         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    March 12, 2002 Session

             STATE OF TENNESSEE v. DON WOODY MCGOWAN

                   Direct Appeal from the Circuit Court for Marion County
                          No. 5116-A Thomas W. Graham, Judge



                     No. M2001-02866-CCA-R3-CD - Filed June 28, 2002


Defendant, Don Woody McGowan, was convicted by a Marion County jury of possession of drug
paraphernalia, a Class E felony. Defendant appeals his conviction, presenting the following issues
for review: (1) whether the evidence was sufficient to support his conviction; (2) whether he was
denied a fair trial by the trial court’s denial of his motion to sever the cases when the co-defendant
failed to appear on the second day of trial; (3) whether the trial judge erred by failing to recuse
himself; and (4) whether his sentence was proper. After a review of the record, we find that the
evidence was insufficient to sustain the conviction. The judgment of the trial court is reversed, and
the case is dismissed.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.

Philip A. Condra, District Public Defender, Jasper, Tennessee, for the appellant, Don Woody
McGowan.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
James Michael Taylor, District Attorney General; Steve Blount, Assistant District Attorney General;
and Sherry Gouger, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

       On January 14, 2000, at approximately 6:30 p.m., Officers William Layne and Chad Johnson
were on patrol in their squad car when they drove by William T. Green’s trailer and noticed
approximately four or five individuals standing in the front yard. Both recalled that the area around


                                                  1
Mr. Green’s home was well-lit by street lights. Officer Layne testified that he recognized at least
four of the individuals as Defendant, Mr. Green, Harvey Layne, and Marty Kilgore. Mr. Kilgore was
well-known by local authorities because he had evaded arrest on numerous occasions. Officer Layne
further stated that to his knowledge, Mr. Kilgore had numerous outstanding arrest warrants in Marion
County. Instead of attempting an arrest, the officers, fearing that a chase might ensue, returned to
the police station and arranged for backup assistance.

       Approximately one hour later, Officers Layne and Johnson returned to Mr. Green’s trailer
accompanied by five additional officers from the Marion County Sheriff’s Department. The front
yard was empty and the trailer appeared dark from the outside. Detective Myers of the Marion
County Sheriff’s Department and Officer Johnson approached the back door while the other officers
secured the front entrance. They then knocked and announced “Sheriff’s Department.” Although
they heard shuffling and rumbling inside the trailer, no one answered the door. After waiting a few
minutes, Officer Johnson shined his flashlight through a window on the back door. Detective Myers,
who was positioned closer to the door, saw Mr. Green inside the trailer pointing a small handgun
towards the back door. He immediately yelled, “he’s got a gun,” and jerked the door open. As
Detective Myers entered the trailer, he saw Mr. Green “pitch” the pistol and begin walking away
from the door at a fast pace, heading towards a bedroom that was on the left side of the trailer. At
the same time, Defendant appeared from a bedroom that was on the opposite end of the trailer.
Officers ordered Defendant to put his hands up and sit down on the couch. Officer Johnson testified
that when he entered the trailer, shortly after Detective Myers, Defendant was already sitting on the
couch. He recalled that the inside of the trailer had a “chemical smell kind of like fuel.” Officer
Johnson later retrieved a loaded handgun from inside a clothes dryer that was adjacent to the back
door.

        As the two men were detained, Officer Layne and other officers entered the premises. Officer
Layne testified that when he entered the back door, he detected a chemical odor and smelled smoke.
He then heard a loud “pop,” which sounded like a gunshot, come from a bedroom located on the left
side of the trailer. Unsure if shots had been fired, he and Detective Williams approached the
bedroom with caution. The room was dimly lit by a small lamp that was connected to an extension
cord. As Officer Layne opened the door, he noticed a pile of paper burning on top of a red duffel
bag on the floor and immediately extinguished the fire. Upon closer inspection, he discovered that
the burning papers were a mixture of coffee filters and paper towels. Noticing that the duffel bag
was partially unzipped, he could identify some of its contents which included a twenty ounce Sun
Drop bottle with tubing coming out of the top and a glass jar with brown liquid and coffee filters
inside. Officer Layne testified that based on his training and experience, these and the additional
items discovered inside the duffel bag were commonly used to manufacture methamphetamine.
Officer Johnson testified that the popping sound was later determined to be the cause of one of the
“gassers” or the “generator” exploding when it caught fire. He explained that a “generator” is
another name for a bottle with tubing attached to it that would be used to “gas off,” a procedure
commonly used in manufacturing methamphetamine.




