033 at *3 (Tenn.
Crim. App. Nov. 29, 2001, at Nashville) (citing Jones v. Lewis, 874 F.2d 1125, 1130 (6th
Cir. 1989), cert. denied, 506 U.S. 841, 113 S.Ct. 125, 121 L.Ed.2d 80 (1992)), perm. app.
denied (Tenn. 2002). The State bears the burden of demonstrating “exigent
circumstances that overcome the presumption of unreasonableness that attaches to all
warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80
L.Ed.2d 732 (1984).

Various courts have held that exigent circumstances, which would justify a
warrantless entry, may not be created by the government's actions. See, e.g., United
States v. Haddix, 239 F.3d 766, 767-68 (6th Cir. 2001) (noting police officers may not
create exigent circumstances to justify warrantless intrusions); United States v. Richard,
14
994 F.2d 244, 249 (5th Cir. 1993) (holding that officers improperly created the exigency
when they announced their presence as “warrantless entry became a foregone conclusion
once officers knocked”); United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir.
1986) (concluding warrantless entry was improper where officers created the exigency by
knocking on the door and announcing their presence without a reason to believe the
suspect had prior knowledge of police surveillance); Hornblower v. State, 351 So.2d 716,
718 (Fla. 1977) (concluding “[t]he suspicious movement which occurred when the police
announced their presence cannot supply the exigent circumstances to justify the
warrantless search”); Dunnuck v. State, 367 Md. 198, 786 A.2d 695, 704-05 (Md. 2001)
(noting the officers improperly created the exigency by knocking on the defendant‟s door
and alerting him to their investigation); State v. Williams, 615 N.E.2d 487, 488-89 (Ind.
Ct. App. 1993) (holding that the police officers, who had probable cause to believe drugs
were present inside the defendant's residence, improperly created the “emergency” by
knocking on the door); see also State v. Hendrix, 782 S.W.2d 833, 835 (Tenn. 1989)
(recognizing the doctrine relating to officers‟ creating exigent circumstances but not
applying the doctrine in the case as the officers did not make a warrantless entry or search
the premises).

In State v. Meeks, the Tennessee Supreme Court specifically addressed the exigent
circumstances exception in the context of a methamphetamine lab inside a dwelling, a
hotel room in that particular case. 262 S.W.3d 710 (Tenn. 2008). Addressing exigent
circumstances generally, the Court first stated:

Exigent circumstances are those in which the urgent need for immediate
action becomes too compelling to impose upon governmental actors the
attendant delay that accompanies obtaining a warrant. Thus, in assessing
the constitutionality of a warrantless search, the inquiry is whether the
circumstances give rise to an objectively reasonable belief that there was
a compelling need to act and insufficient time to obtain a warrant. The
exigency of the circumstances is evaluated based upon the totality of the
circumstances known to the governmental actor at the time of the entry.
Mere speculation is inadequate; rather, the State must rely upon specific
and articulable facts and the reasonable inferences drawn from them.
The circumstances are viewed from an objective perspective; the
governmental actor's subjective intent is irrelevant. The manner and the
scope of the search must be reasonably attuned to the exigent
circumstances that justified the warrantless search, or the search will
exceed the bounds authorized by exigency alone. Where the asserted
ground of exigency is risk to the safety of the officers or others, the
governmental actors must have an objectively reasonable basis for

15
 concluding that there is an immediate need to act to protect themselves
and others from serious harm.
Id. at 723-24 (footnotes omitted). Addressing the circumstances of methamphetamine
labs specifically, the Court stated:

Methamphetamine laboratories are regarded as highly dangerous. In
2000, the United States House of Representatives explained:

The methamphetamine epidemic in America differs in kind from
the threat of other illegal drugs because methamphetamine can
be made from readily available and legal chemicals and
substances, and because it poses serious dangers to both human
life and the environment. Additionally, these chemicals and
substances are utilized in a manufacturing process that is
unstable, volatile, and highly combustible. Even small amounts
of these chemicals, when mixed improperly, can cause
explosions and fires. For every one pound of methamphetamine
that is produced, approximately five pounds of toxic and often
lethal waste products may be left behind at the laboratory site, or
disposed of in rivers, kitchen sinks, or sewage systems in an
effort to conceal evidence of illegal manufacturing. More
disturbing is that most of these laboratories are situated in
residences, motels, trailers, and vans, and often times are
operated in the presence of children.

