         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 18, 2007

                     STATE OF TENNESSEE v. EDWARD POE

                       Appeal from the Circuit Court for Marion County
                              No. 6142   J. Curtis Smith, Judge



                    No. M2007-01714-CCA-R3-CD - Filed March 17, 2008


A Marion County Circuit Court jury convicted the defendant, Edward Poe, of one count of
manufacturing a controlled substance, one count of attempted possession of a controlled substance
with intent to sell, and one count of felony possession of drug paraphernalia. On appeal, he alleges
that a directed verdict should have been granted based on the insufficiency of evidence as a whole,
as well as based on insufficient evidence for the paraphernalia charge because there was no proof
of intent to deliver the paraphernalia. He also alleges that the convictions for manufacturing a
controlled substance and felony possession of drug paraphernalia were inconsistent and that the court
should not have excluded testimony from a court clerk regarding the filing of the January 23, 2002
search warrant. Upon review, we affirm the judgments as modified.

          Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed as Modified

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which ALAN E. GLENN and D.
KELLY THOMAS, JR., JJ., joined.

Paul D. Cross, Monteagle, Tennessee, for the appellant, Edward Poe.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Finley, Assistant Attorney General;
and Sherry Gouger, Assistant District Attorney, for the appellee, State of Tennessee.

                                             OPINION

               On June 3, 2002, the Marion County Grand Jury indicted the defendant on one count
of manufacturing a controlled substance, see T.C.A. § 39-17-417(a)(1) (1997), one count of
possession of a controlled substance with intent to sell, see id., § 39-17-417(a)(4), and one count of
felony possession of drug paraphernalia, see id., § 37-17-425(b)(1).

              The trial was held on April 25, 2003. Marion County Deputy Gene Hargis testified
that on January 23, 2002, he assisted Detective Brent Myers in the search of the mobile home of
Donnie Keahey. Detective Hargis testified that he had received over one hundred hours of training
on methamphetamine manufacturing operations (MMOs) and personally had been in contact with
over three hundred MMOs in the previous five years. Upon arrival at Mr. Keahey’s residence, the
officers knocked on the door and identified themselves as police with a warrant. No one responded
while they knocked for two minutes. Detective Hargis testified that they “could hear movement
inside the residence like somebody walking back and forth.” After forcing the trailer door open, they
found the defendant, Mr. Keahey, and Stacy McHone inside.

                 Deputy Hargis said that Mr. Keahey’s trailer had “a very strong odor of
methamphetamine cook” and “a light haze in the residence kind of like a light cloud.” During a
safety sweep of the residence, he observed a coffee pot on a hot plate that appeared to be cooking
and was hot to the touch. Officers disengaged the power supply to the hot plate. In the kitchen area,
officers discovered in the dishwasher a full rack of quart and pint jars with “white powder residue
inside [the jars, and] some had red powder residue inside, but it was inside the dishwasher.” They
also found a white sack containing items commonly used in the manufacturing of methamphetamine.
Detective Hargis took six samples of various liquids and residue found in the bedroom and kitchen
areas of the residence that were consistent with the manufacturing process for methamphetamine.
The samples were removed from the residence and taken to the Tennessee Bureau of Investigation
(TBI) crime lab for analysis.

                 On cross-examination, Deputy Hargis testified that he could not remember for sure
if the trailer door was forced open or if the occupants opened it. He said it was not the first search
of Mr. Keahey’s residence, which had been searched on November 27, 2001, and February 20, 2002.
Detective Hargis testified that the officers did not expect to find the defendant at Mr. Keahey’s
residence at the time of the January 23, 2002 search and that the defendant was not observed
engaging in the manufacture of methamphetamine.

               TBI forensic scientists David Brown and Adam Gray testified that they received
samples recovered from the January 23, 2002 search of Mr. Keahey’s residence. The samples tested
positive for methamphetamine.

