        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs October 26, 2010

              STATE OF TENNESSEE v. DWIGHT A. SHANKLE

              Direct Appeal from the Circuit Court for McMinn County
                        No. 09-086    Carroll L. Ross, Judge


               No. E2010-01046-CCA-R3-CD - FILED APRIL 21, 2011


The defendant, Dwight A. Shankle, was convicted of facilitation of promotion of the
manufacturing of methamphetamine, a Class E felony. He was sentenced to four years in the
Tennessee Department of Correction as a Range III, persistent offender. On appeal, he
argues that the evidence was insufficient to support his conviction and that the indictment
was faulty. After careful review, we affirm the judgment from the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J ERRY L. S MITH
and N ORMA M CG EE O GLE, JJ., joined.

J. McMurray Johnson, Athens, Tennessee, for the appellant, Dwight A. Shankle.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel,
Criminal Justice Division; Robert Steven Bebb, District Attorney General; and Andrew M.
Freiberg, Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       According to the theory espoused by the State in the trial court, the defendant in this
case befriended a female, gained access to her home, and then brought in all the components
necessary to run a methamphetamine (“meth”) lab. He then cooked methamphetamine in her
home and intentionally left behind some of the materials he used in the bedroom of her young
son. After leaving, he called the police with an anonymous tip regarding the existence of a
methamphetamine lab in the woman’s home, planning for the materials that he left behind
to be found there. After the homeowner, along with another woman present at the scene,
were arrested and taken away by the police, the defendant moved into the newly-vacant
home, which he then used for his own purposes. Only by the most serendipitous stroke of
fate was the defendant’s scheme uncovered; but for a young boy’s love and concern for his
dog, the defendant’s ruse might have evaded detection.

        Prosecution’s theory aside, the following facts were attested to by witnesses at trial.
On January 25, 2009, the McMinn County Sheriff’s Department received an anonymous call
that there was a methamphetamine lab in a home on County Road 55. Deputy Andy Moser,
an officer with considerable experience in detecting and investigating methamphetamine
labs, responded to the call. Once there, he obtained consent to search the property from its
resident, Ms. Sandra Norwood. Inside the home, in the bedroom of Ms. Norwood’s twelve-
year-old son, the deputy found a wide variety of items commonly used in the manufacture
of methamphetamine. These items included a near-empty container of Coleman fuel, two
quart-sized bags of lye, a one quart-sized Mason jar containing solvent, a bottle cap with six
inches of quarter-inch tubing attached, a hair dryer, a butane torch, and a plastic bottle
containing solvent, fertilizer, and flakes of lithium. All of these items were found grouped
together in luggage in one spot of the child’s bedroom. The deputy testified how each item
he discovered is used in a particular method of manufacturing methamphetamine, known as
the “shake and bake” method. The deputy also testified that during his search of the child’s
bedroom, he found a black wallet containing thirteen dollars that was not taken into evidence.

        Deputy Moser arrested Sandra Norwood and another woman, Amanda Carter, at the
scene. He also sealed the property with “Do Not Enter” quarantine notices (such notices
being necessary because the individual components found in methamphetamine labs are
variously toxic, unstable, explosive, inflammable, and generally highly dangerous to anyone
in the vicinity). That evening, Sandra Norwood’s son contacted the police, seeking
permission to enter the residence for purposes of retrieving his dog. Deputy Moser agreed
and returned to the house to supervise and ensure the safety of those entering the premises.
The defendant was discovered inside the residence by those entering, sleeping in Sandra
Norwood’s bed. Deputy Moser arrested the defendant, who was found to be in possession
of the same black wallet containing thirteen dollars that the deputy had previously seen in the
son’s bedroom near the methamphetamine lab components.

       Ms. Sandra Norwood testified that she knew the defendant through another friend.
The defendant had arrived at her home late on the night of Wednesday, January 21, 2009,
claiming to have no place to stay, and she had given him permission to stay at her home
overnight. When she saw the defendant shaking a bottle containing noxious chemicals used
to make methamphetamine, she asked the defendant to leave. The defendant threatened to
throw the chemicals in her face, and she dropped the issue. Rather than call the police, she
permitted him to stay the night and believed that he left the next day. The following day,
Friday, January 23, 2009, she left town for the weekend.



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       When she returned, on Sunday, January 25, 2009, she asked her friend, Amanda
Carter, to come to her residence to give her a ride to the store. After Ms. Carter arrived, the
two were surprised by the arrival of Deputy Moser, who requested to search the premises.
Believing she had nothing to hide, Ms. Norwood gave consent and was surprised when the
officer found sundry methamphetamine lab components in her son’s bedroom. Amanda
Carter further testified that after the two were arrested, and following a couple of court dates,
she ran into the defendant, who told her “not to worry,” that he would “take the fall” because
it was “his shit.”