In addition to being highly combustible, the vapors or fumes that are
generated in the production of methamphetamine pose further dangers.
For example, exposure to the toxic fumes or vapors produced during the
manufacture of methamphetamine, some of which are carcinogenic, can
cause serious inhalation injuries to those at the laboratory site and
sometimes even to neighbors.

The hazards posed by an actively operating methamphetamine laboratory
are so significant that a number of state and federal courts have
determined that the discovery of an actively operating methamphetamine
laboratory, in and of itself, creates an exigent circumstance justifying
immediate action without the attendant delays that accompany obtaining
a search warrant. Other courts that have recognized the dangers of
actively operating methamphetamine laboratories have stopped short of
adopting a per se rule. Rather, they have based their finding of exigency
on the location of the particular laboratory. These courts have focused
16
 on whether there were people in the vicinity of the actively operating
methamphetamine laboratory, notably neighbors, law enforcement
officials, and those manufacturing the methamphetamine. Regardless of
the approach taken, whether a per se rule or a determination based upon
the presence of others in the vicinity, the scope of a permissible
warrantless search remains limited to the scope of the exigency.

Id. at 724 (citations omitted).

In Meeks, the court held that the distinctly strong odor of methamphetamine
emanating from the hotel room indicated to the officers that an active methamphetamine
lab was inside the room, putting the occupants and those in the immediate vicinity in
serious danger. Id. at 726-27. The Court held that the conclusion that an active
methamphetamine lab was inside the hotel room “provided the officers with an
objectively reasonable basis for concluding that there was an immediate need to act to
protect themselves and others from serious harm.” Id. at 727. As such, the warrantless
search of the hotel room was justified under the exigent circumstances exception to the
Fourth Amendment. Id.; see also State v. Joseph Meadows, No. M2015-00211-CCA-R3-
CD, 2016 WL 106599, at *6-8 (Tenn. Crim. App. Jan. 11, 2016) perm. app. denied
(Tenn. Mar. 22, 2016).

We note that Detective Zaiden testified that upon entering the residence, the
officers escorted Defendants to the front porch and detained them while Deputy Zaiden
obtained a search warrant. Generally, a suspect may be temporarily detained outside his
or her residence and prevented from entering the residence unaccompanied by a police
officer for a reasonable time while the police obtain a search warrant. See Illinois v.
McArthur, 531 U.S. 326, 331-33, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001). However, we
conclude that the trial court in this case erred by determining that the officers had
justification to enter Defendants‟ residence without a search warrant pursuant to the
exigent circumstances exception. The officers in this case were aware that two boxes of
pseudoephedrine had been delivered to Defendants‟ residence by Mr. Glover and that the
pills would be used to manufacture methamphetamine. However, unlike the officers in
Meeks, there was no indication that methamphetamine was being manufactured in the
residence at that time when the officers entered before the search warrant was obtained.
It was not until officers entered that they saw a “cook bottle” and could smell an odor of
methamphetamine. Therefore, the warrantless entry into Defendants‟ house was
unlawful.

We also reject the officers‟ suggested “exigent circumstance” that if they did not
immediately enter the house where the pseudoephedrine had been delivered, the officers
themselves would be committing a crime. Specifically, Detective Wagonschutz testified,
17
 [A] secured operation is when we do a controlled delivery of
pseudoephedrine. We take certain steps to make sure that it is going to
be used for an illicit purpose.

When we secure the residence, in order to keep from violating the law,
ourselves, when we deliver a box of pseudoephedrine we can‟t allow that
person to turn Sudafed into meth, because then we will have aided in that
crime.