                Whitwell Chief of Police Brent Myers testified that at the time of the search he was
working in the Marion County Sheriff’s Department as Chief Detective. Detective Myers had
undergone methamphetamine training at the Drug Enforcement Agency (DEA) academy, was
licensed to teach about safety and awareness of methamphetamine, and had observed approximately
150 MMOs. His training included learning the process for manufacturing methamphetamine in the
National DEA Academy training lab. He then described the procedure for “cooking”
methamphetamine, explaining the process and the items needed. Detective Myers testified that all
the necessary items were present in Mr. Keahey’s residence during the January 23, 2002 search.

               Detective Myers testified that after knocking on the front door of Mr. Keahey’s
residence and receiving no answer, the officers heard noise inside. Detective Myers went to the rear
of the mobile home because “it sounded to me like they were trying to run out the back.” When
there was no answer at the back door, he went back to the front door and “kicked the door open[.]”


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He testified that the residence was filled with smoke and fumes, to the degree that “it was burning
my skin and irritating my eyes.” In a room adjacent to the living room, he found coffee filters being
heated on a hot plate and a paper bag “located in front of the hot plate that had a white powder
residue . . . in that bag.” Various items consistent with methamphetamine manufacturing were found
in the kitchen, including a Pyrex baking dish with red phosphorus liquid. He testified that the
television was definitely off when they entered the residence because they later turned it on while
waiting for the “haz mat” team to arrive and clean up the site.

               Detective Myers testified that the following items were seized from Mr. Keahey’s
residence:

               Three Propane Canisters 16.4 ounces, two boxes of Rock Salt, two 32
               ounce Peroxide bottles, seven 16 ounce Peroxide bottles, one 32
               ounce Rubbing Alcohol, one Muriatic Acid bottle 32 ounces, one
               Tincture of Iodine 16 ounce, two 12 ounce Gas Line Antifreeze, four
               12 ounce Heet bottles, seven 12 ounce Pitt Gas Line Antifreeze, three
               gallon cans of Coleman Fuel, 25 cans 11 pound three ounce CRC
               Brake Cleaner, one quart of Liquid Fire, Ten 18 ounce Red Devil Lye,
               one quart Rooto Drain Cleaner, three 11 ounce cans of Gunk Start
               Fluid, one 11 ounce can of Instant Starting Fluid, three 11 ounce Peak
               Starting Fluid, four 11 Pyroil Starting Fluid, two one quart cans Parks
               Acetone, two 30 ounce cans of Clean Strip Acetone, one gallon EZ
               Acetone, one gallon Parks Acetone, one quart Sunny Side Denatured
               Alcohol, one 26 ounce Iodized Salt, one roll Reynolds Aluminum
               Foil, 32 Blister Packs Nasal Decongestant, 1 plastic container with
               Match Striker Plates, Matches, used coffee filters, 3 pair of rubber
               gloves, 2 boxes Suphedrine 24 count 30 milligram, three bottles T
               and M Mini-Thin 100 count 25 milligram, 13 CVS Brand Nasal
               Decongestant 24 count 60 milligram, 37 Walact Cold and Allergy
               Medicine 48 count 60 milligram, three boxes Walact Cold and
               Allergy Medicine 24 count 60 milligram, 12 Walfed Coal [sic] and
               Allergy Medicine 48 count 60 milligram, one roll Duct Tape, three
               boxes of .45 caliber rounds, one box of .38 caliber rounds, one gram
               of a white powder substance, one hot plate, Aluminum foil bullet, one
               coffee pot with boiling filters . . . . One empty coffee pot, seven pint
               jars with white residue, seven quart jars with white residue, two
               pound [sic] of Iodine . . . crystals. One glass baking dish with red
               residue, one glass baking dish with Red Phosphorus, assorted tubing,
               one set of scales, two glass smoking pipes, eight 20 ounce condenser
               bottles, four 2 liter condenser bottles, one gallon gassing bottle, one
               pint 2 layer liquid Orange and White, one quart with soaking striker
               plates.



