        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               October 20, 2009 Session

           STATE OF TENNESSEE v. NORMAN EUGENE BANKS

               Direct Appeal from the Circuit Court for Coffee County
                         No. 35,186    Charles Lee, Judge


                 No. M2008-01823-CCA-R3-CD - Filed July 26, 2010


Defendant, Norman Eugene Banks, was indicted for initiation of a process intended to result
in the manufacture of methamphetamine, a Class B felony, in count one of the indictment,
and possession of drug paraphernalia, a Class A misdemeanor, in count two. Following a
bench trial, the trial court as trier of fact found Defendant guilty of the lesser included
offense of attempt to initiate of a process intended to result in the manufacture of
methamphetamine, a Class C felony, and possession of drug paraphernalia. The trial court
sentenced Defendant as a Range II, multiple offender, to eight years for his Class C felony
conviction and eleven months, twenty-nine days for his misdemeanor conviction, to be
served concurrently for an effective sentence of eight years. On appeal, Defendant argues
that (1) the trial court erred in denying his motion to dismiss the indictment based on his
assertion that the language in Tennessee Code Annotated section 39-17-435 is
unconstitutionally vague and overbroad; (2) the statutory presumption created in Tennessee
Code Annotated section 39-17-435 is unconstitutional; (3) the offense of attempt to initiate
a process intended to result in the manufacture of methamphetamine is not a recognizable
offense in Tennessee; and (4) the evidence is insufficient to support Defendant’s conviction
of possession of drug paraphernalia. After a thorough review, we affirm the judgments of
the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D AVID H. W ELLES and
J ERRY L. S MITH, JJ., joined.

James H. Threet, III, Manchester, Tennessee, for the appellant, Norman Eugene Banks.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Charles Michael Layne, District Attorney General; and Jason M. Ponder, Assistant
District Attorney General, for the appellee, the State of Tennessee.
                                         OPINION

I. Background

        Agent Lee Nettles testified at the bench trial that he has been a member of the 14th
Judicial District Drug Task Force for approximately nine years, and that he is primarily
involved in methamphetamine investigations. Agent Nettles said that he attended training
sessions on the manufacture of methamphetamine at the United States Drug Enforcement
Agency’s (“DEA”) Clandestine Laboratory School in Quantico, Virginia. Agent Nettles
stated that he has also conducted seminars on methamphetamine use and manufacturing for
the public as well as other police officers.

       In 2006, Agent Nettles alerted various stores in Tullahoma about the ingredients
necessary to manufacture methamphetamine and asked the businesses to note the license tag
numbers of individuals who purchased a large quantity of any of the listed ingredients. On
March 30, 2006, a grocery store contacted the Coffee County Communications Center after
a male and a female had purchased a large quantity of match boxes and relayed the license
tag number of the couple’s vehicle.

       Agent Nettles determined that the vehicle was registered in Defendant’s name. Agent
Nettles drove to Defendant’s residence, and Defendant acknowledged that he had recently
purchased matches at the grocery store. Defendant showed Agent Nettles the matches which
were still in the back of Defendant’s truck. Agent Nettles explained that the red phosphorus
on the striker plate of the match boxes is a chemical used in the manufacture of
methamphetamine, and methyl alcohol is used to extract the red phosphorus from the striker
plate. A bottle of Heet antifreeze was also in the back of truck. Agent Nettles stated that one
of the components of the antifreeze is methyl alcohol.

        Defendant consented to a search of his property. Agent Nettles found two glass jars
in the back of one of the trucks on the property. One jar was sealed with a cap. Based on his
experience and training, Agent Nettles said that the substance in the jar was a combination
of tincture of iodine, hydrogen peroxide, and an acid. Agent Nettles explained that the liquid
form of iodine cannot be used to manufacture methamphetamine. Therefore, hydrogen
peroxide and acid are mixed with the iodine to generate the formation of crystals which could
be used in the manufacturing process. Agent Nettles testified that he observed crystals in the
bottom of the sealed jar indicating that iodine, hydrogen peroxide, and acid had been
combined in that jar.

         The other jar was open with a funnel inserted into the neck of the jar and a coffee
filter inside the funnel. Agent Nettles said that the filter showed traces of both iodine and


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hydrogen peroxide, and an empty hydrogen peroxide bottle was also in the back of the truck.