                                                 2
       The trailer was described as being sixty feet long, and contained a living room, bathroom and
kitchen. It had two small bedrooms on opposite ends of the trailer. The bedrooms were also
separated from the main living space by a small hallway. The trailer did not have any power source,
and the only source of electricity was an extension cord that ran from the trailer to Harvey Layne’s
home, located on an adjacent lot. Office Johnson estimated that the distance from the back door,
where officers first entered the trailer, to the bedroom where the red duffel bag was discovered was
approximately four to five feet. He further testified that a rough estimate of the distance between
the couch, where Defendant was initially detained, and the bedroom with the red duffel bag was
approximately thirty feet, the length of half the trailer.

        After obtaining a search warrant, Detective Myers and Officer Layne returned to the trailer
and conducted a thorough search of the premises. Officer Layne inspected the bag’s contents and
photographed the evidence. He also inspected and photographed other items in the house including
a crock pot with white residue, which was discovered in the kitchen, and a box of matches. Officer
Layne compiled a list of the items found in the red duffel bag which included the following:
ephedrine pills, coffee filters which contained a residue, two bottles, two twenty ounce coke bottles
with tubing coming out of them, a quart fruit jar with coffee filters, a gallon jug of muriatic acid, one
bottle of heet, a funnel, a coffee pot with residue on it, a square dish with red powder residue, two
jars with a clear liquid in them, and assorted tubing and jars that contained an oil substance.

        Crosby Jones, a Special Agent with the Drug Enforcement Agency, testified that on January
14, 2000, he was summoned to Mr. Green’s residence in his official capacity as a site safety officer.
As a site safety officer, it is his responsibility to enter alleged laboratories where hazardous material
is manufactured and take samples, process the samples, and ensure that the hazardous substance is
disposed of in the proper manner. His duties also include overseeing officers at the scene to ensure
that they are performing their jobs properly, and ensuring that the samples are retrieved properly.

        Agent Jones testified that he has received specialized training about the production of
methamphetamine. He testified that his training has included learning the process for manufacturing
methamphetamine under laboratory controlled conditions and also under “home-made” laboratory
conditions, which are commonly seen in fieldwork. He then described the procedure for “cooking”
methamphetamine, explaining that many chemicals used to produce methamphetamine can be found
at any grocery store.

        Agent Jones testified that he personally unpacked the red duffel bag and assessed the
contents. He also confirmed that the bag contained the majority of the ingredients used to “cook”
methamphetamine, including the following: 150 pseudoephedrine tablets, glass jars, two bottles of
12 ounce Heet line antifreeze, two plastic bottles with attached tubing, coffee filters, red phosphorus
on a matchbook cover, lye, Coleman Fuel, one gallon jug of muriatic acid, two glass coffee pots, two
quart empty jars, one single eye burner, one blue glass bowl containing white sludge material, one
iron skillet with brown color residue, one crock pot containing an off white powder residue, and one
Pyrex cooking dish containing off white powder residue. He admitted that officers did not discover
iodine, an ingredient commonly used in the manufacturing process, in the trailer. However, he


                                                   3
explained that this was not uncommon because during the manufacturing process, iodine cooks out
completely. Thus, the absence of the raw substance would not be uncommon. However, he testified
that he found traces of iodine on coffee filters that were in the bag and strewn around the room.

         On cross-examination, Agent Jones further admitted that he did not find acetone, another
ingredient required to produce methamphetamine. However, he testified that he did discover a clear
liquid in a jar which he believed was acetone. Although it was not tested, he was able to recognize
the smell of acetone, which is commonly used as a fingernail polish remover. Furthermore, although
the trailer failed to contain a heat source, which is needed to “cook” the final solution, he stated that
this step can be bypassed by combining iodine, red phosphorus, and a water solution to create natural
heat.

         Detective Myers, assisted by Agent Jones, retrieved a liquid sample from two containers that
were removed from the red duffel bag. The first sample was retrieved from a glass jar which
contained a brown liquid and coffee filters, and the second sample was retrieved from a plastic bottle
with a hose protruding out of it. Each sample was placed in a glass container and sealed with a lid.
Then, each sample was placed in a plastic bottle and capped. Finally, each sample was packaged in
a bag and submitted to Officer Layne for storage until the samples could be submitted to the crime
lab for testing. The coffee filters were also submitted to the crime lab for testing. Officer Layne
testified that he observed as each sample was inspected, retrieved, labeled, stored, and then recorded
on a log sheet.

