State of Tennessee v. Raymond Lee Gibson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

October 24, 2006 Session

STATE OF TENNESSEE v. RAYMOND LEE GIBSON

Appeal from the Criminal Court for Hamilton County

No. 254704 Rebecca J. Stern, Judge

No. E2006-00450-CCA-R3-CD - Filed April 27, 2007

The defendant, Raymond Lee Gibson, was convicted by a Hamilton County jury of one count of

manufacturing methamphetamine. On appeal, he raises several evidentiary issues for our review and

argues that the evidence is insufficient to support his conviction. After review of the record, we are

not persuaded that the evidentiary issues merit relief, and we hold that the evidence at trial was

sufficient to support the manufacturing conviction. The judgment of conviction is, therefore,

affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,

and JOHN EVERETT WILLIAMS, J., joined.

Robin Ruben Flores, Chattanooga, Tennessee, for the Appellant, Raymond Lee Gibson.

Robert E. Cooper, Jr., Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General;

William H. Cox, District Attorney General; and James A. Woods, Jr., Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

The defendant stands convicted of manufacturing methamphetamine, see T.C.A. §

39-17-417 (2006). The conviction is based on the March 28, 2004 discovery and seizure of

numerous items commonly used in the manufacture of methamphetamine inside a bathroom cabinet

in an apartment located at 510 Central Avenue in Chattanooga. Melissa Miller had leased the

apartment, where she resided along with her son, her sister, and the defendant. The defendant was

not present in the apartment when police officers found the incriminating items, and he was not

arrested until several months later. The defendant made no inculpatory admissions or incriminating

statements when arrested.

On August 18, 2004, the Hamilton County Grand Jury returned a one-count

presentment charging the defendant, Ms. Miller, and Aimee Mallett, who was Ms. Miller’s sister,

with unlawful manufacture of methamphetamine. The defendant’s case was severed from that of

his co-defendants, and he was tried on June 28, 2005. A jury found the defendant guilty of the

charged offense, and the trial court sentenced him to a four-year incarcerative sentence to be served

consecutively to an Alabama conviction for which he received a 10-year sentence.

On appeal the defendant assails various evidentiary rulings at trial, which the State

maintains were not properly objected to at trial, but the thrust of the defendant’s argument is that the

State’s evidence is insufficient to link him to the “meth lab.” As we shall explain, the evidence

presented was sufficient to support the manufacturing conviction.

At trial, the State led with the testimony of Chattanooga Narcotics Detective Phillip

Narramore. The defense stipulated to Detective Narramore’s qualifications as a trained narcotics

officer, but at the trial court’s suggestion, the State asked the detective to elaborate on his education

involving methamphetamine manufacturing operations (MMOs). Detective Narramore testified that

during his training at the Drug Enforcement Administration’s Academy in Quantico, Virginia, he

learned how methamphetamine was made, and he actually “cook[ed]” methamphetamine in a

laboratory setting. Furthermore, he received extensive training in dismantling MMOs and the critical

safety factors that must be followed. The detective described the toxic fumes and explosive fumes

commonly encountered.

Detective Narramore testified that the MMOs commonly seen in Hamilton County

are categorized as “red phosphorous labs,” which produce phosgene gas.1 A required ingredient is

pseudoephedrine or ephedrine. Detective Narramore testified that he had previously been accepted

as an expert on MMOs.

On March 28, 2004, Detective Narramore was the assigned “site safety officer” with

the responsibility of supervising the dismantling of an MMO found at 510 Central Avenue,

Apartment 914. The detective went inside the apartment and personally observed component items

for an MMO, such as iodine, tubing, muriatic acid, hydrogen peroxide, mason jars, coffee filters, and

aluminum foil. These items were discovered “underneath the bath sink in the bathroom with [the

cabinet] screwed shut.” In Detective Narramore’s opinion, the materials and equipment he found

under the sink on March 28, 2004, indicated an MMO.

On cross-examination, Detective Narramore testified that he did not participate in any

arrests at the apartment; another officer served as the lead investigator. Detective Narramore was

involved in collecting and cataloguing the items found under the sink. He explained that the items

1

The trial transcripts reflect that when the detective offered this testimony, the defense requested a bench

conference to register a complaint that the State was straying beyond what was needed to set forth the detective’s

expertise with MMOs. The trial court instructed the State to limit its examination. The defense did not request that the

testimony be stricken or that the court admonish the jury regarding the testimony.