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Those items were recovered from “the kitchen and the laundry room” of the residence, with “the
back side of the kitchen” containing the bulk of the items. The hot plate and the previously
described paper bag were found in the bedroom.

                On cross-examination, Detective Myers testified he mistakenly gave defense counsel
a search warrant return for the February 20, 2002 search of the residence. He later mailed counsel
a copy of the correct warrant. On average, Detective Myers would execute between 25 and 30 search
warrants per year. Detective Myers said he did not know why defense counsel could not find a copy
of the January 23, 2002 return at the clerk’s office but insisted it had been properly filed. He testified
that he was not getting details of the January and February searches confused. He distinctly
remembered the January search because when kicking the door open he “fell backwards and down
the steps,” breaking his ribs. He said the defendant was not doing anything overtly illegal when the
officers entered, no weapons or electronic devices used for transactions or avoiding law enforcement
officers were found, and there was “no proof” that any of the drug paraphernalia was being used in
any way other than for the manufacture of methamphetamine.

                After the State rested, the defense attempted to call Marion County Circuit Court
Clerk Linda Willis, but the State objected on the ground of relevance. Defense Counsel stated Ms.
Willis would provide more information on the January warrant not being filed. The court found the
potential testimony of Ms. Willis irrelevant and that any probative value of her testimony was
outweighed by the potential to confuse the jury.

                 The defense then called the defendant, who testified he lived with his mother about
three miles away from Mr. Keahey’s residence. He had known Mr. Keahey since kindergarten and
had met Ms. McHone “maybe a year” before the trial through mutual friends. The defendant
testified he visited Mr. Keahey’s residence to socialize “[q]uite often,” and they would “search the
web on the computer, play special games, work on vehicles, just anything.”

               The defendant said that on January 23, 2002, he had been at Mr. Keahey’s residence
“approximately an hour, could have been longer” before the police arrived. He left his jacket on the
kitchen table. They ate a pizza cooked in the oven by Mr. Keahey, and afterwards the defendant
hand-washed the dishes and put them back in the cupboard. “[R]ight after [they] got through
eating,” they heard a knock on the door. The defendant testified Mr. Keahey got to the door “as
quick as he could” but was slowed by his arthritis. The defendant said he saw no methamphetamine
materials and did not smell anything funny in the residence. He denied seeing the hot plate with
something boiling on it, the dozens of pseudoephedrine packs, the jars, or the baking dish. He said
he was aware that the residence had been raided several months earlier, but he had no reason to
worry because he did not see any illegal activity on January 23, 2002.

               On cross-examination, the defendant testified he was a close friend of Mr. Keahey
prior to Mr. Keahey’s 2001 arrest for manufacture of methamphetamine. He testified that Mr.
Keahey’s prior arrest did not cause him any concern or make him pay more attention to the presence
of MMOs in the area. He knew there was a back room in the residence that Mr. Keahey “ke[pt]


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some junk in,” but he denied seeing any of the items found by the police search. He testified that
he would sleep on the couch in the living room when he slept over, and he washed his own dishes
in the sink after eating pizza that day. The defendant denied seeing smoke in the residence and the
numerous mason jars found in the dishwasher.

                After the jury found the defendant guilty, the trial court held a sentencing hearing and
sentenced the defendant to four years on the manufacturing charge, three years on the attempted
possession charge, and one year and six months on the paraphernalia charge. The trial court ordered
that the sentences be served concurrently for an effective sentence of four years, to be served via 60
days of incarceration on consecutive weekends and three years and ten months on probation.

                In the defendant’s timely appeal, he challenges the sufficiency of the evidence, asserts
that the convictions for manufacture of methamphetamine and felony possession of drug
paraphernalia were inconsistent, and alleges that the trial court erred by excluding testimony from
a court clerk regarding the filing of the January 23, 2002 search warrant.