       Detective Williams, acting as custodian, transported the evidence to and from the Tennessee
Bureau of Investigation’s Crime Laboratory located in Chattanooga, Tennessee. He testified that
based on his knowledge, the samples that he received from the scene did not come from Defendant.
He further stated that on January 14, 2000, the temperature inside the trailer was colder than the
temperature outside.

         Brett Trotter, a forensic chemist for the Chattanooga Regional Crime Laboratory, testified
that on February 22, 2000, he performed a drug analysis on two liquid samples, brown in color. His
initials were placed on the bag which contained the evidence. He testified that both samples tested
were positive for traces of methamphetamine, a Schedule II controlled substance. Alex Brodhag,
also a forensic chemist at the TBI Crime Laboratory in Chattanooga, analyzed the coffee filters
submitted as evidence in this case. He testified that the coffee filters contained a small amount of
powdery residue. When tested, the residue on the coffee filters revealed the presence of
methamphetamine. Adam Gray, another forensic chemist who tested a sample from the second
coffee filter submitted, testified that the residue found on the filter also tested positive for
methamphetamine.

        The State rested its case.

        Defendant was the sole witness for the defense. He testified that on January 14, 2000, he
traveled to Whitewell to visit with friends. He stated that on that evening, he visited his brother-in-


                                                   4
law, Harvey Layne. While there, he, Mr. Layne and Mr. Green, and Mr. Green’s girlfriend, Angie,
were standing outside Mr. Layne’s home talking. Although Defendant admitted that he was
acquainted with Mr. Kilgore, he denied being with Mr. Kilgore on January 14, 2000. He further
denied seeing a patrol car drive by Mr. Layne’s residence.

         After talking for awhile, he and Mr. Green went to the store to purchase a beer. Upon their
return, they discovered that Mr. Layne had gone inside his home. Mr. Green then invited Defendant
into his trailer, located next door, to wait for Mr. Layne to return. He stated that he entered the trailer
and sat down on the couch. Angie also accompanied them into the trailer, and she and Mr. Green
disappeared into a back bedroom. Within minutes, Angie reappeared and left. Defendant stated that
only moments later, the back door flew open and someone yelled at him to “hit the floor.”
Defendant testified that he immediately got down on the floor until he was later ordered to sit on the
couch. As he “hit the floor,” he heard a “pop” inside the trailer which sounded like a gunshot. He
then yelled, “I’m over here on the floor, don’t shoot me.” He testified that he was unable to see who
entered the trailer or whether they had guns. He denied hearing anyone knock on the door. He
further testified that the couch in the living room faces the front door and that he did not see Mr.
Green approach the back door with a gun. Defendant stated that he was in the trailer less than fifteen
minutes before police entered, and that he did not go through the trailer and was unaware of its
contents. He also testified that he never saw the red duffel bag in the back bedroom and did not
remember smelling anything inside the trailer, or seeing any smoke.

        In February 2000, Defendant was indicted, along with his co-defendant, William T. Green,
for criminal attempt to manufacture a Schedule II controlled substance; unlawful possession of a
weapon with intent to employ it in the commission of the offense of attempt to manufacture a
Schedule II controlled substance; felony possession of drug paraphernalia; and possession of a
legend drug without a prescription. Later, the trial court dismissed both Count II (unlawful
possession of a weapon), and Count IV (unlawful possession of a legend drug), against Defendant,
and Count IV against the co-defendant.

       Defendant was acquitted of attempt to manufacture a Schedule II controlled substance, but
was convicted of possession of drug paraphernalia with intent to deliver and fined $3,000.00. On
November 6, 2000, Defendant was sentenced as a Range II, multiple offender, and received the
maximum four year sentence. Defendant’s fine was later reduced from $3,000.00 to $500.00.
Defendant filed a timely notice of appeal to this Court.

                                              ANALYSIS

I.      Sufficiency of the Evidence

       Defendant argues that the evidence was insufficient to sustain his conviction for possession
of drug paraphernalia. We agree.




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        When evaluating the sufficiency of the evidence, we must review the evidence, in the light
most favorable to the prosecution, to determine if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” State v. Keough, 18 S.W.3d 175, 180-
81 (Tenn. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed.2d 560
(1979)). A guilty verdict shall be set aside on appeal if the evidence was insufficient to support the
findings of guilty beyond a reasonable doubt. Tenn. R. App. P. 13(e). The burden rests with
Defendant to prove that the evidence was insufficient to support the verdict returned by the trier of
fact. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

         On appeal, the prosecution is entitled to the strongest legitimate view of the evidence in the
record, as well as all reasonable and legitimate inferences that may be drawn from the evidence. See
Keough, 18 S.W.3d at 181 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). “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. The trier
of fact resolves all questions concerning witnesses’ credibility, the weight and value to be given the
evidence, and all factual issues; the evidence will not be reweighed or reevaluated. See id.; State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.
App. 1987). The standard for appellate review is the same whether the conviction is based upon
direct or circumstantial evidence. See State v. Vann, 976 S.W.2d 93, 111 (Tenn. 1998).

