        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs June 12, 2012

        STATE OF TENNESSEE v. ANTHONY LAREN TWEEDY, II

                  Appeal from the Circuit Court of Madison County
                        No. 10-757 Donald H. Allen, Judge


                 No. W2011-02373-CCA-R3-CD - Filed July 13, 2012


Anthony Laren Tweedy, II (“the Defendant”) was convicted of initiation of a process to
manufacture methamphetamine, manufacture of methamphetamine, felony possession of
drug paraphernalia, and possession of marijuana. On appeal, the Defendant requests that this
Court, under a plain error review, dismiss his conviction for manufacture of
methamphetamine. He also asserts that the evidence presented at trial was insufficient to
support his convictions for initiation of a process to manufacture methamphetamine,
manufacture of methamphetamine, and felony possession of drug paraphernalia. The
Defendant does not appeal his conviction for possession of marijuana. After a thorough
review of the record and the applicable law, we affirm the Defendant’s conviction for
initiation of a process to manufacture methamphetamine. We also reduce his conviction
from felony to misdemeanor possession of drug paraphernalia and affirm as modified.
However, we reverse and dismiss the Defendant’s conviction for manufacture of
methamphetamine.

               Tenn. R. App. P. 3 Appeal as of Right; Judgments of the
                  Circuit Court Affirmed as Modified in Part and
                          Reversed and Dismissed in Part

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and R OGER A. P AGE, JJ., joined.

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Anthony Laren Tweedy, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                              OPINION

                                Factual and Procedural Background

       A Madison County Grand Jury indicted the Defendant and Danny E. Hinson, his co-
defendant, for initiation of a process to manufacture methamphetamine, manufacture of
methamphetamine, and felony possession of drug paraphernalia. Additionally, the grand jury
indicted solely the Defendant for possession of marijuana.1

                                            Proof at Trial

       Sergeant Chris Long testified as an officer in the narcotics division of the Madison
County Sheriff’s Department. While at work on May 26, 2010, he received a call from John
Andy Matthews, a citizen whom he knew personally, informing him that the Defendant and
Hinson (“the defendants”) had arrived at 4188 Riverside Drive and were walking into the
woods to “start cooking some meth.” Police officers arrived at the reported residence and
asked the occupants of the house for permission to search the premises. Upon receiving
permission, the officers began searching the premises, and their search led them to the woods
on the south side of the residence. While walking down a well-traveled path, they
encountered the defendants. The defendants had “numerous bags and duffle bags” with
them. When the officers asked the defendants what they were doing, “they looked at one
another and looked back . . . at [Officer Long] and Officer Singleton and then looked at one
another again and dropped their heads and stated they were cooking meth.” Sergeant Long
could not remember who actually stated that they were “cooking meth,” but he remembered
that one defendant told the other to “go ahead and tell them the truth” and that the other
defendant complied. Sergeant Long acknowledged on cross-examination that he may not
have included in his report the detail that one defendant told the other to “go ahead and tell
them the truth.”

       After this admission by the defendants, Sergeant Long asked the defendants for
permission to search their bags, and the defendants acquiesced. Additionally, the defendants
informed the officers that all the materials necessary for manufacturing methamphetamine
were in the bags along with several clothing items. Specifically, the defendants admitted to
the officers that they had Coleman fuel and Sudafed in the bags. Sergeant Long identified
photographs of the items they found at the scene. He also identified two boxes of Wal-phed
recovered from among the various items. Lastly, Sergeant Long identified a bag of what he
believed to be marijuana that was found on the Defendant’s person.


       1
           The grand jury also indicted solely Hinson for possession of methamphetamine.

                                                   -2-
        Sergeant Dwayne Mathis, Madison County Metro Narcotics Division, testified as an
expert in the area of processes for the manufacture of methamphetamine. He explained that
methamphetamine can be manufactured in several different ways but that the most common
method from his recent observation was the “shake and bake” method. Under the “shake and
bake” method, a manufacturer of methamphetamine mixes “lithium, cold medicine like Wal-
phed or Sudafed or any of those, some Coleman camp fuel, salt, [and] some ammonia nitrate”
in a plastic bottle. Although the ingredients might vary by brand name, all of the above listed
ingredients are the essential components in the “shake and bake” process, according to
Sergeant Mathis.

