        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs October 30, 2001

                 STATE OF TENNESSEE v. DANNY DAVIDSON

                 Direct Appeal from the Circuit Court for Weakley County
                      No. CR80-2000     William B. Acree, Jr., Judge

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                  No. W2001-00118-CCA-R3-CD - Filed February 26, 2002
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Defendant was convicted of attempted manufacture of methamphetamine. On appeal, defendant
submits that the evidence was insufficient to support the conviction, and the trial court erred in
not charging the jury on facilitation. We conclude the evidence was sufficient to uphold the
conviction, and defendant was not entitled to an instruction on facilitation. We affirm.

      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 DAVID G. HAYES and
JAMES CURWOOD WITT, JR., JJ., joined.

C. Michael Robbins, Memphis, Tennessee (on appeal); Joseph P. Atnip, District Public Defender
(at trial and on appeal); and Kevin David McAlpin, Assistant District Public Defender (at trial
and on appeal), for the appellant, Danny L. Davidson.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and
Thomas A. Thomas, District Attorney General, for the appellee, State of Tennessee.


                                            OPINION

        On September 5, 2000, the Weakley County Grand Jury returned a true bill of indictment
against defendant, Danny L. Davidson, charging him with one count of manufacturing a
Schedule II controlled substance, one count of possession of a Schedule II controlled substance,
and one count of contributing to the delinquency of a minor. Count One was amended to
attempted manufacture of methamphetamine, and Count Two was dismissed on the motion of
the prosecution. The case was tried by a jury in the Circuit Court for Weakley County on
November 6, 2000. The jury returned a verdict of guilty of attempt to manufacture a Schedule II
controlled substance and contributing to the delinquency of a minor. On December 1, 2000,
defendant was sentenced to concurrent terms of six years and eleven months, twenty-nine days
for these offenses. A timely motion for a new trial was filed by defendant on December 15,
2000. The motion was denied by the trial court on January 8, 2001. Timely notice of appeal was
filed by defendant on January 9, 2001, and notice of this appeal timely followed.
                                               Facts

        Tom Erwin, a lieutenant with the Martin Police Department, testified that the Department
had received a complaint concerning the home of Danny Davidson. According to the complaint
there was a “strong chemical odor” coming from defendant’s home. The date of the complaint
was on or about August 6, 2000. Lieutenant Erwin testified that, based on his training and
experience, he recognized the odor as that from a possible methamphetamine lab. He
investigated the odor as a result of the complaint. Lieutenant Erwin later obtained a search
warrant that he executed on defendant’s home at about eight o’clock the following morning.

         Lieutenant Erwin testified that he was trained by the DEA at a week long course in
Memphis concerning “clandestine laboratories.” Lieutenant Erwin testified that he executed the
search warrant at defendant’s residence with other members of the Drug Task Force. He
testified that upon arrival at the residence, the officers announced their presence and knocked at
the door, at which time no one answered. The officers eventually gained entrance into the
residence by kicking the door in. Upon entering the residence, Lieutenant Erwin observed
glassware with a powder residue in it, “sludge waste material” in the drain of the sink, denatured
alcohol, Epsom salts, and “starting fluid cans.” Lieutenant Erwin testified that all of these items
were used “in the process” of producing methamphetamine. He stated that they also found
spoons, bowls, and hypodermic needles which are used to inject the finished product. The
officers also found defendant inside the residence. He testified that in the trash outside the house
he found two empty boxes of pseudoephedrine, Epsom salts, and a little vial which contained a
white powder substance that tested positive for methamphetamine.

       Lieutenant Erwin testified that in his past experience he has observed six to eight labs
and that he is familiar with the process of manufacturing methamphetamine. He explained that
the pseudoephedrine pills are put in a jar and soaked in denatured alcohol. This process extracts
the amphetamine from the pills. Lieutenant Erwin testified that a DEA lab later determined that
the white substance found at the residence was not methamphetamine.