       Defendant contends that although the evidence was sufficient to support a finding that the
items seized were drug paraphernalia, the State failed to prove his “possession, either actual or
constructive.” He further argues that his mere presence at the residence is insufficient, by itself, to
support the conviction.

         A conviction of possession of drugs or drug paraphernalia may be based upon either actual
or constructive possession. See State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987)
(citing State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981)). In discussing the nature
of constructive possession in a similar context, this Court has stated that before a person can be
found to constructively possess drugs or drug paraphernalia, it must appear that the person has “the
power and intention at a given time to exercise dominion and control over . . . [the drugs or drug
paraphernalia] either directly or through others.” State v. Transou, 928 S.W.2d 949, 955-56 (Tenn.
Crim. App. 1996) (citing Cooper, 736 S.W.2d at 129). However, mere presence in an area where
the drugs are discovered is not, standing alone, sufficient to support a conviction for possession. See
id. at 956. “Likewise, mere association with a person who does in fact control the drugs or property
where the drugs are discovered is insufficient to support a finding that the person possessed the
drugs.” See id.

        Viewed in the light most favorable to the State, this Court finds that the evidence at trial was
insufficient to convict Defendant of felonious possession of drug paraphernalia beyond a reasonable
doubt. First, the officers acknowledged that Defendant did not reside in the residence in which the
drug paraphernalia was found. Second, the officers did not find the drug paraphernalia on
Defendant’s person. Third, Detective Myers, the first officer into the trailer, testified that Defendant


                                                   6
was seen and detained upon exiting a bedroom on the opposite side of the trailer from where the drug
paraphernalia was later discovered. Furthermore, officers failed to discover any evidence connecting
Defendant with the trailer or its contents. In addition, Detective Williams, another officer on the
scene, testified that there was no evidence to connect Defendant with the drug paraphernalia, “just
that he was there.” Defendant’s mere presence in co-defendant’s trailer is not, standing alone,
sufficient to support a conviction of possession of drug paraphernalia. See Cooper, 736 S.W.2d at
129. Nor was his mere association with co-defendant, the person who controlled the property where
the drug paraphernalia was discovered, sufficient to support his conviction. See Whited v. State, 483
S.W.2d 594 (Tenn. Crim. App. 1972); Dishman v. State, 460 S.W.2d 855, 858 (Tenn. 1970).

        The State concedes that although Defendant’s mere presence in the trailer was insufficient
to support a conviction, the “logical force” of the evidence was sufficient to support a finding that
Defendant “intended to exercise dominion and control over the duffel bag of meth lab
paraphernalia.” This is mere speculation. Although it is well established that circumstantial
evidence alone may be sufficient to support a conviction, see State v. Richmond, 7 S.W.3d 90, 91
(Tenn. Crim. App. 1999), before an accused may be convicted of a criminal offense based
exclusively upon circumstantial evidence, “it must establish such a certainty of guilt of the accused
as to convince the mind beyond a reasonable doubt that [the defendant] is the one who committed
the crime.” State v. Crawford, 470 S.W.2d 610, 612 (1971) (quoting Pruitt v. State, 460 S.W.2d
385, 390 (1970)). In other words, “[a] web of guilt must be woven around the defendant from which
he cannot escape and from which facts and circumstances the jury could draw no other reasonable
inference save the guilt of the defendant beyond a reasonable doubt.” Crawford, 470 S.W.2d at 613.
We find that this evidence does not exclude every other reasonable hypothesis save the guilt of
[Defendant]. See id. In sum, we find that the evidence was insufficient to sustain Defendant’s
conviction. In the event of further review, we will address Defendant’s remaining three issues on
appeal.

II.    Motion to Sever

        Defendant contends that the trial court erred by denying his motion to sever his trial.
Defendant claims that due to the overwhelming amount of evidence against co-defendant Green, the
trial court should have severed his case to “promote a fair determination of his guilt or innocence.”
We disagree.

        Defendant presented two motions to sever his trial from co-defendant, both of which were
denied by the trial court. The first motion was presented before the trial began, and the second
motion was presented orally, during the trial, when co-defendant failed to reappear on the second
day of trial. Severance of defendants is allowed pursuant to Rules 13(b) and 14(c) of the Tennessee
Rules of Criminal Procedure. Rule 14(c)(2)(i) and (ii) of the Tennessee Rules of Criminal Procedure
provides that the court shall grant a severance of defendants, before or during trial, if deemed
appropriate to promote or achieve a fair determination of the guilt or innocence of a defendant.