         He identified from the photographs each of the essential items needed to manufacture
methamphetamine. In particular, he noted the Wal-phed boxes and stated that the
pseudoephedrine in the pills provided the ephedrine for the final product of
methamphetamine. He pointed out crushed pseudoephedrine in a container from one of the
photographs, and he explained that crushing up the pseudoephedrine simplified the process.
Sergeant Mathis explained that, along with acquiring the other ingredients, crushing the
pseudoephedrine pills is one of the initial steps in the process of the manufacture of
methamphetamine. He also identified needles, plastic bottles, tubing, a funnel, and a coffee
filter from the photographs and explained how each of these items was used either in the
manufacture or the consumption of methamphetamine. According to Sergeant Mathis,
methamphetamine can be consumed in several different ways, but it appeared to him that the
defendants planned to make the methamphetamine into a liquid form for injection.

       On cross-examination, Sergeant Mathis acknowledged that the items found at the
scene are common household items. However, he also agreed that from his experience he
did not find all of those particular items together except for the purpose of manufacturing
methamphetamine. Accordingly, he surmised that whoever packed the bags with the various
items either intended to manufacture methamphetamine or intended for it to appear that
methamphetamine would be manufactured.

       Agent David Holloway, a forensic drug chemist with the Tennessee Bureau of
Investigation, testified as an expert in the field of drug identification and analysis. Based on
tests he performed on one of the substances submitted, he confirmed that the substance
obtained from the Defendant’s person was, in fact, point seven six (0.76) grams of marijuana.

        At the conclusion of the State’s proof, the Defendant moved for a judgment of
acquittal, and the trial court denied the motion on all counts. The defense then proceeded
with its case-in-chief.




                                              -3-
        Virgie Byrum testified that she knew the defendants because they were friends with
her roommates. On the morning of May 26, 2010, the defendants came to her house in order
to do laundry. They had a backpack and duffle bag with them. She observed the defendants
take all their clothes out of the duffle bag to wash the clothes then return the clothes to the
bag once they were dry. She did not observe any chemicals in the bag when the defendants
were removing the clothing items. Byrum was not familiar with the residence located at
4188 Riverside Drive. Later in the day, she learned that the defendants had been arrested.

        John Andrew Matthews testified that he remembered that the defendants were at his
house on several occasions and that he gave them a ride to 4188 Riverside Drive on several
occasions. However, he adamantly denied placing any items in the defendants’ bags on a day
that he drove them to 4188 Riverside Drive. Although Matthews had suffered a severe head
injury within the past year that affected his memory, he acknowledged that he knew the
defendants. Matthews stated that because of his head injury he had difficulty recalling
specific time sequences regarding events.

        The Defendant chose not to testify. However, Hinson, his co-defendant, chose to
testify at the trial.2 Although he admitted to using methamphetamine for the past year,
Hinson denied ever manufacturing methamphetamine and said that he did not know how to
do so. Hinson stated that on the morning of May 26, 2010, he left his mother’s house with
the Defendant to do laundry at Byrum’s house because his mother’s washing machine was
broken. A friend gave them a ride to Byrum’s residence. Hinson had with him large black
trash bags of clothes, one small suitcase, and a backpack. The backpack contained items
including razors, shampoo, a checkbook, and fingernail clippers. He explained that the
defendants were preparing for a work trip to Little Rock, Arkansas. As they were close to
finishing their laundry at Byrum’s residence, the person who had provided them a ride
realized that he could not get his vehicle to start. Matthews, who lived near Byrum, agreed
to drive over to get them. Hinson stated that he only had met Matthews the day before this
incident.

        Once Matthews arrived, the defendants loaded their bags of laundry into his vehicle.
According to Hinson, Matthews then said that he needed to return home to inform his wife
that he would be driving the Defendants. Matthews then left with most of their laundry in
his vehicle. Once the last load of laundry finished, the defendants walked with that bag of
clothes to Matthews’s home. From there, Matthews drove the defendants to Hinson’s
mother’s home, located at 4188 Riverside Drive. However, instead of taking the defendants
directly to the residence, Hinson requested that Matthews drop them off at the end of a gated



       2
           Hinson testified that he and the Defendant are half-brothers.

                                                     -4-
road that led to his mother’s house. Hinson explained that his mother did not want him to
bring strangers to her home, so he did not want Matthews driving up the main road.