       Captain David Moore of the Martin Police Department testified that he interviewed
defendant at the scene of the search of the house. He testified that he asked defendant if
defendant had produced a lot of methamphetamine in the house within the past twenty-four
hours, and defendant responded, “Not much.” Captain Moore testified that he did not question
defendant until after he advised defendant of his rights.

        Jay Barnes, a special agent with the Tennessee Bureau of Investigation assigned to the
Drug Investigative Division in West Tennessee, testified that he has attended the DEA’s
clandestine laboratory investigative school in Quantico, Virginia, as well as other non-described
“methamphetamine awareness classes,” and has personally observed twenty or more
methamphetamine labs. He testified that at the scene of the search he observed several
containers and an apparatus he knew to be consistent with the manufacturing of
methamphetamine.


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        Upon interviewing defendant, Agent Barnes learned that defendant was assisting a
juvenile, Michael Gregory, who was making the methamphetamine. Agent Barnes testified that
defendant stated he was only assisting Gregory. Defendant told Agent Barnes “that Mr. Gregory
provided the precursor materials,” and that they had taken the materials and cooked them out on
some railroad tracks close to the house. Agent Barnes testified that defendant described the
materials they were using as “pseudoephedrine from Sudafed tablets, lithium strips from lithium
batteries, and acetone, which is a solvent.” Agent Barnes testified that the acetone was a
replacement for anhydrous ammonia, which meant that the final product would only be a powder
called pseudoephedrine. Agent Barnes testified that this product was similar to caffeine and
nothing like methamphetamine. Agent Barnes testified that he did not interview Michael
Gregory. Lastly, Agent Barnes testified that defendant gave a statement, and that he, Agent
Barnes, later wrote down a summary of the statement indicating that defendant only assisted
Michael Gregory in the manufacture and that Michael Gregory had provided the materials
needed to manufacture the methamphetamine.

       Harold Moore testified that he saw defendant between 7:00 and 8:40 p.m. on the evening
of August 5, 2000, at Moore’s home. He testified that the two of them watched television
together. He further testified that about 8:40 p.m. Michael Gregory came to the door, and
defendant left with Gregory.

        Defendant Danny Davidson testified in his own behalf. He testified that there was
material at his house, which appeared to be methamphetamine. He also testified that items found
in the search involved in the methamphetamine production process were brought there by
Michael Gregory. He testified that when he left Harold Moore’s house, he returned home. A
few minutes later, Michael Gregory came in with a bag containing the jar, which was later seized
in the search, as well as some batteries. Defendant testified that Gregory told defendant that
Gregory would give him some of what defendant believed to be methamphetamine. Gregory
later gave defendant a quarter-gram of methamphetamine.

        Defendant testified that he liked methamphetamine and that he was addicted to it.
Defendant said that all of the materials used in the process were brought by Gregory and that
none of them belonged to defendant. He testified that all of the preparation was done by
Gregory. Defendant further testified that his only interest was in getting some of the drugs for
his own use and that he did not know how to make methamphetamine. He stated that he did not
get high when he used the material given to him by Gregory.

        Agent Barnes again testified in rebuttal that defendant told him that he was involved with
Gregory in the process of making the substance. Barnes based this assertion on defendant’s use
of the pronoun “we” when defendant gave his statement to the agent.

       The trial judge did not charge the jury on any lesser-included offenses; however, the trial
judge did instruct the jury as to criminal responsibility for the conduct of another. The jury
returned verdicts of attempted manufacture of methamphetamine and contributing to the
delinquency of a minor.


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        On December 1, 2000, defendant was sentenced as a Range II offender to a term of six
years for Count One and to a term of eleven months, twenty-nine days for Count Three. The
sentences were ordered to be served concurrently. The trial court enhanced the sentence due to
defendant’s history of criminal convictions and conduct in addition to that necessary to establish
the range.