                                                 7
         The grant or denial of a motion for severance of defendants is a matter that rests within the
sound discretion of the trial court. See State v. Burton, 751 S.W.2d 440, 447 (Tenn. Crim. App.
1988). This Court will not disturb the trial court's decision to deny or grant a severance of
co-defendants absent clear abuse of that discretion. See State v. Woods, 806 S.W.2d 205, 211
(Tenn. Crim. App. 1990). “The exercise of that discretion will not be reversed absent an affirmative
showing of prejudice.” State v. Ensley, 956 S.W.2d 502, 508 (Tenn. Crim. App. 1996). In other
words, the record must reveal that “the defendant was clearly prejudiced to the point that the trial
court's discretion ended and the granting of [a] severance became a judicial duty.” Parham v. State,
885 S.W.2d 375, 383 (Tenn. Crim. App. 1994).

       We find no abuse of discretion. At the conclusion of the evidence, the trial court issued the
following jury instruction:

        Now, ladies and gentlemen, you should give separate consideration to each
        defendant. Each is entitled to have his case decided on the evidence and the law
        which is applicable to that particular defendant. Any evidence which was limited to
        a particular defendant should not be considered by as to any other defendant.

        The jury is presumed to have followed the instructions of the trial court. See State v. Cribbs,
967 S.W.2d 773, 784 (Tenn. 1998). In order to overcome this presumption, the defendant must show
by clear and convincing evidence that the instruction was not followed. See State v. Newsome, 744
S.W.2d 911, 915 (Tenn. Crim. App. 1987). Defendant has failed to present evidence to overcome
this presumption. On the contrary, the record reveals that although both defendants were charged
with attempt to manufacture a Schedule II controlled substance, the co-defendant was convicted and
Defendant was acquitted. Defendant is not entitled to relief on this issue.

III.    Failure to Recuse

       Defendant next contends that the trial judge erred by denying his motion for recusal. He
claims that the trial judge should have recused himself because his “impartiality could reasonably
be questioned.”

        After the trial, but prior to sentencing, Defendant filed a motion for recusal based on the trial
judge's prior representation and personal opinion of Defendant. The motion was based on a
comment made during a lunch with the trial judge, district attorney, and defense counsel present in
another county during a break in an unrelated matter. During the lunch, the trial court made the
comment that he had represented the Defendant some 20 to 25 years previously in a case where
Defendant was acquitted. The trial court observed that the then district attorney made the comment
that Defendant would be back in court “every day from that day on.” At the hearing on the motion
to recuse, the trial court remarked “[a]nd [the district attorney] was somewhat right.” Immediately
after making this statement, Defendant’s counsel was stating that the court arguably had a negative
view of Defendant and that was the reason for filing the motion to recuse. The trial court interposed
at the motion for recusal, and the following was stated on the record:


                                                   8
THE COURT:           (Interposing) Heck, I remember - - I remember him as
                     far anything that would be prejudicial I remember him
                     - - his involvement with the killing of what was his
                     name, Bubba?

GENERAL GOUGER:      Bubba Winchester.

THE COURT:           Bubba Winchester, and everybody in the county knew
                     that. I mean, you know, he was actually indicted and
                     was on the lam for years.

[DEFENSE COUNSEL]:   No, sir, he was not on the lam.

THE COURT:           He wasn’t?

[DEFENSE COUNSEL]:   No, sir, he was not on the lam, and that’s absolutely
                     not correct. In point of fact, - -

THE COURT:           (Interposing) He was out of county, but under
                     indictment for a long, long time.

[DEFENSE COUNSEL]:   Judge, I think and you know since the Court’s brought
                     up that - - that particular matter. That matter was set
                     for trial, if my memory serves me correctly and I
                     haven’t gone - - we were appointed to represent Mr.
                     McGowan in that case and I want to say it was in ‘89,
                     ‘90. That case was set for trial and Mr. McGowan,
                     there was an offer made in that case, shortly before
                     trial, it was rejected. I want to say this was around the
                     time that [the district attorney’s wife] died, but I may
                     be confusing my time frames, that [she] died,
                     sometime maybe that week-end or whatever, but Mr.
                     McGowan was not on the lam. He was prepared to go
                     to trial on that case that was set for trial.

THE COURT:           Maybe - - maybe he was out of the county by exile or
                     something, I remember some comments about it.

