           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                February 13, 2013 Session

     STATE OF TENNESSEE v. FRANSCISCO I. BUSTAMONTE AND
                     SCOTT CARROLL, JR.

                  Appeal from the Criminal Court for Dekalb County
                    No. 2011CR48      David A. Patterson, Judge




                   No. M2012-00102-CCA-R3-CD - Filed May 7, 2013


This case is the consolidated appeal of two defendants, Franscisco I. Bustamonte and Scott
Carroll, Jr., who were convicted for the initiation of a process intended to result in
methamphetamine, a Class B felony.1 The trial court sentenced Defendant Carroll as a
Career Offender to thirty years in the Tennessee Department of Correction. The trial court
sentenced Defendant Bustamonte as a Range I, standard offender to eleven years in the
Tennessee Department of Correction. On appeal, Defendant Carroll contends that the trial
court erred when it denied his motion to suppress evidence found during the search of the
residence. Additionally, both Defendants assert that: (1) the trial court erred when it allowed
the State to amend the indictment to change the date of the offense; (2) the evidence is
insufficient to sustain the conviction; (3) the trial court erred when it failed to instruct the
jury on the charges of manufacture of methamphetamine, promotion of methamphetamine,
and unlawful drug paraphernalia; (4) the trial court erred when it admitted into evidence the
State’s inventory list of the ingredients found during a search of the residence and
photographs taken during the search; and (5) the trial court erred when it sentenced them.
After a thorough review of the record and applicable authorities, we conclude there exists no
error in the judgments of the trial court. We, therefore, affirm the trial court’s judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH and
J EFFREY S. B IVINS, JJ., joined.

James M. Judkins, Smithville, Tennessee, for the appellant Francisco I. Bustamonte.


       1
         Both Defendants were also convicted of reckless endangerment. After the hearing on the
Defendants’ motions for new trial, the trial court granted a new trial on that offense.
David N. Brady and Allison Rasbury West, Cookeville, Tennessee, for the appellant, Scott
Carroll, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Randy York, District Attorney General; and Greg Strong and Gary McKenzie,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION
                                          I. Facts

       This case arises from law enforcement officials responding to a report of a
methamphetamine (“meth”) laboratory at a home located on Loop Circle in DeKalb County,
Tennessee. After an investigation, officers arrested Defendant Bustamonte, Defendant
Carroll, and Wesley Hayes. A DeKalb County grand jury indicted the three men for initiation
of a process intended to result in methamphetamine and reckless endangerment.

                                  A. Motion to Suppress

        Before trial, Defendant Carroll filed a motion to suppress the evidence found during
the search of a residence wherein items associated with the manufacture of
methamphetamine were found. The State countered that Defendant Carroll had no Fourth
Amendment protections because he did not have a claim to that residence. At the motion
hearing, the parties presented the following evidence: Bridgette Diane Carroll, Defendant
Carroll’s wife, testified that on January 25, 2011, she was living at 200 Loop Circle. The
Defendant would “come and go as he pleased,” but he would not stay at the house if Carroll
was not there. She said that the Defendant came to the home when Carroll was there, and
he left when she went to sleep at night. Carroll testified that she considered the Defendant
a “guest” in her home.

       Ray Junior Wilkey testified that, in January 2011, he lived at 200 Loop Circle with his
two daughters, Bridgett Carroll and Kelly Wilkey. He said that his mother leased the
property in February 2010, and the lease was set to expire in February 2011. Wilkey’s
mother spoke to the landlord, who agreed to allow Wilkey to take over the lease beginning
in February 2011. At the time of this search, January 2011, Wilkey had not yet signed the
new lease.

       Wilkey testified that the Defendant did not live at the residence with them, but he
“stayed [there] ever[y] now and then.” Wilkey said that Wilkey’s mother had told the
Defendant she did not want him staying at the house, but he still sometimes came in at night



                                             -2-
when everyone was asleep. Wilkey said the Defendant did not have permission to stay at the
home.

        Wilkey testified that, on January 23, 2011, he returned home from work and went to
Carroll’s room to speak with her. She was asleep when he entered and the Defendant was
not present. Wilkey noticed a strong smell of ammonia emanating from the room. The
following day, Wilkey discussed this with his sister, who recommended that he speak with
Sheriff’s deputies about the possibility that the Defendant was cooking methamphetamine
in the residence. Wilkey said he did so, and the Sheriff’s deputies indicated they would come
to his home and investigate. Later that day, January 25, 2011, the Sheriff’s Deputies arrived
at his house and asked permission to search the residence. Wilkey granted permission for
the search, and pointed out the house in which he resided.

       During cross-examination, Wilkey testified that he was not listed on the lease on the
day the search was executed. He conceded that, on occasion, the Defendant ate dinner in
the home. He agreed that his mother, whose name was on the lease at the time of the search,
had not granted consent for the search.

      On redirect examination, Wilkey said that the Defendant did not keep any of his
personal items at the house.

        Jeremy Taylor, a detective with the DeKalb County Sheriff’s Department, testified
that his responsibilities included investigating drug cases. He said he searched the residence
at 200 Loop Circle with Wilkey’s consent. Detective2 Taylor described the layout of the
home and said that, when he entered the home, Wilkey pointed out to him in which room the
Defendant was located. Detective Taylor knocked on the door, and the Defendant answered.
The detective said he identified himself and asked the Defendant if he could enter the room.
The Defendant stepped back from the door and indicated with his hands that the detective
could enter.

       Detective Taylor said that, after he entered the room, the Defendant indicated that the
contents therein belonged to him. There were two other people in the room, both of whom
the detective had to ask to “turn the burners off.”

      During cross-examination, Detective Taylor testified that the Defendant never granted
him permission to enter the front door of the home and never gave him written consent to



         2
         At the time of this incident, Detective Taylor held the rank of deputy. At the time of the hearing, however, he
had been promoted to detective. W e will refer to him by his acquired rank of detective.

                                                          -3-
search. Instead, Wilkey gave him written permission to enter the front door of the home, and
the Defendant orally gave him permission to enter his room.

        The State recalled Wilkey, who testified that the Defendant had asked him to tell the
trial court that Wilkey’s name was not on the lease. On redirect examination, Wilkey
testified that the Defendant did not ask him to lie but simply asked him to state that fact to
the trial court.

       The State recalled Bridgett Carroll, who testified that her grandmother was the person
who was the signator of the lease at the time that the search was executed. Her father,
Wilkey, was set to sign a new lease on the property on February 3, a week after the search.
Her grandmother told her that, as part of Wilkey taking over the lease, the landlord would
require Carroll to pay a portion of the deposit.

       Carroll testified that the Defendant Carroll had, around the time of his arrest, a
MERSA staff infection, and he kept at the home some of the medical supplies necessary to
cover his infection.

        Based upon this evidence, the trial court denied Defendant Carroll’s motion to
suppress, finding that consent may properly be given by a person living in the home and that
consent was given by Wilkey. The trial court further found that Defendant Carroll did not
have a possessory interest in the home and that Defendant Carroll had allowed officers to
enter into the room where he was at the time of the search.

                                          B. Trial

       At the Defendants’ trial, the parties presented the following evidence: Detective
Taylor testified in accordance with the testimony he offered at the suppression hearing. He
added that the residence located at 200 Loop Circle was a brick house with a carport. There
were five people present at the house when he arrived: Defendant Carroll, Defendant
Bustamonte, another defendant, Defendant Carroll’s wife, and Defendant Carroll’s sister-in-
law, Kelly Wilkey, who was sixteen years old at the time.

       Detective Taylor said that, after he arrived at the house, he spoke with Ray Wilkey,
who had called the Sheriff’s Department to report that Defendant Carroll was manufacturing
methamphetamine in the home. Wilkey informed the detective that he rented the residence,
and he gave the officer consent to search the home. Wilkey told detectives in which room
Defendant Carroll was located, and the detective knocked on the door to that room.
Defendant Carroll answered the door wearing gloves, and backed up and put his hands on
his head, seeming to indicate that the detective could come into the room. Detective Taylor


                                             -4-
noted that there were two other men, one of whom was Defendant Bustamonte, standing
beside a bathroom door, and both of those men were also wearing gloves.3 The bathroom
door, the detective estimated, was three feet from the bedroom door. Defendant Carroll told
the detective, “It’s all mine.”

       Detective Taylor testified that the bathroom and the bedroom had a “chemical smell”
similar to the smell he had noted at other meth labs. The detective saw two “cookers” in the
bathroom that were both still burning. He directed Defendant Bustamonte to turn off the
burners, and Defendant Bustamonte complied. The detective said he noted that upon each
burner was located a bowl that contained a clear liquid. The detective testified that, in the
bathroom beside the sink, he also found a twenty-ounce soda bottle with a hole drilled in the
top and rubber tubing coming out, which was wrapped in black tape. This type of device,
he said, was commonly used for “gas[s]ing off” methamphetamine, turning the
methamphetamine from a liquid to a solid.

      The detective testified that the only entrance and exit to the bathroom was from the
bedroom, and that the Defendants were standing beside the bathroom door, with the
bathroom door open.

        Detective Taylor testified that, at this point, he read the Defendants their Miranda
rights, and then asked them some questions. He asked Defendant Carroll what he meant
when he said “It’s all mine,” and Defendant Carroll pointed the detective toward two bags.
The two bags, located approximately six feet from the bathroom, contained more components
required for the manufacture of meth. Detective Taylor said he made an inventory of the
items he found in the bag, and the trial court admitted that inventory list into evidence, over
the Defendants’ objections. The detective took the two bags outside and took photographs
of the bags and their contents, and the photographs were shown to the jury. The detective
described the items that were depicted in the pictures of the bags. Detective Taylor testified
that all the items contained in the bags were consistent with the manufacture of
methamphetamine.

      Detective Taylor testified as to the gloves worn by Defendant Bustamonte and
Defendant Carroll when he entered the room. He said that, in his experience, those
manufacturing meth often wear gloves to protect their hands from getting poked or burned.
The detective said that the materials present in the room were ones that would be mixed to
make methamphetamine, and he could not think of any other reason for those items to be


        3
         In later testimony, Detective Taylor was asked who was wearing gloves, and he responded “the two
defendants” referring to Defendant Carroll and Defendant Bustamonte. It is unclear, therefore, whether the third man
was wearing gloves.

                                                        -5-
grouped together. He further opined that the men were in the “final stages” of manufacturing
meth, which he called the “panning” stage.

        During cross-examination, Detective Taylor agreed that some of the items he found
in the bags in the room with the Defendants had uses other than for producing
methamphetamine. He noted that the drain cleaner, turkey baster, and pyrex dishes were not
illegal items. Detective Taylor said that he did not send the liquid from the dishes on the
burners to the Tennessee Bureau of Investigations (“TBI”) laboratory because the substance
was hot and could not be transported safely. The detective testified that he did not find any
aphedrine or sudaphedrine packs. Detective Taylor testified that Defendant Bustamonte did
not make any statement to him.

        Caleb Meadows, an officer with the Dekalb County Sheriff’s Department, testified
that he responded to the scene involved in this case. He said, upon arriving, he noted a “very
strong chemical smell” coming from the house, even before he opened the door. Officer
Meadows described the bedroom wherein the Defendants were found, and his description
comported with that of Detective Taylor’s testimony. Officer Meadows said that, in the
bedroom, they found Defendant Carroll, Defendant Bustamonte, and Wesley Hayes, all of
whom were wearing black and tan gloves. Officer Meadows said that Defendant Carroll
made the statement, “It’s all mine,” and would not allow the two other individuals to speak.


        During cross-examination, Officer Meadows testified that he did not create a police
report for this incident. He was, therefore, relying upon his memory for his testimony.
Officer Meadows testified that he was later told that there was a door inside the bedroom that
led to another room, but he did not independently verify this fact.

        Patrick Ray, the Dekalb County Sheriff, testified about the training he had received
in the detection and dismantling of meth labs. He said he had investigated over 100 meth
labs during his career, and he noted that there are multiple ways to construct a meth lab. He
said, in his jurisdiction, the “smaller meth lab[s]” were more prevalent, and the items
necessary to make the lab could fit into a backpack. Sheriff Ray said ephedrine is a key
ingredient to the manufacture of methamphetamine.

       Sheriff Ray discussed some of the items found in the bags in the room with the
Defendant. He explained that Coke bottles or gas cans with tubing were called “generators.”
Further, the cold packs could be split open and the contents placed into plastic bags to speed
up the cooking process. He noted that the Coleman fuel could have provided the necessary
heat source, and the Pyrex dishes were also a common tool used in the manufacture of



                                             -6-
methamphetamine. The Sheriff testified that those manufacturing meth often wore gloves
to avoid burns from the heat and the chemicals used in the process.

        Sheriff Ray testified that the final stage of the manufacturing methamphetamine
process was turning the liquid created into a powder form of methamphetamine. He said
that, during this stage, the pseudoephedrine was contained in the liquid and there would be
no pseudoephedrine pills lying around. The Sheriff noted that one method of conducting this
final stage involved using a “generator” similar to the one depicted in the photographs taken
of the items in the Defendants’ possession.

        During cross-examination, Sheriff Ray testified that he neither had a degree in
chemistry or was an expert in the field of chemistry. He said he never went to the scene of
this case but, instead, had only seen pictures taken at the scene. He agreed that many of the
items pictured had a use other than for the production of methamphetamine.. The Sheriff
conceded that the liquid found in this case had not been tested to verify it contained
methamphetamine.

        During redirect examination, the Sheriff testified that the manufacture of meth creates
an odorless, dangerous gas called phosphane gas. This gas when inhaled can be deadly. He
said that if one of his officers made a safety determination that it was too dangerous to test
liquid because of the ventilation of the room containing the meth, or for any other reason, he
would support that decision.

      Based upon this evidence, the jury found both Defendants guilty of initiation of a
process intended to result in the manufacture of methamphetamine and reckless
endangerment. The trial court later granted the Defendants’ motions for new trial on the
conviction for reckless endangerment.

                                       C. Sentencing

      The trial court held separate sentencing hearings for Defendant Bustamonte and
Defendant Carroll.

                                 1. Defendant Bustamonte

        At Defendant Bustamonte’s sentencing hearing, the following evidence was
presented: The parties agreed that Defendant Bustamonte was a Range I, standard offender
and that his applicable sentencing range was eight to twelve years. Jessie Rucker Paschal
testified that she conducted the presentence investigation in this case for Defendant
Bustamonte. She said that, on December 10, 2010, in Cannon County, Tennessee,


                                              -7-
Defendant Bustamonte had been convicted of a process to manufacture meth and evading
arrest. He was sentenced to six years and eleven months and twenty-nine days, respectively,
and the trial court ordered the sentences to run concurrently. The trial court granted
Defendant Bustamonte judicial diversion, and the Community Corrections program
supervised Defendant Bustamonte during the diversion period. On January 23, 2011,
Defendant Bustamonte was arrested in this case. Paschal said that, on June 10, 2011,
Defendant Bustamonte’s judicial diversion sentence was revoked and he was ordered to serve
the remainder of his sentence.

       Paschel testified also that, while the Defendant was in jail on the charges in this
current case, he was chargedwith assault. He had not yet been to court on that charge.

      Paschel testified that the Defendant reported no psychological issues, and he had
achieved the eleventh grade in high school.

        Based upon this evidence, the trial court found the following enhancement factors
applicable: (1) the defendant had a previous history of criminal convictions other than those
necessary to establish his sentencing range; (8) the defendant before trial or sentencing has
failed to comply with the conditions of a sentence involving release into the community; and
(13) at the time of the felony the defendant was on Community Corrections. T.C.A. § 40-35-
114 (1), (8), and (13) (2012). The trial court found one mitigating factor, (4) that the
defendant played a minor role in the commission of the offense. T.C.A. § 40-35-113 (4)
(2012). The trial court then set Defendant Bustamonte’s sentence at eleven years.

                                   2. Defendant Carroll

       At Defendant Carroll’s sentencing hearing, the State contended that Defendant Carroll
qualified as a Career Offender based upon his prior criminal record. The State noted that
Defendant Carroll had committed four aggravated robberies, one on October 25, 2001, one
on October 26, 2001, and two on October 28, 2001. The trial court noted that Defendant
Carroll had been convicted of a Class B felony and that his applicable range of punishment
was between eight and thirty years, depending on his offender classification.

       Jessie Rucker Paschal testified that she also prepared the presentence report in
Defendant Carroll’s case. She offered her report, along with certified copies of Defendant
Carroll’s prior convictions. Paschal testified that her report indicated that Defendant Carroll
had several prior convictions, including: one attempted aggravated robbery conviction from
October 28, 2001; four aggravated robbery convictions, from October 25, 2001, October 26,
2001, and October 28, 2001; and one passing a worthless check conviction from November
1, 2001. All of these offenses, she said, were different counts included in one indictment


                                              -8-
against Defendant Carroll. Paschal testified that Defendant Carroll was sentenced for these
offenses on June 17, 2002, and his sentence appeared to be an effective sentence of ten years.
Paschal testified that notes from the Defendant’s prison file indicated that he was part of a
“prison gang.”

      During cross-examination, Paschal testified that all of the aggravated robbery
convictions were part of the same indictment, and all of the offenses occurred within a few
days.

       Based upon this evidence, the trial court determined that Defendant Carroll qualified
as a Career Offender, having previously been convicted of four felonies. The trial court then
sentenced the Defendant to serve thirty years, to be served at sixty percent.

                                         II. Analysis

        On appeal, Defendant Carroll contends that the trial court erred when it denied his
motion to suppress the evidence found during the search of the residence located at 200 Loop
Circle, in DeKalb County, Tennessee. Additionally, both Defendants assert that: (1) the trial
court erred when it allowed the State to amend the indictment to change the date of the
offense; (2) the evidence is insufficient to sustain the convictions for initiation of a process
intended to result in the manufacture of methamphetamine; (3) the trial court erred when it
failed to instruct the jury on the charges of manufacture of methamphetamine, promotion of
methamphetamine, and unlawful drug paraphernalia; (4) the trial court erred when it admitted
into evidence the State’s inventory list of the ingredients found during a search of the
residence and photographs taken during the search; and (5) the trial court erred when it
sentenced them.

                                   A. Motion to Suppress

        Defendant Carroll contends that the trial court erred when it denied his motion to
suppress evidence seized as a result of a search of the residence at Loop Circle. Defendant
Carroll argues that, as a guest in the home, he had a legitimate expectation of privacy in the
residence. Further, he asserts that Wilkey’s mother, not Wilkey, was the lessee of the
property. He argues that, because the actual lessor, Wilkey’s mother, never gave consent for
the search and Wilkey did not have the authority to give permission for the search, the trial
court should have granted the motion to suppress. The State counters that Defendant Carroll
has no standing to challenge the search because he did not own or reside in the residence.
In the alternative, the State argues that, even if Defendant Carroll has standing, Wilkey gave
a valid consent to the search.



                                              -9-
       When it denied Defendant Carroll’s motion to suppress, the trial court found that
consent may properly be given by a person living in the home and that consent was given by
Wilkey. The trial court further found that Defendant Carroll did not have a possessory
interest in the home and that Defendant Carroll had allowed officers to enter into the room
where he was at the time of the search.

        Our standard of review for a trial court’s findings of fact and conclusions of law on
a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing
party in the trial court is afforded the ‘strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.’” State v.
Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court’s application of the
law to the facts, without according any presumption of correctness to those conclusions. See
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299
(Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility of the
witnesses, determine the weight and value to be afforded the evidence, and resolve any
conflicts in the evidence. Odom, 928 S.W.2d at 23.

        Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for citizens against “unreasonable
searches and seizures.” Generally, a warrantless search is considered presumptively
unreasonable, thus violative of constitutional protections. See State v. Walker, 12 S.W.3d
460, 467 (Tenn. 2000). Our supreme court has said, “It is, of course, well settled that one of
the exceptions to the warrant requirement is a search conducted pursuant to consent.” State
v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996) (citing Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973), and State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993)).
Generally, consent may be given “either by the individual whose property is searched or by
a third party who possesses common authority over the premises.” State v. Ellis, 89 S.W.3d
584, 592 (Tenn. Crim. App. 2000) (citations omitted). Common authority is the “mutual use
of the property by persons generally having joint access or control for most purposes.”
United States v. Matlock, 415 U.S. 164, 171 n.7 (1974). The State may also establish
common authority “by demonstrating that the facts available to the searching police officers
would have warranted ‘a man of reasonable caution in the belief’ that the consenting party
had authority over the premises.” Ellis, 89 S.W.3d at 593 (quoting Illinois v. Rodriguez, 497
U.S. 177, 188-89 (1990)).

       “The sufficiency of consent depends largely upon the facts and circumstances in a
particular case.” State v. Jackson, 889 S.W.2d 219, 221 (Tenn. 2003). The prosecution bears


                                             -10-
the burden of proving valid consent. See State v. McMahan, 650 S.W.2d 383, 386 (Tenn.
Crim. App. 1983). Furthermore, “‘[t]he existence of consent and whether it was voluntarily
given are questions of fact.’” State v. Ashworth, 3 S.W.3d 25, 29 (Tenn. Crim. App. 1999)
(quoting McMahan, 650 S.W.2d at 386).

        In the case under submission, we conclude that the evidence does not preponderate
against the trial court’s finding that Wilkey provided consent to search. Whether or not
Wilkey was the listed lessee of the property, there is no dispute that it was where he resided
with his two daughters, one of whom was married to Defendant Carroll. The testimony
provided that his mother was the listed tenant on the lease agreement, but that arrangements
had been made for Wilkey to renew the lease in his own name shortly after this incident
occurred. Defendant Carroll occasionally stayed at the home, but he kept no clothing at the
residence. Wilkey contacted law enforcement and expressed his belief that Defendant
Carroll was manufacturing methamphetamine in the home. Law enforcement officers then
met him at the home, where Wilkey gave them consent to search the residence and pointed
out to them the room in which Defendant Carroll was located. The officers knocked on the
door, and Defendant Carroll stepped back in a manner indicating that the officers could enter,
saying “It’s all mine.” We conclude that Wilkey, if not the owner of the premises for consent
purposes, at least possessed common authority over the premises, which imbued him with
the authority to provide valid consent. As such, the trial court did not err when it denied
Defendant Carroll’s motion to suppress the evidence obtained as a result of the search.
Defendant Carroll is not entitled to relief as to this issue.

                                    B. Amending Indictment

        On the day that the Defendants’ trial was set to begin, the State filed a motion to
amend the indictments to reflect the correct date of the offense, January 23, 2011, rather than
the listed January 25, 2011. The trial court granted the motion to amend. The Defendants
moved to dismiss the indictments, and the trial court denied their request. On appeal,
Defendant Carroll contends that his attorney prepared a defense based upon the January 25
date and was not prepared to defend a charge that occurred on January 23. Defendant
Bustamonte contends that the trial court erred when it did not dismiss the indictments after
the State amended them. The State counters first that the Defendants waived this issue by
failing to cite to any authority and second that the trial court acted within its discretion when
it allowed the State to amend the indictment.4




       4
         Defendant Bustamonte filed a “Substituted Brief” in which he cites to legal authority for this
argument. We accept his substituted brief, and we therefore conclude the issue is not waived.

                                                 -11-
        An accused is constitutionally guaranteed the right to be informed of the nature and
cause of the accusation. State v. Lindsey, 208 S.W.3d 432, 437-38 (Tenn. Crim. App. 2006)
(citing U.S. Const. amend. 6, 14; Tenn. Const. art. I, § 9; see Wyatt v. State, 24 S.W.3d 319,
324 (Tenn. 2000)). Our courts have interpreted this constitutional mandate to require an
indictment to “1) provide notice to the accused of the offense charged; 2) provide the court
with an adequate ground upon which a proper judgment may be entered; and 3) provide the
defendant with protection against double jeopardy.” Lindsey, 208 S.W.2d at 438 (citing
Wyatt, 24 S.W.3d at 324). Further, an indictment is statutorily required to “state the facts
constituting the offense in ordinary and concise language, without prolixity or repetition, in
such a manner as to enable a person of common understanding to know what is intended, and
with that degree of certainty which will enable the court, on conviction, to pronounce the
proper judgment.” Id. (citing T.C.A. § 40-13-202). An indictment need not conform to strict
pleading requirements. State v. Hill, 954 S.W .2d 725, 727 (Tenn. 1997).

      The Tennessee Rules of Criminal Procedure provide for an indictment to be amended.
Tennessee Rule of Criminal Procedure 7(b) provides:

       (b) Amending Indictments, Presentments and Informations.

       (1) With Defendant’s Consent. With the defendant’s consent, the court may
       amend an indictment, presentment, or information.

       (2) Without Defendant’s Consent. Without the defendant’s consent and before
       jeopardy attaches, the court may permit such an amendment if no additional or
       different offense is charged and no substantial right of the defendant is
       prejudiced.

        The date in the indictment may be amended pursuant to Tennessee Rule of Criminal
Procedure 7(b). See State v. Kennedy, 10 S.W.3d 280, 283 (Tenn. Crim. App. 1999) (citing
State v. Marlow, 665 S.W.2d 410, 413 (Tenn. Crim. App. 1983) (holding that the defendant
was not prejudiced by the state’s ability to impeach a witness with her prior inconsistent
statement under the amended date); State v. Sexton, 656 S.W.2d 898, 900 (Tenn. Crim. App.
1983) (holding that the charged offense qualified for Class X classification under either the
original or the amended date); and State v. Harrington, 627 S.W.2d 345, 346 (Tenn. 1981)
(holding that an amendment correcting the date on which the witnesses were sworn did not
prejudice the defendant)). This Court has held that the amendment of the date in an
indictment does not charge the defendant with a new or an additional crime. Id.

      In the case presently before us, we conclude that the trial court did not err when it
allowed the State to amend the indictment to reflect the proper date, which was two days


                                             -12-
before the date reflected on the indictments. We first note that, pursuant to Tennessee law,
“[t]he time at which the offense was committed need not be stated in the indictment, but the
offense may be alleged to have been committed on any day before the finding thereof, or
generally before the finding of the indictment, unless the time is a material ingredient in the
offense.” T.C.A. § 40-13-207 (2012). Further, time is not a “material ingredient” to the
offense of the initiation of a process intended to result in methamphetamine. See T.C.A. §
39-17-435 (2010). Because time is not a material element of the offenses for which the
Defendants were charged, we conclude that the trial court properly permitted the State to
amend the date in the indictment. The Defendants are not entitled to relief on this issue.

                              C. Sufficiency of the Evidence

       Defendant Carroll contends that the evidence is insufficient to sustain his conviction
because there were no pills or pill packs found, a necessary component to manufacturing
methamphetamine, and because law enforcement officers did not test the liquid found at the
residence. Further, he asserts, there was no methamphetamine found at the scene. Therefore,
Defendant Carroll contends, the State failed to prove its case. Defendant Bustamonte
similarly contends that the State failed to prove that the liquid found contained ephedrine,
the precursor to methamphetamine. The State counters that the evidence establishes the
elements of the offense beyond a reasonable doubt.

        When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.
13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given
to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(citations omitted). “The standard of review [for sufficiency of the evidence] is the same
whether the conviction is based upon direct or circumstantial evidence.” State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).




                                             -13-
        In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee 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, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S .W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

        Tennessee Code Annotated section 39-17-435 provides the elements of the offense
of initiation of a process intended to result in the manufacture of methamphetamine:

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

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




                                             -14-
       (c) For purposes of this section, “initiates” means to begin the extraction of an
       immediate methamphetamine precursor from a commercial product, to begin
       the active modification of a commercial product for use in methamphetamine
       creation, or to heat or combine any substance or substances that can be used
       in methamphetamine creation.

        Viewing the evidence in the light most favorable to the State, the jury had before it
sufficient evidence by which to find both Defendants guilty. Wilkey, the homeowner,
testified that he suspected that the Defendants were in the room manufacturing
methamphetamine, and he contacted police. Detective Taylor testified that, when he arrived
and knocked on the door wherein the Defendants were located, Defendant Carroll stepped
back and said, “It’s all mine.” When he entered, he saw three men in the room, including
Defendant Carroll and Defendant Bustamonte, all of whom were wearing gloves. Located
in the room/bathroom area were two Coleman burners, upon each of which was located a
Pyrex dish containing a liquid. In the room, Detective Taylor found multiple items
associated with the manufacture of methamphetamine, including a twenty-ounce soda bottle
with a hole drilled in the top and rubber tubing coming out of the hole. Also in the room
were two backpacks in which multiple items necessary for the manufacture of
methamphetamine were found. Sheriff Ray testified about the items found in the backpacks
and their use in the manufacturing process and also that it appeared that the manufacturing
process in this case was in its “final stages.” We conclude that, based upon this evidence,
a reasonable trier of fact could have found both Defendants guilty of initiating a process to
manufacture methamphetamine. The Defendants are not entitled to relief on this issue.

                      D. Instructions on Lesser-Included Offenses

       Defendant Bustamonte next contends that the trial court erred when it denied their
motion to instruct the jury on the manufacture of methamphetamine, promotion of
methamphetamine, and unlawful drug paraphernalia. Defendant Bustamonte contends that
the “current lesser-included offense test [articulated in Burns] is much too limited.”
Therefore, while the offenses he requested in his motion may not be lesser-included offenses
pursuant to Burns, Defendant Bustamonte argues that the trial court still should have
instructed the jury on them. Defendant Carroll agrees that, since the evidence presented by
the State could have supported a conviction for the aforementioned offenses, the trial court
erred when it failed to instruct the jury on those offenses. The State counters that the
Defendants failed to provide an adequate record for appellate review and have thereby
waived the issue. The State further contends that, even if not waived, the issue lacks merit
because none of the offenses proposed by the Defendants are lesser-included offenses of the
charged offense.



                                             -15-
       As the State points out, the record originally did not contain the jury verdict forms.
On January 3, 2013, Defendant Bustamonte filed a supplemental brief containing the jury
verdict forms. Further, as the State notes, two pages of the trial court’s oral ruling on the
Defendants’ motions for jury instructions is missing from the trial transcript. Contained in
the record, however, are the trial court’s instructions to the jury. We conclude that, the
supplemental record and the trial court’s instructions give us an adequate record for review.

        The question of whether a given offense should be submitted to the jury as a
lesser-included offense is a mixed question of law and fact. State v. Smiley, 38 S.W.3d 521,
524 (Tenn. 2001) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). The standard of
review for mixed questions of law and fact is de novo with no presumption of correctness.
Id. The trial court has a duty “to give a complete charge of the law applicable to the facts of
the case.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing State
v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)); see Tenn. R. Crim. P. 30.

       A Defendant has a “right to have the jury instructed on all lesser-included offenses
supported by the evidence.” State v. Page, 184 S.W.3d 223, 229 (Tenn. 2006). In State v.
Burns, our Supreme Court enunciated what constitutes a lesser-included offense:

       An offense is a lesser-included offense if:

       (a) all of its statutory elements are included within the statutory elements of the
       offense charged; or

       (b) it fails to meet the definition in part (a) only in the respect that it contains
       a statutory element or elements establishing

              (1) a different mental state indicating a lesser kind of
              culpability; and/or

              (2) a less serious harm or risk of harm to the same person,
              property or public interest; or

       (c) it consists of

              (1) facilitation of the offense charged or of an offense that
              otherwise meets the definition of lesser-included offense in part
              (a) or (b); or




                                              -16-
              (2) an attempt to commit the offense charged or an offense that
              otherwise meets the definition of lesser-included offense in part
              (a) or (b); or

              (3) solicitation to commit the offense charged or an offense that
              otherwise meets the definition of lesser-included offense in part
              (a) or (b).

6 S.W.3d at 466-67. If an offense is a lesser-included offense under the Burns analysis, then
the trial court must conduct the following two-step analysis in order to determine if the
lesser-included offense instruction should be given:

              First, the trial court must determine whether any evidence exists that
       reasonable minds could accept as to the lesser-included offense. In making this
       determination, the trial court must view the evidence liberally in the light most
       favorable to the existence of the lesser-included offense without making any
       judgments on the credibility of such evidence. Second, the trial court must
       determine if the evidence, viewed in this light, is legally sufficient to support
       a conviction for the lesser-included offense.

Id. at 469.

        If a trial court improperly omitted a lesser-included offense instruction, then
constitutional harmless error analysis applies. “An error affecting a constitutional right is
presumed to be reversible, and any such error will result in reversal of the conviction unless
the State proves beyond a reasonable doubt that the error did not affect the outcome of the
trial.” State v. Ely, 48 S.W.3d 710, 725 (Tenn. 2001) (citing State v. Harris, 989 S.W.2d 307,
315 (Tenn. 1999)). Our Supreme Court has instructed that “[i]n making this determination,
a reviewing court should conduct a thorough examination of the record, including the
evidence presented at trial, the defendant’s theory of defense, and the verdict returned by the
jury.” State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002).