This logic is nothing more than officers creating “exigent circumstances” in order
to enter a home without a warrant. If this reasoning by the officers was valid, then they
would have twice committed the crime of promotion of methamphetamine manufacture
by allowing first “individuals #1 and #2” to deliver the pseudoephedrine to “individuals
#3 and #4” and second, allowing Mr. Glover to deliver the pseudoephedrine to Mr. and
Mrs. Welch. Such result is not the law, just as an undercover officer does not commit a
crime when in the performance of duties, he/she purchases methamphetamine from an
individual.

The State contends that even if the initial warrantless entry and detention were
unlawful, the challenged evidence was not the fruit of the unlawful entry or detention;
instead, the evidence was properly seized as a result of a valid search warrant. We agree.

The exclusionary rule may bar the admissibility of evidence which was obtained
either directly or derivatively from an unconstitutional search or seizure. See Wong Sun
v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, the
exclusionary rule does not apply to evidence obtained by means independent of the
constitutional violation. Id. at 487. Rather, the underlying policy of the “independent
source doctrine” is that “„while the government should not profit from its illegal activity,
neither should it be placed in a worse position than it would otherwise have occupied.‟”
State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992) (quoting Murray v. United States, 487
U.S. 533, 542, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)).

Pursuant to the independent source doctrine, “an unconstitutional entry does not
compel exclusion of evidence found within a home if that evidence is subsequently
discovered after execution of a valid warrant obtained on the basis of facts known
entirely independent and separate from those discovered as a result of the illegal entry.”
Clark, 844 S.W.2d at 600. In order for evidence discovered during the execution of the
subsequent search warrant to be found independent of the prior unconstitutional entry,
information obtained during the unlawful entry must not have been presented to the
issuing magistrate. Clark, 844 S.W.2d at 600.
18
 The probable cause for the search warrant in this case was developed
independently of any information gained from the warrantless entry. Accordingly, we
conclude that the trial court properly denied Defendants‟ motion to suppress because any
evidence obtained was as the result of a valid search warrant. Defendants are not entitled
to relief on this issue.

III. Sufficiency of the Evidence

Both Defendants contend that the evidence was insufficient to support their
convictions for the promotion of methamphetamine manufacturing and the initiation of
methamphetamine manufacturing. Defendant John Welch also challenges his conviction
for possession of drug paraphernalia. However, we find that the evidence was sufficient
beyond a reasonable doubt to support the convictions.

When an accused challenges the sufficiency of the convicting evidence, our
standard of review is whether, after reviewing the evidence in a 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, 61 L.Ed.2d 560 (1979). The trier of fact, not this Court, resolves questions
concerning the credibility of the witnesses, and the weight and value to be given the
evidence as well as all factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d
926, 932 (Tenn. Crim. App. 1995). Nor may this Court reweigh or re-evaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is
entitled to the strongest legitimate view of the evidence and all inferences therefrom. Id.
Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this Court of illustrating why the
evidence is insufficient to support the verdict returned by the trier of fact. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “[D]irect and circumstantial evidence should
be treated the same when weighing the sufficiency of [the] evidence.” State v. Dorantes,
331 S.W.3d 370, 381 (Tenn. 2011).

Tennessee Code Annotated section 39-17-433 provides:

(a) It is an offense for a person to promote methamphetamine
manufacture. A person promotes methamphetamine manufacture who:
(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.

19
 (2) Purchases or possesses more than nine (9) grams of an immediate
methamphetamine precursor with the intent to manufacture
methamphetamine or deliver the precursor to another person whom they
know intends to manufacture methamphetamine, or with reckless
disregard of the person‟s intent; or

(3) Permits a person to use any structure or real property that the
defendant owns or has control of, knowing the person intends to use the
structure to manufacture methamphetamine, or with reckless disregard of
the person‟s intent.

Tennessee Code Annotated section 39-17-435(a) provides: “It is an offense for a
person to knowingly initiate a process intended to result in the manufacture of any
amount of methamphetamine.” Initiate is defined as “begin[ning] 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.”
T.C.A. § 39-17-435(c). Tennessee Code Annotated section 39-17-425(a)(1) provides:

[I]t is unlawful for any person to use, or to possess with intent to use,
drug paraphernalia to plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process, prepare, test,
analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or
otherwise introduce into the human body a controlled substance or
controlled substance analogue in violation of this part.
Methamphetamine is a Schedule II controlled substance. T.C.A. § 39-17-408(d)(2).

Detective Zaiden, who was certified as a methamphetamine expert, testified that
pseudoephedrine is a precursor to methamphetamine. Mr. Castille and Ms. Hicks both
told Detective Zaiden that the two boxes of pseudoephedrine that they purchased would
be sold to Mr. Glover and that it would be used to manufacture methamphetamine. When
Mr. Glover was pulled over after obtaining the two boxes of pseudoephedrine from Mr.
Castille and Ms. Hicks during the controlled delivery, he agreed to make a controlled
delivery of the two boxes of pseudoephedrine to Defendants. Mr. Glover spoke with
Laurie Welch by phone and told her, “Well, I have those two things for you.” Mrs.
Welch replied: “Yeah, come on. Come on over.” The “two things” referred to the two
boxes of pseudoephedrine. Mr. Glover testified that even before he was stopped by
police, he had planned to give the pseudoephedrine to Defendants to make
methamphetamine. Mr. Glover drove to Defendants‟ house at approximately 11:00 p.m.
to deliver the two boxes of pills. Mr. Glover testified that he took the two boxes of
pseudoephedrine inside the residence and placed them on a table in the living room in
20
front of both Defendants. Mr. Welch then offered to reimburse Mr. Glover for the pills.
Mr. Glover understood that payment for the pseudoephedrine pills would be in the form
of a finished methamphetamine product. This proof established each Defendant‟s guilt of
the offense of promotion of methamphetamine manufacture beyond a reasonable doubt.

The residence was searched pursuant to a search warrant. An active
methamphetamine “lab” was found in the house that consisted of a “cook bottle,” which
Detective Zaiden described as the “actual apparatus that is used to manufacture meth in
the process of manufacturing meth.” He further explained that all of the ingredients used
to manufacture methamphetamine are placed inside the bottle and mixed together. It is
also known as the “shake and bake” method. The bottle contained a clear liquid that was
tested and determined to contain methamphetamine which would later become “usable”
methamphetamine during the “gassing-off” process. The officers testified that the odor
of the active methamphetamine was a strong and distinct smell.

During the search of the residence, officers also discovered an ammunition can
which contained the following items: seven packages of plastic tubing; two packages of
coffee filters; one black meth pipe; one opened instant cold pack; a one-gallon bottle of
muriatic acid; a one-gallon can of lantern fuel; one gas generator bottle; two one-pound
bottles of lye; one small funnel; one measuring cup; one small tin can with eleven lithium
batteries; five used coffee filters; and four bottle caps. Detective Zaiden explained that
all of the items are commonly used in the manufacture of methamphetamine. This
evidence establishes each Defendant‟s guilt of the offense of initiating a process intended
to result in the manufacture of methamphetamine beyond a reasonable doubt.

In addition to the items in the ammunition can, officers also found additional
plastic tubing, a razor blade with residue that field-tested positive for methamphetamine,
eight aluminum “boats,” a case with a glass pipe, a small black electronic scale
commonly used to measure methamphetamine to sell, two metal grinders with marijuana
residue, a white pill bottle with burnt marijuana cigarettes, a hemostat with a burnt
marijuana cigarette, a glass marijuana pipe, a package of rolling papers, a white electric
blender commonly used to grind pseudoephedrine pills, a package of AA lithium
batteries, and pipe cutters. Detective Zaiden testified that pipe cutters are commonly
used to open lithium batteries.