-2-

could not be submitted for fingerprint testing because “once [the items] are inside a

methamphetamine lab, they are contaminated [and a] biohazard.” The detective further explained

that once the contaminated items are removed, Occupational Safety and Health Administration

(OSHA) guidelines require them to be sent to Ferguson-Harbour, a company that performs chemical

cleanup. The defense showed the detective a photograph of the defendant, and the detective testified

that he did not recognize the photographed individual.

On redirect examination, Detective Narramore related that pursuant to OSHA

regulations, Ferguson-Harbour destroyed the contaminated items; therefore, nothing remained of the

MMO for the prosecution to physically produce for the jury’s inspection.

Todd Floyd, a Chattanooga police officer formerly assigned to special investigations,

narcotics division, testified that he was certified in disposal of methamphetamine and “working

methamphetamine labs.” In his work, Officer Floyd had interviewed “meth cooks.” Many times,

the officer observed blisters, scars, and burn marks on the methamphetamine cooks’ hands from the

chemicals used to make methamphetamine. He testified that “around their fingernails you will also

start seeing a very strong yellow color and also on the palm of their hands a yellow color from

dealing with the chemicals.” Officer Floyd described the odor associated with an MMO as a “real

acid smell” akin to the smell of “cat urine.”

Officer Floyd was the first person, other than possibly tactical team members, who

entered the apartment and located the MMO. Officer Floyd was dressed in a hazardous materials

protective suit with an independent oxygen supply. Officer Floyd testified that upon entering the

apartment, he found a bedroom on the right side and another bedroom on the left side. Each

bedroom had an attached bathroom. The officer walked into the bedroom and bathroom on the left;

in the bathroom, he discovered that the cabinet doors underneath the sink vanity had been “fastened

with wood screws.” He removed the screws to open the cabinet and discovered an MMO.

According to procedure, he personally carried all of the components outside to a secure perimeter,

where the components were inventoried and later picked up for chemical cleanup. No attempt was

made to fingerprint any of the contaminated components, and Officer Floyd testified that he was not

trained to take fingerprints.

Officer Joseph Harper, who was trained in dismantling MMOs, testified about the

procedure when an MMO is discovered. With the discovery at Apartment 914, he related that the

apartment manager was alerted, and the officers went to every apartment and directed any occupants

to evacuate the area. Officer Harper established the outside perimeter where Officer Floyd brought

the MMO components to be inventoried and later picked up for disposal by Ferguson-Harbour.

Officer Harper read from his inventory the items taken from the apartment, which included Mason

jars full of used coffee filters with iodine residue, 25 feet of tubing, unused coffee filters, a hot plate,

a six-ounce bottle of iodine, 500 matchbooks used to extract red phosphorous, funnels, glass pipe,

“a thirty gallon tote” used to mix substances, Coleman fuel, various jars containing liquid substances,

a can of Red Devil lye, denatured alcohol, a bottle of hydrogen peroxide, aluminum foil, an empty

-3-

muriatic acid container, a crock pot, and “white sludge” suspected of being pseudoephedrine.

Officer Harper took photographs at the scene, and he identified each one for the jury.

Melissa Miller, the individual who rented Apartment 914, testified for the State that

she had twice used methamphetamine. In March 2004, she, her son, her sister, and the defendant

were living in the apartment. Ms. Miller testified that her bedroom and bathroom were on the right

side of the apartment, that a common dining room, living room, and kitchen were in the middle of

the apartment, and that the defendant and Ms. Mallett used the bedroom and bath on the left side of

the apartment.

Ms. Miller testified that she never entered the defendant’s bedroom. She said that

“[f]or the most part . . . [she] was real bad sick . . . [with] a broken back” and that she “stayed in bed

most of the time.” Regarding unusual things that occurred in the apartment, Ms. Miller recalled once

returning from a meal and “smell[ing] fingernail polish remover very strong.” Also, at times she

detected a “real strong odor of cat urine.” Ms. Miller testified that the clothes her sister and the

defendant wore smelled like cat urine, as did their bedroom. Coffee filters appeared in the

apartment, which was unusual because she did not have a coffee maker. She saw Red Devil lye in

the house, which she denied purchasing. Ms. Miller testified that the defendant’s hands “looked

really nasty like they had been burned real bad” and that his clothes “smelled like cat urine or some

kind of chemical smell.”