       The trial court denied alternative sentencing for defendant and found that less restrictive
measures than confinement had been applied to defendant in the past without success. The trial
court also found that defendant had a lengthy criminal history justifying confinement, and a
sentence to confinement would provide an effective deterrence. In his brief, defendant points
out that the pre-sentence report, received as Exhibit I at the sentencing hearing, indicates that
defendant successfully completed his two previous placements on an alternative sentence.
Defendant also points out that the report indicates that defendant was convicted of two
misdemeanor offenses of possession of marijuana and one DUI.

                                              Analysis

I.   Sufficiency of the Evidence

        When an accused challenges the sufficiency of the convicting evidence, this Court must
review the record to determine if the evidence adduced during the trial was sufficient “to support
the finding of the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). In
determining the sufficiency of the evidence, this Court does not re-weigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute
its inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State,
99 Tenn. 298, 286 S.W.2d 856, 859 (Tenn. 1956). This Court is required to afford the state the
strongest legitimate view of the evidence contained in the record, as well as all reasonable and
legitimate inferences that may be drawn from the evidence. State v. Herrod, 754 S.W.2d 627,
632 (Tenn. Crim. App. 1988).

        Questions concerning the credibility of the witnesses, the weight and value to be given
the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact,
not this Court. 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). Since a verdict of guilt removes the presumption of innocence and replaces it
with a presumption of guilt, the accused has the burden on appeal of illustrating why the
evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a verdict of guilt due to the
sufficiency of the evidence unless the facts contained in the record and the inferences that may
be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to find the
accused guilty beyond a reasonable doubt. Matthews, 805 S.W.2d 776, 780 (Tenn. Crim. App.
1990).



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      The jury convicted defendant of attempted manufacture of methamphetamine. Tennessee
Code Annotated section 39-12-101 (1997) defines criminal attempt in the following manner:
             (a) A person commits criminal attempt who, acting with the kind
                 of culpability otherwise required for the offense:
                 ***
                 (2) Acts with intent to cause a result that is an element of the
                 offense, and believes the conduct will cause the result without
                 further conduct on the person’s part.

        In the instant case, we find that sufficient evidence existed to uphold a conviction for
attempted manufacture of methamphetamine. The testimony reveals that Lieutenant Erwin
received a complaint of a “strong chemical odor” from defendant’s home on August 6, 2000.
Upon executing a search pursuant to a valid search warrant, Lieutenant Erwin found evidence of
materials typically used in the production of methamphetamine, including glassware with a
powder residue in it, “sludge waste material” in the sink, denatured alcohol, Epsom salt, and
starting fluid cans containing ether. Outside the residence, Lieutenant Erwin found two empty
boxes of pseudoephedrine and Epsom salt, along with a vile containing a white powder that
tested positive at the site for methamphetamine. The substance was later determined not to be
methamphetamine.

       The evidence adduced at trial shows that Captain Moore asked defendant if defendant
“had produced a lot of methamphetamine inside [defendant’s] house within the last twenty-four
hours,” and defendant said “not much.” The record shows that Agent Barnes viewed items
consistent with methamphetamine production at defendant’s house and that defendant told Agent
Barnes that defendant was “only assisting a juvenile, Michael Gregory,” in the production of
methamphetamine. Defendant also told Agent Barnes that “[defendant and Gregory] did this,”
“[defendant and Gregory] cooked it on the railroad tracks,” and “[defendant and Gregory]
powdered [the methamphetamine] out at [defendant’s] house.” The evidence adduced also
showed that defendant liked methamphetamine and was addicted to it.

       The evidence in this case consists of all the makings of methamphetamine found in
defendant’s home and defendant’s admission of assisting the juvenile Gregory for the purpose of
using the finished product of methamphetamine. A reasonable jury could conclude that
defendant was guilty of attempt to manufacture methamphetamine. We affirm.

II.    Lesser-Included Offense of Facilitation.

       Defendant contends that because the evidence was insufficient to uphold a conviction for
attempted manufacture of methamphetamine, he was entitled to a jury charge on the lesser
included offense of facilitation of a felony. We disagree.