       When they got out of the car and unloaded their bags, Hinson noticed that there was
a bag that he did not recognize. According to Hinson, he asked Matthews about the bag, and
Matthews explained that one of the defendants’ trash bags ripped while placing it in the
trunk. Thus, Matthews replaced the bag with one of his own. Suddenly, Matthews “got in
a big hurry to leave. He about ran over [Hinson’s] foot twice trying to back up.”
Approximately five minutes after Matthews left, the defendants encountered Sergeant Long
along the path.

       Hinson denied giving Sergeant Long permission to search their bags but claimed that
Sergeant Long searched them anyway. Hinson also denied that either defendant told
Sergeant Long that they were about to start cooking methamphetamine. The defendants had
six large, heavy bags with them, including the bag that allegedly belonged to Matthews.
Hinson stated that the bag belonging to Matthews was the only bag containing items that
could be used to manufacture methamphetamine. He denied noticing a difference in the
weight of all the bags of clothes and of the bag that allegedly contained the precursors to
methamphetamine.

        At the close of proof, the jury deliberated and returned a verdict of guilty for initiation
of a process to manufacture methamphetamine, manufacture of methamphetamine, felony
possession of drug paraphernalia, and possession of marijuana. The jury imposed fines of
$2,500 for initiation of a process to manufacture methamphetamine conviction, $50,000 for
the manufacture of methamphetamine conviction,3 $3,000 for the felony possession of drug
paraphernalia conviction, and $250 for the possession of marijuana conviction. The trial
court sentenced the Defendant as a standard offender to twelve years for the conviction for
the initiation of a process to manufacture methamphetamine. It also sentenced the Defendant
as a multiple offender to ten years for the conviction for manufacture of methamphetamine
and four years for the conviction for felony possession of drug paraphernalia. Finally, the
trial court sentenced the Defendant to eleven months, twenty-nine days on the misdemeanor
conviction for possession of marijuana. The trial court ordered that all the sentences run
concurrently for an effective sentence of twelve years. The Defendant filed a motion for new
trial, which the trial court subsequently denied. He now appeals, requesting that this Court
dismiss his manufacture of methamphetamine conviction as a matter of plain error.
Additionally, he argues that the evidence is insufficient to support his convictions for


       3
          We note that the transcript reflects that the jury decided to impose a fine of $50,000 for the
manufacture of methamphetamine conviction. However, the judgment entered by the trial court does not
include this fine. The other judgment forms contain the fines for the respective convictions.

                                                  -5-
initiation of a process to manufacture methamphetamine, manufacture of methamphetamine,
and felony possession of drug paraphernalia.

                                                  Analysis

                                                Plain Error

         The Defendant asserts as a matter of plain error that he was improperly convicted of
both initiation of a process to manufacture methamphetamine and manufacture of
methamphetamine.4 The doctrine of plain error provides that “[w]hen necessary to do
substantial justice, an appellate court may consider an error that has affected the substantial
rights of a party at any time, even though the error was not raised in the motion for a new
trial or assigned as error on appeal.” Tenn. R. App. P. 36(b). This Court may find plain error
only if all five of the following factors are present: “(1) the record clearly establishes what
occurred in the trial court, (2) a clear and unequivocal rule of law was breached, (3) a
substantial right of the accused was adversely affected, (4) the accused did not waive the
issue for tactical reasons, and (5) consideration of the error is necessary to do substantial
justice.” State v. Hester, 324 S.W.3d 1, 56 (Tenn. 2010) (citing State v. Gomez, 239 S.W.3d
733, 737 (Tenn. 2007)); see also State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.
App. 1994). We need not consider all five factors when the record clearly establishes that
at least one of the factors is not met. State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010).
It is the defendant’s burden to persuade this Court that the trial court committed plain error
and that the error “was of sufficient magnitude that it probably changed the outcome of the
trial.” Hester, 324 S.W.3d at 56 (citing State v. Bledsoe, 226 S.W.3d 349, 354-55 (Tenn.
2007)).

       The Defendant argues that the State only was permitted to prosecute the Defendant
on one or the other of these two charges. The State concedes that this is correct. Indeed,
although the Defendant did not raise this issue, the trial court noted when it denied the
Defendant’s motion for new trial that “perhaps [the two convictions] should merge into one
conviction.”