On cross-examination, the defense established that Ms. Miller had a pending

methamphetamine manufacturing charge arising from the March 28, 2004 incident. She was

scheduled to appear in court on her charges after the defendant’s trial, and she insisted that she

expected no leniency from the State based on her testimony. She was aware that the defendant was

not arrested until several months after the MMO discovery; she stated that the defendant was arrested

after she “informed the police where he was.”

The final proof the State offered was a stipulation with the defense that the apartment

in question was located in Hamilton County.

The defendant did not testify or offer any evidence on his behalf.

From the evidence presented, the jury found the defendant guilty of manufacturing

methamphetamine.

SUFFICIENCY OF THE EVIDENCE

When a defendant challenges the sufficiency of the convicting evidence on appeal,

this court begins with the premise that a guilty verdict “removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a convicted

defendant has the burden of demonstrating that the evidence is insufficient.” State v. Williams, 913

S.W.2d 462, 466 (Tenn. 1996). The State is not only entitled to the strongest legitimate view of the

-4-

evidence on appeal, but it is also entitled to all reasonable and legitimate inferences that may be

drawn from the evidence. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). In determining the

sufficiency of the evidence, this court does not reweigh the evidence, State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978), and we do not substitute our inferences for those drawn by the trier of fact,

State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998). Consequently, when the sufficiency of the

evidence is challenged, “the standard for review by an appellate court is whether, after considering

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.” State v. Smith, 24 S.W.3d 274, 278

(Tenn. 2000) (quoting State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999)); see also Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2791-92 (1979).

These rules apply to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Winters, 137 S.W.3d 641,

654 (Tenn. Crim. App. 2003). An accused may be convicted exclusively on circumstantial evidence

only when the facts and circumstances are so strong and cogent as to exclude every other reasonable

hypothesis save the guilt of the defendant, State v. Crawford, 225 Tenn. 478, 482, 470 S.W.2d 610,

612 (1971). In other words, “[a] web of guilt must be woven around the defendant from which he

cannot escape and from which facts and circumstances the jury could draw no other reasonable

inference save the guilt of the defendant beyond a reasonable doubt.” Id. at 484, 470 S.W.2d at 613.

Our review of the record in this case discloses that the State’s evidence, attributable

to the testimony of Detective Narramore and Officers Floyd and Harper, did not demonstrate that

the defendant owned, leased, resided, or visited the property where the components for an MMO

were discovered; indeed, the officers’ testimony never addressed anyone’s ownership, leasehold,

residency, or visitation of the property. None of the officers recognized the defendant, and the

officers did not connect the purchase or assembly of any of the seized items to the defendant.

Nothing was introduced to show that methamphetamine was discovered in the apartment.

Officer Harper mentioned that they were “running . . . a gas tech” indicating “that the

environment was extremely hazardous” and had “contaminates in the area.” The State, however,

failed to call anyone from the Tennessee Bureau of Investigation or some other forensic chemical

testing facility to testify that items seized from the apartment tested positive for methamphetamine

or the presence of pseudoephedrine. Pseudoephedrine, a required element in manufacturing

methamphetamine, was not listed among the inventoried items enumerated by Officer Harper in his

testimony. At one point, Officer Harper expressed his suspicion about the chemicals discovered, and

he added that “once these items [were] sent off to the TBI, they were tested positive for

methamphetamine.” However, the trial court sustained the defense objection and instructed the jury

that the officer was “not an expert in chemistry and can’t really make conclusions about chemistry

or the makeup of chemicals or what lab reports may or may not do, what the TBI may or may not

do.”

Moreover, the State offered no testimony regarding the defendant’s appearance when

he was arrested; no incriminating statements were attributed to the defendant, and the State never

-5-

mentioned whether the defendant was in possession of any methamphetamine at the time of his arrest

or at any other time.

Accordingly, all of the evidence that inculpated the defendant was supplied by Ms.