                              ***

THE COURT:           Well, obviously nothing ever occurred from it. I
                     mean, the State whatever the situation the State
                     decided to drop further prosecution because there was


                                9
                                     never any ultimate resolution other than a dismissal or
                                     something, what happened to it?

       [DEFENSE COUNSEL]:            Well . . . .

       THE COURT:                    Was he retired after that case or what?

       [DEFENSE COUNSEL]:            Judge, I honestly can’t tell you what - - -

       THE COURT:                    (Interposing) Don’t remember.

                                               ***

       [DEFENSE COUNSEL]:            Well, that’s what I’m observing, Your Honor, is that
                                     [co-defendant] did not come back til the second day of
                                     trial, and at that time we made a – we asked the Court
                                     to sustain our motion to sever or made another motion
                                     to sever in the case as to Mr. McGowan. So I just
                                     basically think that the Court may have some
                                     misinformation about Mr. McGowan as evidence here
                                     today with the matter of Mr. Winchester’s case were
                                     Mr. McGowan was not on the lam - - - -

       THE COURT:                    (Interposing) Well, it’s not misinformation it may be
                                     saying on the lam is a little broad, but he certainly was
                                     connected with it, indicted for it, and you know, it was
                                     up in the air for a long time is all I knew.

       [DEFENSE COUNSEL]:            So that’s the basis of - - for this motion to recuse that
                                     the Court may have a negative view of Mr. McGowan
                                     as a result of a lot of maybe information, some
                                     correct, some not correct, and I felt it appropriate as
                                     his attorney to bring that to the Court’s attention and
                                     respectfully request the Court recuse itself from
                                     further considerations in the sentencing and the
                                     motion for new trial, and the things that will
                                     obviously follow.

       Following the above argument and discussion on the record, the trial court ruled denying the
motion to recuse, stating as follows:

       THE COURT:                     The Court knows what it has in its own heart, sounds
                                      like a political candidate, doesn’t it? And in his case


                                                    10
                                      there’s - - the Court has no bias as far as mistreating
                                      him. It’s hard to be a judge in a rural district and not
                                      know about people’s past criminal contact with the
                                      system. I mean, gosh, if we had to recuse every time
                                      we knew of somebody’s past deeds that may or may
                                      not be viewed in a good light, I mean we wouldn’t be
                                      able to try about half of the people we have in here,
                                      they’re all repeat offenders. So anyway I deny your
                                      motion.

       During the motion for new trial hearing, the following occurred while defense counsel was
arguing that the evidence was insufficient to sustain the conviction:

       THE COURT:                     (Interposing) No, reasonable - - -

       [DEFENSE COUNSEL]:             Except guilt. Except guilt. Not that you can think of
                                      a reason to convict him, but that the evidence must
                                      exclude every other reasonable explanation. That
                                      evidence was not here. This was as weak a case as
                                      I’ve seen the State of Tennessee bring as far as Don
                                      Woody McGowan’s concerned.

       THE COURT:                     One of his many cases.

       [DEFENSE COUNSEL]:             Well, which brings us to some more thoughts that
                                      there was some statement made here in the courtroom
                                      that are not correct. Dealing with a totally unrelated
                                      case years ago and was not ever resulting in any kind
                                      of conviction yet - - - -

       THE COURT:                     (Interposing) Well, the jury didn’t have any of that
                                      before them - - -

        Finally, we note that at the beginning of the hearing on the motion to recuse, the following
transpired:

       [DEFENSE COUNSEL]:             What I was wanting to bring to the Court’s attention
                                      is in a case that the Court tried recently involving - -
                                      it’s case number 5116, Don Woody McGowan, and
                                      Judge - - -

       THE COURT:                     His name came up again today I noticed.



                                                11
        GENERAL GOUGER:                  And guess where.

        [DEFENSE COUNSEL]:               Yes.

        THE COURT:                       At a crack - - at a meth lab.

        [DEFENSE COUNSEL]:               I’ve been practicing law 28 years and this to my
                                         knowledge is the first time I’ve asked a Court to
                                         recuse itself. So I’m treading in areas that I’m not
                                         accustomed to doing.

        THE COURT:                       Okay.

        First, we note that normally, the proper time for Defendant to raise the issue of recusal would
have been pre-trial, not prior to sentencing. A motion to recuse that is filed after the trial begins is
waived. See Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997). However, because
Defendant claims that the trial judge’s apparent partiality was discovered several weeks after the
trial, we will address Defendant’s claims on the merits.