       Defendant unlocked the cab of his truck, and Agent Nettles found a gallon of muriatic
acid, a gallon of iodine, and a pint of iodine. Agent Nettles found bottles of isopropyl
alcohol, or rubbing alcohol, and hydrogen peroxide in Defendant’s bathroom. Agent Nettles
said that isopropyl alcohol can be used to extract red phosphorus from the striker plates of
match boxes, and it also can be used to break down ephedrine pills into a usable form. In the
kitchen, Agent Nettles found a bottle of lye which is used to raise the pH of cooked
methamphetamine. Agent Nettles found another full can of Heet in the trunk of a vehicle,
and three cans of Brake Kleen inside a box in a garbage can. Agent Nettles stated that Brake
Kleen contains ether and can be used to extract methamphetamine oil from the lye. Also in
the garbage can was an empty box of Histafed, a cold and allergy medicine containing
pseudoephedrine, with a drug store bag. The label on the bag was dated March 27, 2006, or
three days before the search of Defendant’s property, and it listed Defendant as the purchaser
of the medicine. Agent Nettles also found a two-liter bottle wrapped in black tape inside the
garbage can and plastic tubing in the kitchen. Agent Nettles explained that these items can
be used in the extraction process. Photographs of the items found during the search were
introduced as exhibits at trial without objection.

        On cross-examination, Agent Nettles acknowledged that he did not find any pills
containing ephedrine or pseudoephedrine on Defendant’s property, and there was no
evidence that methamphetamine had been recently manufactured on the premises. Agent
Nettles acknowledged that he did not submit the substances in either glass jar for analysis.
Agent Nettles said that he followed DEA policy concerning the investigation and dismantling
of potential methamphetamine labs. Accordingly, a hazardous materials team was called to
the site and all substances which could be used in the production of methamphetamine,
including the substances in the jars, were immediately destroyed.

        Agent Nettles said that he spent approximately two hours conducting the search, and
acknowledged that he did not wear protective clothing during this process. Agent Nettles
said that he could have preserved a sample of the substances found in the two glass jars
before the jars were destroyed because the contents of the jars were not dangerous. Agent
Nettles said, however, that a sample was unnecessary because the Tennessee Bureau of
Identification’s laboratory did not analyze substances, only drugs. Moreover, Agent Nettles
stated that he would not have allowed Defendant to take a sample from the glass jars for
private analysis because DEA policy required the immediate destruction of the jars as part
of a potential methamphetamine lab.

       At the conclusion of the bench trial, the trial court, as trier of fact, found that the State
did not prove beyond a reasonable doubt that Defendant had combined two substances that


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could be used in the manufacture of methamphetamine and, therefore, found Defendant not
guilty of the charged offense. See T.C.A. § 39-17-435(c). The trial court, however, found
Defendant guilty beyond a reasonable doubt of the attempt to initiate a process intended to
result in the manufacture of methamphetamine.

II. Constitutionality of Tennessee Code Annotated section 39-17-435

       Defendant argues that the trial court erred in not granting his motion to dismiss the
indictment charging the methamphetamine offense against him. Defendant contends that the
language of Tennessee Code Annotated section 39-17-435(c) is vague and overly broad and
violates his due process rights because it does not put an individual on clear notice of what
conduct is prohibited under the statute. The State argues first that Defendant has waived
appellate review of this issue by failing to include it in his motion for new trial. Alternatively,
the State contends that the statute in question is not unconstitutionally vague.

       A motion for new trial was not required in this case because the trial was a bench trial.
See Tenn. R. App. P. 3(e) (providing that prior to initiating an appeal as of right, defendants
must file a motion for new trial “in all cases tried by a jury”); McCormic v. Smith, 650
S.W.2d 804, 806 (Tenn. 1983); State v. Randy Lee Salyer, No. E2008-01461-CCA-R3-CD,
2009 WL 1798381, at *2 (Tenn. Crim. App., at Knoxville, June 24, 2009), no perm. to
appeal filed; State v. Daryl Dewitt Godwin, No. W2008-00346-CCA-R3-CD, 2008 WL
5070130, at *4 (Tenn. Crim. App., at Jackson, Dec. 2, 2008), no perm. to appeal filed.

         In the case sub judice, however, defense counsel indicated to the trial court at the
conclusion of the bench trial that he would file a motion for new trial in order to more fully
develop his argument that the attempt to initiate a process intended to result in the
manufacture of methamphetamine is not a lesser included offense of the initiation of a
process. Thus, the motion for new trial focused only on the issue of whether the State had
proved Defendant guilty of any offense based on the evidence presented at trial and did not
raise any constitutional challenges. However, the filing of a motion for new trial in a bench
trial is optional, and is not a “prerequisite to appellate review.” McCormic, 650 S.W.2d at
806. In this case, Defendant filed a pre-trial motion to dismiss on the basis that the charging
statute as stated in the indictment was unconstitutional, and the trial court denied his motion.
See Tenn. R. Crim. P. 12(b); State v. Rhoden, 739 S.W.2d 6, 10 (Tenn. Crim. App. 1987)
(concluding that the failure to raise a constitutional challenge to a statute in a pretrial motion
will result in a waiver of the issue on appeal). Therefore, we will consider the merits of
Defendant’s issue.

