            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                              Assigned on Briefs November 12, 2008

               STATE OF TENNESSEE v. BRITT ALAN FERGUSON

                           Appeal from the Circuit Court for Obion County
                             No. C07-161A William B. Acree, Judge



                    No. W2008-00945-CCA-R3-CD - Filed December 29, 2008


The defendant, Britt Alan Ferguson, was convicted by an Obion County jury of facilitation of the
initiation of a process intended to result in the manufacture of methamphetamine, a Class C felony;
two counts of promotion of the manufacture of methamphetamine, a Class D felony; unlawful drug
paraphernalia use and activities, a Class A misdemeanor; and two counts of possession of a
controlled substance, a Class E felony;1 and was sentenced by the trial court as a multiple offender
to an effective sentence of six years in the Department of Correction. Following the denial of his
untimely motion for new trial, he filed an untimely notice of appeal to this court, challenging the
sufficiency of the evidence in support of his methamphetamine and drug paraphernalia convictions
and arguing that the trial court erred in denying his motion to suppress evidence. The State
responded with a motion to dismiss on the basis that both the motion for new trial and notice of
appeal were untimely. This court granted the motion in part, ruling that the defendant had waived
the suppression issue by his untimely motion for new trial but that we would waive the untimely
notice of appeal in order to consider the sufficiency of the convicting evidence. Following our
review, we conclude that the evidence is sufficient to sustain the convictions. Accordingly, we
affirm the judgments of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and D.
KELLY THOMAS, JR., J., joined.

James T. Powell, Union City, Tennessee, for the appellant, Britt Alan Ferguson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District
Attorney General, for the appellee, State of Tennessee.




        1
          The parties stipulated that the defendant had two or more prior felonies under the simple possession of a
controlled substance statute, which elevated his convictions to Class E felonies.
                                              OPINION

                            FACTS AND PROCEDURAL HISTORY

        On February 22, 2007, officers of the Union City Police Department observed the defendant
and his codefendant, Wade Glover, standing beside Glover’s pickup truck outside the defendant’s
residence. A white object fell to the ground between the two men, and the defendant picked it up
and placed it inside the truck’s wheel well. The officers retrieved the object, a plastic bag containing
lithium batteries and crushed pseudoephedrine tablets, and arrested and searched the defendant,
uncovering on his person wire cutters, a stripping tool, a pair of latex gloves, and thirteen pills,
including four Valium pills and one morphine pill. The officers also found a half-gallon of Coleman
fuel in the truck, hypodermic needles in a purse on the front porch of the house, and other items
inside the house.

       The defendant was subsequently indicted with Glover for one count of the initiation of a
process intended to result in the manufacture of methamphetamine, two counts of promotion of the
manufacture of methamphetamine, and one count of unlawful drug paraphernalia use and activities.
He was indicted alone on a separate count of unlawful drug paraphernalia use and activities and two
counts of possession of a controlled substance.

        At the hearing on the defendant’s motion to suppress, the State conceded that the search of
the residence was illegal and, thus, that the evidence uncovered in the house and on the porch should
be suppressed. As a result, the State subsequently dismissed one of the two paraphernalia charges.
At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress with
respect to the remaining evidence, ruling that the items found in the truck and on the defendant’s
person were admissible at trial.

         At the October 9-10, 2007 joint trial of the defendant and Glover, Jody Emery testified that
on February 22, 2007, officers from the Union City Police Department came to his home in response
to a tip that he was manufacturing methamphetamine. He said he gave them permission to search
his residence and vehicles, but they did not find anything and he was never arrested. Because he
believed that the defendant had “set [him] up,” he telephoned the defendant in the presence of the
police to ask if he and Glover still “wanted to make some dope.” According to Emery, the defendant
replied yes. Emery testified that the previous night the defendant and Glover had been using
methamphetamine with him at his house when the defendant announced his intention of
manufacturing some methamphetamine and asked Emery if he had any anhydrous ammonia. Emery
said he told the defendant that he did not have any and did not want to get involved. On cross-
examination, he acknowledged that the defendant’s conversation had not included any definite plans
with respect to his manufacture of methamphetamine.

       Investigator Derrick O’Dell of the Union City Police Department testified that on February
22, 2007, he and fellow officers went to the residence of Jody Emery, who was on parole and with
whom Investigator O’Dell was familiar, in response to a Crime Stoppers tip that there was an active
methamphetamine laboratory at the location. Although the officers found no evidence of a
methamphetamine laboratory, Emery provided them with a tip about the defendant and Glover. In

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response, the officers drove to the defendant’s residence, located at 419 Denver Road in Union City.

