         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 17, 2004

              STATE OF TENNESSEE v. BRADLEY LONSINGER

                      Appeal from the Circuit Court for Warren County
                         No. F-8825    Larry B. Stanley, Jr., Judge



                    No. M2003-03101-CCA-R3-CD - Filed January 5, 2005


The defendant, Bradley Lonsinger, was convicted of attempt to manufacture a Schedule II controlled
substance, methamphetamine, a Class D felony, and was sentenced as a Range II, multiple offender
to eight years in the Tennessee Department of Correction and fined $5000. He raises two issues on
appeal: (1) whether the search warrant leading to his arrest was based on sufficient probable cause;
and (2) whether the evidence was sufficient to support his conviction. Based on our review, we
affirm the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which THOMAS T. WOODALL, J., joined.
JOSEPH M. TIPTON , J., concurred in the result.

Robert S. Peters, Winchester, Tennessee, for the appellant, Bradley Lonsinger.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Clement Dale Potter, District Attorney General; and Thomas J. Miner, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                             FACTS

        On August 24, 2001, Warren County Sheriff’s Deputies Chad Martin and James Ramsey
went to the defendant’s residence to serve an arrest warrant, and Martin smelled a strong chemical
odor emanating from the mobile home. After about thirty minutes, the defendant answered the door.
Deputy Martin asked the defendant to accompany him to the sheriff’s department, and they both
stepped back inside the trailer in order for the defendant to put on some shoes. Inside the trailer,
Deputy Martin smelled a strong odor associated with the manufacture of methamphetamine and a
similar odor on the defendant’s clothing. Based on his observations made while serving the arrest
warrant, Deputy Martin obtained a search warrant of the defendant’s home, which he and other
deputies executed a few hours later. Inside and near the defendant’s residence, the deputies found
and confiscated thirty-seven items associated with the manufacture of methamphetamine.

       On November 9, 2001, the Warren County Grand Jury charged the defendant in a one-count
indictment with attempt to manufacture methamphetamine. Thereafter, the defendant filed a motion
to suppress the evidence obtained as a result of the search of his house, which the trial court denied,
finding that Deputy Martin’s affidavit set forth sufficient probable cause to support the search
warrant.

         At trial, Deputy Martin testified that he had attended a week-long school in Chattanooga
conducted by the Drug Enforcement Administration (D.E.A.) and the Southeastern Tennessee Drug
Task Force, was certified in clandestine drug laboratories, and had “been to numerous schools put
on by the National Guard Counter Drug, D.E.A., and other meth task force schools.” He also had
investigated methamphetamine laboratories through his work at the sheriff’s department. He
testified there is a distinctive odor associated with methamphetamine labs, a “real strong chemical
odor,” which can only be described as smelling “like a meth lab because there is nothing else that
smells that way.” When he went to the defendant’s home to serve “a paper,” he knocked loudly and
continuously on the door in an attempt to summon the defendant to the door. After about thirty
minutes, during which time the deputy “could hear movement in the trailer,” the defendant answered
the door at the prompting of his father who had arrived on the scene. Also, he could smell an odor
coming from the trailer such as he had “smelled in previous methamphetamine labs.” Deputy Martin
asked the defendant to accompany him to the sheriff’s department and stepped inside with the
defendant while the defendant retrieved his shoes. He observed a person sitting near the living room
in the somewhat darkened trailer. Although he did not observe anything incriminating in “plain
view,” the deputy said the “smell was so strong that [his] eyes start[ed] watering inside the trailer.”
He testified further about the overpowering chemical odor inside the trailer:

               Q       Tell us about the odor that you noted.

               A      It was a strong chemical odor that I associate with the
               manufacture of methamphetamine. My eyes were burning. You
               know, I had a strong taste. It was in the air real strong.

               Q      Okay. Have you had that experience in the past when you
               have worked methamphetamine labs in terms of your eyes watering
               and your throat getting dry?

               A       Yes sir.

               Q      All right. Are there other symptoms that you develop when
               you are in the presence of this odor of methamphetamine?




                                                 -2-
                  A     Other than, you know, coughing. It kind of takes your breath.
                  You have burning and watery eyes. That is the way it usually affects
                  me.