       In Tennessee, “[i]t is an offense for a person to knowingly initiate a process intended
to result in the manufacture of any amount of methamphetamine.” T.C.A. § 39-17-435(a).
The term “initiates” is defined to mean “to begin the extraction of an immediate

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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
substances that can be used in methamphetamine creation.” Id. § 39-17-435(c). Defendant
argues that an ordinary person would not know what conduct is prohibited because the statute
does not define the terms, “any substance,” “active modification,” or “extraction.”
Moreover, Defendant submits that an “immediate methamphetamine precursor,” is defined
in terms so technical that an ordinary person cannot know what substances may subject him
or her to criminal prosecution. See T.C.A. § 39-17-402(13) (defining an immediate
methamphetamine precursor as “ephedrine, pseudoephedrine or phenylpropanolamine, or
their salts, isomers, or salts of isomer, or any drug or other product that contains a detectable
quantity of ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, isomers or
salts of isomers”).

       “Initially, our courts are charged with upholding the constitutionality of statutes where
possible.” State v. Pickett, 211 S.W.3d 696, 700 (Tenn. 2007) (citing Dykes v. Hamilton
County, 183 Tenn. 71, 191 S.W.2d 155, 159 (1945); State v. Joyner, 759 S.W.2d 422, 425
(Tenn. Crim. App. 1987)). “In evaluating the constitutionality of a statute, we begin with the
presumption that an act of the General Assembly is constitutional.” Gallaher v. Elam, 104
S.W.3d 455, 459 (Tenn. 2003) (citing State v. Robinson, 29 S.W.3d 476, 479-80 (Tenn.
2000); Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997)). Moreover, this Court is required
to “‘indulge every presumption and resolve every doubt in favor of the statute's
constitutionality.’” Gallaher, 104 S.W.3d at 459. (quoting State v. Taylor, 70 S.W.3d 717,
721 (Tenn. 2002)).

        “Due process requires that a statute provide ‘fair warning’ and prohibits holding an
individual criminally liable for conduct that a person of common intelligence would not have
reasonably understood to be proscribed.” State v. Burkhart, 58 S.W.3d 694, 697 (Tenn.
2001) (citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294 (1972)). Therefore,
“[t]he constitutional test for vagueness is whether a statute's prohibitions are not clearly
defined and are thus susceptible to different interpretations as to what conduct the statute
actually proscribes.” State v. Whitehead, 43 S.W.3d 921, 928 (Tenn. Crim. App. 2000)
(citing State v. Forbes, 918 S.W.2d 431, 447-48 (Tenn. Crim. App.1995); Grayned v. City
of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294 (1972); Baggett v. Bullitt, 377 U.S. 360, 367,
84 S.Ct. 1316 (1964)).

        General principles of statutory construction apply in reviewing the constitutionality
of a particular statute. State v. Partee, 137 S.W.3d 25, 31 (Tenn. Crim. App. 2003).
Therefore, a criminal statute “shall be construed according to the fair import of [its] terms”
when determining if it is impermissibly vague. T.C.A. § 39-11-104. “The words of a statute
are to be taken in their natural and ordinary sense without a forced construction to limit or


                                               -5-
extend their meaning.” Whitehead, 43 S.W.3d at 928 (citing Ellenburg v. State, 215 Tenn.
153, 384 S.W.2d 29, 30 (1964)).

        The terms, “any substance,” “active modification,” and “extraction” are commonly
used words capable of being understood by a person of ordinary intelligence. Although
broad in a general sense, these terms are modified by the requirement that the extraction,
modification, heating or combining of substances be done knowingly to result in the
manufacture of methamphetamine. The statute clearly states that a person should not engage
in one of the three statutorily delineated acts with knowledge that the acts will lead to the
production of methamphetamine. Because the specific steps which comprise the initiation
offense must be undertaken “knowingly,” a person who inadvertently heats or mixes
substances which are commonly used in the manufacture of methamphetamine, or purchases
an over-the-counter drug containing a prohibited substance would not be guilty of a crime
under the terms of the statute unless the state proved that the conduct was undertaken with
the intent to initiate a process that would lead to the production of methamphetamine. See
Pickett, 211 S.W.3d at 705 (observing that a person who inadvertently comes into possession
of child pornography would not be guilty of the offense of possession of “material that
includes a minor engaged in . . . [s]exual activity; or . . . [s]imulated sexual activity that is
patently offensive” because such possession would not be “knowing”).