       As defined by the Legislature, “It is an offense for a person to knowingly initiate a
process intended to result in the manufacture of any amount of methamphetamine.” T.C.A.
§ 39-17-435(a) (2010). The term “initiates” is defined to mean “to begin the extraction of an
immediate methamphetamine precursor from a commercial product, to begin the active
modification of a commercial product for use in methamphetamine creation, or to heat or
combine any substances that can be used in methamphetamine creation.” T.C.A. §
39-17-435(c).



                                             -17-
      The Defendants requested three offense instructions as “lesser-included” to the
charged offense: manufacture of methamphetamine, promotion of methamphetamine, and
unlawful drug paraphernalia.

                         1. Manufacture a Controlled Substance

      The Defendants requested an instruction on the manufacture of a controlled substance,
here methamphetamine. The relevant offense is defined by statute as:

       (a) It is an offense for a defendant to knowingly:

       (1) Manufacture a controlled substance;

       (2) Deliver a controlled substance;

       (3) Sell a controlled substance; or

       (4) Possess a controlled substance with intent to manufacture, deliver or sell
       the controlled substance.

T.C.A. § 39-17-417 (2010). The statute defining initiation of a process intended to result in
methamphetamine states that “(e) A person may not be prosecuted for a violation of this
section and of manufacturing a controlled substance in violation of § 39-17-417 based upon
the same set of facts.” T.C.A. § 39-17-435.

       We conclude the trial court did not err when it did not instruct the jury on the offense
of manufacturing a controlled substance. First, this offense is not a lesser included offense
under the Burns analysis. Second, the Legislature has statutorily instructed that a defendant
may not be prosecuted for both offenses for the same conduct. Accordingly, the trial court
did not err when it denied the Defendants’ request to offer the jury this instruction.

                           2. Promotion of Methamphetamine

      The Defendants next requested that the jury be instructed on the offense of promotion
of methamphetamine. This offense is defined as:

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




                                             -18-
       (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 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 that the person intends to use the structure to
       manufacture methamphetamine, or with reckless disregard of the person’s
       intent.

       (b) Expert testimony of a qualified law enforcement officer shall be admissible
       to establish that a particular chemical, drug, ingredient, or apparatus can be
       used to produce methamphetamine. For purposes of this testimony, a
       rebuttable presumption is created that any commercially sold product contains
       or contained the product that it is represented to contain on its packaging or
       labels.

       (c) Possession of more than fifteen (15) grams of an immediate
       methamphetamine precursor shall be prima facie evidence of intent to violate
       this section.

T.C.A. § 39-17-433 (2010).

       We conclude that this offense is not a lesser-included offense of initiation of a process
intended to result in methamphetamine. This offense criminalizes the conduct of a person
who “sells, purchases, acquires, or delivers any chemical, drug, ingredient, or apparatus that
can be used to produce methamphetamine.” This crime requires an element or elements
different from “knowingly initiat[ing] a process intended to result in the manufacture of any
amount of methamphetamine.” See T.C.A. § 39-17-435(a). Because the two offenses
contain different elements, one is not a lesser-included offense of the other. See Burns, 6
S.W.3d at 466-67.

       Further, even if a lesser-included offense, the evidence did not warrant such a jury
instruction. There was no evidence that the Defendants sold, purchased, acquired, or


                                              -19-
delivered a chemical drug or apparatus. The evidence, instead, proved that law enforcement
officers found the Defendants in a house during the process of manufacturing
methamphetamine. Accordingly, this jury instruction was not warranted under the facts of
this case.

                             3. Unlawful Drug Paraphernalia

       Finally, the Defendants requested a jury instruction on the offense of possession of
unlawful drug paraphernalia. The statute criminalizing possession of drug paraphernalia
reads that, except when for statutorily enumerated purposes, it is unlawful:

       (a)(1) . . . 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.

T.C.A. § 39-17-425 (a)(1) (2010). Section (b)(1) of this part makes it an offense to “deliver”
or “possess[] with intent to deliver, or manufacture[] with intent to deliver” drug
paraphernalia, “knowing . . . that it will be used to . . . manufacture . . . or otherwise
introduce into the human body a controlled substance . . . .”

        We conclude that this offense is not a lesser-included offense of initiation of a process
intended to result in methamphetamine. In order to obtain a conviction under this code
section, the State must prove beyond a reasonable doubt: (1) that the defendant possessed an
object; (2) that the object possessed was classifiable as drug paraphernalia; and (3) that the
defendant intended to use that object for at least one of the illicit purposes enumerated in
T.C.A. § 39-17-425. State v. Mallard, 40 S.W.3d 473, 486 (Tenn. 2001). This offense
contains elements different from those necessary to prove that a defendant “knowingly
initiated a process intended to result in the manufacture of any amount of
methamphetamine.” See T.C.A. § 39-17-435(a). Because the two offenses contain different
elements, one is not a lesser-included offense of the other. See Burns, 6 S.W.3d at 466-67.
The Defendants’ are not entitled to relief as to this issue.

                            E. Inventory List and Photograph

       The Defendants next contend that the trial court erred when it denied the motion in
limine to exclude an inventory list of items found at the residence as well as photographs of
the items listed in the inventory list. The Defendants claim that the trial court should have


                                              -20-
excluded the list and photographs as cumulative evidence. Defendant Carroll also contests
one of the photographs based upon its content. He contends that the picture depicted the two
backpacks law enforcement officers found. He states that the officers moved the backpacks
from the room where they were found to the carport before photographing them. As such,
he avers that the picture was not an accurate representation of how and where the items were
originally found.

       Admission of evidence is entrusted to the sound discretion of the trial court, and a trial
court’s ruling on evidence will be disturbed only upon a clear showing of abuse of discretion.
See State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004) (citing State v. DuBose, 953
S.W.2d 649, 652 (Tenn.1997)). A trial court’s exercise of discretion will not be reversed on
appeal unless the court “applied an incorrect legal standard, or reached a decision which is
against logic or reasoning that caused an injustice to the party complaining.” State v. Shuck,
953 S.W.2d 662, 669 (Tenn. 1997). When determining admissibility, a trial court must first
decide if the evidence is relevant. Tenn. R. Evid. 402 (“All relevant evidence is admissible
except as provided by the Constitution of the United States, the Constitution of Tennessee,
these rules or other rules or laws of general application in the courts of Tennessee. Evidence
which is not relevant is not admissible.”); State v. James, 81 S.W.3d 751, 757 (Tenn. 2002).
Evidence “having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence” is relevant evidence. Tenn. R. Evid. 401. After a court concludes evidence is
relevant, the court must then weigh the probative value of the evidence against the danger
the evidence will unfairly prejudice the defendant at trial. Relevant evidence should be
excluded if the court determines that the probative value of the evidence “is substantially
outweighed by its danger of unfair prejudice.” Tenn. R. Evid. 403. The Tennessee Supreme
Court has previously emphasized:

       Rule 403 is a rule of admissibility, and it places a heavy burden on the party
       seeking to exclude the evidence. Excluding relevant evidence under this rule
       is an extraordinary remedy that should be used sparingly and persons seeking
       to exclude otherwise admissible and relevant evidence have a significant
       burden of persuasion.

