        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 August 16, 2011 Session

                 STATE OF TENNESSEE v. JEREMY KEETON

               Direct Appeal from the Circuit Court for Wayne County
                         No. 14050 Stella Hargrove, Judge




                 No. M2012-02536-CCA-RM-CD - Filed April 16, 2013



This case was remanded by the Tennessee Supreme Court for reconsideration after ordering
that the record be supplemented with a statement of evidence regarding a missing portion of
the trial transcript. See Tenn. R. App. P. 24(c). A Wayne County jury convicted the
Defendant, Jeremy Keeton, of manufacturing marijuana by growing or cultivating not less
than 100 nor more than 499 marijuana plants, and the trial court sentenced him to twelve
years in the Tennessee Department of Correction. On appeal, the Defendant contends: (1)
that he is being denied an “effective appeal” because the record on appeal does not include
an official transcript of his cross-examination of a material prosecution witness; (2) the trial
court erred when it denied his motion to suppress; (3) the evidence is insufficient to sustain
his conviction; and (4) the trial court erred when it sentenced him by not considering a
relevant mitigating factor. After a thorough review of the record and applicable authorities,
we conclude there exists no reversible error in the judgment of the trial court. We, therefore,
affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D ONALD H ARRIS, S R. J., joined.

William M. Harris (on appeal), Lawrenceburg, Tennessee and J. Daniel Freemon (at trial),
Lawrenceburg, Tennessee for the appellant, Jeremy Keeton.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; T. Michel Bottoms, District Attorney General, and Douglas Dicus, Assistant District
Attorney General, for the appellee, State of Tennessee.


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                                        OPINION

                                          I. Facts

       This case arises from the Defendant’s growth and maintenance of marijuana plants
near his residence. For growing these plants, the Defendant was indicted on charges of
manufacturing marijuana by growing or cultivating more than 500 marijuana plants, a Class
A felony. See T.C.A. §39-17-417(j)(13)(A) (2010). At the Defendant’s trial on these
charges, the following evidence was presented:

        Van Samuel Lafevers testified and described the Defendant as his friend of many
years and said the two lived within a mile of each other. He said that the Defendant asked
him to help him water a marijuana patch. The two had gone together on two or three
occasions to a marijuana patch that Lafevers believed belonged to the Defendant. The two
rode on the Defendant’s four-wheelers or in the Defendant’s vehicle to get to the marijuana
patch, which was in close proximity to the Defendant’s house. The patch was planted among
pine trees and surrounded by a wire that Lafevers had given to the Defendant. While the two
were at the patch together, the Defendant watered the plants. Lafevers testified that he
showed police officers where the marijuana patch was located and told them that he had
helped the Defendant water the patch. On cross-examination, Lafevers agreed it was illegal
to water marijuana plants, and he conceded he had not been charged for so doing. He said
police officers said he would not be charged with an offense if he told the truth while
testifying.

      Justin Keith Rideout testified that he was friends with the Defendant and that the two
had been close for approximately eighteen months. Rideout said that, in June 2006, he and
the Defendant discussed growing marijuana. He told investigators that he knew that the
Defendant grew marijuana and that Lafevers would know where the marijuana was located.
On cross-examination, Rideout said he admitted to officers that he was also growing
marijuana, and he showed them where his patch of marijuana was located.

       Steve Wilson, an investigator with the Wayne County Sheriff’s Department, testified
that Justin Rideout and Van Lafevers were separately interviewed by police and both men
told officers that the Defendant was growing marijuana. Based upon this information,
Investigator Wilson and Agent Vance Jack, with the Tennessee Bureau of Investigations,
went to a wooded area close behind 5801 Berry Road, which the investigator described as
having a “small, wood-frame[d] house with . . . a metal roof” located on the property.
Officers learned that the Defendant lived at the house with his wife and their infant.
Investigator Wilson saw and photographed two four-wheelers and one three-wheeler that
were parked on the side of the Defendant’s home.

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       A couple of days later, officers returned to the property, and went to a field behind the
Defendant’s house that was mostly flat, and contained a couple of ponds. Investigator
Wilson noticed a “couple of very predominant four-wheeler trails” that went between the
Defendant’s house and field behind his house. The investigator saw that, behind the field,
there was a very narrow strip of hardwood timber, which he referred to as “buffer timber.”
The officers found the marijuana planted among the buffer timber. The officers took aerial
photographs of the marijuana discovery. The officers also took multiple photographs of the
marijuana plants.

        Investigator Wilson, along with Agent Jack and the county sheriff, Sheriff Carl T.
Skelton, then “began pulling” the marijuana plants, and each kept track of how many plants
they pulled. The three officers added their numbers together, and then verified this count by
recounting all the plants, which were placed in one of their vehicles. The officers determined
that they seized a total of 526 marijuana plants, which they then transported to the Sheriff’s
Department. Investigator Wilson sent several samples from these plants to the “TBI” for
analysis. The report confirmed that the plants were marijuana.

        Investigator Wilson testified that he returned to the same location the next day, and
retrieved several other items. He retrieved a fertilizer bag and a clear baggie and also wire
that had been used around the patch. On that day, he found an additional twelve plants, for
a total of 538 plants seized, each of which he opined was a marijuana plant.

        On cross-examination, Investigator Wilson testified that, after the samples were sent
to the TBI for testing, the remainder of the plants seized were purposefully destroyed by law
enforcement. Investigator Wilson acknowledged that 500 individual plants could not be
made out in the photograph and that the number of plants allegedly being grown by the
Defendant was a relevant issue to his punishment. He said, however, that the officers went
to great lengths to ensure that they had counted the plants accurately. He agreed the plants
were destroyed before the Defendant was charged in this case.

       Investigator Wilson identified the fencing that he gathered from the crime scene, and
he estimated that it was twenty-three feet long. He said that all of the marijuana plants the
officers found were inside the fencing. The investigator agreed that the fencing was a
common material and that he had found some that was used, apparently, to create a “pen” in
the Defendant’s yard. Investigator Wilson also found some rolled up fencing material that
was not in use next to the Defendant’s house. He acknowledged that there are numerous
legitimate uses for this type of wire fencing. Investigator Wilson testified he was not certain
which four-wheeler made the four-wheeler trails, and he stated that there are multiple
legitimate uses for four-wheelers. He did not know whether the Defendant’s four-wheelers
were “racing” four-wheelers, and he was unsure whether the four-wheeler trails were actually

                                               3
a practice racing track. He maintained that the trails went from the Defendant’s house to a
spot located near where the marijuana plants were found.

        Investigator Wilson testified that the Defendant did not own the property upon which
the marijuana was found, and the property was owned by a pine company. The investigator
agreed that there was another home located nearby, but he said the police officers did not
take any photographs of that house. He agreed that a man nicknamed “Little Red Bahr” lived
in that house when “it [wa]s convenient for him . . . when he [was] not in jail.” He said
Bahr’s trouble with the law mostly involved theft. He did not know whether Bahr was in jail
at the time he found the marijuana plants. The investigator said he did not question Bahr
about the marijuana plants he found in this case.

         Special Agent William H. Stanton, Jr., an agent with the TBI Crime Laboratory,
testified that he tested the substance submitted to him by officers in this case and determined
it was 3.9 grams of marijuana. He said that when officers found large patches of marijuana
plants it was not uncommon for them to send a representative sample of the plants instead
of the entire plant seizure. Even if officers sent the entirety of all the plants, he would still
have to analyze only a representative sample. On cross-examination, Agent Stanton testified
that officers are not precluded from sending all of the plants seized, and they are not required
to destroy the sample either. Agent Stanton testified that, after police officers seize a plant,
it is placed in a brown paper bag so it does not rot. While inside that bag, it will shrink and
lose weight as the water evaporates from the plant. The agent agreed that the amount he
analyzed was slightly more than one-eighth of an ounce.

        Vance Jack, a Special Agent with the TBI, testified that law enforcement officers first
interviewed Rideout, who told them to speak with Lafevers about the Defendant growing
marijuana. Agent Jack confirmed he spoke with Lafevers, who led them to the Defendant’s
marijuana patch. Agent Jack confirmed that there were four-wheeler trails leading between
the Defendant’s house and a spot close to the marijuana patch. The agent said there was a
large patch upon which it appeared multiple four-wheelers had skidded to a halt. From that
area, the officers walked through a very narrow line of hardwood trees. After the hardwood
trees, were pine trees, and the marijuana plants were located among the pine trees surrounded
by wire fencing material. The officers photographed the patch and the trails, and then they
took the wire and the plants back to the sheriff’s department. The officers looked, but did
not find, other foot trails leading toward the patch from other directions.

      Agent Jack described how, when the officers pulled the marijuana plants, each officer
counted the number of plants that they pulled, and then they added that number together.
They then counted the plants when they were compiled in the truck, and ensured that the
number matched the original count. Agent Jack said they pulled 526 plants that first day.

                                               4
When they later returned to the location, they found an additional twelve plants that they
originally missed, for a total of 538 plants seized.

       Agent Jack testified that a law enforcement helicopter took aerial photographs of the
patch and also searched for any other marijuana patches nearby. He opined that the
marijuana patch that officers found that day was a “starter bed,” intended to be divided to
plant several other smaller patches. The agent observed two four-wheelers and one three-
wheeler at the Defendant’s residence.

        The agent said that, after returning to the sheriff’s department, the officers examined
the plants to ensure that they were all, in fact, marijuana plants. After so doing, they took a
sampling of the plants, placed the sampling into a bag, and sent it to the TBI for analysis.
They destroyed the remainder of the plants. He said that this comported with the protocol
that they had developed for marijuana plant seizures, in part because it was not practical to
store large quantities of marijuana plants for extended periods of time.

      There is a portion of the transcript missing from this section of the trial. Pursuant to
an order by the Tennessee Supreme Court, this Court received the trial court’s
supplementation to the record. In that supplement, the trial court noted:

              The missing portion of the trial transcript is the balance of the direct
       testimony of TBI Agent Vance Jack and cross-examination. In reviewing the
       Court’s notes, the Court finds that the balance of the direct testimony of Agent
       Jack is very brief. After Agent Jack testified that his department followed
       protocol in taking a sampling of the plants seized for TBI analysis and
       destroying all remaining plants, he testified that the seized plants measured
       anywhere from four inches to over four feet to five feet. He stated again that
       there was only one foot trail leading to the marijuana patch.