       Based on our review, we conclude that the statute clearly defines the prohibited
conduct and is not susceptible to differing interpretations. Defendant is not entitled to relief
on this issue.

III. Constitutionality of the Statutory Presumption

       Defendant also challenges, without citation to authority, the constitutionality of the
presumption created in Tennessee Code Annotated section 39-17-435(d). This section
provides, in part, that “a rebuttable presumption is created that any commercially sold
product contains or contained the product that it is represented to contain on its packaging
or labels.” Officer Nettles testified at length, without objection, about the numerous items
found during the search of Defendant’s property, some of which were commercially labeled.
During Officer Nettles’ testimony, approximately fifteen photographs of commercially
labeled products discovered on Defendant’s property were introduced at trial, again without
objection. In addition, the trial court briefly discussed the presumption in section 39-17-
435(d) during closing argument without comment or objection by Defendant. Based on these
factors, we conclude that Defendant has waived this issue for purposes of appellate review.
Tenn. R. App. P. 36(a).




                                               -6-
IV. Attempt to Initiate

       Relying on State v. Adams, 238 S.W.3d 313 (Tenn. Crim. App. 2005), Defendant
argues that the offense of attempt to initiate a process intended to result in the manufacture
of methamphetamine is not a lesser included offense of the initiation of a process. Defendant
submits that the initiation offense itself is essentially an attempt to manufacture
methamphetamine

       As relevant to the case sub judice, “[a] person commits criminal attempt who, acting
with the kind of culpability otherwise required for the offense . . . acts 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.” T.C.A. § 39-12-101(a)(3). In this
regard, “[c]onduct does not constitute a substantial step under subdivision (a)(3) unless the
person’s entire course of action is corroborative of the intent to commit the offense.” Id. §
39-12-101(b).

        Generally, however, there “can be no attempt at a crime which is itself in the nature
of an attempt.” State v. Jackson, 697 S.W.2d 366, 371 (Tenn. 1985). Thus, in Adams, we
concluded that an attempt to resist arrest is not a lesser included offense of resisting arrest.
Adams, 238 S.W.3d at 328. The offense of resisting arrest includes either the prevention or
obstruction of a law enforcement officer from “effecting a stop, frisk, halt, arrest or search.”
Id. at 327 (quoting T.C.A. § 39-16-602). Thus, we stated,

       [w]hile our definition of resisting arrest does not actually include the word
       “attempt” within its definition, the crime of resisting arrest is defined in the
       nature of an attempt, such that an “attempt to resist arrest” would amount to
       an attempt to commit an attempt. The word “prevent” connotes a completed
       act such that the crime would be completed at the instant the law enforcement
       officer was actually “prevented” from effecting the arrest. On the other hand,
       if a person does not prevent, but obstructs, the crime is also completed.

Id. at 327; see also State v. Frank Johnson, No. W2000-00386-CCA-R3-CD, 2001 WL
721082, at *8 (Tenn. Crim. App., at Jackson, June 26, 2001), perm. to appeal denied (Tenn.
Oct. 22, 2001) (concluding that because the offense of felony evading arrest includes both
an intentional fleeing and the “attempt to elude” a law enforcement office, attempted felony
evading arrest is not a lesser included offense of evading arrest).

       In determining whether the attempt to initiate a process intended to result in the
manufacture of methamphetamine “is or is not a crime, it is useful to consider whether there
is a hypothetical factual scenario wherein one could commit attempted” initiation. State v.

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Paris, 236 S.W.3d 173, 182 (Tenn. Crim. App. 2007). “Initiation” is defined as the
commission of one of three specific acts: (1) the commencement of the extraction of an
immediate methamphetamine precursor from a commercial product; (2) the commencement
of the active modification of a commercial product for use in the creation of
methamphetamine; or (3) the heating or combination of any substance or substances that can
be used in the creation of methamphetamine. T.C.A. § 39-17-435(c). The offense is
completed when one actually commences the process of either extraction, modification,
heating, or combining.

        As an example pertinent to the case sub judice, a person could purchase iodine,
hydrogen peroxide and acid, and place the substances on a table along with a glass jar. The
person can then insert a funnel into the neck of the jar and place a filter in the funnel. At this
point, the person has not committed the offense of the initiation of a process intended to
result in the manufacture of methamphetamine. He or she has, however, taken a substantial
step toward committing the offense if the State proves that the person acted with the requisite
knowing mental state, that is, knowingly taking the steps with the intent to create
methamphetamine. Because the crime of initiation does not include every attempt to
complete the crime, therefore, we conclude that the attempt to initiate a process intended to
result in the manufacture of methamphetamine is an offense in Tennessee.

