                                                                                         01/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 3, 2017

            STATE OF TENNESSEE v. DAVID WAYNE PHILLIPS

                  Appeal from the Circuit Court for Tipton County
                      No. 8199     Joe H. Walker, III, Judge
                     ___________________________________

                           No. W2016-02087-CCA-R3-CD
                       ___________________________________


The Defendant, David Wayne Phillips, was convicted by a Tipton County jury of
initiating the manufacture of methamphetamine and was sentenced by the trial court to
ten years in the Tennessee Department of Correction. On appeal, the Defendant
challenges the trial court’s denial of his motion to suppress statements made to an officer
after the Defendant consented to a search of his bedroom. The Defendant also argues that
the evidence is insufficient to support his conviction. After a thorough review of the
record, we affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

David A. Stowers, Covington, Tennessee, for the appellant, David Wayne Phillips.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Mike Dunavant, District Attorney General; and James Walter
Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                     FACTUAL AND PROCEDURAL HISTORY

      Following a search of his residence, the Defendant was charged with the initiation
of the manufacture of methamphetamine, the promotion of the manufacture of
methamphetamine, aggravated child abuse, and simple possession of methamphetamine.
The aggravated child abuse charge was dismissed prior to trial, and the simple possession
charge was dismissed during trial.

       On April 16, 2014, Investigator Brandon Williams of the Tipton County Sheriff’s
Department received information from Phillip Lewis that Shannon Lewis and the
Defendant were manufacturing methamphetamine at the residence of Ms. Lewis.
Investigator Williams conveyed this information to Deputy Chris Smith, who searched
for Ms. Lewis’s name in the TIMIS Registry, which maintains a record of the time and
location of Sudafed purchases. Deputy Smith testified that the TIMIS Registry showed
that Ms. Lewis had purchased Sudafed the previous day. Deputy Smith and Sergeant
Jeffery Thompson then went to Ms. Lewis’s residence. Upon arrival, Deputy Smith
parked his car in the driveway.

        When Deputy Smith knocked on the door, Ms. Lewis stepped outside to speak
with him. Deputy Smith asked Ms. Lewis about her purchase of Sudafed from the
previous day. Ms. Lewis stated that several people in the residence needed Sudafed for
their sinuses. She was unable to produce the box of Sudafed she purchased the previous
day.

       Ms. Lewis orally consented to the search of her purse and personal items. After
searching the purse, Deputy Smith found a small plastic bag with residue that tested
positive for methamphetamine. He then asked for permission to search the residence, and
Ms. Lewis gave her oral consent.

       The Defendant, Tasha Eason, and the Defendant’s granddaughter were inside the
house. Deputy Smith testified that he did not smell any odor indicative of
methamphetamine manufacturing when he entered the residence. The Defendant told
Deputy Smith that the back bedroom was his and gave oral consent to search his
bedroom. Deputy Smith explained that he did not ask the Defendant to sign a written
consent form because there was an audio recording of the conversation. Deputy Smith
also searched the Defendant’s bathroom. The bathroom was adjoined to the bedroom, in
that someone would have to go through the Defendant’s bedroom to access the bathroom.
Deputy Smith explained that he did not ask the Defendant to sign a written consent form
because there was an audio recording of the conversation.

       Deputy Smith first noted that silver tape was wrapped around the interior
doorframe inside the Defendant’s bedroom. Deputy Smith found what appeared to be
methamphetamine on a glass plate. Next to the plate was burned aluminum foil, which
Deputy Smith testified is indicative of the use of methamphetamine. In the Defendant’s
bedroom and the adjoining bathroom, Deputy Smith found a pill grinder, a small plastic
                                          -2-
bag with ammonium nitrate, lithium batteries, muriatic acid, coffee filters, a cold pack,
needle-nose pliers with burn marks on the ends, and two drink bottles filled with a clear
liquid. Deputy Smith asked the Defendant about the clear liquid in the two bottles.
Originally, the Defendant said the liquid was water. Deputy Smith again asked the
Defendant what the liquid was, and the Defendant said it was fuel.

       Deputy Smith testified that he is certified in the investigation of
methamphetamine, including the identification of items used in the manufacture of
methamphetamine. He described how each item found in the Defendant’s bedroom and
bathroom could be used as an ingredient or tool in the methamphetamine manufacturing
process. Deputy Smith also found a “one-pot methamphetamine bottle,” which he
explained is a term used to describe a quick methamphetamine manufacturing process
using a bottle. He further explained that the residue in the bottom of the bottle was the
by-product of chemicals being mixed inside the bottle. Deputy Smith found two
additional bottles, and it appeared that “several items had been mixed together in th[e]
bottles.”