         Based on his observations in the defendant’s trailer, Deputy Martin obtained a search warrant
and returned a few hours later with Deputy Ramsey and Deputy Chism and searched the defendant’s
home. At that time, there were three other adults and a child in the home who were detained during
the search. Deputy Martin testified as to the items shown in the photographs taken during the
execution of the warrant and as to their location in the trailer, as well as how they were used in the
manufacture of methamphetamine. In bedroom and dining room closets throughout the house, as
well as under the couch and kitchen sink, the deputies found lye, tubing, aluminum foil, non-
flammable brake cleaner, stained coffee filters, acetone, matches, red phosphorus, glass pipes with
methamphetamine residue, iodine, peroxide, rubber gloves, Coleman fuel, a bowl with brownish red
stains, jars with crystalized substances, and empty bottles used as HCL generators.1 Two of these
HCL generators still had smoke coming from holes in the tops. Based on all of this, Deputy Martin
believed that methamphetamine was being produced at the defendant’s residence. On cross-
examination, Deputy Martin testified that, although the odor he described in the affidavit was
“[s]imilar to battery acid,” he did not find any battery acid in the defendant’s trailer and said that he
believed the odor was produced by “a mixture of all of the items found” and that “[e]very
methamphetamine lab that I have ever been to has that smell.” He acknowledged that they did not
find any ephedrine or pseudoephedrine, which is an essential ingredient in the manufacture of
methamphetamine.

        Deputy Ramsey testified that he had attended various in-service training classes dealing with
methamphetamine labs, as well as classes conducted by the Kansas Bureau of Investigation. As a
deputy, he had been present at methamphetamine crime scenes and had become familiar with
materials and ingredients used in the manufacture of methamphetamine. While waiting for the
defendant to answer the door, Ramsey “smell[ed] a strong odor that was consistent with the
manufacturing of methamphetamine” and “hear[d] movement inside the residence.” When he
returned to execute the search warrant, he smelled an odor which made him cough and gave him a
headache. In his opinion, based on the “totality of the evidence that was found at the scene, and the
smells that were at the scene,” the “manufacturing of methamphetamine was at one point taking
place.” On cross-examination, he testified that the odor coming from the defendant’s residence was
like no other, that it “had its[] own smell, that if [sic] making methamphetamine.”

         The defendant did not testify or present any proof.




         1
           Deputy Martin testified that these were used to mix either muriatic acid and aluminum foil or sulfuric acid and
rock salt to produce hydrogen chloride gas, which is then used to “gas the finished product.” He referred to them at trial
as “HCO” and “HCL” generators, while his evidence log noted them as “HCL” generators.

                                                           -3-
                                             ANALYSIS

                                         I. Probable Cause

       The defendant contends on appeal that Deputy Martin’s affidavit in support of the search
warrant for his property was insufficient to establish probable cause, arguing the fact that the deputy
smelled an odor was not sufficient, by itself, to support a reasonable ground of suspicion on the part
of Deputy Martin that there would be any drug evidence in the defendant's residence.

         We begin our analysis by noting that since the record on appeal does not contain a copy of
the motion to suppress, we do not know what claims the defendant made as to the alleged
deficiencies in the search warrant. Additionally, while copies of what presumably are the search
warrant and supporting affidavit are included in the “technical record,” it does not reflect how they
came to be in that record. The record on appeal does not contain a transcript of the hearing on the
motion, where the search warrant might have been made an exhibit, and the trial transcript shows
that it was not made an exhibit at the trial. Therefore, we conclude that a copy of the search warrant
is not properly in the record and, thus, not properly before this court. Thus, the situation is like that
in State v. Cooper, 736 S.W.2d 125 (Tenn. Crim. App. 1987), where we declined to review a denial
of a motion to suppress when the search warrant and the affidavit were not properly in the evidence:

                Unfortunately, we are unable to resolve this issue on the merits
                because the search warrant and the affidavit given in support of the
                search warrant were never introduced into evidence. However, they
                have been included in what was formerly referred to as the “technical
                record.” An examination of the documents reveals no indicia that
                they were made an exhibit at the suppression hearing or the trial; and
                they have not been authenticated by the trial judge.