Miller. To be sure, she testified that she never entered the defendant’s bedroom, and she did not

suggest that the defendant was the individual who purchased or brought the coffee filters and Red

Devil lye into the apartment. She certainly never claimed to have witnessed the defendant

manufacturing methamphetamine or possessing or using that drug – or any other illegal substance.2

Ms. Miller did not testify about the officers’ discovery and seizure of the items from her apartment.

Furthermore, she never specifically identified who was in the apartment at that time, and it is

unknown from her testimony when the defendant was last in the apartment. Her testimony, however,

did establish (1) that the defendant had been residing in her apartment, (2) that her sister and the

defendant were cohabiting and using the bedroom and bathroom on the left side of the apartment

where the items seized were located, (3) that their bedroom smelled like cat urine, as did her sister’s

and the defendant’s clothing, and (4) that the defendant’s hands “looked really nasty like they had

been burned real bad.”

No evidence that pointed the accusatory finger at the defendant corroborated Ms.

Miller’s testimony. In Tennessee, a defendant cannot be convicted solely upon the uncorroborated

testimony of an accomplice. See State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001).

There must be some fact testified to, entirely independent of the

accomplice’s testimony, which, taken by itself, leads to the inference,

not only that a crime has been committed, but also that the defendant

is implicated in it; and this independent corroborative testimony must

also include some fact establishing the defendant’s identity. This

corroborative evidence may be direct or entirely circumstantial, and

it need not be adequate, in and of itself, to support a conviction; it is

sufficient to meet the requirements of the rule if it fairly and

legitimately tends to connect the defendant with the commission of

the crime charged.

Bane, 57 S.W.3d at 419 (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)) (emphasis

added).

We are not persuaded, however, that Ms. Miller met the legal definition of an

“accomplice.” The supreme court in State v. Bough, 152 S.W.3d 453 (Tenn. 2004), explained,

An accomplice is one who knowingly, voluntarily, and with common

intent participates with the principal offender in the commission of a

2

The court sustained the defense objection and struck M s. M iller’s testimony that she knew that her sister and

the defendant had a history of manufacturing methamphetamine.

-6-

crime. State v. Lewis, 36 S.W.3d 88, 94 (Tenn. Crim. App. 2000);

Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975). To

satisfy the definition of an accomplice, it is not enough that the

witness merely possess guilty knowledge, is morally delinquent, or

even participated in a distinct but related offense. See State v.

Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990).

Bough, 152 S.W.3d at 464.

The evidence in this case falls short of demonstrating that Ms. Miller knowingly,

voluntarily, and with common intent participated with the defendant in manufacturing

methamphetamine at the apartment. She never admitted witnessing the defendant’s making

methamphetamine, much less knowingly and voluntarily participating in its manufacture. Ms. Miller

never testified that she was aware that the odor of cat urine and burns on an individual’s hands could

be indicators that the individual was manufacturing methamphetamine. However, even if such

information could be imputed to her, it proved no more than her guilty knowledge or moral

delinquency.

In addition, we do not regard Ms. Miller to be an accomplice merely because she was

jointly indicted with the defendant. See Ripley v. State, 189 Tenn. 681, 227 S.W.2d 26, 29 (1950).

Language can be found that a test for whether a witness is an accomplice is whether the witness

could have been indicted for or convicted of the offense. See Bough, 152 S.W.3d at 464 (“could

have been convicted”); Pennington v. State, 478 S.W.2d 892, 897 ( Tenn. Crim. App. 1971) (“could

be indicted”). Certainly, no evidence appeared in this case that Ms. Miller stood convicted of

methamphetamine manufacturing, and under the “could be indicted” formulation, the evidence that

could have led to an indictment must have been, but was not, shown. The mere fact of indictment,

as in this case, without some underlying evidence to gauge the basis for the indictment is insufficient.

That said, we still must consider whether the evidence, so viewed, is legally sufficient

to support the manufacturing conviction. The defendant was convicted of manufacturing a Schedule

II controlled substance in violation of Code section 39-17-417(a)(1), which states that it is a crime

for a person knowingly to manufacture a controlled substance. See T.C.A. § 39-17-417(a)(1) (2006).

As provided by Code section 39-17-408(d)(2), methamphetamine is a Schedule II controlled

substance. Id. § 39-17-408(d)(2). At the time of the offense, “[m]anufacture” was 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.