        Investigator O’Dell testified that he was in the first vehicle to arrive at the defendant’s
residence. As he was pulling up, he saw the defendant and Glover standing outside the residence
beside Glover’s Chevrolet pickup truck, which was equipped with a “lift kit.” The defendant was
holding a floor mat and a whisk broom, and both men turned to look up the road as the officers’
vehicles approached the residence. The men then moved to the front of the vehicle and were
standing approximately two and a half feet apart when Investigator O’Dell saw a white object fall
to the ground between them.

       Investigator O’Dell testified that the men appeared to engage in a heated conversation for
approximately five seconds until the defendant bent over, picked up the object, walked to the
passenger side of the vehicle, and placed it in the vehicle’s wheel well. He said he exited his vehicle,
approached the defendant, instructed him to step away from the side of the truck, and retrieved the
object which, upon examination, turned out to be a plastic bag containing five lithium batteries and
a “crushed white substance” approximately the size of a burrito. At that point, he placed the
defendant under arrest, read him his rights, and searched his person.

        Investigator O’Dell testified that he found in the defendant’s pockets a pill bottle without a
prescription label containing thirteen pills, a pair of wire cutters, a flat-bladed stripping tool, a pair
of latex gloves, and several paper towels. He said that the defendant claimed ownership of the pills
in the bottle but said that the pills in the plastic bag belonged to Jody Emery. He stated that Glover,
who was also arrested, made no statement to police officers at the scene and that nothing was found
during the search of his person. However, a half-empty gallon jug of Coleman camp fuel was seized
from the bed of his truck. Investigator O’Dell further testified that two women, Barbie Sharp and
Angela Parrish, were inside the truck along with the defendant’s young son.

        Agent Dana Parmenter, a Tennessee Bureau of Investigation forensic scientist who analyzed
the evidence in the case, testified that she determined that the crushed white substance consisted of
89.7 grams of a powder that contained ephedrine or pseudoephedrine, both of which were precursors
for methamphetamine. She said that four of the tablets contained diazepam, the generic name for
Valium, a Schedule IV controlled substance; and that a fifth tablet contained morphine, a Schedule
II controlled substance. She did not analyze the other eight tablets.

       Investigator Shawn Palmer of the Union City Police Department, an expert in the field of
clandestine methamphetamine laboratories, testified that the most common method of
methamphetamine manufacture in West Tennessee is the Anhydrous or “Nazi” method, in which the
key ingredients are pseudoephedrine tablets, lithium metal, and anhydrous ammonia. He described
the process:
       [A]fter you do the first process, when you mix anhydrous ammonia, lithium metal
       and your crushed tablets together, basically most people throw those in a jar, pour the
       Coleman fuel on top of it and let it set. A lot of people let it set for several hours,
       some let it set overnight.



                                                   -3-
        Investigator Palmer testified that manufacturers of methamphetamine crush the tablets in
order to speed the process of extracting ephedrine from the tablets, use wire cutters to remove
lithium strips from lithium batteries, and wear latex or rubber gloves to protect their skin from the
caustic chemicals involved in the manufacturing process. He said that the stripping tool could have
been used “for anything,” testifying that he had “seen people scrape old jars where they’ve cooked
meth before, to get the meth back out of them.” Based on his calculations, the total amount of
ephedrine present in the crushed powder was in excess of nine grams, regardless of whether it was
derived from 30-, 60-, 120-, or 240-milligram pseudoephedrine tablets. On cross-examination,
Investigator Palmer acknowledged that the officers found no anhydrous ammonia at the scene and
that nothing had been extracted from the crushed pseudoephedrine tablets.

         The defendant testified that it was Glover who dropped the crushed pseudoephedrine pills
onto the ground as the police approached his house. He said that when he glanced down and saw
that the bag Glover had dropped contained a crushed white powder, he told him that he needed to
pick it up. Glover refused to do so, however, telling him that “the stuff” belonged to Emery and that
he did not “need this” because he had prior convictions. The defendant stated that he and Glover
“had some words” over Glover’s refusal to pick up the bag and that he finally picked it up himself
and placed it in plain sight in Glover’s truck because he assumed that he would be held responsible
if the police officers found it on his property.

        The defendant further testified that he had no pseudoephedrine on him that day, had a pair
of pliers because he had been working on his car, and had the other tool, which he used to work on
remote control airplanes, because he had been cutting open some boxes he had recently moved out
of storage. He acknowledged that he and Glover had been at Emery’s house the night prior to his
arrest and that Glover and Emery had used methamphetamine at that time. He denied, however, that
he had used any and said that methamphetamine was not his drug of choice. He also denied having
asked Emery for anhydrous ammonia or having had any telephone conversation with him about
cooking methamphetamine. Finally, he acknowledged that he had a prior conviction for
misdemeanor theft.

         Barbie Sharp, the mother of the defendant’s two-year-old son, testified that she was sitting
in the cab of Glover’s truck with Angela Parrish when the officers arrived and that she overheard the
defendant asking Glover what he had dropped. She next overheard Glover telling the defendant that
it belonged to Emery and the defendant telling Glover to pick it up. She stated that the defendant
later told her that he had picked up the bag himself because he panicked.