        Turning to the present case, Agent Nettles provided expert testimony about the
processes and substances used in the production of methamphetamine. The trial court found
that Defendant’s accumulation of a large quantity of match books, hydrogen peroxide, iodine,
a funnel and filters, lye, isopropyl alcohol, Brake Kleen, Heet and the purchase of a medicine
containing pseudoephedrine three days before the search was sufficient to support a finding
that Defendant intended to initiate a process resulting in the manufacture of
methamphetamine, and that he had taken a substantial step toward that end. See Wyatt v.
State, 24 S.W.3d 319, 324 (Tenn. 2000) (“[T]he criminal attempt statute requires that the
State prove two material elements: the culpability required for the attempted crime and an
act or acts in furtherance of the attempted crime.”). Based on our review, we conclude that
Defendant is not entitled to relief on this issue.

V. Possession of Drug Paraphernalia

      Defendant argues that the evidence is insufficient to support his conviction of
possession of drug paraphernalia. Defendant points out that Agent Lee did not find any
methamphetamine residue or any ephedrine or pseudoephedrine on his property, and the
commercial products which were discovered were scattered randomly over the property.

      When a defendant challenges the sufficiency of the convicting evidence, we must
review the evidence in a light most favorable to the prosecution in determining whether a

                                               -8-
rational trier of fact could have found all the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
Once a jury finds a defendant guilty, his or her presumption of innocence is removed and
replaced on appeal with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn.
1991). The defendant has the burden of overcoming this presumption, and the State is
entitled to the strongest legitimate view of the evidence along with all reasonable inferences
which may be drawn from that evidence. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). The jury is presumed to have resolved all conflicts and drawn any reasonable
inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Questions concerning the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not
this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to
findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination
of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990).

        Defendant was convicted for possession of drug paraphernalia with intent to use it in
violation of Tennessee Code Annotated section 39-17-425(a), which reads in relevant part
as follows:

       (a)(1) Except when used or possessed with the intent to use by a person authorized by
       this part and title 53, chapter 11, parts 3 and 4 to dispense, prescribe, manufacture or
       possess a controlled substance, it is unlawful for any person to use, or to possess with
       intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest,
       manufacture, compound, convert, produce, process, prepare, test, analyze, pack,
       repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the
       human body a controlled substance in violation of this part.

The State thus has the burden of proving three elements beyond a reasonable doubt: (1) that
Defendant possessed an object; (2) that the object possessed was classifiable as drug
paraphernalia; and (3) that Defendant intended to use that object for at least one of the illicit
purposes enumerated in the statute. State v. Mallard, 40 S.W.3d 473, 485 (Tenn. 2001). In
determining whether a particular object is drug paraphernalia as defined by § 39-17-402, the
court shall in addition to all other logically relevant factors consider the following:

       (1) Statements by the owner or anyone in control of the object concerning its
       use;

       (2) Prior convictions, if any, of the owner or of anyone in control of the object
       for violation of any state or federal law relating to controlled substances;


                                               -9-
       (3) The existence of any residue of controlled substances on the object;

       (4) Instructions, oral or written, provided with the object concerning its use;

       (5) Descriptive materials accompanying the object which explain or depict its
       use;

       (6) The manner in which the object is displayed for sale;

       (7) The existence and scope of legitimate uses for the object in the community;

       and

       8) Expert testimony concerning its use.

Id. § 39-17-424.

         Agent Nettles testified that he found iodine, hydrogen peroxide, lye, Brake Kleen,
Heet, a substantial number of match boxes containing red phosphorous, a funnel, coffee
filters, plastic tubing, and a two-liter bottle wrapped with black tape that is used as a “gasser”
during a search of Defendant's property. Although no ephedrine of pseudoephedrine was
found on the premises, Agent Nettles discovered an empty box originally containing twenty-
four pills of Histafed. The prescription bottle was issued in Defendant's name on March 27,
2006, three days before the search. Agent Nettles testified that Histafed contains
pseudoephedrine, an immediate precursor of methamphetamine, and that each of the products
found on Defendant's property were a necessary component in the manufacture of
methamphetamine. Based on the foregoing, we conclude that the trial court, as trier in fact,
could find beyond a reasonable doubt that Defendant was in possession of drug paraphernalia
for use in the manufacture of methamphetamine. Defendant is not entitled to relief on this
issue.

                                       CONCLUSION

       After a thorough review, we affirm the judgments of the trial court.

                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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