-7-

Id. § 39-17-402(15) (amended 2005). As emphasized in State v. David Long, No. W2003-02522-

CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Jackson, Mar. 4, 2005), “[t]he conduct prohibited by

the statute is that of ‘manufacturing.’” (Emphasis added.)

We have canvassed relevant case law regarding methamphetamine manufacturing

convictions. A clear case of methamphetamine manufacturing arose in State v. Franklin Darnell

Brown, Jr., No. W2003-01863-CCA-R3-CD (Tenn. Crim. App., Jackson, Sept. 16, 2004), when the

defendant was “caught in the act of manufacturing methamphetamine” as evidenced by “a plastic

bag containing ephedrine tablets, coffee filters, plastic tubing, rubber gloves, and pliers in the

defendant’s sleeping quarters,” by “a white box that had been used as a container for ether or

anhydrous ammonia, salt, glass containers, funnels, spoons, paper towels, cotton balls, coffee filters,

and Rooto, a product mixed with salt to ‘gas’ methamphetamine,” in the shed behind the defendant’s

house, by “small containers with white residue believed to have been used for crushing pills and a

glass jar of nearly finished methamphetamine,” and by “a twenty-pound propane tank that had been

used to store anhydrous ammonia,” in a nearby log cabin. Id., slip op. at 1-2, 3. At trial, one of the

officers testified that the glass jar of partially manufactured methamphetamine found in the shed

required only “fifteen to thirty minutes . . . gas time and drying time” to be a finished product. Id.,

slip op. at 2. The court concluded that the interruption of the defendant’s advanced manufacturing

efforts by the police did not defeat his conviction. See id., slip op. at 3.

In State v. Michael Joseph Cook, No. W2002-01924-CCA-R3-CD (Tenn. Crim. App.,

Jackson, June 27, 2003), drug task force officers discovered evidence of methamphetamine

production in a remote wooded area accessible to the public. The officers monitored the area, and

at a later time, they found the defendant and a companion in the area with the defendant’s truck

parked nearby. See id., slip op. at 1. The officers smelled a strong odor of ether, and approximately

six feet from the truck, they found a closed one-gallon glass jar containing some of the ingredients

necessary to manufacture methamphetamine. They also discovered a short distance from the truck

an empty container that smelled like anhydrous ammonia, empty boxes of suphedrine, and a duffle

bag containing ether, pliers, “liquid fire,” coffee filters, tubing, glass jars, and lithium batteries. A

baggie containing processed methamphetamine had been hidden underneath the front bumper of the

defendant’s truck. Id., slip op. at 1-2. This court sustained the defendant’s manufacturing

conviction, pointing to evidence (1) that, with the exception of anhydrous ammonia, all ingredients

necessary to manufacture methamphetamine were found in the immediate area of the defendant’s

vehicle, (2) that packaging for suphedrine was near the truck, (3) that the closed glass jar likely

contained anhydrous ammonia and crushed suphedrine tablets, (4) that a nearby empty container

smelled like ammonia, (5) that the duffle bag contained MMO materials, and (5) that processed

methamphetamine was hidden in the defendant’s vehicle. See id., slip op. at 4.

In State v. Blair, 145 S.W.3d 633 (Tenn. Crim. App., 2004), the defendant was found

at a campsite with much of the equipment and chemicals commonly used to make

methamphetamine; iodine and anhydrous ammonia, however, were not among the chemicals found.

See id., 636-37. One of the officers at the scene detected the odor of ether emanating from a closed

cooler, which, when opened, was found to contain a “red bucket containing a liquid and something

-8-

floating in the liquid.” Id. Subsequent testing identified the floating substance in the red bucket as

pseudoephedrine. One of the state’s experts testified that the pseudoephedrine in the red bucket was

an immediate precursor to making methamphetamine, and in the expert’s opinion the defendant was

manufacturing methamphetamine. See id., at 637. On appeal, the court sustained the defendant’s

conviction even though processed methamphetamine was not found at the camp site and even though

pseudoephedrine was not, at the time, classified by statute as a immediate precursor to

pseudoephedrine.3 The court explained that “the fact that pseudoephedrine is not listed does not

mean it is not [in fact] an immediate precursor to the drug, i.e., a substance from which the drug is

derived,” and the court held that “based upon the expert’s opinion and the evidence found at the

campsite, a rational jury could have found beyond a reasonable doubt that the defendant was guilty

of manufacturing methamphetamine.” Id., at 639.