                After Agent Jack’s direct testimony the court recessed for the day,
       Wednesday, February 7, 2007. The following morning, Thursday, February
       8, 2007, there was a jury out where the court reviewed two videos made by law
       enforcement in the area where the marijuana was found, including trails, and
       foot path leading to the patch. Defense counsel objected to the introduction
       of both videos, arguing that they did not accurately depict the area where the
       marijuana was found, in that the videos were made in the last two days before
       trial, some six months removed from the offense date of July 28, 2006.

             Following the jury out, the cross-examination of Agent Jack was
       conducted. He testified that Lafevers was helping Jeremy Keeton grow the

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       marijuana and was in a venture with him. He again testified that no other trails
       leading to the patch were seen. He testified that the marijuana patch was 50
       to 75 yards from the 4 wheeler tracks leading to a foot path to the marijuana.
       He testified that nothing in the investigation suggested anybody else was
       involved. Agent Jack stated there was no fencing and that he drove all the way
       to the entrance to the (foot) path. He again related that 526 plants were loaded
       in the jeep and a garbage bag was placed over them. He admitted that no
       pictures of the total plants seized were made by him. He stated that the patch
       was very thick, and told defense counsel that all evidence pointed to Jeremy
       Keeton. Agent Jack testified that they walked through the thicket looking for
       paths and trails and that none were found. He confirmed there was an old
       logging road toward the western end and that it was very old and covered over.

             On re-direct, Agent Jack testified that Rideout told him Jeremy Keeton
       had some buckets used for growing marijuana, and that he needed to talk to
       Lafevers. Agent Jack stated that Lafevers’ statements to him were consistent
       with what was uncovered in the investigation. He testified: “The only trail was
       almost a straight shot connecting the 4-wheeler tracks and the tracks to
       Jeremy[] Keeton’s house.[”] The State rested.

              Next, the defense called Jeremy Keeton’s father, Arlon Keeton. His
       testimony and the balance of the trial is covered in the trial transcript.

       The trial court concluded that, “To the best of the Court’s ability, it has supplemented
the record with a statement of the missing evidence.”

        The transcript resumes with testimony from the Defendant’s father, Arlan Keeton,
testified that the Defendant’s son, who was eight years old at the time of trial, had a four-
wheeler, as did several other members of their family. They rode the four-wheelers on a trail
around the pond in the field behind the Defendant’s house. Keeton testified he never saw
any marijuana while they were riding on their four wheelers. Keeton said that, at defense
counsel’s request, he went back to the pine thicket where the marijuana patch had been
located. There, he found several trails leading to and from the path. Two of those trails, he
said, led to Hayes Branch Road, a road adjacent to the road upon which the Defendant’s
house sat. Another one of the trails led directly to the front of the Defendant’s neighbor’s
house. He noted that there was no four-wheeler path leading to the location of the marijuana
patch.

       Keeton testified that he took a video of the trails behind the Defendant’s house, and
he played that video for the jury. On the video, Keeton is riding a four-wheeler along the

                                              6
trails. Keeton testified he measured the distance between the four-wheeler path and the tree
line and determined it was three-tenths of a mile. He also measured the distance between the
Defendant’s neighbor’s house and the marijuana patch and estimated it was between 250 and
300 yards.

       On cross-examination, Keeton agreed that he took the video during the week of trial,
and he could not say for sure whether the four-wheeler trails looked the same six months
before, when the law enforcement officers had found the marijuana patch.

       Kristie Right testified that the Defendant was her ex-husband and that the two had a
son together. She said that their son rode four-wheelers on a “track” behind the Defendant’s
house. She said she had walked with their son around the track, and that she had not seen
anything unusual.

         Based upon this evidence, the jury convicted the Defendant of the lesser included
offense of manufacturing marijuana by growing or cultivating not less than 100 nor more
than 499 marijuana plants, a Class B felony. See T.C.A. § 39-17-417(i)(13) (2010). The trial
court sentenced him to twelve years, to be served in the Tennessee Department of Correction.
 It is from this judgment that the Defendant now appeals.

                                          II. Analysis

      On appeal, the Defendant contends: (1) that he is being denied an “effective appeal”
because the record on appeal does not include an official transcript of his cross-examination
of a material prosecution witness; (2) the trial court erred when it denied his motion to
suppress; (3) the evidence is insufficient to sustain his conviction; and (4) the trial court erred
when it sentenced him by not considering a relevant mitigating factor.

                                    A. Missing Transcript

        The Defendant contends that his case should be reversed and dismissed because there
is a portion of the transcript missing that cannot be recreated. The missing portion of the
transcript contains some of the direct examination and the entirety of the cross-examination
of Vance Jack, who was the lead investigator in this case. The Defendant asserts that he is
prejudiced by this missing portion of transcript because evidence from that cross-examination
is relevant on appeal to the issues of whether his motion to suppress should have been
granted and to whether the evidence is sufficient to sustain his conviction. The State
counters that the Defendant is not entitled to a new trial on these grounds.