        The decision of whether to grant a recusal rests within the discretion of the trial judge and
will not be overturned on appeal unless clear abuse of that discretion appears on the face of the
record. See State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995). A motion to recuse should be
granted if the judge has any doubt as to his or her ability to preside impartially in the case, or
whenever he or she believes that his or her impartiality can reasonably be questioned. Tenn. Sup.
Ct. R. 10, Canon 3(E); see Lackey v. State, 578 S.W.2d 101, 104 (Tenn. Crim. App. 1978).
Moreover, recusal is warranted “when a person of ordinary prudence in the judge's position, knowing
all of the facts known to the judge, would find a reasonable basis for questioning the judge's
impartiality.” Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). In other words, the
determining standard is an objective one, not a subjective one. See id. at 820. Courts must avoid
the appearance of partiality as well as partiality itself. See id. at 823. Furthermore, any comments
made by the trial court must be construed in the context of all the facts and circumstances to
determine whether a reasonable person would construe those remarks as indicating partiality on the
merits of the case. See id. at 822. However, we note that a judge is in no way disqualified merely
because he has participated in other legal proceedings against the same person. See Hines, 919
S.W.2d at 578 (citing King v. State, 391 S.W.2d 637, 642 (1965)).

        Initially, we note that it would not be unusual for a trial judge, particularly in a rural area, to
be aware that a defendant had previous charges, as well as the disposition of those charges. Such
knowledge certainly does not mandate recusal. However, if a trial judge, on the record, expresses
an unfavorable opinion about a defendant’s alleged prior criminal conduct in an unrelated matter
which has not been adjudicated or is inconsistent with the disposition of the matter, then there is an
objective appearance of partiality even though the judge can be subjectively fair and impartial.
Recusal is required in such a situation.


                                                    12
        The crux of the issue before this court is whether the trial judge’s remarks could reasonably
be interpreted as simply relating to the defendant’s prior procedural history, or whether the judge was
expressing an unfavorable opinion of the defendant based upon the judge’s perception of
unadjudicated prior conduct in unrelated matters. We view this issue from an objective perspective.

       The defendant was facing sentencing for a felony. The trial judge stated at the motion
hearing: he “remember[ed the defendant’s] involvement with the killing of Bubba [Winchester];”
“everybody in the county knew that;” the defendant was “on the lam for years;” and although it may
be “saying on the lam is a little broad, ... he certainly was connected with it....” We believe these
remarks were unfortunate and certainly called into question from an objective perspective an
appearance of partiality as it relates to sentencing. Nevertheless, we do note that the trial judge
spoke in his ruling about the difficulty of a rural trial judge not being aware of a defendant’s “past
criminal contact with the system.” Certainly, this is true.

        The issue of recusal is a close one as it relates to sentencing, although the issue is moot in
light of our dismissal for insufficiency of the evidence. Had we not dismissed, we would remand
for resentencing by a different judge, and would not address the sentencing issues raised by
Defendant.

IV.    Sentencing

        Finally, Defendant challenges the trial court's denial of alternative sentencing. Specifically,
he argues that because he was convicted of a Class E felony, the trial court erred by ordering his
sentence to be served in the Tennessee Department of Correction. He also contests the method of
service and length of the sentence.

        When the defendant challenges the length, range, or manner of service of a sentence, this
Court conducts a de novo review of the record with a presumption that the determinations made by
the sentencing court were correct. See Tenn. Code Ann. §§ 40-35-401(d), -402(d) (1997).
"However, the presumption of correctness which accompanies the trial court's action is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing principles
and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In
conducting a de novo review, this court must consider (a) all the evidence at trial and the sentencing
hearing, (b) the presentence report, (c) the sentencing principles, (d) the arguments of counsel, (e)
the nature and characteristics of the offenses, (f) any statutory mitigating and enhancement factors;
(g) any statement that the Defendant made on his own behalf, and (h) the defendant’s potential for
rehabilitation. See Tenn. Code Ann. §§ 40-35-102, -103, -210(b) (1997). The burden of showing
that a sentence was improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401(d),
Sentencing Commission Comments.

        The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c) (1997). Where one or more enhancement factors apply but no
mitigating factors exist, the trial court may sentence above the presumptive sentence, but still within

                                                  13
the range. See id. at § 40-35-210(d) (1997). Should both enhancement and mitigating factors exist,
the trial court must begin sentencing at the presumptive sentence (i.e., the midpoint of the range for
Class A felonies and the minimum sentence in the range for Class B, C, D, and E felonies), enhance
the sentence within the range as appropriate for the enhancement factors and then reduce the
sentence within the range as appropriate for the mitigating factors. See id. at § 40-35-210(e) (1997).
Because the record in this case indicates that the trial court properly considered the sentencing
principles and all relevant facts and circumstances, our review is de novo with a presumption of
correctness.