In State v. James Castile, No. M2004-02572-CCA-R3-CD (Tenn. Crim. App.,

Nashville, June 28, 2006), a Ramada hotel front desk clerk called the police to report a chemical

smell coming from one of the rooms. The defendant refused to consent to the officers’ searching

his room, but after obtaining a search warrant, officers discovered “numerous items and substances

associated with the manufacturing of methamphetamine, including eleven packages of

psuedoephedrine, a hot plate, a notebook containing a formula for methamphetamine, water purifier,

five thermometers, a coffee grinder, tubing, plastic baggies[,] three bags of methamphetamine with

a total weight of about 4.75 grams[,] . . . chemicals common to the methamphetamine manufacturing

process, such as acetone, methyl alcohol, drain opener, salt[,] and two jars of a clear substance later

identified as liquid ephedrine in a chemical solvent.” Id., slip op at 2, 5. The defendant admitted

manufacturing methamphetamine for his personal use, but he insisted that at the time of his arrest

that he “did not have the anhydrous ammonia or the lithium required to complete the process.” Id.,

slip op. at 6. The defendant conceded, however, “that he had completed the first step in the process

by extracting the pseudoephedrine in a solution that was contained in the jars found at the hotel

room.” Id. On appeal, the court affirmed the defendant’s conviction even though the defendant was

not in possession of two products required to complete the process. Relying on the officers’

testimony and the defendant’s admissions, the court ruled that “it is clear a reasonable jury could

have concluded that the appellant was at least engaged in the ‘preparation’ ‘of a controlled

substance.’” See id., slip op. at 11.

On the other hand, in State v. David Long, No. W2003-02522-CCA-R3-CD (Tenn.

Crim. App., Jackson, Mar. 4, 2005), the court held that the evidence was legally insufficient to

support a manufacturing conviction and remanded the case for trial on the lesser included offense

of attempted manufacturing of methamphetamine. See id., slip op. at 4, 6-8. In that case, the

defendant was stopped while driving, whereupon the officer “immediately noticed boxes and blister

packs of pseudoephedrine scattered on the floor and a can of ether starting fluid sticking out of a

3

In 2005, the legislature amended Code section 39-17-402 by adding a new subsection (13) and redesignating

former subsections (13) through (26) as (14) through (27). See 2005 Tenn. Pub. Acts ch. 18, § 17. The new subsection

(13) provides that “immediate methamphetamine precursor” means, in relevant part, “ephedrine, pseudoephedrine, or

phenylpropanolamine.” Id. W e note that no corresponding change was made to code section 39-17-408(f), which lists

“phenylacetone” as the immediate precursor to methamphetamine. Id. § 39-17-408(f)(1) (2006).

-9-

plastic bag.” See id., slip op. at 2. A search of the trunk “yielded fourteen blister packs of

Sudafedrin, six boxes of Sudafed, and approximately ten boxes of Wal-fed, with corresponding

receipts dated October 9, [the same day as the stop]” along with “three cans of starting fluid,

aluminum foil, . . . phosphorous matches[,]. . . instructional materials for the manufacture of

methamphetamine, which the proof suggested were obtained from internet sources, and a drug pipe

in the briefcase.” Id. In reversing the defendant’s conviction, the court explained,

At trial, [the arresting officer] admitted that he did not smell

ether or ammonia at the scene or see any lab equipment utilized in the

manufacturing of methamphetamine in the truck. Moreover, the

record fails to establish any evidence of production, compounding,

converting, processing, or extraction of any controlled substance.

Indeed, none of the cold medicines had been removed from the blister

packs or boxes in which they had been purchased.

The facts relevant to manufacturing establish that the

Appellant was in possession of a large quantity of cold remedy

medications containing pseudoephedrine, three cans of starting fluid,

recipes for manufacturing methamphetamine, phosphorous matches,

and a small quantity of methamphetamine. The Appellant asserts that

there was no evidence whatsoever that he had begun the process of

manufacturing. He concedes that while he “may have fully intended

to manufacture a controlled substance at some future date,” he was

not manufacturing when arrested.