                        Before an exhibit may be considered by this Court, it must
                have been (a) received into evidence, (b) marked by the trial judge,
                clerk or court reporter as having been received into evidence as an
                exhibit, (c) authenticated by the trial judge, and (d) included in the
                transcript of the evidence transmitted to this Court.

Id. at 131 (citations omitted). Because the record is incomplete, “[w]e must conclusively presume
the ruling of the trial court was correct.” Id. (citing State v. Jones, 623 S.W.2d 129, 131 (Tenn.
Crim. App. 1981); State v. Baron, 659 S.W.2d 811, 815 (Tenn. Crim. App. 1983); State v. Taylor,
669 S.W.2d 694, 699 (Tenn. Crim. App. 1983)). Accordingly, we conclude that this claim is waived.




                                                  -4-
However, even if we were to reach the merits of this issue, we would have no trouble concluding the
claim that the search warrant affidavit did not establish probable cause is without merit.2

        When this court reviews a trial court's ruling on a motion to suppress evidence, "[q]uestions
of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in
the evidence are matters entrusted to the trial judge as the trier of fact." State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). The party prevailing at the suppression hearing is afforded the "strongest
legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from
that evidence." State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial court in
a suppression hearing are upheld unless the evidence preponderates against those findings. See id.
However, the application of the law to the facts found by the trial court is a question of law and is
reviewed de novo. See State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

         Under both the Tennessee and United States Constitutions, no search warrant may be issued
except upon probable cause, which has been defined as "a reasonable ground for suspicion,
supported by circumstances indicative of an illegal act." State v. Henning, 975 S.W.2d 290, 294
(Tenn. 1998). Tennessee requires a written and sworn affidavit, "containing allegations from which
the magistrate can determine whether probable cause exists," as "an indispensable prerequisite to the
issuance of a search warrant." Id. Moreover, the affidavit must contain more than mere conclusory
allegations on the part of the affiant. Id. A finding of probable cause made by an issuing magistrate
is entitled to great deference. State v. Yeomans, 10 S.W.3d 293, 297 (Tenn. Crim. App. 1999)
(citing State v. Melson, 638 S.W.2d 342, 357 (Tenn. 1982), cert. denied, 459 U.S. 1137, 103 S. Ct.
770, 74 L. Ed. 2d 983 (1983)). Therefore, the standard to be employed in reviewing the issuance of
a search warrant is "whether, in light of all the evidence available, the magistrate had a substantial
basis for finding probable cause." State v. Meeks, 876 S.W.2d 121, 124 (Tenn. Crim. App. 1993)
(citing State v. Jacumin, 778 S.W.2d 430, 431-32 (Tenn. 1989)).

       According to the copy in the technical record, Deputy Martin’s affidavit in support of the
application for the search warrant states in pertinent part as follows:

                          That the affiant is a deputy with the Warren County Sheriff
                  Department. That he has been a deputy with the Warren County
                  Sheriff Department for the last two and a half years. He has a total of
                  four and a half years experience as a patrol officer to include his time
                  with the Warren County Sheriff’s Department as well as time with the
                  Van Buren County Sheriff’s Department. Affiant has attended
                  several specialized schools in the identification of drugs by smell and
                  sight and in the identification of the equipment and materials used in
                  the manufacture of methamphetamine. Affiant is familiar with the
                  manufacture of methamphetamine and the items used to manufacture


         2
           Since the trial court’s order overruling the motion to suppress found the search warrant established probable
cause for the search, we presume the converse of this was the infirmity alleged by the defendant in his motion to suppress.

                                                           -5-
methamphetamine based upon in-service training that he has received
and his experience in the field. Affiant has been present at the sites
of approximately thirty complete or partial methamphetamine
laboratories and has been involved in the investigation of these
laboratories.

         I am aware based on my experience and training that drug
traffickers may maintain records of their drug transactions either
written or electronically and maintain telephone records of their
contacts. Some drug traffickers in methamphetamine have been
known to manufacture their methamphetamine and maintain the
equipment on their property. Some drug traffickers only reveal part
of their drug operation to the individuals that buy illegal drugs from
them and keep concealed from their customers the various locations
they maintain their illegal drugs and other items associated with the
illegal drug activity. It has been my experience that drug traffickers
may have items that are directly or indirectly items associated with
the sale and distribution of those illegal drugs on their property other
than the location revealed to the individuals making the purchases.
These items may include but not limited to scales, packaging
materials such as baggies, cash from sales, evidence relating to the
manufacture of methamphetamine including but not limited to:
glassware, burners, tubing, chemical containers, labels off chemical
containers, coffee filters, jars, beakers, glass containers, precursor
chemicals and substances associated with the manufacture of
methamphetamine including but not limited to ephedrine or
pseudoephedrine, (sulfuric, muriatic, hydrochloric and other) acids,
brake cleaner, iodine (liquid or crystals), red phosphorus, Coleman
fuel, denatured alcohol, acetone, lithium batteries, isopropyl or
rubbing alcohol, anhydrous ammonia, ether, and drain cleaner/lye.

         In private residences where drug activity is taking place some
drug traffickers will associate and have others at the location involved
in the illegal criminal activity involving drugs. Based on my training
and experience that other individuals at this location will be involved
in drug activity of some type. I have also learned through my
experience that drug traffickers frequently hide items related to the
production of methamphetamine or sale of methamphetamine in
outbuildings or vehicles on their property.

       On August 24, 2001, Deputy James Ramsey and I went to the
residence of Bradley Lonsinger at the address described herein for the
purpose of serving an arrest warrant on Bradley Lonsinger. Officer


                                  -6-
                  James Ramsey stated to me that he observed lights on at one end of
                  the trailer but that someone turned them out after we arrived. He also
                  stated that once we started knocking on the door you could hear
                  people scrambling around in the trailer[.] I could also hear a
                  considerable amount [of movement in the trailer. It took
                  approximately twenty minutes to get anyone to come to the door.
                  While we waited for some one to come to the door, both Deputy
                  Ramsey and I noted a strong odor emanating from the trailer. When
                  Bradley] Lonsinger allowed us to enter the trailer we could smell an
                  odor that is associated with methamphetamine manufacture. The
                  odor was similar to the odor of battery acid and was strong enough
                  inside the trailer to make my eyes water. Deputy James Ramsey, who
                  also noted this odor has been a road deputy with the Warren County
                  Sheriff’s Department since September, 1999, and he has been present
                  during the processing of approximately five methamphetamine
                  laboratories and is familiar with the odors generated by such
                  laboratories.3

        In denying the defendant’s motion to suppress, the trial court made the following findings
of fact and conclusions of law:

                          This cause came on to be heard . . . upon the motion to suppress filed
                  by the defendant in this cause, argument of counsel, and the record as a whole
                  from all of which this Court finds that the affidavit signed by Sergeant Chad
                  Martin of the Warren County Sheriff’s Department on August 24, 2001, sets
                  forth sufficient probable cause to justify the issuance of the search warrant
                  which was issued in this matter.

        It is well established in Tennessee that the odor of an illegal substance, either alone or in
conjunction with other facts and circumstances, can provide sufficient probable cause, depending
on the situation, for either a warrantless search or the issuance of a search warrant. See State v.
Hughes, 544 S.W.2d 99, 101 (Tenn. 1976) (holding that the odor of marijuana emanating from a
vehicle constituted probable cause for a police officer to believe that the vehicle contained
contraband marijuana); Hart v. State, 568 S.W.2d 295, 296 (Tenn. Crim. App. 1978) (holding that
“officers’ search of the vehicle was proper, based upon the independent probable cause ground of
the marijuana odor” coming from the vehicle); Hicks v. State, 534 S.W.2d 872, 873-74 (Tenn. Crim.
App. 1975) (stating that “[t]he principal question presented here is whether or not the smell of
marijuana emanating from the defendant’s car furnished probable cause to enable an officer, who
had stopped the vehicle for a traffic offense, to search the vehicle. We hold that it did.”); State v.


         3
           The technical record in this case was deficient in that the portion of the affidavit in brackets was omitted as
a result of a copying error; however, we were able to obtain the missing portion from the W arren County Circuit Court
Clerk.