Mr. Welch contends that there was no evidence presented to show that he was in
“actual possession of any drug paraphernalia, specifically, aluminum “boats.” Mr. Welch
further argues that the “paraphernalia was found on a table inside the residence” and that
there “had been at least two other individuals in the house who could have been in
possession of the paraphernalia[.]”

21
 Possession may be actual or constructive. See State v. Shaw, 37 S.W.3d
900, 903 (Tenn. 2001). If possession is deemed to be constructive, there
must be proof that the accused 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 (quoting State v. Patterson,
966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)). The mere presence of
an individual in an area where drugs are found is not sufficient, standing
alone, to find constructive possession. State v. Bigsby, 40 S.W.3d 87, 90
(Tenn. Crim. App. 2000). Similarly, an individual‟s mere association
with a person in control of the drugs or the property where the drugs are
located is not enough to support a finding of knowing possession. State
v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987).

Constructive possession depends on the totality of the circumstances in
each case. It may be proven by circumstantial evidence. Tenn. Code
Ann. § 39-17-419 (2006) (stating that possession may be inferred from
“relevant facts surrounding the arrest”). Circumstantial evidence is
sufficient to sustain a defendant's conviction even if the evidence does
not “remove every reasonable hypothesis except that of guilt.” State v.
Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011) (quoting United States v.
Kelley, 461 F.3d 817, 825 (6th Cir. 2006)). The evidence presented,
however, must be sufficient for a rational trier of fact to find the
defendant guilty beyond a reasonable doubt. Cooper, 736 S.W.2d at
129.

State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013).

In this case, the circumstantial evidence was sufficient to show that Mr. Welch had
constructive possession of the drug paraphernalia found in his home. Mr. Glover testified
that Mr. Welch offered to “pay” him for the boxes of pseudoephedrine with
methamphetamine. When Detective Zaiden asked Mr. Welch about all of the items
found in the house, Mr. Welch said, “It is what it is.” A reasonable juror could conclude
that Mr. Welch made an implicit admission that the items were drug paraphernalia used
to manufacture or ingest the controlled substance, methamphetamine.

Based upon the evidence presented, a rational jury could find each Defendant
guilty of promotion of methamphetamine manufacturing and the initiation of
methamphetamine manufacturing. A rational jury could also find Defendant John Welch
guilty of possession of drug paraphernalia. Defendants are not entitled to relief as to this
issue.

22
 IV. Sentencing

Defendant John Welch contends that his effective eighteen-year sentence is
“excessive and inconsistent with the purposes and principles of sentencing.” He further
contends that “[n]o enhancement factors were filed by the State; however, the trial court
considered Appellant‟s criminal history as an enhancement factor.”

When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court‟s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “„reflects that the trial court‟s logic
and reasoning were improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.‟” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant‟s own behalf
about sentencing. See T.C.A. § 40-35-210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001). The trial court must also consider the potential or lack of potential for
rehabilitation or treatment of the defendant in determining the sentence alternative or
length of a term to be imposed. T.C.A. § 40-35-103.

To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. T.C.A. § 40-
35-210(e); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in the articulation of
the reasons for imposing a particular sentence . . . should not negate the presumption [of
reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging the sentence on
appeal bears the burden of establishing that the sentence was improper. T.C.A. § 40-35-
401, Sentencing Comm‟n Cmts.

Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement and mitigating factors are advisory only. See T.C.A. § 40-35-114;
see also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).
Our supreme court has stated that “a trial court‟s weighing of various mitigating and
23
enhancement factors [is] left to the trial court‟s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is „consistent with the purposes and principles
of [the Sentencing Act].” Id. at 343 (emphasis added). Appellate courts are “bound by a
trial court‟s decision as to the length of the sentence imposed so long as it is imposed in a
manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Id. at 346.

In Bise, our supreme court held:

We hold, therefore, that a trial court‟s misapplication of an enhancement
or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005. So
long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by
the trial court within the appropriate range should be upheld.