       According to Deputy Smith, he asked the Defendant if there were any more
“precursors,” or items used in the manufacturing process, inside the house. Deputy Smith
gave the Defendant several examples of precursors, including tubing. The Defendant
said there was a bag in his bedroom. Deputy Smith testified that the Defendant walked to
the bedroom and pointed to the area where the bag could be found. Inside the bag was an
assortment of tubing, which appeared to have been used in the manufacturing process.

       Deputy Smith testified that the items he found in the Defendant’s bedroom and
adjoining bathroom, taken as a whole, would constitute a “meth lab.” In Deputy Smith’s
opinion, methamphetamine had been manufactured inside the bottles found in the
bathroom. However, he acknowledged on cross examination that he could not determine
when or where any methamphetamine would have been manufactured because it can be
transported.

       On cross examination, Deputy Smith explained that two days after the Defendant
had been arrested and the residence quarantined, Mr. Lewis asked about retrieving some
items from the residence. Deputy Smith was told by either Mr. Lewis or Ms. Lewis that
the items would be located on the kitchen counter. When Deputy Smith went to look for
the items, he discovered an eyeglass case on the counter containing methamphetamine.

       A video recording was admitted as an exhibit at trial. The video camera was
located inside the patrol car, which was parked in the driveway in front of the residence.
The audio was provided by microphones attached to Sergeant Thompson’s and Deputy
Smith’s persons. According to the audio from the recording, after obtaining consent from
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Ms. Lewis to search the residence, Deputy Smith stepped inside the house to speak with
the Defendant. Deputy Smith confirmed that the house was in Ms. Lewis’s name, but
that the Defendant lived there on a daily basis. The Defendant also confirmed in which
room Ms. Lewis stayed and in which room he stayed. Deputy Smith asked the Defendant
if there was anything illegal in the house of which he was aware before searching.
Deputy Smith asked the Defendant if he was still on probation, and the Defendant said he
was not. Deputy Smith briefly discussed the Defendant’s previous record of the use of
methamphetamine but confirmed with the Defendant that the Defendant did not have
previous convictions involving the manufacture of methamphetamine. Deputy Smith
asked the Defendant if there was anything in the house that would constitute
methamphetamine manufacture, and the Defendant again responded that there was not.

        The audio also recorded Deputy Smith asking the Defendant if he had any
problem with the officers looking around the house, and the Defendant responded, “I
don’t reckon. It ain’t my call.” Deputy Smith clarified that he was making sure the
Defendant was okay with the search. The Defendant’s response was not clear. After
speaking with Ms. Lewis again, Deputy Smith began searching the house. Before
searching the Defendant’s room, he asked, “Sir, do you want to come back here with me .
. . just so you can be in here with me while I look around?” While Deputy Smith
searched the Defendant’s bedroom and bathroom, a conversation occurred between
Deputy Smith and the Defendant that is consistent with Deputy Smith’s testimony at trial.
After his initial search, Deputy Smith said to the Defendant, “Let’s walk back in here.
Come into the kitchen for me if you don’t mind.” Once they were in the kitchen with
Sergeant Thompson, Ms. Lewis, and Ms. Eason, Deputy Smith asked, “Since we’re in the
room together, what’s going on?” At this point, Deputy Smith again asked about the
clear liquid in the bottles, and the Defendant said it was fuel. Deputy Smith asked if
there were any other precursors in the house, and the Defendant showed Deputy Smith
where the bag of tubing was located.

       Ms. Lewis testified at trial that she was aware that both Mr. Lewis and the
Defendant manufactured methamphetamine at her house. She would purchase the
Sudafed to give to either Mr. Lewis or the Defendant in exchange for methamphetamine.
She stated that at the time the residence was searched, she had not received any
methamphetamine from the Defendant in the past month to six weeks, and that it had
been a long time since the Defendant and Mr. Lewis had manufactured anything.

       The jury convicted the Defendant of the initiation of the manufacture of
methamphetamine and acquitted the Defendant of the promotion of the manufacture of
methamphetamine. In a subsequent sentencing hearing, the trial court sentenced the
Defendant to ten years in the Tennessee Department of Correction. The Defendant filed
a motion for a new trial, which the trial court denied. The Defendant filed a timely notice
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of appeal challenging the trial court’s denial of his motion to suppress his statements to
law enforcement and the sufficiency of the evidence.

