        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs March 30, 2010

              STATE OF TENNESSEE. v. DWIGHT J. SHANKLE

              Direct Appeal from the Circuit Court for McMinn County
                        No. 08-267    Carroll L. Ross, Judge


                  No. E2009-01768-CCA-R3-CD - Filed June 7, 2010


The Defendant-Appellant, Dwight Shankle, was convicted by a McMinn County jury of
manufacture of methamphetamine under 0.5 grams, a Class C felony. He was sentenced as
a multiple offender to eight years in the Tennessee Department of Correction and assessed
a $25,000 fine. On appeal, he claims the insufficiency of the evidence. Upon review, we
affirm the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

J. McMurray Johnson, Athens, Tennessee, for the Defendant-Appellant, Dwight J. Shankel.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Robert S. Bebb, District Attorney General; and Andrew Freiberg, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

        Facts. Deputy Andy Moser of the McMinn County Sheriff’s Office testified that he
was a member of the Tennessee Methamphetamine Task Force. He received training in the
identification of methamphetamine labs, and he was certified as a methamphetamine
technician. Deputy Moser testified that the following components are needed to manufacture
methamphetamine: pseudoephedrine, lithium batteries, muriatic acid, lye, solvents, salt,
iodine, and fertilizer or anhydrous ammonium. He provided a brief overview of two common
methods of producing methamphetamine: the red phosphorus method and the Nazi/Birch
method.
        On March 20, 2008, Deputy Moser went to the home of Brittany Best to investigate
a suspected methamphetamine lab. He was accompanied by Deputy Justin Lowe and an
agent from the Department of Children’s Services. Deputy Moser knocked on the front door
and spoke with Best. He informed Best of the reason for their visit, and she signed a form
consenting to the search of her home. Deputy Moser entered the home and searched the top
floor. He then went downstairs and found Shankle sitting in the basement. Shankle was the
boyfriend of Best, and he appeared to be staying in the master bedroom. Best’s two children
also lived in the home, but they were not present during the search. Deputy Moser testified
that Shankle was taken into custody after it was determined that there was a warrant for his
arrest.

        The search of the basement revealed components used to manufacture
methamphetamine. Deputy Moser said the basement had a pervasive chemical odor. Based
on this odor, he believed methamphetamine had recently been cooked there. Deputy Moser
explained that the lab was not active. He contacted the Methamphetamine Task Force for
the purpose of dismantling and processing the volatile lab.

        While at Best’s home, Deputy Moser took a written inventory of the items found in
the basement. He discovered two “baggies” with white powder residue. Deputy Moser also
found three solvents, a lye, a catalyst, multiple heat sources, tubing, five funnels, glassware,
burnt aluminum foil, a red ketchup bottle with tubing attached, a scale, a pill crusher, wet
coffee filters, a Powerade bottle containing ammonium nitrate, a pickle jar partly full of rock
salt, and various items used to consume methamphetamine and other drugs. Deputy Moser
stated that the items in the basement included everything necessary to manufacture
methamphetamine. He testified that there was a burn pile outside of the basement. In the
burn pile, he found a battery with the lithium strips removed. He said that lithium is a
precursor for making methamphetamine. Deputy Moser said methamphetamine
manufacturers sometimes burn the components and byproducts. On cross-examination,
Deputy Moser testified that when he first saw Shankle in the basement, Shankle was sitting
at a desk. At that time, Shankle was not in physical possession of methamphetamine or
“meth-making” material. Deputy Moser said the two bags with white powder residue were
found on a desk next to where Shankle was sitting.

        Ashley Cummings testified that she worked as a forensic scientist for the Tennessee
Bureau of Investigation Crime Lab. The trial court found that she qualified as an expert in
the forensic identification of controlled substances. Cummings was given two plastic bags
containing white powder residue. She tested the residue in one of the bags and determined
that it contained methamphetamine. Cummings included this finding in a report that was
submitted to the police.