       Tennessee Code Annotated section 39-17-435 (2006), the section under which the
Defendant was convicted for initiation of a process intended to result in the manufacture of
methamphetamine, specifically provides that “[a] person may not be prosecuted for a
violation of this section and of manufacturing a controlled substance in violation of § 39-17-
417 based upon the same set of facts.” Id. at § -435(e). Here, the Defendant was prosecuted
under both sections 39-17-435 and -417, and the same set of facts established both


       4
           The Defendant did not raise this issue in his motion for new trial.

                                                     -6-
convictions. Thus, “the record clearly establishes” that a “clear and unequivocal rule of law
was breached.” Hester, 324 S.W.3d at 56 (citing Gomez, 239 S.W.3d at 737). As a result,
the Defendant received convictions for both initiation of a process to manufacture
methamphetamine and manufacture of methamphetamine. The record contains nothing to
indicate that the Defendant affirmatively opted not to address this issue in the trial court.
Finally, justice requires we correct the error. Thus, all five requirements have been met to
satisfy a finding of plain error. The Defendant contends, and the State agrees, that the proper
relief afforded the Defendant is to dismiss his conviction for manufacture of
methamphetamine. We also agree. Accordingly, we reverse and dismiss the Defendant’s
conviction for manufacture of methamphetamine.

                                 Sufficiency of the Evidence

       Our standard of review regarding sufficiency of the evidence is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979). See also Tenn. R. App. P. 13(e). After a jury finds
a defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       The appellate court does not weigh the evidence anew. Rather, “a jury verdict,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts” in the testimony and all reasonably drawn inferences in favor of the State. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty verdicts
based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our
Supreme Court adopted the United States Supreme Court’s standard that “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of such
evidence.” Id. at 381. Accordingly, the evidence need not exclude every other reasonable
hypothesis except that of the defendant’s guilt, provided the defendant’s guilt is established
beyond a reasonable doubt. Id.

       The weight and credibility given to the testimony of witnesses, and the reconciliation
of conflicts in that testimony, are questions of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). Furthermore, it is not the role of this Court to reevaluate the evidence or



                                              -7-
substitute its own inferences for those drawn by the jury. State v. Winters, 137 S.W.3d 641,
655 (Tenn. Crim. App. 2003) (citations omitted).

       The Defendant contends that the evidence is not sufficient to support his convictions
for initiation of a process to manufacture methamphetamine, manufacture of
methamphetamine, and felony possession of drug paraphernalia. Because we have dismissed
the Defendant’s conviction for manufacture of methamphetamine, we only need to address
the sufficiency of the evidence as to his convictions for initiation of a process of manufacture
methamphetamine and felony possession of drug paraphernalia.

       Under Tennessee Code Annotated § 39-17-435, “[i]t is an offense for a person to
knowingly initiate a process intended to result in the manufacture of any amount of
methamphetamine.” “Initiates” is defined in this section as “to begin the extraction of an
immediate methamphetamine precursor from a commercial product, to begin the active
modification of a commercial product for use in methamphetamine creation, or to heat or
combine any substance or substances that can be used in methamphetamine creation.” Id. at
§ -435(c).

        At trial, Sergeant Long testified that when he encountered the defendants, “they
looked at one another . . . and dropped their heads and stated that they were cooking meth.”
Upon receipt of consent from the defendants, Sergeant Long searched their bags. Sergeant
Mathis identified from photographs taken at the scene all the items necessary for the
manufacture of methamphetamine. Specifically, he discussed a photograph of a bag of what
appeared to him to be crushed pseudoephedrine. He explained that one of the initial steps,
after acquiring the necessary items, is to crush the pseudoephedrine to simplify the reaction
process.

       To the extent Hinson’s testimony contradicts the testimony of the State’s witnesses,
we will not disturb the jury’s implicit credibility findings. See Sheffield, 676 S.W.2d at 547.
The State presented ample evidence for the jury to conclude that the Defendant had begun
“the active modification of a commercial product for use in methamphetamine creation.”
Tenn. Code Ann. § 39-17-435(c). Accordingly, the evidence is sufficient to support the
Defendant’s conviction for initiation of a process to manufacture methamphetamine.

