         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                        October 7, 2003

   STATE OF TENNESSEE v. DENNIS RAY JONES and PAMELA KAY
                          BARKER

                   Direct Appeal from the Circuit Court for Henry County
                            No. 13192    Julian P. Guinn, Judge



              Nos. W2002-00402-CCA-R3-CD and W2002-00394-CCA-R3-CD
                               Filed February 26, 2004




JAMES CURWOOD WITT , JR., J., concurring and dissenting.

              I concur in affirming defendant Jones’s conviction of manufacturing
methamphetamine but respectfully dissent from affirming Barker’s conviction of facilitation of the
same offense.

               The basis of Ms. Barker’s conviction is the facilitation of manufacturing the
controlled substance, not facilitation of possession with intent to manufacture. See Tenn. Code Ann.
§ 39-17-417(a)(1), (4) (2003).

                Assuming that Barker’s presence in the shed supports a finding that she facilitated
possession of a controlled substance, I find no evidence that, based upon her presence in the shed,
she was facilitating the manufacture of methamphetamine. There is no evidence in the record that
manufacturing the drug occurred during the time Ms. Barker was present. Save for the odor of ether,
the evidence does not inform when in the past the shed had been used to manufacture the drug.

               In that circumstance, I find the evidence insufficient to support Ms. Barker’s
conviction. I would reverse and vacate her conviction and dismiss the charge.




                                                     ___________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE