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        Deputy Justin Lowe testified that he served as a drug enforcement officer for the
McMinn County Sheriff’s Department. He went to Best’s home after being contacted by an
agent from the Department of Children’s Services. The agent had received complaints that
methamphetamine was being manufactured at Best’s home while children were present.
Deputy Lowe searched Best’s home with the agent and Deputy Moser. Deputy Lowe
corroborated Deputy Moser’s testimony that Shankle was found in the basement where there
was a methamphetamine lab. Upstairs, Deputy Lowe found a small plastic bag containing
a white powdery substance. He said this substance was later identified by the Tennessee
Bureau of Investigation as methamphetamine. Deputy Lowe found the plastic bag in the
living room area in “a little container that goes on a key chain.”

       Deputy Lowe testified that he spoke with Shankle outside after he was taken into
custody. At this time, Deputy Lowe was not sure that there was a methamphetamine lab in
the basement. Shankle admitted to owning the “stuff” in the basement. He also stated that
Best “had no involvement” and that the cooking process did not occur while the children
were present. Deputy Lowe later interviewed Shankle at the McMinn County Justice Center.
Shankle provided a statement that was written down by Deputy Lowe. The statement read:
“The stuff that was found in the basement, I take full responsibility for. Brittany [Best] had
no idea it was there. There was no methamphetamine cooked in my or her presence at the
house.”

       Deputy Lowe testified that he walked through the upstairs part of Best’s home. He
found men’s clothes in the master bedroom. According to Deputy Lowe, Shankle said he had
been staying at Best’s home. Deputy Lowe said various drug paraphernalia was found in the
basement, including straws, burnt aluminum foil, and plastic bags with white powder residue.

        Michael Bleakley testified that he was forensic scientist for the Tennessee Bureau of
Investigation. The trial court determined that he qualified as an expert in forensic drug
identification. He analyzed a small plastic bag with a white powder substance. After
performing two tests, he determined that the bag contained 0.7 grams of methamphetamine.
This finding was included in a report that was submitted to the police.

        Brittany Best testified that she was in a relationship with Shankle. She recalled
signing the consent form that allowed the deputies to search her home. Best claimed she told
the deputies that Shankle was in the basement. She denied stating that Shankle manufactured
methamphetamine in her basement. Best testified that she was not aware that
methamphetamine was being manufactured in her home. She said her brother had recently
brought a “plastic bottle with components” into her home. Best spoke to him in the basement
the night before Shankle’s arrest. Best’s brother left in the morning, but she said the plastic
bottle remained in the basement. Best testified that her “promotion charge” was reduced to


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a misdemeanor offense because she agreed to testify in another case. She denied having the
charge reduced because she agreed to testify against Shankle.

        On cross-examination, Best testified that she lived at her home with her two children,
her brother, and occasionally her brother’s girlfriend. She said the night before Shankle’s
arrest, her brother came to her home just before midnight. He “was carrying a little black
attache bag, and he pulled out a plastic bottle that was drained of fluid and . . . looked like
gravel.” Best said Shankle was already asleep when her brother came over. Best spoke to
her brother for about thirty minutes in the basement before she went to bed. She knew the
materials that her brother brought to her home were methamphetamine -related, and she told
him to get rid of it. Best testified that none of the items found in her basement belonged to
Shankle.

        Deputy Justin Lowe testified that he spoke with Best at her home on the day of
Shankle’s arrest. He confronted her about the methamphetamine lab in her basement.
Deputy Lowe said Best admitted that Shankle manufactured methamphetamine in her
basement. Consequently, Best was charged with the promotion of methamphetamine.
Deputy Lowe said this charge was reduced, and Best pled guilty to several misdemeanor
offenses. The promotion charge was reduced partly because Best agreed to testify against
Shankle. Deputy Lowe said Best never mentioned anything about her brother. When the
police first arrived at her home, she claimed to be home alone. Based on this statement,
Deputy Lowe searched the top floor of Best’s home for five minutes, rather than proceeding
directly to the basement.