                                                7
       There is much documentation in the record about the parties attempting to attain the
missing portion of the record. This Court became involved, and we ordered that the portion
of the missing transcript be transcribed. It is clear from the record that the parties attempted
unsuccessfully to obtain a transcription of the missing record. When they could not, they
attempted to create a statement of the evidence, in compliance with Rule 24(c) of Tennessee
Rules of Appellate Procedure, but were unsuccessful based in part upon the extended period
of time between the time of the trial and the time of the attempted creation of the statement
of the evidence. The trial court in this case filed a supplemental order saying that the
respective parties had “made diligent and exhaustive efforts to compile and prepare a
Statement of the Evidence.” These efforts, however, were unsuccessful.

        On November 21, 2012, the Tennessee Supreme Court ordered the trial court to use
the trial court’s notes to supplement the record with a statement of evidence regarding the
missing portion of the trial transcript. On January 3, 2013, this Court received the
supplemental statement of evidence, which was summarized in the facts section of this
opinion. The Defendant made no objection to the trial court’s statement of the evidence.

       Tennessee Code Annotated section 40-14-307(a), subject to the definitions contained
in Tennessee Code Annotated section 40-14-301, provides that in all felony cases in the trial
courts of Tennessee:

       A designated reporter shall attend every stage of each criminal case before the
       court and shall record verbatim, by a method prescribed or approved by the
       administrative director, all proceedings had in open court and other
       proceedings as the judge may direct. The reporter shall attach the reporter’s
       official certificate to the records so taken and promptly file them with the clerk
       of the court, who shall preserve them as a part of the records of the trial.

Accordingly, a defendant has a statutory right to have a verbatim recording and transcript of
all proceedings of his trial and sentencing hearing. Rule 24(c) of Tennessee Rules of
Appellate Procedure provides for situations in which no transcription of the evidence or the
proceedings is available:

       If no stenographic report, substantially verbatim recital or transcript of the
       evidence or proceedings is available, the appellant shall prepare a statement of
       the evidence or proceedings from the best available means, including the
       appellant’s recollection. The statement should convey a fair, accurate and
       complete account of what transpired with respect to those issues that are the
       bases of appeal. The statement, certified by the appellant or the appellant’s



                                               8
       counsel as an accurate account of the proceedings, shall be filed with the clerk
       of the trial court within 60 days after filing the notice of appeal.

       After reviewing the statement of evidence submitted by the trial court, we conclude
that the Defendant is not entitled to a new trial based upon the portions of the missing
transcript, which included the remainder of the direct and the cross-examination of Agent
Jack. The trial court’s summary sufficiently complies with Tennessee Rule of Appellate
Procedure 24(c), and it shows that Agent Jack did not offer any testimony that would entitle
the Defendant to a new trial. Further, the Defendant has not alleged, and we fail to see, any
way in which his ability to appeal the issues presented herein is hampered by the lack of a
transcript of evidence. The Defendant is not entitled to relief on this issue.

                                   B. Motion to Suppress

       The Defendant contends that the trial court erred when it denied his motion to
suppress because the law enforcement officers did not take a video or create a written tally
when they counted the marijuana plants, and then, after taking a sampling, they destroyed the
evidence. He further asserts that, by its verdict, the jury did not accredit the officers’
testimony that they seized more than 500 plants. The State counters that the evidence about
the number of plants was properly admissible through the testimony of the officers, who had
photographed the plants and who had verified the number of plants by counting them
multiple times.

        At the motion to suppress hearing, defense counsel informed the trial court that he had
filed a motion for discovery, seeking to require the State to produce for his inspection the 500
plants that they seized. The State informed the trial court that three officers were involved
in seizing the marijuana plants and that the officers counted the number of plants multiple
times, determining that they totaled 538. Each of the three officers, the State said, was
available and would testify. Further, the State informed the trial court that the officers had
photographed the plants, and the photographs depicted “numerous, numerous marijuana
plants growing.” The officers then took a sample of some of the plants for testing and
destroyed the reminder of the plants.

       The trial court stated:

       I think it’s a matter for the jury to determine what weight to give the officers[’]
       testimony. I mean, I think it’s impractical to have to store 538 marijuana
       plants for trial. Now, you know, I think it comes down to that, [defense
       counsel], and I’m inclined to find that there’s been compliance with the Rules
       of Discovery there, as much as the State can.

                                               9
        Defense counsel implored the trial court to suppress the evidence because the
evidence had been destroyed. The trial court declined defense counsel’s request, reiterating
that “the State’s done all they can, in this particular kind of case, with the harvesting of 538
marijuana plants to follow the Rules of Discovery.”