                                                           -7-
Paul Anthony Wright, No. W2001-02574-CCA-R3-CD, 2003 WL 1860526, at **9-10 (Tenn. Crim.
App. Apr. 7, 2003) (holding that a search warrant affidavit reciting, inter alia, the affiant’s
experience, training, and observation of both “the distinct odors associated with the manufactor [sic]
of methamphetamine” and other items associated with such a manufacturing operation near the
defendant’s house and in his vehicle was sufficient to establish probable cause for the issuance of
a search warrant of defendant’s home); State v. Danny Davidson, No. W2001-00118-CCA-R3-CD,
2002 WL 1482720, at *1 (Tenn. Crim. App. Feb. 26, 2002) (a sufficiency of the evidence case in
which a valid search warrant of a home was issued based on an officer’s recognition of a “strong
chemical odor” as “that from a possible methamphetamine lab”), perm. to appeal denied (Tenn. July
8, 2002).

        In the present appeal, the deputies, while in the process of lawfully serving an arrest warrant,
smelled a strong odor associated with the manufacture of methamphetamine in and around the
defendant’s mobile home. Additionally, the deputies observed suspicious behavior during the course
of the arrest, including the fact that it took the defendant approximately thirty minutes to answer the
door, the sudden turning off of lights upon their arrival, and people “scrambling around” inside the
residence while the deputies leisurely enjoyed the outdoor scenery. All of these facts and
circumstances led the deputies to believe that illegal activities were taking place inside the
defendant’s residence, and were recited in the affidavit supporting the search warrant. The record
fully supports the determination of the trial court that the search warrant affidavit was sufficient to
establish probable cause for a search of the defendant’s property.

                                  II. Sufficiency of the Evidence

       The defendant also contends that the evidence is insufficient to sustain his conviction for the
attempted manufacture of a Schedule II controlled substance.

        In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:




                                                  -8-
                       This well-settled rule rests on a sound foundation. The trial
               judge and the jury see the witnesses face to face, hear their testimony
               and observe their demeanor on the stand. Thus the trial judge and
               jury are the primary instrumentality of justice to determine the weight
               and credibility to be given to the testimony of witnesses. In the trial
               forum alone is there human atmosphere and the totality of the
               evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

         To obtain a conviction, the State had to prove beyond a reasonable doubt that the defendant
knowingly attempted to manufacture methamphetamine, a Schedule II controlled substance. See
Tenn. Code Ann. §§ 39-17-408, -417. A person commits criminal attempt when that person “[a]cts
with intent to complete a course of action or cause a result that would constitute the offense, under
the circumstances surrounding the conduct as the person believes them to be, and the conduct
constitutes a substantial step toward the commission of the offense.” Tenn. Code Ann. § 39-12-
101(a)(3). For conduct to be a “substantial step,” a person’s “entire course of action” must be
“corroborative of the intent to commit the offense.” Tenn. Code Ann. § 39-12-101(b). No
methamphetamine was found in the defendant’s home, and he was charged with attempt, rather than
the completed offense. Also, no ephedrine or pseudoephedrine was found in the home, and Deputy
Martin testified that one cannot manufacture the finished product, methamphetamine, without these
precursors. However, while executing the search warrant, deputies did find thirty-seven items
associated with the manufacture of methamphetamine. Testimony at trial established that these
items are commonly used in conjunction with one another to manufacture methamphetamine, and
the jury was shown photographs of these items. Two of the HCL generators were still smoking when
the deputies discovered them, and other containers had liquid residue in them. The deputies testified
as to the overwhelming odor in the defendant’s home which was, in their experience, only associated
with the manufacture of methamphetamine. Viewed in the light most favorable to the prosecution,
a rational trier of fact could have found beyond a reasonable doubt that the defendant was attempting
to manufacture methamphetamine in his home. The jury could also infer that the approximately
thirty minutes that passed between the time the deputies initially knocked on the defendant’s door
until he answered was sufficient time to dismantle the methamphetamine lab and possibly dispose
of necessary precursors or finished product. Accordingly, we conclude there is sufficient evidence
to support the defendant’s conviction.




                                                -9-
                                       CONCLUSION

       Having reviewed the record, we conclude that the evidence is sufficient to support the
defendant’s conviction and that the trial court did not err in denying the defendant’s motion to
suppress. Accordingly, we affirm the judgment of the trial court.


                                                    ___________________________________
                                                    ALAN E. GLENN, JUDGE




                                             -10-