        Shankle testified that he dated Best for three weeks before his arrest. He claimed he
stayed with her once or twice a week. Shankle acknowledged that his criminal record
included convictions for robbery, theft, and prescription fraud. Shankle testified that on the
day of his arrest, he was taking a nap. Best woke him up, and she said police officers were
outside. Shankle knew there was a warrant for his arrest, so he went to the basement. He
also remembered that he smoked part of a marijuana cigarette in the basement earlier that
day, and he was worried that it might still be down there. Shankle was in the basement when
the police came downstairs. After giving his name, he was placed in handcuffs and taken
outside. He told the police, “‘You know, there might be some stuff in there that, you know,
it’s probably mine.’” Shankle explained that the basement contained lots of tools, and he was
worried that some of them might be stolen. He did not believe there was a methamphetamine
lab in the basement, and the police had not mentioned anything about methamphetamine
before he made the statement about owning the “stuff.” Shankle denied that he manufactured
methamphetamine.




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       On cross-examination, the State addressed Shankle’s criminal record in further detail.
Shankle admitted that he was convicted of theft and two counts of forgery in 2001, robbery
in 2002, prescription fraud in 2006, theft over five hundred dollars in 2007, and prescription
fraud in 2008. He stated that he was not aware of the methamphetamine lab in Best’s
basement, and he failed to detect its chemical odor. Shankle also did not notice the wet
coffee filters in the basement. He denied owning any of the items found in the basement.

       Following the proof at trial, the jury convicted Shankle of manufacturing under 0.5
grams of methamphetamine. He was sentenced as a multiple offender to eight years in the
Tennessee Department of Correction. The trial court found that several enhancement factors
were applicable in sentencing. Shankle filed a motion for new trial, challenging the
sufficiency of the evidence. The trial court denied this motion. He then filed a timely notice
of appeal.

                                         ANALYSIS

       Sufficiency of the Evidence. Shankle claims the evidence was insufficient to support
his conviction for manufacturing under 0.5 grams of methamphetamine. He argues that the
evidence did not identify him as the perpetrator who manufactured methamphetamine in
Best’s basement. As support, Shankle asserts:

       he had no possessory interest in the house where the methamphetamine residue
       or the methamphetamine-making materials were discovered, no such items
       were found on his person, and no proof was presented that such items were in
       his actual or constructive possession or that he was knowingly involved in any
       preparation, modification, or extraction process to manufacture
       methamphetamine.

The State claims a rational jury could have found that Shankle committed the offense beyond
a reasonable doubt.

        Standard of Review. The State, on appeal, is entitled to the strongest legitimate view
of the evidence and all reasonable inferences which may be drawn from that evidence. State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency
of the evidence, the standard of review applied by this 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). Similarly, Rule 13(e) of the Tennessee
Rules of Appellate Procedure states, “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


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the trier of fact of guilt beyond a reasonable doubt.” A verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt; therefore, a defendant
on appeal has the burden of showing that the evidence is insufficient to support the jury’s
verdict. State v. Thacker, 164 S.W.3d 208, 221 (Tenn. 2005) (citing State v. Evans, 108
S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000);
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

        Guilt may be found beyond a reasonable doubt in a case where there is direct
evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony,
and must reconcile all conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). This court has often stated that “[a] guilty verdict by the jury, approved by the trial
court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor
of the prosecution’s theory.” Bland, 958 S.W.2d at 659 (citation omitted). A guilty verdict
also “removes the presumption of innocence and replaces it with a presumption of guilt, and
the defendant has the burden of illustrating why the evidence is insufficient to support the
jury’s verdict.” Id. (citing Tuggle, 639 S.W.2d at 914).