James, 81 S.W.3d at 757-58 (internal quotations and citations omitted).

        Applying these principles, we conclude that the trial court did not abuse its discretion
by allowing the State to offer the inventory list of items found during the search or the six
photographs depicting those items. The offense for which the Defendants were charged was
initiating a process intended to result in methamphetamine. The items inventoried were
common household items, some of which were modified, that officers testified were


                                              -21-
commonly used in the manufacture of methamphetamine. We have reviewed the
photographs and most of the items are shown in only one photograph, with only a few items
being shown in multiple photographs. We conclude the trial court did not err when it
determined that this evidence was not cumulative and was not unfairly prejudicial. The
Defendants are not entitled to relief on this issue.

                                       F. Sentencing

        Defendant Carroll contests the trial court’s sentencing him as a Career Offender. He
first contends that: (1) the trial court erred when it granted the State a continuance to allow
time to file a notice to seek enhanced punishment and further that, because the notice was
improperly filed, the trial court erred when it did not sentence him as a Range I offender; and
(2) the trial court erred when it denied his motion in limine to try him as a Range I offender
because the State failed to file its notice to seek enhanced punishment in a timely manner.
Because both of these issues stem from Defendant Carroll’s contention that he was sentenced
in an improper range, we will address them herein. Defendant Bustamonte contends that the
trial court erred when it sentenced him by not giving any or enough weight to a mitigating
factor and by using his reckless endangerment conviction as a reason for not mitigating his
sentence.

        The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments describe
the process for determining the appropriate length of a defendant’s sentence. Under the Act,
a trial court may impose a sentence within the applicable range as long as the imposed
sentence is consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2), (d)
(2010); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). In 2005, the Tennessee
General Assembly amended the sentencing law in order to bring Tennessee’s sentencing
scheme into compliance with United States Supreme Court rulings on the subject. See
United States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004).

       Before the 2005 amendments to the Sentencing Act, both the State and a defendant
could appeal the manner in which a trial court weighed enhancement and mitigating factors
applied to the defendant’s sentence. T.C.A. § 40-35-401(b)(2) (2004). The 2005
amendments, however, deleted, as grounds for appeal, a claim that the trial court did not
properly weigh the enhancement and mitigating factors. See 2005 Tenn. Pub. Acts ch. 353,
§§ 8, 9. As a result, the appellate courts were “left with a narrower set of circumstances in
which they might find that a trial court has abused its discretion in setting the length of a
defendant’s sentence.” Carter, 254 S.W.3d at 345-46.

      Appellate review of sentences has been de novo with a presumption of correctness.
See T.C.A. § 40-35-401(d) (2010). In a recent decision, the Tennessee Supreme Court


                                             -22-
reviewed changes in sentencing law and the impact on appellate review of sentencing
decisions. State v. Bise, 380 S.W.3d 682 (Tenn. 2012). The Tennessee Supreme Court
announced that “sentences imposed by the trial court within the appropriate statutory range
are to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” Id. at 708; State v. Christine Caudle, 338 S.W.3d 273, 278-79 (Tenn.
2012) (explicitly applying the same standard to questions related to probation or any other
alternative sentence).

        A finding of abuse of discretion “‘reflects that the trial court’s logic and reasoning
was 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)). To find an abuse of discretion, the record
must be void of any substantial evidence that would support the trial court’s decision. Id.;
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980).

       The “presumption of reasonableness” applied to sentences imposed by trial courts
“‘reflects the fact that, by the time an appeals court is considering a within-Guidelines
sentence on review, both the sentencing judge and the Sentencing Commission will have
reached the same conclusion as to the proper sentence in the particular case.’” Susan Renee
Bise, 380 S.W.3d at 703 (quoting Rita v. United States, 551 U.S. 338, 341 (2007)). A
presumption of reasonableness “simply recognizes the real-world circumstance that when the
judge’s discretionary decision accords with the [Sentencing] Commission’s view of the
appropriate application of [sentencing purposes] in the mine run of cases, it is probable that
the sentence is reasonable.” Rita, 551 U.S. at 350-51.

        In conducting its review, this Court considers the following factors: (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 enhancement and mitigating factors; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See T.C.A. §§ 40-35-102, -103, -210 (2010); see also Bise, 380
S.W.3d at 697-98. The burden is on the appellant to demonstrate the impropriety of his
sentence. See T.C.A. § 40-35-401, Sentencing Comm’n Cmts.

                       A. Defendant Carroll - Sentencing Range




                                             -23-
        Defendant Carroll contests the trial court’s sentencing him as a Career Offender. He
first contends that: (1) the trial court erred when it granted the State a continuance in order
to file a notice to seek enhanced punishment and further that, because the notice was
improperly filed, the trial court erred when it did not sentence him as a Range I offender; and
(2) the trial court erred when it denied his motion in limine to try him as a Range I offender
because the State failed to file its notice to seek enhanced punishment in a timely manner.

        The Defendants’ trial was originally set for August 8, 2011. On August 5, 2011, the
State filed a “Notice of Enhanced Punishment,” asking that the trial court sentence Defendant
Carroll as a Career Offender. The applicable rule, discussed below, requires that the State
give ten days notice. The State’s attorney told the trial court that he had spoken with
Defendant Carroll’s attorney and that the two realized that Defendant Carroll’s motion to
suppress had not yet been heard. The State’s attorney said that the two contemplated that the
trial date would be better utilized as a motion hearing date. Defendant Carroll’s attorney
agreed this was an accurate account of their conversation, stating, “That was the conversation
on Friday, yes, sir.” The trial court then heard and denied the motion to suppress.

        After the trial court’s denial of the motion to suppress, Defendant Carroll’s attorney
said that Defendant Carroll opposed the State’s motion for a continuance, citing several
reasons. Defendant Carroll moved for a speedy trial. The State countered that this case was
indicated in April 2011 and that August 8, 2011, was the first court date. The State asserted
that there was no lengthy delay. Further, the State contended that Defendant Carroll’s only
remedy would be a motion to continue the case, which was what the State was seeking. After
hearing the parties’ arguments, the trial court continued the case to August 19, 2011, to
provide a trial date more than ten days after the filing of the notice.

       The granting of a continuance lies within the sound discretion of the trial court, and
we will not reverse that decision absent a showing of an abuse of discretion. State v.
Schmeiderer, 319 S.W.3d 607, 617 (Tenn. 2010) (citing State v. Odom, 137 S.W.3d 572, 589
(Tenn. 2004)). “‘An abuse of discretion is demonstrated by showing that the failure to grant
a continuance denied defendant a fair trial or that it could be reasonably concluded that a
different result would have followed had the continuance been granted.’” Id. (quoting State
v. Hines, 919 S.W.2d 573, 579 (Tenn.1995)).

       Tennessee Rule of Criminal Procedure 12.3 states:

       (a) Noncapital Cases. If the district attorney general intends to seek an
       enhanced punishment as a multiple, persistent, or career offender, the district
       attorney general shall file notice of this intention not less than ten (10) days



                                             -24-
       before trial. If the notice is untimely, the trial judge shall grant the defendant,
       on motion, a reasonable continuance of the trial.

If the defendant does not request a continuance, the written notice shall be valid. Tenn. R.
Crim. P. 12.3 advisory commission cmts.

      Our Legislature has also addressed this issue in Tennessee Code Annotated section
40-35-202(a) (2012). That code section provides:

       If the district attorney general believes that a defendant should be sentenced
       as a multiple, persistent or career offender, the district attorney general shall
       file a statement thereof with the court and defense counsel not less than ten
       (10) days before trial or acceptance of a guilty plea; provided, that the notice
       may be waived by the defendant in writing with the consent of the district
       attorney general and the court accepting the plea. The statement . . . must set
       forth the nature of the prior felony convictions, the dates of the convictions and
       the identity of the courts of the convictions. The original or certified copy of
       the court record of any prior felony conviction, bearing the same name as that
       by which the defendant is charged in the primary offense, is prima facie
       evidence that the defendant named therein is the same as the defendant before
       the court, and is prima facie evidence of the facts set out therein.

In other words, the statute requires at a minimum that the State file “(1) written notice, (2)
clearly expressing the State’s intention to seek sentencing outside of the standard offender
range, (3) setting forth the nature of the prior felony conviction, the dates of the convictions,
and the identity of the courts of the convictions.” State v. Livingston, 197 S.W.3d 710, 713-
14 (Tenn. 2006). The purpose of the statutory notice requirement is to provide a defendant
with fair notice that he or she is subject to greater than the standard sentencing range, to
facilitate plea agreements, to enable the defendant to make an informed plea, and to aid trial
strategy. State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990); State v. Taylor, 63 S.W.3d 400,
412 (Tenn. Crim. App. 2001). Our Supreme Court has held that “perfect” notice is not
required, but fair notice must be provided. Livingston, 197 S.W.3dat713. This means that
“when the State has substantially complied with Section 40-35-202(a), an accused has a duty
to inquire about an ambiguous or incomplete notice and must show prejudice to obtain
relief.” Taylor, 63 S.W.3d at 412; see also State v. Cooper, 321 S.W.3d 501, 507 (Tenn.
2010).

        The record indicates that the parties engaged in plea negotiations before the trial in
this case, beginning in July 2011. Those negotiations were all made with the assumption that
the pretense that Defendant Carroll qualified as a Career Offender. Defendant Carroll’s


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attorney conceded that she had notice that the State sought to prosecute Defendant Carroll
as a Career Offender, but she asserted that, regardless, the State had not followed the rule by
filing the notice ten days before the scheduled trial date.

        We conclude Defendant Carroll is not entitled to the relief he seeks. First, he had
actual notice that the State sought to prosecute him as a Career Offender. He cannot,
therefore, show that he was prejudiced by the State’s late filing of the notice. Second, the
trial court granted him the relief to which he would be entitled under the rule by granting a
continuance.

        As a secondary argument, Defendant Carroll contends that the trial court erred when
it denied his motion in limine to try him as a Range I offender because the State failed to file
its notice to seek enhanced punishment in a timely manner. Because we have concluded that
the State did file a timely notice to seek enhanced punishment, more than ten days before the
August 19, 2011 trial date, we conclude that this issue is without merit.

                     B. Defendant Bustamonte - Mitigating Factors

        Defendant Bustamonte contends that the trial court erred when it failed to give any
or enough weight to the mitigating factor that, because of his youth, he lacked substantial
judgment in committing the offense. He further contends that the trial court erred by using
his reckless endangerment conviction, a conviction for which he was later granted a new
trial, as a reason for not mitigating his sentence. He states that the trial court refused to
consider the mitigating factor that his conduct neither caused nor threatened serious bodily
injury, stating he had been convicted of reckless endangerment. The State counters that the
record supports the trial court’s ruling. We agree with the State.

        At the conclusion of the sentencing hearing, the trial court found Defendant
Bustamonte was a Range I, standard offender, with an applicable sentencing range of eight
to twelve years. The trial court found the following enhancement factors applicable: (1) the
defendant had a previous history of criminal convictions other than those necessary to
establish his sentencing range; (8) the defendant before trial or sentencing has failed to
comply with the conditions of a sentence involving release into the community; and (13) at
the time of the felony the defendant was on Community Corrections. T.C.A. § 40-35-114
(1), (8), and (13). The trial court found one mitigating factor, (4) that the defendant played
a minor role in the commission of the offense. T.C.A. § 40-35-113 (4) (2012). The trial
court rejected the other mitigating factors offered by Defendant Bustamonte, and set the
sentence at eleven years.




                                              -26-
      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

       (1) The minimum sentence within the range of punishment is the sentence that
       should be imposed, because the general assembly set the minimum length of
       sentence for each felony class to reflect the relative seriousness of each
       criminal offense in the felony classifications; and

       (2) The sentence length within the range should be adjusted, as appropriate, by
       the presence or absence of mitigating and enhancement factors set out in §§
       40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c) (2010).

        Although the trial court should also consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See T.C.A. § 40-35-114; see also Bise, 380
S.W.3d 699 n.33, 704; Carter, 254 S.W.3d at 343. We note that “a trial court’s weighing of
various mitigating and 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. 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.” Bise, 380 S.W3d at
706. “[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.” Carter, 254 S.W.3d at 346.

        We conclude that the Defendant’s sentence of eleven years does not wholly depart
from the 1989 Sentencing Act. Further, the trial court imposed the sentence in a manner
consistent with the purposes set out in the Act. We are, therefore, bound by its decision as
to the length of the sentence. Defendant Bustamonte is not entitled to relief on this issue.

                                      III. Conclusion

      Based upon the foregoing authorities and reasoning, we affirm the trial court’s
judgments.


                                                    ___________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE


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