The State relies upon State v. Barton Derek Grande, No.

W2002-01893-CCA-R3-CD (Tenn. Crim. App. at Jackson, Sept. 2,

2003), for the proposition that the evidence is sufficient to support the

conviction if a defendant is in possession of the necessary ingredients

for manufacturing methamphetamine in addition to the finished

product. We find this reliance misplaced based upon the facts of the

case. In Grande, the defendant was found in a car from which a

strong odor, consistent with the manufacturing of methamphetamine,

was emanating. Inside the trunk, officers found ether, lithium

batteries, sulfuric acid, bags of pseudoephedrine in powder form,

pseudoephedrine in tablet form, a propane cylinder, tubing, jars

containing an ether and anhydrous ammonia mix, and a quantity of

methamphetamine.

The facts in the present case are clearly distinguishable. The

conduct prohibited by the statute is that of “manufacturing.” From

the facts before us, we cannot conclude that the Appellant did more

-10-

than possess some, but not all, of the ingredients necessary for the

manufacture of methamphetamine.

Id., slip op. at 7.

We distill from these cases several principles to guide us through what is obviously

a fact-intensive inquiry. The absence of processed methamphetamine or the interruption of an

obviously ongoing chemical process that otherwise would yield a finished product is not fatal to the

State’s prosecution. Also, a successful prosecution does not require proof that a defendant was in

possession of each and every ingredient necessary to manufacture methamphetamine. Conversely,

mere possession of some ingredients necessary to manufacture methamphetamine, without more,

does not translate automatically into illegal manufacturing. In David Long, the ingredients possessed

by the defendant were unopened and/or had not been obviously used or previously consumed, and

the officer found no “lab equipment utilized in the manufacturing of methamphetamine in the

[defendant’s] truck.” David Long, slip op. at 7. Whether the presence of precursor ingredients is

required for a manufacturing conviction has not been squarely addressed. See State v. Bradley

Lonsinger, No. M2003-03101-CCA-R3-CD (Tenn. Crim. App., Nashville, Jan. 5, 2005) (defendant

charged and convicted for the attempted manufacture of methamphetamine; evidence sufficient even

though no processed methamphetamine and no ephedrine or pseudoephedrine were found in the

house; deputies found 37 items associated with the manufacture of methamphetamine, and two of

the HCL generators were still smoking when the deputies discovered them). However, evidence that

a precursor is undergoing chemical alteration, such as soaking in a chemical solvent, carries

substantial weight.

In the instant case, the most glaring difficulty is the State’s failure to present a

forensic chemist to verify the presence of methamphetamine or pseudoephedrine in the “white

sludge” or other liquids discovered in Ms. Miller’s apartment. The trial court sustained the defense

objection to Officer Harper’s suspicions or opinions regarding the chemical composition of the

seized items. However, the officers were permitted to give their opinions that what they discovered

in Ms. Miller’s apartment was a “methamphetamine lab.” We have carefully reviewed the officers’

testimony in this case and the photographic exhibits of what the officers discovered. Unlike in David

Long, many of the items had been partially or completely used, such as a tin container and a Mason

jar containing used coffee filters with iodine residue; a pyrex dish, funnels, and a glass pipe with

iodine residue; striker plates torn from matchbooks soaking in a liquid; multiple Mason jars

containing various amounts of liquid-type substances; a one-gallon can of denatured alcohol, one-

half full; a one-gallon can of camp fuel, one-eighth full; a 32-ounce bottle of hydrogen peroxide,

one-half full; and an empty muriatic-acid quart container. Also, distinct from David Long, “lab

equipment” was found in the apartment, such as a gas generator consisting of a two liter bottle with

tubing attached. From this evidence and with the officers’ expert testimony about the process of

manufacturing methamphetamine, we are convinced that reasonable jurors could find beyond a

reasonable doubt that methamphetamine had been manufactured in Ms. Miller’s apartment.

-11-

Even so, the State never elicited specific testimony regarding when the last

manufacturing process had occurred in the apartment. Because, however, the evidence did show that

a “gas tech” that was operated at the scene indicated “that the environment was extremely

hazardous” and had “contaminates in the area,” it is reasonable to conclude that the manufacturing

process had occurred recently.