                                    I. Sufficiency of the Evidence

               The defendant first argues generally that a directed verdict should have been granted
based on the insufficiency of the evidence. When an accused challenges the sufficiency of the
evidence, an appellate court’s standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443
U.S. 307, 324, 99 S. Ct. 2781, 2791-92, 61 L. Ed. 2d 560 (1979); State v. Winters, 137 S.W.3d 641,
654 (Tenn. Crim. App. 2003). The rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of direct and circumstantial evidence. Winters, 137
S.W.3d at 654.

                In determining the sufficiency of the evidence, this court should neither re-weigh the
evidence nor substitute its inferences for those drawn by the trier of fact. Id. at 655. Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Significantly, this court must afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. Id.

               “It is an offense for a defendant to knowingly . . . manufacture a controlled
substance.” T.C.A. § 39-17-417(a)(1). “It is an offense for a defendant to knowingly . . . possess
a controlled substance with intent to manufacture, deliver or sell such controlled substance.” Id. §
39-17-417(a) (4).

               Except when delivered, possessed with the intent to deliver, or
               manufactured with the intent to deliver by a person authorized by this


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               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 deliver, possess with intent to deliver, or manufacture with
               intent to deliver, drug paraphernalia, knowing, or under
               circumstances where one reasonably should know, that it will be used
               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.

Id. § 39-17-425(b)(1).

                At issue here is whether sufficient evidence established that the defendant possessed
the controlled substances and paraphernalia and, if so, whether the defendant intended to deliver the
paraphernalia when he either knew or should have known that it would be used for one of the
statutorily prohibited uses.

                 Tennessee courts recognize that possession may be either actual or constructive. State
v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). A person constructively possesses a controlled
substance when he or she has “the power and intention at a given time to exercise dominion and
control over [the contraband] either directly or through others.” Id. at 903 (quoting State v.
Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)). Said differently, constructive possession
is the “ability to reduce an object to actual possession.” State v. Cooper, 736 S.W.2d 125, 129
(Tenn. Crim. App. 1987). However, “the mere presence of a person in an area where drugs are
discovered is not, alone, sufficient.” State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000)
(citing Cooper, 736 S.W.2d at 129). “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.” Cooper, 736 S.W.2d at 129.

                Applying the inferences from the evidence most favorable to the State, we conclude
that the evidence was sufficient to establish that the defendant constructively possessed the drugs
and paraphernalia. Mr. Keahey resided at the mobile home, and the defendant visited often and
stayed overnight occasionally. On the date in question, the defendant was apparently in the kitchen
and living room areas for some time before the arrival of the police. The occupants of the residence
delayed in responding to the knock on the door by the police officers. Most of the paraphernalia was
found in the kitchen, a common area of the residence and one that was very close to the defendant’s
location. Both detectives testified that there was smoke and a strong odor consistent with an MMO.
The television was not turned on in the residence, and the defendant provided no other reasonable
explanation for being inside the residence at time the police arrived. Viewed in the light most
favorable to the state, the length of time the defendant spent in the residence, the proximity of the
defendant to the evidence, the relationship between the defendant and Mr. Keahey, and the officers’
testimony about odor and smoke support a finding of sufficiency of evidence in regards to
constructive possession.


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                 We are aware of State v. Don Woody McGowan, No. M2001-02866-CCA-R3-CD,
slip op. at 2-13 (Tenn. Crim. App., Nashville, June 28, 2002), in which this court held the evidence
of McGowan’s possession of drugs insufficient. That case, however, is factually distinguishable.
McGowan stated that he had been inside the searched residence for “less than fifteen minutes before
police entered.” Id. at 12. McGowan had “traveled to Whitewell to visit with friends” the evening
of his arrest. Id. at 11. Finally, the drug paraphernalia in McGowan was found entirely in a duffel
bag located in the bedroom of the residence, while McGowan never left a couch in the living room.
Id. at 4-5, 11.