       On March 17, 2009, the McMinn County Grand Jury indicted Mr. Shankle on one
count of Promotion of the Manufacture of Methamphetamine, in violation of Tennessee Code
Annotated section 39-17-433(a)(1). The case was tried before a jury in the Criminal Court
for McMinn County, Tennessee, on October 28, 2009. The State presented the testimony of
Deputy Andy Moser, Ms. Sandra Norwood, and Ms. Amanda Carter as described above.

        Mr. Shankle was advised of and waived his right to testify in his own defense,
pursuant to the procedures described in Momon v. State, 18 S.W.3d 152, 162-64 (Tenn.
1999), and the defense presented no other witnesses. Later that same day, the jury acquitted
him of the felony promotion charge but found him guilty of the lesser included offense of
Facilitation of Promoting the Manufacture of Methamphetamine, in violation of Tennessee
Code Annotated section 39-11-403. The defendant was sentenced to four years incarceration
on November 30, 2009. He filed a timely motion for a new trial, which was denied on April
12, 2010, and this appeal followed.

                                           Analysis

       On appeal, the defendant raises two issues: (1) the evidence was insufficient to
support his conviction, and (2) the indictment against him was insufficient because it
incorrectly listed his middle initial. We address each claim in turn.

                                               I.

       When an accused challenges the sufficiency of the evidence, this court must review
the record to determine if the evidence adduced during the trial was sufficient “to support the
finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This
rule is applicable to findings of guilt predicated upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. State v. Brewer, 932
S.W.2d 1, 18 (Tenn. Crim. App. 1996). In determining the sufficiency of the evidence, this
court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Nor may this court substitute its own inferences for those drawn by the trier

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of fact from circumstantial evidence. Liakas v. State, 286 S.W.2d 856, 58-59 (1956). To the
contrary, 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 such evidence. State v. Elkins, 102 S.W.3d 578, 581-82 (Tenn. 2003).

        The trier of fact, not this court, resolves 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. Id. at 581. In State v. Grace, the Tennessee Supreme Court stated that “[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.” 493 S.W.2d 474,
476 (Tenn. 1973). Because a jury’s verdict of guilty removes the presumption of innocence
and replaces it with a presumption of guilt, the accused has the burden in this court 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); Grace, 493 S.W.2d at 476.

       The defendant contends that the proof is insufficient to support his conviction because
he was not convicted of the offense for which he was originally indicted – promoting the
manufacture of methamphetamine in violation of Tennessee Code Annotated section 39-17-
433(a)(1) – but, instead, only of facilitating that same offense. Section 39-17-433(a)(1)
criminalizes the “[s]ell[ing], purchas[ing], acquir[ing], or deliver[ing of] any chemical, drug,
ingredient, or apparatus that can be used to produce methamphetamine, knowing that it will
be used to produce methamphetamine, or with reckless disregard of its intended use.” T.C.A.
§ 39-17-433(a)(1). The defendant was not found guilty of this offense.

       However, the defendant was convicted of the lesser included offense of facilitation
of felony promotion of the manufacture of methamphetamine. “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 [section] 39-
11-402(2), the person knowingly furnishes substantial assistance in the commission of the
felony.” T.C.A. § 39-11-403(a). The defendant contends that the State did not prove that
he knowingly provided substantial assistance to any other person in their commission of
felony promotion.

        The defendant is not entitled to relief on this issue because the proof in the record is
sufficient to support a conviction on the greater charge of felony promotion. Where evidence
exists to support all elements necessary to uphold a defendant’s conviction of a greater
offense, a defendant’s conviction of a lesser included offense will be upheld, even if there
is some deficiency in the proof of its elements. This court has recently upheld this principle
in both State v. Joshua Lynn Parker, No. E2008-02541-CCA-R3-CD, 2010 Tenn. Crim. App.
LEXIS 795, at **34-40 & n.5 (Tenn. Crim. App. at Knoxville, Sept. 22, 2010), and State v.

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Alfred Turner, No. W2007-00891-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 530, at
**12-17 (Tenn. Crim. App. at Jackson, June 22, 2010). In both of these murder cases, this
court followed the case of State v. Mellons, which stated:

       On appeal, a conviction of a lesser degree of the crime charged, or of a lesser
       included offense, will be upheld, even if there is no evidence in the record to
       establish the technical elements of that crime, if the evidence demands a
       conviction of a higher degree of [the crime] than that found by the verdict, and
       there is either no evidence in support of acquittal of the greater crime, or if
       there is, the verdict of the jury clearly indicates that the evidence in support of
       acquittal was disbelieved, on the theory that the defendant was not prejudiced
       by the charge and the resulting verdict.

557 S.W.2d 497, 499 (Tenn. 1977).

        Here, the record evidence would support a conviction of Tennessee Code section 39-
17-433(a)(1), on the grounds that the defendant acquired chemicals or ingredients knowing
that they would be used (by him) to produce methamphetamine. This evidence includes the
testimony of Ms. Sandra Norwood that the defendant arrived at her home carrying a large
duffel bag; that he stayed in her son’s bedroom where the methamphetamine lab components
and chemicals were later discovered; that, at one point, she saw him shaking a bottle of
chemicals that she recognized as being commonly used in the manufacture of
methamphetamine; and that, when she asked him to leave, he threatened to throw the
chemicals in her face – a gesture revealing his acute awareness of the precise nature of the
bottle’s contents and the harm that they were capable of causing if released. Ms. Norwood’s
testimony is bolstered by Ms. Amanda Carter’s further testimony that the defendant told her
after a court hearing that the chemicals and ingredients discovered by the police belonged to
him. This evidence is sufficient to support a finding that the defendant was knowingly in
possession of items that could be used and that he intended to use to produce
methamphetamine – all of the elements necessary to support the defendant’s conviction of
the greater crime of felony promotion. Consequently, pursuant to Mellons, the defendant’s
conviction of the lesser included offense of facilitation of felony promotion will be upheld,
regardless of whether there was any deficiency in the proof of its elements.

                                               II.

       In his indictment, the defendant’s name is incorrectly shown as “Dwight A. Shankle”
instead of “Dwight J. Shankle.” The defendant contends that this defect in the indictment
causes uncertainty as to whether or not he was the person charged therein and requests
belated relief based on the indictment’s legal insufficiency. We are not inclined to grant his

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request.

        Defenses and objections based upon defects in an indictment must be raised prior to
trial or they are waived, unless they relate to the court’s lack of subject matter jurisdiction
or to the failure of the indictment to charge an offense. See, e.g., Tenn. R. Crim. P. 12(b)(2),
(f); State v. Nixon, 977 S.W.2d 119, 120-23 (Tenn. Crim. App. 1997). The particular
indictment defect raised by this defendant is of neither sort. Defects involving the identity
of the person charged relate to form rather than substance and are waived if not raised before
trial. Nixon, 977 S.W.2d at 121. The defendant must overcome this waiver by demonstrating
actual prejudice. Id.

        The defendant claims actual prejudice because (1) a pretrial motion to dismiss the
indictment would likely have succeeded, and (2) because he was in custody during the
pendency of this case, he was unable to personally review the indictment, discover the defect,
and alert his counsel so a proper pretrial motion could be filed. Even assuming arguendo that
these claims are true, they do not suffice to establish actual prejudice as required by Nixon.
With respect to defects in an indictment involving the name of the party charged, prejudice
does not turn on whether or not a pretrial motion to dismiss the indictment would have
succeeded. Instead, the critical issue is whether or not the defendant was affirmatively
misled or misinformed as to whether or not he was the person charged. See id. at 121-22.
Nor does the fact that the defendant could not review the documents pertaining to his case
at his leisure to discover the error provide any grounds for relief. Defendants are often
incarcerated prior to trial. While there, they will most likely be given the opportunity to
communicate with their counsel only at particular times and in particular places and manners.
Nonetheless, during the meetings they are afforded with counsel, both defendants and their
lawyers are expected to communicate with each other to the extent necessary to explore all
of their options concerning potential claims and defenses and to establish a viable trial
strategy.

       There is no argument made here that the defendant was prevented from meeting with
his lawyer during his incarceration to such an extent that he was deprived of his Sixth
Amendment right to counsel. Consequently, viewed in its most favorable light, the
defendant’s failure to discover the defect in his indictment was simply the result of his failure
to communicate properly with his lawyer during their jailhouse meetings. Their failure to
communicate at appropriate times cannot serve as an excuse for the defendant’s waiver.

        Moreover, we observe with some concern that the defect in the defendant’s indictment
was not brought to the trial court’s attention promptly once a copy of the indictment, the
defendant, and his lawyer, were first all united together in the courtroom in preparation for
trial. Instead, by the defendant’s own admission, it was not raised until after “the jury had

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been sworn and jeopardy had attached.” While this could be the result of common
happenstance, such situations have arisen in the past as a result of “sandbagging” techniques
intentionally used by defense lawyers for the benefit of their clients. See id. at 122. We have
previously criticized this type of sandbagging behavior, explaining that Rule 12(f) of the
Tennessee Rules of Criminal Procedure was specifically intended to put a stop to such
practices and provide defendants with the proper incentive to raise these types of claims in
a pretrial motion. See id. We reaffirm that criticism today, hold that the defendant suffered
no actual prejudice from the misspelling of his name in the indictment, and find that his claim
regarding any such defect has been duly waived.

                                       CONCLUSION

      For the reasons given above, after reviewing the record as a whole, we affirm the
judgment from the trial court.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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