                                       ANALYSIS

                                  I. Motion to Suppress

       The Defendant contends that the trial court erred in denying his motion to suppress
statements made to Deputy Smith because the Defendant was “in custody” at the time the
statements were made and had not been read his Miranda warnings. The State responds
that the trial court correctly determined that the Defendant was not in custody. We agree
with the State.

                                 A. Suppression Hearing

       The video recording that was presented at trial was also admitted as an exhibit at
the suppression hearing. Deputy Smith offered testimony during the suppression hearing
that was consistent with the video recording and his testimony at trial. In addition,
Deputy Smith testified that after finding the initial evidence that appeared to be consistent
with the manufacture of methamphetamine, he walked the Defendant back to the kitchen
and living room area. Deputy Smith testified, “And then once I had someone in there to
secure them, I could go back and do a more thorough search . . . .” Deputy Smith asked
the Defendant if there were “any other items, chemicals or what have you, for the
processing” of methamphetamine. The Defendant responded that there was a bag of
tubing and other items in a bag in the Defendant’s bedroom.

        Deputy Smith testified that when he pulled into the driveway, he parked his patrol
car behind a car belonging to Ms. Eason. He testified that although his car was behind
Ms. Eason’s car, she could have left if she had asked to do so. Deputy Smith also
testified that the Defendant made no attempts to withdraw his consent for the search of
his room. At some point, however, the Defendant said he was done talking, and Deputy
Smith stopped speaking to the Defendant. Deputy Smith also testified on cross
examination that “[d]uring the investigation we’re not going to let anybody leave.”

       Ms. Eason testified for the defense at the suppression hearing. She stated that she
had taken the Defendant to the doctor that morning and that he received a shot to help
with his medical problems. She explained that the shot “knocked him for a loop” and
that he was in “la-la land.” Ms. Eason testified that the Defendant refused to give Deputy
Smith consent to search his bedroom and that the Defendant asked to call his attorney.
She stated that a police officer walked past the Defendant after he refused to consent to
the search and went into his bedroom anyway. She said that the officer was in the room
                                            -5-
for about two minutes before returning to the living room to ask, “So I guess this meth
that we found isn’t yours?” and the Defendant responded, “[A]bsolutely not.” Ms. Eason
also testified that she did not remember her car being blocked in by the patrol car and that
she felt like she could have gotten into her car and left if she wanted to do so. She
described the officers as “very professional” and “the type of people I would want in my
law enforcement locally.”

       The trial court found that although Ms. Eason testified that the Defendant refused
to consent to the search of the house, the audio recording was clear in that the Defendant
“was asked by the officer if he had any problem with the officers looking around the
house, and the [D]efendant responded ‘don’t reckon, it ain’t my call.’” In denying the
Defendant’s motion to suppress, the trial court determined that the Defendant was not in
custody at the time the statements were made. The court considered several factors in its
determination:

       The court considered the time and location of speaking with the defendant;
       the duration and character of the questioning; the lack of testimony as to a
       negative general demeanor of the officer; the suspect not being transported
       to the place of questioning, but being at his abode; the number of police
       officers present; the lack of limitation on movement or other form of
       restrain imposed on the suspect during speaking with the defendant; the
       interactions between the officer and the suspect, including the words
       spoken by the officer to the suspect, and the suspect’s verbal or nonverbal
       responses; the extent to which the suspect is confronted with the law
       enforcement officer’s suspicions of guilt or evidence of guilt; and finally,
       the extent to which the suspect is made aware that he or she is free to
       refrain from answering questions or to end the interview at will.

The trial court concluded that because there was no custodial interrogation of the
Defendant, there was no requirement to give Miranda warnings, and thus, that the
statements made by the Defendant should not be suppressed.

                                       B. Analysis

       “On appeal from the denial of a motion to suppress, we review the trial court’s
legal conclusions de novo with no presumption of correctness.” State v. Dailey, 273
S.W.3d 94, 100 (Tenn. 2009) (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);
State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)). This court defers to the trial
court’s findings of fact unless the evidence preponderates against such findings. State v.
Northern, 262 S.W.3d 741, 747 (Tenn. 2008). “Questions of credibility of the witnesses,
the weight and value of the evidence, and resolution of conflicts in the evidence are
                                           -6-
matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996). The prevailing party is entitled to the strongest legitimate view of the
evidence from the suppression hearing, as well as “all reasonable and legitimate
inferences that may be drawn from that evidence.” Id.