                Here, the defendant had been inside the residence for at least an hour before the police
arrived. Further, there was a close relationship between the defendant and the owner of the residence
searched, to the point that the defendant was visiting the residence “[q]uite often.” A chemical odor
and smoke were prominent inside the residence. Finally, the bulk of the paraphernalia was recovered
in the kitchen of the residence, an area adjacent to the living room where the defendant was found
at the time the police arrived, and an area in which the defendant admitted to being earlier that day
when washing dishes and placing his coat at the kitchen table.

                Given the finding of constructive possession, the testimony at trial, and the TBI
analysis of the substances found in the residence, we hold that the evidence is sufficient to support
a conviction on the charges of manufacturing a controlled substance and attempted possession of a
controlled substance with intent to sell.

               The defendant further argues that there is insufficient evidence to support his
conviction of felonious possession of drug paraphernalia because there is no proof of his intent to
deliver it anywhere. We agree. The law in question proscribes as a Class E felony the possession
of drug paraphernalia with intent to deliver the paraphernalia. See T.C.A. § 39-17-425(b)(1).
Applying the inferences from the evidence most favorable to the State, we conclude that although
the defendant constructively possessed the paraphernalia, nothing in the evidence or testimony
suggests intent on behalf of the defendant to deliver the drug paraphernalia to any other person or
location. Similarly, no evidence or testimony was presented to support anticipated arrival of
transported paraphernalia. The essential elements of this offense were not established by the
evidence, and this conviction must be modified to a conviction of the lesser included offense of
misdemeanor possession of drug paraphernalia, see id. § 39-17-425(a)(1), a paraphernalia charge that
does not include the element of transfer.

                Because we have modified the conviction to Class A misdemeanor possesion of drug
paraphernalia, see id., we must likewise modify the sentence. For the Class A misdemeanor, we
impose a sentence of eleven months and 29 days with a $2,500 fine. We do not disturb the
alternative sentencing plan provided by the trial court.

                                      II. Inconsistent Verdicts




                                                  -7-
               The defendant next claims that his convictions for manufacture of a controlled
substance and possession of drug paraphernalia are inconsistent, because “the essence of a
manufacturing conviction is the use of [the paraphernalia],” and “the essence of the felony
paraphernalia charge is the transfer of them to another person . . . .” With the modification of the
paraphernalia conviction from a felony to a misdemeanor, however, the element of delivery has been
eliminated, and this argument is moot.

                                      III. Exclusion of Evidence

                 The defendant sought to call assistant court clerk Linda Willis to testify that she could
not find in court records a search warrant return for the January 23, 2002 search of Mr. Keahey’s
residence. The defendant claimed that Ms. Willis’ testimony would support his theory that Detective
Myers was confused about the details of the January and February searches. The trial court refused
to let the jury hear Ms. Willis’ testimony.

                The decision to admit or exclude this evidence lies within the sound discretion of the
trial court. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999); State v. Jackson, 52 S.W.3d 661, 669
(Tenn. Crim. App. 2001); State v. Carroll, 36 S.W.3d 854, 867 (Tenn. Crim. App. 1999), perm. app.
denied (Tenn. 2000). On appellate review of a trial court’s decision to admit or exclude evidence
on the basis of relevance, an appellate court may disturb the lower court’s ruling only if there has
been an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Baker,
785 S.W.2d 132, 134 (Tenn. Crim. App. 1989).

               We hold that the trial court was within its discretion to deny the introduction of this
evidence because the testimony of Detective Myers had already established that he had filed a copy
of the return with the clerk’s office but that the clerk’s office copy could not be found. See Tenn.
R. Evidence 402, 403.

                                            IV. Conclusion

               For the reasons above expressed, the judgments of the trial are affirmed except for
the conviction of felony possession of drug paraphernalia, which is hereby modified to a conviction
of misdemeanor possession of drug paraphernalia with a sentence of eleven months and 29 days and
a $2,500 fine. The probation arrangement provided by the trial court remains in effect.


                                                         ___________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




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