      The Defendant also challenges the sufficiency of the evidence for his felony
possession of drug paraphernalia conviction. Under Tennessee Code Annotated section 39-
17-425 (2006), the following is a Class E felony:

       to deliver, possess with intent to deliver, or manufacture with intent to deliver,
       drug paraphernalia, knowing, or under circumstances where one reasonably


                                              -8-
       should know, that it will be used to plant, propagate, cultivate, grow, harvest,
       manufacture, compound, convert, produce, process, prepare, test, analyze,
       pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise
       introduce into the human body a controlled substance in violation of this part.

Id. at -425(b)(1). Put another way, “[t]he law in question proscribes as a Class E felony the
possession of drug paraphernalia with intent to deliver the paraphernalia.” State v. Edward
Poe, No. M2007-01714-CCA-R3-CD, 2008 WL 732147 at * 6 (Tenn. Crim. App. Mar. 17,
2008). Drug paraphernalia is defined as “all equipment, products and materials of any kind
which are used, intended for use, or designed for use in . . . manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing, packaging, repackaging,
storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into
the human body, a controlled substance.” Tenn. Code Ann. § 39-17-402(12) (2006).

        Possession, in Tennessee, may be actual or constructive. State v. Shaw, 37 S.W.3d
900, 903 (Tenn. 2001). Additionally, one may be in possession (of an item) alone or jointly
with others. State v. Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984). Constructive
possession means to have “the power and intention at a given time to exercise dominion and
control over [the contraband] either directly or through others.” Shaw, 375 S.W.3d at 903
(quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)). This Court has
stated, however, that “[t]he mere presence of a person in an area where drugs are discovered
is not, alone, sufficient.” State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000) (citing
State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987)). “Likewise, mere
association with a person who does in fact control the drugs or property where the drugs are
discovered is insufficient to support a finding that the person possessed the drugs.” Cooper,
736 S.W.2d at 129.

        Here, the record contains sufficient evidence to establish that the Defendant possessed
drug paraphernalia. Sergeant Long testified that after the defendants told him that they were
about to cook methamphetamine, they consented to a search of their bags. The search
revealed all the components necessary for the manufacture of methamphetamine under the
“shake and bake” method. Sergeant Mathis identified from the photographs needles, plastic
bottles, tubing, a funnel, and a coffee filter and explained how each of these items was used
either in the manufacture or the consumption of the methamphetamine.

       Although the record contains evidence to sufficiently establish possession, the record
does not establish that the Defendant possessed drug paraphernalia with the intent to deliver
it. The State points to no facts in the record indicating an intent on the part of the Defendant
to deliver, nor do we find any from our review. In fact, the State contends in its brief,
“[f]rom this evidence, the jury could have inferred that the defendant . . . possess[ed] with


                                              -9-
the intent to use5 drug paraphernalia to manufacture a controlled substance.” (emphasis
added).

       From our review of the record, we agree with the State that the record does contain
sufficient evidence to establish that the Defendant intended “to use drug paraphernalia to
manufacture a controlled substance.” Sergeant Mathis testified that from looking at the items
found in the bags he surmised that the defendants intended to consume the methamphetamine
by injection. However, we are unable to find any evidence of the Defendant’s intent to
deliver the paraphernalia. Thus, we must modify the conviction to misdemeanor possession
of drug paraphernalia, a lesser included offense “that does not include the element of
transfer.” Edward Poe, 2008 WL 732147, at *6; see also Tenn. Code Ann. § 39-17-
425(a)(1).

      Because we have modified the conviction to a Class A misdemeanor, we likewise
must modify the sentence. Accordingly, we modify the sentence to eleven months and
twenty-nine days and the fine to $2,500. See Edward Poe, 2008 WL 732147, at *6. The
sentence will remain concurrent to his sentence for initiation of a process to manufacture
methamphetamine for a total effective sentence of twelve years. We will not disturb the
manner of service of the sentence.

                                          CONCLUSION

       For the reasons articulated above, we affirm the Defendant’s convictions for initiation
of a process to manufacture methamphetamine and possession of drug paraphernalia as
modified. We, however, reverse and dismiss the Defendant’s conviction for manufacture of
methamphetamine.


                                                _________________________________
                                                JEFFREY S. BIVINS, JUDGE




        5
        We emphasize that felony possession of drug paraphernalia requires intent to deliver, whereas
misdemeanor possession requires intent to use the drug paraphernalia. See Tenn. Code Ann. § 39-17-425(a)-
(b).

                                                  -10-