        The Fifth Amendment to the United States Constitution and article I, section 9 of
the Tennessee Constitution provide the accused with a right against self-incrimination.
See Walton, 41 S.W.3d at 81. To insure this protection, the United States Supreme Court
held in Miranda v. Arizona that “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination.” Walton, 41 S.W.3d at 82 (citing Miranda v. Arizona, 384
U.S. 436, 444 (1966)). Miranda warnings are only required, however, where the accused
is interrogated while in custody. Northern, 262 S.W.3d at 749 (citing Miranda, 384 U.S.
at 444, 476-77).

       The test to determine whether a defendant is in custody at the time of an
interrogation is “‘whether, under the totality of the circumstances, a reasonable person in
the suspect’s position would consider himself or herself deprived of freedom of
movement to a degree associated with a formal arrest.’” Dailey, 273 S.W.3d at 102
(quoting State v. Anderson, 937 S.W.2d 851 (Tenn. 1996)). In determining this
“objective assessment,” the trial court should consider the following non-exclusive
factors:

       The time and location of the interrogation; the duration and character of the
       questioning; the officer’s tone of voice and general demeanor; the suspect’s
       method of transportation to the place of questioning; the number of police
       officers present; any limitation on movement or other form of restraint
       imposed on the suspect during the interrogation; any interactions between
       the officer and the suspect, including the words spoken by the officer to the
       suspect, and the suspect’s verbal or nonverbal responses; the extent to
       which the suspect is confronted with the law enforcement officer’s
       suspicions of guilt or evidence of guilt; and finally, the extent to which the
       suspect is made aware that he or she is free to refrain from answering
       questions or to end the interview at will.

Id. (quoting Anderson, 937 S.W.2d at 855). The determination of whether a suspect is in
custody at the time of an interrogation is a fact-specific inquiry that examines the totality
of the circumstances surrounding the interrogation. Anderson, 937 S.W.2d at 855.



                                            -7-
       Here, the Defendant argues that he was in custody at the time he made the
statement that the clear liquid in the bottles was fuel and the statement about the location
of the bag of tubing. The Defendant maintains that no reasonable person in his position
would feel free to leave because two law enforcement officers arrived in uniform in a
marked vehicle, remained in the residence for a lengthy period of time, searched the
residence, and questioned the Defendant.

       Applying the relevant factors to the facts of this case, we determine that the
Defendant was not in custody at the time the statements were made. When the officers
arrived at the residence, it was still daylight. The interrogation occurred in a house where
the Defendant resided. The officers questioned the Defendant after Ms. Lewis consented
to a search of the house, and the Defendant consented to the search of his bedroom.
Although the Defendant notes that the officers were in the residence for a lengthy period
of time, only a portion of that time was used to question the Defendant. The officer’s
tone of voice in the audio recording was calm and respectful. Ms. Eason testified that the
officers were “very professional” and “the type of people I would want in my law
enforcement locally.” Only two law enforcement officers were present. The Defendant
was not restrained at any time during the questioning, and when the Defendant said he
did not want to talk, the questioning ceased.

        The Defendant points to Deputy Smith’s testimony that he was not going to allow
anyone to leave while he was investigating. “‘The question of whether a person has been
seized, however, does not turn on the subjective impressions or intentions of the officer
involved.’” State v. Andrew Lay, No. M1998-00257-CCA-R3-CD, 2000 WL 329948, at
*4 (Tenn. Crim. App. Mar. 30, 2000) (quoting State v. Green, 929 S.W.2d 376, 379
(Tenn. Crim. App. 1995)). Instead, the “‘only relevant inquiry is how a reasonable man
in the suspect’s position would have understood his position.’” Id. (quoting Berkemer v.
McCarty, 468 U.S. 420, 442 (1984)). Even though Deputy Smith testified at trial that he
would not have allowed the Defendant to leave during the investigation, nothing in the
record suggests that this was communicated to the Defendant. Moreover, Ms. Eason
testified that she felt she could have gotten into her car and left if she wanted to do so.

        A reasonable person in these circumstances would not feel deprived of his
freedom of movement to a degree associated with a formal arrest. See State v. Maria A.
Dills, No. M2006-02161-CCA-R3-CD, 2007 WL 2745000, at *2, 5 (Tenn. Crim. App.
Sept. 21, 2007) (holding a defendant was not in custody while questioned by two officers
inside her home even though an officer testified at trial that the defendant would not have
been free to leave if she wanted to do so); Andrew Lay, 2000 WL 329948, at *4 (holding
a defendant was not in custody while questioned by an officer after poor performance on
field sobriety tests even though the officer testified at trial that, at the time of questioning,

                                              -8-
he intended to arrest the defendant). Thus, the trial court properly denied the Defendant’s
motion to suppress.