        Wade Glover testified that he and the defendant “smoked dope” with Jody Emery and several
other individuals at Emery’s house the night before the incident. The next day, he gave the
defendant a ride to the doctor and then took him, Sharp, and Angela Parrish to his father’s house,
where the defendant helped him load some items that his father wanted cleaned out of his machine
shop. He said that the four stopped to pick up the defendant’s older son, Ian, on their way back to
the defendant’s house and that he had dropped off the defendant and Ian and was preparing to go
with the women to pick up the defendant’s two-year-old son from day care when the police arrived.



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        Glover testified that as the police approached, he saw the defendant take something from his
pocket and place it between the hood and windshield wipers of Glover’s truck. He said that when
he asked the defendant what he was doing and moved to the front of the truck, the defendant
removed the object from the windshield and tried to place it under the truck but dropped it to the
ground instead. Glover stated that he protested, telling the defendant not to put the object in his
truck. The defendant, however, picked up the object and placed it under the truck just before the
police reached them. Glover denied that he knew at the time what the object was but said he
assumed from the defendant’s furtive actions that it was something illegal. He stated that the camp
fuel had not been in his truck earlier and that he had not known it was there. He assumed, however,
that it was one of the items he and the defendant had cleaned out of his father’s machine shop.
According to his testimony, the defendant later told his father that Glover was not involved. Glover,
like the defendant, acknowledged that he had a prior conviction for theft.

        Marcus Neil Glover, Glover’s father, confirmed that on the day of the incident his son and
the defendant cleaned out his machine shop, where he had a large amount of accumulated junk,
including old paint and camping supplies. Although he did not specifically recall having any
Coleman camp fuel in his shop, he said that he had purchased it in the past and would not have
thrown away any half-full containers. He also corroborated his son’s testimony that, sometime after
the defendant’s arrest, the defendant told him that Glover “didn’t have anything to do with this.”

       Investigator O’Dell, called as a rebuttal witness by the State, testified that Glover told him
he knew the Coleman camp fuel was in his truck. He said Glover was unable, however, to provide
an explanation for why it was there.

         After deliberations, the jury convicted the defendant of all the indicted offenses with the
exception of count one, in which it found him guilty of the lesser-included offense of facilitation of
the initiation of a process intended to result in the manufacture of methamphetamine. They acquitted
Glover of all indicted offenses with the exception of one of the counts of promotion of
methamphetamine, finding him guilty on that count of the lesser-included offense of facilitation.
At the conclusion of a November 16, 2007, sentencing hearing, the trial court sentenced the
defendant as a Range II, multiple offender to an effective sentence of six years in the Department
of Correction and entered the judgments in the case that same day.

        On December 17, 2007, the defendant filed a pro se “Motion for Extension of Time for Filing
for New Trial,” followed by a January 11, 2008, pro se “Motion for New Trial.” On January 18,
2008, the defendant’s trial counsel filed a motion for new trial. The trial court orally denied the
motion at the conclusion of a February 15, 2008 hearing and, on April 14, 2008, entered a written
order to that effect. Trial counsel filed a notice of appeal on February 20, 2008. On July 30, 2008,
the State filed a motion to dismiss the appeal on the basis that both the motion for new trial and
notice of appeal were not timely. By order entered on August 27, 2008, this court granted the
motion in part, ruling that the suppression issue was waived due to the untimely motion for new trial
but that we would, in the interest of justice, waive the untimely notice of appeal because it appeared
that “the failure to file a timely notice of appeal document was due to issues regarding representation
after judgment had been entered.” Consequently, the sole issue that we will consider in this appeal
is the sufficiency of the convicting evidence.

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                                             ANALYSIS

                                    Sufficiency of the Evidence

         The defendant challenges the sufficiency of the evidence in support of his convictions for
facilitation of a process intended to result in the manufacture of methamphetamine, promotion of
the manufacture of methamphetamine, and unlawful drug paraphernalia use and activities.
Specifically, he argues that the State failed to show that he possessed any methamphetamine
precursors, that he or his codefendant crushed or facilitated the crushing of the ephedrine pills, or
that he possessed “anything intended to introduce drugs into the body.” The State responds that the
evidence was sufficient to sustain the convictions, and we agree.