        “The identity of the perpetrator is an essential element of any crime.” State v. Robert
Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.,
at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)).
The State has the burden of proving “the identity of the defendant as the perpetrator beyond
a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App.
1995)). The State may prove the perpetrator’s identity using only circumstantial evidence.
State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Reid, 91 S.W.3d 247, 277
(Tenn. 2002)). However, where the defendant is convicted based on only circumstantial
evidence, the evidence must be “so clearly interwoven and connected that the finger of guilt
is pointed unerringly at the Defendant and the Defendant alone.” State v. Smith, 868 S.W.2d
561, 569 (Tenn. 1993) (quoting State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985)). The jury
must determine the weight given to circumstantial evidence. Williams v. State, 520 S.W.2d
371, 374 (Tenn. Crim. App. 1974). This court may not “substitute its inferences drawn from
circumstantial evidence for those drawn by the trier of fact.” Carruthers, 35 S.W.3d at 557
(citing Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956)). However, “‘[a] verdict of a jury
may not be based alone upon conjecture, guess, speculation or a mere possibility.’” State v.
Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987) (quoting Sullivan v. State, 513 S.W.2d 152, 154
(Tenn. 1974)).




                                               -6-
        Shankle was charged with manufacturing under 0.5 grams of methamphetamine. This
offense is defined under Tennessee Code Annotated section 39-17-417(a), which states, “It
is an offense for a defendant to knowingly: (1) Manufacture a controlled substance[.]” See
also T.C.A. § 39-17-417(c)(2)(A) (“Any other Schedule II controlled substance, including
cocaine or methamphetamine in an amount of less than point five (.5) grams, is a Class C
felony[.]”). Section 39-17-402(15) defines the term “manufacture” as follows:

       “Manufacture” means the production, preparation, propagation, compounding,
       conversion or processing of a controlled substance, either directly or indirectly
       by extraction from substances of natural origin, or independently by means of
       chemical synthesis, and includes any packaging or repackaging of the
       substance or labeling or relabeling of its container, except that “manufacture”
       does not include the preparation or compounding of a controlled substance by
       an individual for the individual’s own use or the preparation, compounding,
       packaging, or labeling of a controlled substance by:

       (A) A practitioner as an incident to administering or dispensing a controlled
       substance in the course of professional practice; or

       (B) A practitioner, or an authorized agent under the practitioner’s supervision,
       for the purpose of, or as an incident to, research, teaching or chemical analysis
       and not for sale[.]

        The evidence, when considered in the light most favorable to the State, supports the
jury’s verdict. Deputy Moser testified that he searched the basement in Best’s home and
found all of the components needed to manufacture methamphetamine. Several bags were
found with white powder residue, and two forensic scientists determined that the residue
contained methamphetamine. Deputy Moser found a burn pile outside that contained a
byproduct of the manufacturing process. Deputy Moser said he was trained to identify
methamphetamine labs, and he concluded that methamphetamine was recently manufactured
in the basement. Deputy Lowe also testified that the basement was a methamphetamine lab.

       The crux of Shankle’s argument is that there was insufficient evidence linking
Shankle to the methamphetamine lab in Best’s basement. This argument is not, however,
supported by the testimony at trial. Deputy Lowe questioned Best on the day of Shankle’s
arrest. According to Deputy Lowe, Best said she knew Shankle manufactured
methamphetamine in her basement. Shankle testified that he was in a relationship with Best,
and he stayed at her home once or twice a week. Deputy Lowe testified that he searched
Best’s bedroom, and Shankle appeared to be living there. Shankle admitted to owning the
“stuff” in the basement soon after being taken into custody. Deputy Lowe testified that


                                              -7-
Shankle also stated that the cooking process did not occur while Best’s children were present,
and that Best “had no involvement.” In convicting Shankle, the jury discredited the
testimony of Best and Shankle who both denied any knowledge of the methamphetamine
lab. The jury determined that Deputy Moser and Deputy Lowe were credible witnesses, and
we will not override that determination. Their testimony provided sufficient evidence
identifying Shankle as the perpetrator. We hold that a rational jury could have found Shankle
guilty of manufacturing under 0.5 grams of methamphetamine. Accordingly, Shankle is not
entitled to relief.

                                      CONCLUSION

       Based on the foregoing, the judgment of the trial court is affirmed.


                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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