        Moreover, even if there had been error in admitting the Defendant’s statements at
trial, any error would have been harmless beyond a reasonable doubt. See State v.
Climer, 400 S.W.3d 537, 569-70 (Tenn. 2013). Even absent the Defendant’s statements
and the bag of tubing itself, the evidence against the Defendant is overwhelming. Deputy
Smith testified at trial about the additional evidence found in the Defendant’s room, and
Ms. Lewis testified about her knowledge of the Defendant’s involvement in the
manufacturing of methamphetamine. In light of the evidence, it is clear that the
Defendant would have been convicted even if his statements had been suppressed.

                             II. Sufficiency of the Evidence

        The Defendant argues that the evidence is insufficient to support his conviction for
initiating the manufacture of methamphetamine because he did not admit to
manufacturing methamphetamine, no contraband was found on his person, and Mr. Lewis
was a known methamphetamine manufacturer who had free access to the Defendant’s
residence. The State maintains that the evidence is sufficient. We agree with the State.

       When a defendant challenges the sufficiency of the evidence, this court must
determine whether the evidence is sufficient “to support the finding by the trier of fact of
guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). The appellate court examines
the relevant statute to determine the essential elements for the offense and analyzes the
evidence admitted at trial to determine whether each element is adequately supported.
State v. Stephens, 521 S.W.3d 718, 723-24 (Tenn. 2017) (citations omitted). The court
determines “‘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.’” Id. at 724 (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).

       The standard of review remains the same regardless of whether the conviction is
based upon direct or circumstantial evidence. Id. (citing State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011)). “‘[T]he State is entitled to the strongest legitimate view of the
evidence and all reasonable or legitimate inferences which may be drawn therefrom.’”
Id. (quoting State v. Harris, 839 S.W.2d 54, 75 (1992)). This court does not reweigh the
evidence. Id. (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)). Instead, “‘a jury
verdict, approved by the trial judge, accredits the testimony of the witnesses for the State
and resolves all conflicts’ in the testimony in favor of the State.” Id. (quoting Harris,
839 S.W.2d at 75). The conviction replaces the presumption of innocence with a
presumption of guilt. Id. (citing Evans, 838 S.W.2d at 191). On appeal, the defendant
                                           -9-
has the burden of demonstrating why the evidence is insufficient to support the verdict.
Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

       Tennessee Code Annotated section 39-17-435(a) provides that “[i]t is an offense
for a person to knowingly initiate a process intended to result in the manufacture of any
amount of methamphetamine.” The term “initiates” is defined as “to begin the extraction
of an immediate methamphetamine precursor from a commercial product, to begin the
active modification of a commercial product for use in methamphetamine creation, or to
heat or combine any substance or substances that can be used in methamphetamine
creation.” T.C.A. § 39-17-435(c).

       Viewed in the light most favorable to the State, the evidence in the present case
establishes that the Defendant was involved in initiating the manufacture of
methamphetamine. In the audio recording, the Defendant consents to the search of a
back bedroom, in which the Defendant confirms he resides. Within the Defendant’s
bedroom and adjoining bathroom, Deputy Smith found a bottle with methamphetamine
residue inside of it, ammonium nitrate, a pill grinder, lithium batteries, muriatic acid,
coffee filters, a cold pack, needle-nose pliers with burn marks on the ends, and two drink
bottles filled with a liquid the Defendant acknowledged was fuel. Deputy Smith testified
as to how each of these chemicals or tools could be used in the manufacture of
methamphetamine. Deputy Smith also found methamphetamine in the Defendant’s
bedroom. Ms. Lewis testified at trial that she would purchase Sudafed and give it to the
Defendant in exchange for methamphetamine. She also testified that she was aware that
the Defendant was manufacturing methamphetamine inside the residence. Finally, after
Deputy Smith asked if there were any other precursors in the house, the Defendant told
Deputy Smith where a bag of tubing could be found inside his bedroom. Even if the
Defendant’s statements were to be excluded, the physical evidence found in the
Defendant’s room and the testimony from Deputy Smith and Ms. Lewis are sufficient.
Accordingly, we hold that the evidence is sufficient to support the Defendant’s
conviction.

                                    CONCLUSION

      Based on the foregoing, we affirm the judgment of the trial court.




                                            ____________________________________
                                            JOHN EVERETT WILLIAMS, JUDGE

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