         In considering this issue, we apply the rule that when sufficiency of the convicting evidence
is challenged, the relevant question of the reviewing court is “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to support the
findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the evidence, and
all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony
of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

                This well-settled rule rests on a sound foundation. The trial judge and the
        jury see the witnesses face to face, hear their testimony and observe their demeanor
        on the stand. Thus the trial judge and jury are the primary instrumentality of justice
        to determine the weight and credibility to be given to the testimony of witnesses. In
        the trial forum alone is there human atmosphere and the totality of the evidence
        cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction 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. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

              A. Facilitation of the Initiation of Methamphetamine Manufacture

       Tennessee Code Annotated section 39-17-435 provides in pertinent part that “[i]t is an
offense for a person to knowingly initiate a process intended to result in the manufacture of any
amount of methamphetamine.” Tenn. Code Ann. § 39-17-435(a) (2006). The statute further
provides that “‘initiates’ means to begin the extraction of an immediate methamphetamine precursor

                                                  -6-
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.” Id. § 39-17-435(c). A person facilitates a felony if, “knowing that
another intends to commit a specific felony, but without the intent required for criminal
responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the
commission of the felony.” Id. § 39-11-403(a).

        The defendant argues that the State failed to prove beyond a reasonable doubt that he
“actually crushed the pills or . . . facilitated the crushing or knew anything about it when it was
done.” Viewed in the light most favorable to the State, however, the evidence established that on
the night before his arrest, the defendant announced his intention of manufacturing
methamphetamine and asked a drug-using acquaintance if he had any anhydrous ammonia. The
following day, the defendant and his codefendant were caught on the defendant’s property with
crushed pseudoephedrine tablets, lithium batteries, and Coleman camp fuel, key ingredients used in
the manufacture of methamphetamine. As the officers approached, the defendant picked up the
plastic bag of crushed tablets and lithium batteries from the ground where it had just fallen and
attempted to hide it in the wheel well of Glover’s truck. When arrested, the defendant had wire
cutters, a stripping tool, and latex gloves, all of which are tools regularly used by manufacturers of
methamphetamine.

        The State’s methamphetamine expert testified that the steps involved in the Anhydrous
method of methamphetamine manufacture are to crush pseudoephedrine tablets, mix the crushed
powder with anhydrous ammonia and lithium strips removed from lithium batteries, pour Coleman
camp fuel on top, and let the mixture sit for a few hours or overnight. From all this evidence, a
rational jury could reasonably find the defendant guilty of facilitation of the initiation of a process
intended to result in the manufacture of methamphetamine. We conclude, therefore, that the
evidence is sufficient to sustain the conviction.




                   B. Promotion of the Manufacture of Methamphetamine

      Tennessee Code Annotated section 39-17-433, which makes it an offense for a person to
promote methamphetamine manufacture, provides in pertinent part:

       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;

             (2) Purchases or possesses more than nine (9) grams of an immediate
       methamphetamine precursor with the intent to manufacture methamphetamine or


                                                 -7-
       deliver the precursor to another person whom they know intends to manufacture
       methamphetamine, or with reckless disregard of the person’s intent[.]

Tenn. Code Ann. § 39-17-433(a)(1), (2) (2006). The defendant was convicted under both
subsections 1 and 2 of the statute.

         The defendant argues that the evidence is insufficient to sustain his promotion of
methamphetamine convictions because the State failed to prove beyond a reasonable doubt that he
possessed the crushed pseudoephedrine powder or anything else used in the production of
methamphetamine. In support, he cites, among other things, the fact that the Coleman camp fuel was
found in the back of Glover’s truck and his testimony disavowing any prior knowledge of the bag
of lithium batteries and crushed pseudoephedrine powder.

        The evidence, however, established that the defendant attempted to hide a plastic bag
containing crushed pseudoephedrine and lithium batteries in the wheel well of his codefendant’s
truck. According to the State’s expert witness, the crushed powder contained at least nine grams of
ephedrine, an immediate methamphetamine precursor. The evidence further established that a half-
gallon of Coleman fuel was in the codefendant’s truck and that the defendant had wire cutters, latex
gloves, and a stripping tool on his person. This evidence was sufficient for the jury to find the
defendant guilty of both counts of promotion of methamphetamine manufacture.

                              C. Possession of Drug Paraphernalia

        Finally, the defendant challenges his conviction for possession of drug paraphernalia, arguing
that “there was no proof introduced that he actually possessed anything intended to introduce drugs
into the body.” However, as the State points out, the defendant’s conviction was based on his
possession with the intent to use drug paraphernalia to manufacture a controlled substance, as the
count charging him with possession with the intent to use drug paraphernalia to introduce a
controlled substance into the body was dismissed following the State’s stipulation that the search
of the defendant’s residence was unlawful. The jury heard testimony about the defendant’s
possession of wire cutters, latex gloves, and a stripping tool and an explanation as to the use each
item had in the Anhydrous method of methamphetamine manufacture. We conclude, therefore, that
the evidence was sufficient for the jury to convict him of possession with the intent to use drug
paraphernalia to manufacture a controlled substance.

                                          CONCLUSION

       Based on our review, we conclude that the evidence was sufficient to sustain the defendant’s
convictions. Accordingly, the judgments of the trial court are affirmed.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE



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