The last aspect of evidence sufficiency we must examine is whether the State proved

that the defendant was the individual who manufactured the methamphetamine. The record is silent

on the whereabouts of the defendant the day that the officers entered the apartment. We are mindful

that Ms. Miller provided her observations concerning the defendant’s hands and of the odor of his

clothing, but she never specified when she made these observations.

We recognize that we are not dealing with the first-hand perceptions of the officers

at the scene; the officers did not testify about the defendant’s hands or that his clothing smelled like

cat urine. These observations were supplied by Ms. Miller, who never professed knowledge of how

to manufacture methamphetamine. See also State v. Marise, 197 S.W.3d 762 (Tenn. 2006) (under

statute requiring State to prove chemical composition of anhydrous ammonia, held that “olfactory

observations of the officers may not be enough, standing alone, to convict”). Without more, a

witness’s description of an odor as “cat urine” is somewhat tenuous and speculative as a means of

carrying the State’s burden of proving that the defendant manufactured methamphetamine. For

instance, in State v. Patricia Marie Jenson, No. M2003-02848-CCA-R3-CD, slip op. at 2 (Tenn.

Crim. App., Nashville, June 21, 2005), one of the officers who participated in the raid of a “crack

house” testified that the crack-cocaine smoke he encountered was “disgusting,” and he compared the

smell to that of “male cat urine.” In Bradley Lonsinger, slip op. at 3, 7, one of the arresting officers

described the odor associated with methamphetamine manufacture as similar to the odor of battery

acid.

In the present case, however, Ms. Miller not only described an odor emanating from

the defendant that, according to the evidence, could be associated with manufacturing

methamphetamine, but also she described his hands as marred by burns, a circumstance that also,

according to the evidence, suggests manufacturing methamphetamine. We hold that the convergence

of these circumstances provides a core of identity evidence that supports the verdict. The jury had

the prerogative of believing Ms. Miller’s testimony, and the jury obviously chose to do so. That

testimony along with other evidence in this case is sufficient to support the conviction.

EVIDENTIARY ISSUES

The defendant raises several evidentiary issues. He argues that the testimony

regarding the “general characteristics” of an MMO and “meth cooks” was more prejudicial than

probative, thereby rendering the jury’s verdict a product of speculation. He neither elaborates on this

argument nor provides citations to the record where proper objections were registered. This issue

has been waived. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b); see Tenn. R. Evid.

-12-

103(a)(1) (providing that a timely objection for purposes of preserving the issue for appeal must state

“the specific ground of objection if the specific ground was not apparent from the context”).

The defendant also argues that the State failed to offer any lab technicians to identify

the nature or composition of the substances seized from the apartment. This argument, couched as

an evidentiary complaint, is moot inasmuch as we have addressed the State’s failure of proof in this

particular case as not defeating the sufficiency of the evidence to support the manufacturing

conviction.

Last, the defendant complains that Ms. Miller was not listed as a witness on the

presentment and that the State failed to provide a proper disclosure to the defense that Ms. Miller

would be testifying at trial. Code section 40-17-106 states, “It is the duty of the district attorney

general to endorse on each indictment or presentment, at the term at which the same is found, the

names of the witnesses as the district attorney general intends shall be summoned in the cause, and

sign each indictment or presentment name thereto.” T.C.A. § 40-17-106 (2006). This statute is

directory only. Houston v. State, 567 S.W.2d 485 (Tenn. Crim. App. 1978). Failure of the State to

list witnesses on the indictment is not a sufficient basis for reversal of a judgment, absent a showing

of prejudice to an accused. State v. Crabtree, 655 S.W.2d 173 (Tenn. Crim. App. 1983).

In our opinion, the State was not require to list Ms. Miller as a witness on the

presentment. She was an indicted co-defendant, although her case was severed from that of the

defendant. The purpose of Code section 40-17-106 is to limit the possibility of surprise and to

provide the defendant a basis upon which to prepare a theory of defense against his accusers. See

State v. Street, 768 S.W.2d 703, 710-11 (Tenn. Crim. App. 1988). That danger did not exist in this

case.

CONCLUSION

Based upon the foregoing, the defendant’s conviction for manufacturing

methamphetamine is affirmed.

___________________________________

JAMES CURWOOD WITT, JR., JUDGE

-13-