       In Tennessee, a person is “criminally responsible” for another’s offense - in this case,
attempted manufacture of methamphetamine - if “acting with intent to promote or assist the
commission of the offense, or to benefit in the proceeds of result of the offense, the person


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solicits, directs, aids, or attempts to aid another person to commit the offense.” Tenn. Code Ann.
§ 39-11-402(2).

        However, the offense of criminal facilitation involves the following:
               A person is criminally responsible for the facilitation of a felony if,
               knowing that another intends to commit a specific felony, but
               without the intent required for criminal responsibility under Tenn.
               Code Ann. § 39-11-402(2), the person knowingly furnishes
               substantial assistance in the commission of the offense.
Tenn. Code Ann. § 39-11-403(a). The statute applies to those facilitating “criminal conduct of
another by knowingly furnishing substantial assistance to the perpetrator of a felony, but who
lacks the intent to promote or assist in or benefit from, the felony’s commission.” Tenn. Code
Ann. § 39-11-403. (Sentencing Commission Comments).

        In Tennessee, an offense is a lesser-included offense if:
                (a) all of its statutory elements are included within the statutory
                    elements of the offense charged; or
                (b) it fails to meet the definition in part (a) only in the respect that
                    it contains a statutory element or elements establishing
                    (1) a different mental state indicating a lesser kind of
                         culpability; and/or
                     (2) a less serious harm or risk of harm to the same person,
                         property or public interest; or
                (c) it consists of
                     (1) facilitation of the offense charged or of an offense that
                         otherwise meets the definition of lesser-included offense in
                         part (a) or (b); or
                     (2) an attempt to commit the offense charged or an offense that
                         otherwise meets the definition of lesser-included offense in
                         part (a) or (b); or
                     (3) solicitation to commit the offense charged or an offense
                         that otherwise meets the definition of lesser-included
                         offense in part (a) or (b).
State v. Burns, 6 S.w.3d 453, 469 (Tenn. 1999). After determining if an offense is a lesser-
included offense, the trial court must determine if the jury should be instructed as to the offense.
Burns gives a two-step process. First, the trial court must determine whether any evidence exists
that reasonable minds could accept as to the lesser-included offense. In making this
determination, the trial court must view the evidence liberally in the light most favorable to the
existence of the lesser-included offense without making any judgments on the credibility of such
evidence. Second, the trial court must determine if the evidence, viewed in this light, is legally
sufficient to support a conviction for the lesser- included offense. Id. at 469.

      In State v. Love, No. W1999-01957-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 633, at
*23-24 (Tenn. Crim. App., at Jackson, filed Aug. 17, 2001), this Court analyzed the appropriate
circumstances under which facilitation of a felony must be charged to a jury. In that case, the

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state pursued a theory of criminal responsibility for felony murder, and the trial court did not
instruct on facilitation of felony murder. Initially, the court stated that “virtually every time one
is charged with a felony by way of criminal responsibility for the conduct of another, facilitation
of the felony would be a lesser-included offense.” Id. at *23 (quoting State v. Lewis, 919
S.W.2d 62, 67 (Tenn. Crim. App. 1995)). However, the court in Love further stated that Lewis
dictates an instruction on facilitation only if the facts could cause a reasonable jury to conclude
that the defendant “lacked the intent to promote or assist in, or benefit from, the [underlying]
felony’s commission.” Id. at *24 (emphasis added).

      Defendant’s undoing in the instant case is his testimony that, although he did not know
how to make methamphetamine, he allowed Gregory to make some because defendant “liked it”
and was addicted to it. In his brief, defendant directly states that he was “intent only on
obtaining some of the drug for his personal use.” We conclude that defendant was clearly intent
on benefitting from Gregory’s production of the methamphetamine. There is no evidence
showing defendant lacked the intent to benefit from the commission of the underlying felony.
As such, and in keeping with our previous holdings, we conclude that a charge on facilitation
was not warranted. We affirm.

                                          CONCLUSION

       Accordingly, we affirm the judgment of the trial court.




                                                      ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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