        Because the Defendant orally moved to suppress the evidence against him, and he
raises the issue on appeal based upon the trial court’s failure to grant that motion to suppress,
we will review it as such on appeal. The standard of review for a trial court’s findings of fact
and conclusions of law in a suppression hearing was established in State v. Odom, 928
S.W.2d 18 (Tenn. 1996). This standard mandates that “a trial court’s findings of fact in a
suppression hearing will be upheld unless the evidence preponderates otherwise.” Id. at 23;
see State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). The prevailing party in the trial
court is “entitled to the strongest legitimate view of the evidence adduced at the suppression
hearing as well as all reasonable and legitimate inferences that may be drawn from that
evidence.” Odom, 928 S.W.2d at 23. Furthermore, “[q]uestions of credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence
are matters entrusted to the trial judge as the trier of fact.” Id. However, this Court reviews
the trial court’s application of the law to the facts de novo, without any deference to the
determinations of the trial court. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). The
defendant bears the burden of demonstrating that the evidence preponderates against the trial
court’s findings. Odom, 928 S.W.2d at 22-23; State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.
1997).

        The Defendant’s motion to suppress was based upon what he alleges is a violation of
his constitutional rights. The Due Process Clause of the Fourteenth Amendment to the
United States Constitution provides for every defendant the right to a fair trial. To facilitate
this right, a defendant has a constitutionally protected privilege to request and obtain from
the prosecution evidence that is either material to guilt or relevant to punishment. Brady v.
Maryland, 373 U.S. 83, 87 (1963). Even in the absence of a specific request, the prosecution
has a constitutional duty to turn over exculpatory evidence that would raise a reasonable
doubt about a defendant’s guilt. United States v. Agurs, 427 U.S. 97, 110-11 (1976). In the
landmark case of Brady v. Maryland, the United States Supreme Court held that the
prosecution has a constitutional duty to voluntarily furnish the accused with any exculpatory
evidence that pertains to (a) the guilt or innocence of the accused and/or (b) the punishment
which may be imposed if the accused is convicted of a criminal offense. Brady, 373 U.S. at
83. The Court said in Brady that “suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material either to guilt
or to punishment.” Id. at 87. Thus, for evidence to fall within the constitutional duty of
disclosure, it must be established that the evidence is material to the defense or the sentence
that may be imposed if the accused is found guilty.

                                               10
       State v. Ferguson governs claims regarding the State’s duty to preserve potentially
exculpatory evidence. 2 S.W.3d 912, 917 (Tenn. 1999). The facts presented in Ferguson
involved a defendant who had been found by police slumped in the driver’s seat of a vehicle.
Id. The arresting officer conducted several field sobriety tasks, which were recorded on
videotape, and determined from them and from other observations that the defendant was
under the influence of alcohol. Id. The videotape of the field sobriety tasks was
inadvertently “taped over” before anyone could view it. Id. The Ferguson Court stated:

       The analysis of both Brady and Agurs concerns the prosecution’s suppression
       of “plainly exculpatory” evidence. This strikes a sharp contrast to the case
       under review wherein the existence of the destroyed videotape was known to
       the defense but where its true nature (exculpatory, inculpatory, or neutral) can
       never be determined.

        After a thorough analysis, our Supreme Court adopted for Tennessee a balancing
approach similar to the one espoused by the Supreme Court of Delaware in Hammond v.
State, 569 A.2d 81, 87 (Del.1989). The Supreme Court explained that the first step in the
analysis is determining whether the State had a duty to “preserve” the evidence. Id. at 917.

       Our Supreme Court stated that the State has a general duty to “preserve all evidence
subject to discovery and inspection under Tenn. R. Crim. P. 16, or other applicable law.” Id.
The Supreme Court noted that the difficulty in determining the extent of the duty to preserve
evidence was recognized in Trombetta when the United States Supreme Court stated:

       Whatever duty the Constitution imposes on the States to preserve evidence,
       that duty must be limited to evidence that might be expected to play a
       significant role in the suspect’s defense. To meet this standard of
       constitutional materiality, evidence must both possess an exculpatory value
       that was apparent before the evidence was destroyed, and be of such a nature
       that the defendant would be unable to obtain comparable evidence by other
       reasonably available means.

467 U.S. at 488-89. Although the Supreme Court in Ferguson stated that the exculpatory
nature of evidence had “considerable significance” in determining if the State had a duty to
preserve the evidence, the Supreme Court did not expressly adopt the standard for
constitutional materiality stated in Trombetta. Ferguson, 2 S.W.3d at 918. In fact, the
Supreme Court’s analysis in Ferguson did not follow that standard.

        The Supreme Court in Ferguson did not state that the video recording of the DUI stop
at issue in that case had an exculpatory value that was apparent before the recording was

                                             11
destroyed. The Supreme Court stated only that the exculpatory value of the recording was
“tenuous”and that the evidence was “probably of marginal exculpatory value.” Id. at 918.
Despite this, the Supreme Court concluded that the State had a duty to preserve the
“potentially exculpatory” evidence because it (1) was “at least ‘material to the preparation
of the defendant’s defense,’” (2) “may have” shed light on the defendant’s appearance and
condition during the DUI field tests, and (3) “might have” caused the jury to have a
reasonable doubt as to the defendant’s guilt. Ferguson, 2 S.W.3d at 918. It seems, therefore,
that while the Ferguson Court seemed to quote Trombetta approvingly, the holding of the
Ferguson Court makes it clear that did not adopt the Trombetta requirement that the evidence
must have an exculpatory value that was apparent before it was destroyed.

         It is the very fact that the loss of the evidence prevents determining its exculpatory
nature that gave rise to Youngblood and Ferguson. In State v. Coulter, 67 S.W.3d 3, 54-55
(Tenn. Crim. App. 2001), a panel of this Court held that the State had no duty to preserve the
missing evidence because drawing a conclusion that it had any exculpatory value would be
“an exercise in pure speculation.” The Coulter Court cited Trombetta for the proposition that
“constitutional materiality” requires that the “evidence must both possess an exculpatory
value that was apparent before the evidence was destroyed, and be of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably available
means.” Id. at 54. Another panel of our Court recently discussed this issue and pointed out
that panels of this court have determined that evidence should have been preserved without
first finding that its exculpatory value was apparent. State v. Jerome Sidney Barrett, No.
M2010-00444-CCA-R3-CD, 2012 WL 2914119, at *21 (Tenn. Crim. App., at Nashville, July
18, 2012), perm. app. granted, No. M2010-00444-SC-R11-CD (Tenn. Sept. 17, 2012). The
Barrett Court criticized the Coulter Court’s analysis of Ferguson; however, because Coulter
is a published opinion, the Barrett Court was bound to follow it. Id. at *22.

       Applying the Coulter and Trombetta cases to the one presently before us, we conclude
the State had a duty to preserve the marijuana plants. We conclude that the number of
marijuana plants had some apparent exculpatory value so as to require law enforcement
officers to at least photograph the marijuana plants, make a written tally, or make a video
recording of the plants before they were destroyed. While the Sheriff may have had practical
reasons to avoid storing the plants and we are unable to state with certainty how long the
plants should have been preserved, we conclude that their destruction two days after the
seizure, without a more accurate recording of the count, was not reasonable in light of the
absence of other documentation supporting the number of plants seized.

       According to Ferguson, if the proof demonstrates the existence of a duty to preserve
and further shows that the State has failed in that duty, a court must turn to a balancing
analysis involving consideration of the following factors: “1. The degree of negligence

                                              12
involved; 2. The significance of the destroyed evidence, considered in light of the probative
value and reliability of secondary or substitute evidence that remains available; and 3. The
sufficiency of the other evidence used at trial to support the conviction.” Id. (footnote
omitted). If the court’s consideration of these factors reveals that a trial without the missing
evidence would lack fundamental fairness, the court may consider several options, such as
dismissing the charges or providing an appropriate jury instruction. Id.

       Considering the aforementioned factors, we first examine the degree of negligence
involved. See Ferguson, 2 S.W.3d at 917. Here, by all accounts, the State destroyed the
evidence intentionally without adequately preserving or documenting the evidence.

        We next conclude that the destroyed evidence had significant probative value to the
offense charged. See Ferguson, 2 S.W.3d at 917. The Defendant was charged with growing
more than 500 marijuana plants, a Class A felony. See T.C.A. § 39-17-417(j)(13)-(A)
(2010). The count was close, in that the officers testified that there were 538 plants seized.
It is conceivable that some plants may have been split or separated during the pulling process
so that they were counted twice. If the plants actually numbered less than 500 plants, the
Defendant could only be convicted of a Class B felony. T.C.A. § 39-14-417(i)(13) (2010).
Again, because there were no detailed photographs or video recording of the plants after they
were pulled and there was no written tally, the plants themselves had significant probative
value as defined by Ferguson.

        Finally, we must consider the sufficiency of the other evidence used at trial to support
the conviction the Defendant’s conviction. See Ferguson, 2 S.W.3d at 917. The Defendant
in this case was convicted of the lesser-included offense of growing more than 100 but less
than 499 marijuana plants. The other evidence presented at trial, including the photographs
taken of the plants while they were in the ground sufficiently supports his conviction.

         Therefore, considering the factors enumerated in Ferguson, we conclude that, because
he was convicted of the lesser-included offense, the Defendant was not denied his right to
a fair trial despite the State’s failure to preserve the marijuana plants. Any error in admitting
testimony of the officers’ finding more than 500 plants was harmless. See Tenn. R. App. P.
36(b). The Defendant is not entitled to relief on this issue.

                                 C. Sufficiency of Evidence

        The Defendant next contends that the evidence is insufficient to sustain his conviction.
He asserts that law enforcement officers “were specifically targeting him” from the outset
of their investigation and they neglected to investigate other suspects or evidence. He also



                                               13
calls into question the credibility of some of the witnesses who testified. The State counters
that the evidence presented supports the jury’s verdict.

        When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.
13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given
to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(citations omitted). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). In determining the sufficiency of the evidence, this Court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “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. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “‘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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973)). The Tennessee Supreme Court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the jury
       see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of
       justice to determine the weight and credibility to be given to the testimony of
       witnesses. In the trial forum alone is there human atmosphere and the totality
       of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view

                                              14
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S .W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

        Our Supreme Court recently held that, “when reviewing a convicted defendant’s claim
that the evidence is not sufficient to support his or her conviction, the review must be
undertaken with respect to the crime of which the defendant was convicted, not the crime
with which he was charged.” State v. Parker, 350 S.W.3d 883, 907 (Tenn. 2011) (citing
Jackson v. Virginia, 443 U.S. 307, 324 n.16, 99 (1979) (stating that the standard of review
“must be applied with explicit reference to the substantive elements of the criminal offense
[challenged] as defined by state law”)). Further, the Court stated that, “the proof may support
conviction of a different, even a ‘greater,’ offense does not obviate the constitutional
requirement that the proof support each and every element of the offense for which the
defendant was actually convicted.” Id. Accordingly, to sustain a conviction of a
lesser-included offense, the proof must be sufficient to support each and every element of the
offense for which the defendant was convicted. Id. at 909 (overruling State v. Mellons, 557
S.W.2d 497 (Tenn. 1977).