        Defendant was convicted of possession of drug paraphernalia, a Class E felony. He was
sentenced as a Range II offender. The possible range of punishment for a Range II, multiple offender
is two to four years for a Class E felony. Tenn. Code Ann. § 40-35-112(b) (5) (Supp. 2001). The
trial court imposed the maximum sentence of four years in the custody of the Department of
Correction. Defendant does not contest his Range II offender status. In fact, he states, “[t]hat
finding is more than amply supported by the record.” However, Defendant claims that because his
conviction is for a Class E felony, he should be afforded an alternative sentence. He further argues
that the trial court failed to enunciate on the record which considerations in Tennessee Code
Annotated section 40-35-103 warranted confinement.

       Tennessee Code Annotated § 40-35-102 (5) provides as follows:

       In recognition that state prison capacities and the funds to build and maintain them
       are limited, convicted felons committing the most severe offenses, possessing
       criminal histories evincing a clear disregard for the laws and morals of society, and
       evincing failure of past efforts at rehabilitation shall be given first priority regarding
       sentencing involving incarceration[.]

        A defendant who does not fall within this class of offenders “and who is an especially
mitigated offender or standard offender convicted of a Class C, D, or E felony is presumed to be a
favorable candidate for alternative sentencing in the absence of evidence to the contrary.” Tenn.
Code Ann. § 40-35-102(6) (1997). Furthermore, “[t]he trial court must presume that a defendant
sentenced to eight years or less and not an offender for whom incarceration is a priority is subject
to alternative sentencing and that a sentence other than incarceration would result in successful
rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993); see also Tenn.
Code Ann. § 40-35-303(a) (Supp. 2001). However, if the court is presented with “evidence
sufficient to overcome these presumptions, then it may sentence the defendant to confinement
according to the statutory provision.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Evidence
sufficient to overcome the presumption includes evidence showing that:

               (A) [c]onfinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;
               (B) [c]onfinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence to
       others likely to commit similar offenses; or

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              (C) [m]easures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C) (1997).

         The presumption in favor of alternative sentencing may be overcome by facts contained in
the pre-sentence report, evidence presented by the State, the testimony of the accused or a defense
witness, or any other source, provided it is made a part of the record. See State v. Parker, 932
S.W.2d 945, 958 (Tenn. Crim. App. 1996). Additionally, a court should consider the defendant's
potential or lack of potential for rehabilitation when determining if an alternative sentence would be
appropriate. See Tenn. Code Ann. § 40-35-103(5) (1997). A court may also apply the mitigating
and enhancement factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114,
as they are relevant to sentencing considerations in Tennessee Code Annotated section 40-35-103.
See id. at 40-35-210(b) (5) (Supp. 2001).

         We find that Defendant’s sentence was proper. Defendant, as a Range II multiple offender,
is not entitled to a presumption that he is a favorable candidate for alternative sentencing under
Tennessee Code Annotated section 40-35-102(6). Moreover, Defendant is not entitled to alternative
sentencing, based on the sentencing consideration listed in Tennessee Code Annotated section
40-35-103(1)(A), (C). At the sentencing hearing, the State introduced into evidence, without
objection, the pre-sentence report. Defendant did not put on any proof. The pre-sentence report
indicated that Defendant has a lengthy history of criminal conduct including six prior felony
convictions including second degree burglary, third degree burglary, petit larceny, felony sale of
marijuana and aggravated assault, and two prior misdemeanor convictions. The report also indicates
that in at least two instances, Defendant committed prior offenses while on probation or parole for
another offense. The trial court, relying on the pre-sentence report, held that Defendant has an
extensive history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range and that his failure to comply with the conditions of a sentence
involving release into the community precluded any lesser sentence or alternative sentencing. See
Tenn. Code Ann. § 40-35-114(1), (8) (Supp. 2001). Because Defendant has a “long history of
criminal conduct” and because “measures less restrictive than confinement” have failed, we conclude
that Defendant is not entitled to an alternative sentence. See id. at §40-35-103(1)(A), (C).
Defendant is not entitled to relief on this issue.

                                          CONCLUSION

        Accordingly, because the evidence was insufficient to sustain the conviction, the judgment
of the trial court is reversed and the case is dismissed. Furthermore, if the evidence had been
sufficient to sustain the conviction, this matter would have been remanded for a new sentencing
hearing.

                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE


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