Bise, 380 S.W.3d at 706 (emphasis added). In its conclusion, the supreme court pointed
out that in sentences involving misapplication of enhancement factors (even in those
cases where no enhancement factor actually applies) the sentences must still be affirmed
if the sentences imposed are within the appropriate range, and the sentences are in
compliance with statutory sentencing purposes and principles. Id. at 710.

Our General Assembly has enacted twenty-five (25) statutory sentencing
enhancement factors; however, they are not binding upon the trial courts. T.C.A. § 40-
35-114 (Supp. 2015). As previously noted, the weighing of mitigating and enhancement
factors is left to the trial court‟s discretion, Carter, 254 S.W.3d at 345, and in fact the trial
court‟s weighing of enhancement or mitigating factors is not a ground for appellate relief.
Id.; T.C.A. § 40-35-401(b). The standard of review established in Bise provides that the
minimum sentence can be imposed even if the trial court correctly applies all twenty-five
enhancement factors, or conversely the maximum sentence can be imposed even if no
statutory enhancement factors are applicable, so long as the sentence is within the correct
range and the sentence complies with the sentencing purposes and principles.

The applicable sentencing range for a Range II Multiple Offender convicted of a
Class B felony is 12 to 20 years, and the range for a Class D felony is 4 to 8 years.
T.C.A. §§ 39-17-4385(f); 39-13-210(c); 40-35-112(b)(2). The trial court explained in
detail the factors that it considered in sentencing Defendant. The court found as an
enhancement factor that Defendant has a previous history of criminal convictions or
criminal behavior, in addition to those necessary to establish the appropriate range.
T.C.A. § 40-35-114(1). Concerning this issue, the trial court said:
24
 The prior criminal history of Mr. Welch is significant, in this Court‟s
eyes, from age 17 to 34. Mr. Welch has a total of six prior felony
convictions before our offense; including Attempted Voluntary
Manslaughter, Armed Robbery, the old charge of Larceny, Attempted
Burglary, Escape, and Voluntary Manslaughter. Most of those, in this
Court‟s eyes, involve violent felonies.

He also has six prior misdemeanor convictions. Three are traffic, a
D.U.I., marijuana, and a weapon conviction.

He also, according to the record, is a multi-county offender; Maury,
Lawrence, and Davidson.

The record supports the application of this factor, and Defendant does not challenge its
application. The trial court did not find any mitigating factors that applied to Mr. Welch.

Mr. Welch also seems to imply that since State did not file any enhancement
factors for the sentencing hearing, the trial court could not consider his criminal history
as an enhancement factor. However, the application of enhancement and mitigating
factors is left to the trial court‟s discretion. Carter, 254 S.W.3d at 345. Therefore, the
lack of enhancement factors filed by the State prior to sentencing would not preclude the
trial court from considering Defendant‟s prior criminal history as an enhancement factor.
We note that prior to trial, the State filed a notice to seek enhanced punishment as a
Range II offender as required by T.C.A. § 40-35-202(a). Also, there is no statutory
requirement that the State file notice of proposed enhancing factors for sentencing in the
appropriate range.

The trial court in this case clearly stated that it had considered all of the relevant
sentencing information, and we have no reason to doubt the trial court‟s statement. State
v. Darrel Dean Hochhalter, No. M2014-01106-CCA-R3-CD, 2015 WL 4556917, at *17
(Tenn. Crim. App. July 29, 2015). Because the trial court properly considered the
evidence offered by the parties, stated on the record what enhancement and mitigating
factors were considered, and complied with the purposes and principles of sentencing and
imposed a within range sentence, the trial court did not abuse its discretion in enhancing
Defendant‟s sentence and sentencing him to eight years for the promotion of
methamphetamine manufacturing and eighteen years for the initiation of
methamphetamine manufacturing. Defendant is not entitled to relief.

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Accordingly, the judgments of the trial court are affirmed.

___________________________________________
THOMAS T. WOODALL, PRESIDING JUDGE

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