        In this case, the Defendant was convicted of manufacturing a controlled substance
pursuant to Tennessee Code Annotated section 39-17-417 (a)(1) by growing or cultivating
not less than 100 nor more than 499 marijuana plants. See T.C.A. § 39-17-417(i)(13) (2010).

       Our standard of review, as stated previously, is viewing the evidence in the light most
favorable to the State. Our concern is not what evidence was presented that could have
inferred guilt onto another suspect, but, rather, if there was sufficient evidence upon which
a rational jury could have found the Defendant guilty. The evidence, viewed in this light,
proved that the Defendant enlisted the aid of his friend, Lafevers, to water a marijuana patch
located in a field behind his house. The two rode the Defendant’s four-wheelers to this patch
on multiple occasions, and watered the plants together. The patch was surrounded by wire
that Lafevers had provided to the Defendant upon the Defendant’s request. The Defendant
discussed growing marijuana with another of his friends, Rideout. When interviewed by
police, both Lafevers and Rideout told officers that the Defendant grew marijuana, and
Lafevers brought them to the marijuana patch behind the Defendant’s house. There, police
officers found a well ridden four-wheeler trail that went between an area near the marijuana
patch and the Defendant’s home. They also found three four-wheelers parked near the
Defendant’s house.



                                              15
       Officers photographed and counted the marijuana plants. Those plants totaled 538.
They took a sampling of the plants, and TBI laboratory testing confirmed that the plants were
marijuana. By its verdict, the jury after reviewing the pictures and evidence, determined that
the evidence proved beyond a reasonable doubt that there were at least 100 but less than 499
marijuana plants seized. This evidence sufficiently supports the jury’s verdict. The
Defendant is not entitled to relief on this issue.

                                       D. Sentencing

       The Defendant contends that the trial court erred when it sentenced him to the
maximum sentence within its range and failed to consider one mitigating factor, that his
conduct neither caused nor threatened serious bodily injury. He contends that there was no
evidence presented that growing marijuana either caused or threatened bodily injury and that,
therefore, the trial court should have given this mitigating factor some weight.

       When a defendant challenges the length, range or manner of service of a sentence, this
Court must conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. § 40-
35-401(d) (2010). As the Sentencing Commission Comments to this section note, the burden
is now on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401,
Sentencing Comm’n Cmts (2010). This means that if the trial court followed the statutory
sentencing procedure, made findings of facts which are adequately supported in the record,
and gave due consideration to the factors and principles relevant to sentencing under the
Sentencing Act, the appellate court may not disturb the sentence even if a different result was
preferred. T.C.A. § 40-35-103 (2010); State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The
presumption does not apply to the legal conclusions reached by the trial court in sentencing
a defendant or to the determinations made by the trial court which are predicated upon
uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v.
Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929
(Tenn. Crim. App. 1994).

        The trial court stated that it considered the pre-sentence report, notices filed by the
State, testimony at trial and the sentencing hearing, stipulations made by the parties as to the
Defendant’s criminal history, the facts and circumstances of the offenses, and all other
factors listed in Tennessee Code Annotated section 40-35-210 in determining the
Defendant’s sentence in this case. The trial court found two enhancement factors applied to
the Defendant’s sentence, (1) the defendant has a previous history of criminal convictions
or criminal behavior, in addition to those necessary to establish the appropriate range; and
(2) the defendant was a leader in the commission of an offense involving two . . . or more



                                              16
criminal actors. See T.C.A. § 40-35-114(1) and (2) (2010). In so finding, the trial court
stated:

       Considering the prior record which comes into the record here undisputed
       today, [the Defendant] starts his adult criminal behavior at age eighteen. He
       stands before the Court today with five felony convictions including
       marijuana, evading arrest, theft, and reckless endangerment, two convictions
       for reckless endangerment. The Court notes that a deadly weapon was
       involved in Case Number 12696 in Wayne County Circuit Court. The Court
       also recognizes that the evading arrest becomes a class D conviction under
       Case 12594, under the risk of death. He also has on his record ten
       misdemeanor convictions ranging from assaults, theft, vandalisms, disorderly
       conduct.
The trial court also noted the times that the Defendant had been incarcerated and that he was
facing murder charges in another case, along with charges of multiple aggravated assaults,
reckless endangerment, and the sale of a Schedule II controlled substances. The trial court
noted that it gave only “slight weight” to enhancement factor (2) and then found no
mitigating factors applied. In rejecting mitigating factor (1), that the Defendant’s conduct
neither caused nor threatened serious bodily injury, the trial court stated:

       Insofar as [counsel] is pushing for . . . [enhancement factor] number one . . .
       do we discount that this is marijuana? It’s illegal. It’s a controlled substance
       under our law, as much as methamphetamine is a problem in Wayne County,
       as well as cocaine and any other controlled substance that’s listed as illegal
       under our law. And the Court finds that she will not consider that advisory
       factor, finding that drugs, regardless of what they’re controlled substances,
       lead to disaster, deterioration, destruction, and even death.

Based upon these findings, the trial court enhanced the Defendant’s sentence to the
maximum within the range.

        The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments describe
the process for determining the appropriate length of a defendant’s sentence. Under the Act,
a trial court may impose a sentence within the applicable range as long as the imposed
sentence is consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2), (d)
(2010); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). The Defendant in this case
is a Range I offender, convicted of a Class B felony. See T.C.A. § 40-35-112(a)(1) (2010).
Therefore his applicable sentencing range is between eight and twelve years. See T.C.A. §
40-35-112(a)(2) (2010).



                                             17
        The Tennessee Code allows a sentencing court to consider the following enhancement
factors, as relevant to this case, when determining whether to enhance a defendant’s
sentence: “(1) The defendant has a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range;” and “(2) The
defendant was a leader in the commission of an offense involving two . . . or more criminal
actors; . . . .” T.C.A. § 40-35-114(1), and (2) (2010). If an enhancement factor is not already
an essential element of the offense and is appropriate for the offense, then a court may
consider the enhancement factor in its length of sentence determination. T.C.A. § 40-35-114
(2010). In order to ensure “fair and consistent sentencing,” the trial court must “place on the
record” what, if any, enhancement and mitigating factors it considered as well as its “reasons
for the sentence.” T.C.A. § 40-35-210(e) (2010). Before the 2005 amendments to the
Sentencing Act, both the State and a defendant could appeal the manner in which a trial court
weighed enhancement and mitigating factors it found to apply to the defendant. T.C.A. § 40-
35-401(b)(2) (2003). The 2005 amendments deleted as grounds for appeal, however, a claim
that the trial court did not properly weigh the enhancement and mitigating factors. See 2005
Tenn. Pub. Acts ch. 353, §§ 8-9. In summary, although this Court cannot review a trial
court’s weighing of enhancement factors, we can review the trial court’s application of those
enhancement factors. T.C.A. § 40-35-401(d) (2010); Carter, 254 S.W.3d at 343.

        The Defendant in this case does not argue that the trial court improperly considered
the two enhancement factors that it applied to his sentence. Further, we conclude the
evidence supports the trial court’s finding that those factors applied. On appeal, the
Defendant contends only that the trial court failed to consider one applicable mitigating
factor, that his crime neither caused nor threatened serious bodily injury. Tennessee Code
Annotated section 40-35-113 contains a non-exclusive list of mitigating factors that a trial
court may apply to a defendant’s sentence “if appropriate for the offense.” T.C.A. § 40-35-
113 (2010). The list includes that “[t]he defendant’s criminal conduct neither caused nor
threatened serious bodily injury.” T.C.A. § 40-35-113(1) (2010).

        Mitigating factor (1) applies where the defendant’s criminal conduct neither caused
nor threatened serious bodily injury. See T.C.A. § 40-35-113(1) (2010). Our Supreme Court
has emphasized factor (1)’s application “focuses not on the circumstances of the crime
committed by a defendant as do many of the other mitigating and enhanc[ement] factors.
Rather, this factor focuses upon the defendant’s conduct in committing the crime.” See State
v. Ross, 49 S.W.3d 833 (Tenn. 2001). For example, the defendant in Ross was convicted of
possession of cocaine based on his constructive possession of cocaine that was located within
his hotel room and that he did not attempt to sell. The trial court refused to apply mitigating
factor (1), reasoning that cocaine, an inherently dangerous substance, necessarily threatened
serious bodily harm. Id. at 848. Our Supreme Court, however, held that factor (1) did apply
because the defendant did nothing with the cocaine to threaten serious bodily injury, such as

                                              18
attempt to sell the cocaine. Id. The Supreme Court emphasized in Ross that mitigating factor
(1) applies where the threat, if any, of serious bodily injury is “more conceptual than real.”
Id. In this case, the trial court considered that the Defendant’s conduct pertaining to the
marijuana in this case was connected to a companion case for murder, aggravated assault,
reckless endangerment, and sale of a Scheduled II controlled substance. While, as the trial
court noted, the Defendant was “innocent until proven guilty,” these facts still support the
trial court’s finding that the threat of serious bodily injury in this case was not “more
conceptual than real.”

         Further, we conclude that, even if the trial court should have applied mitigating factor
(1), it should be afforded little, if any, weight. See State v. William Waylon Jackson, No.
02C01-9707-CC-00267, 1998 WL 285555, at *4 (Tenn. Crim. App., at Jackson, June 3,
1998), perm. app. denied (Tenn. Feb. 1, 1999). Accordingly, we decline to modify the
Defendant’s sentence. He is not entitled to relief on this issue.

                                       III. Conclusion

      Based on the above mentioned reasoning and authorities, we affirm the trial court’s
judgment and the Defendant’s sentence.

                                                    ___________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




                                               19
