### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs Ma y 1 3, 2015

STATE OF TENNESSEE v. JOHN WESLEY COUCH

Appeal from the Circuit Court for Bedford County

No . 17739 Franklin Lee Russell , Judge

No. M20 14

- 01372

- CCA

- R3

- CD

– Filed July 24, 2015

The Defendant, John Wesley Couch , was found guilty by a Bedford County Circuit Court jury of promotion of methamphetamine manufacture, a Class D felony

. See T.C.A. § 39

- 17

- 433 (2014)

. The trial court sentenced the Defendant as a Range I , standard offender

to four years‟ confinement , to be served consecutively to a Coffee County sentence and any other existing sentence s . On appeal, the Defendant contends that (1) the evidence is

insuffi cient to support his conv iction and (2 ) his sentence is excessive and contrary to

law . We affirm the judgment of the trial court.

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

R OBERT H. M ONTGOMERY

, J R

., J. , delivered the opinion of the court, in which J AMES
C URWOOD W ITT

, J R

., and R OBERT L. H OLLOWAY

, J R

. , JJ., joined.

Donna Orr Hargrove, District Public Defender; and Michael Jonathan Collins, Assistant

Public Defender , for the appellant, John Wesley Couch.

Herbert H. Slatery III , Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Robert J. Carter, District Attorney General; Richard Aron Cawley and

Michael D . Randles, Assistant District Attorney s General, for the appellee, State of

Tennessee.

OPINION

This case relates to t he purchase of a box of pseud o ephedrine from a CVS pharmacy on March 14, 2013. At the tri al, Shane George, a Shelbyville police officer assigned to the 17th Judicial District Drug Task Force, testified that pseudoe phedrine wa s required to manufacture meth amphetamine

. He said people manufacturing

met hamphetamine commonly obtained pseudoephedrine pill s from pharmacies

.- 2

-

Officer George testified that “the cook

, ” a person who manufactured methamphetamine

, commonly sent individuals , such as addicts and people financially
“down on their luck ,” to purchase pseudoephedrine. The purchasers brought the pseudoephedrine to the cook, who reimbur se d the purchasers with methamphetamine or

money. Officer George said that because pseudoephedrine purchasers ‟ names we re ad ded to the National Precursor Log Exchange, the method of sending other people to purchase pseudoephedrine protected the cook

.

Officer George testified that on March 14, 2013, he was notified that a suspicious pseudoephedrine purchase was occurring at th e Shelbyville CVS pharmacy

. He and Drug Task Force Assistant Director Tim Mi ller went to the pharmacy to investigate

.

Officer George identified the pseudoephedrine purchaser as Gary Michael Painter

. Officer George watched Mr. Painter leave the pharmacy and sit in the front passenger‟s seat of a white GMC Jimmy SUV. Officer George conducted a records check o n the

SUV ‟s registration plate and found that the plate was registered to a 19 97 , red Pontiac

sedan. Officer George and Director Miller saw the SUV leave the pharmacy and travel to

the Shelbyville Walm art, at which point t he y lost sight of the SUV

.

Officer George testified that when he next saw the SUV

, it was unoccupied and

pa rked in fro nt of a Mexican restaurant. Forty

- fi ve minutes to one hour l ater, Officer George observed the Defendan t, Mr. Painter, and a woman leave the restaurant , get in the SUV, and drive away . The Defendant drove

, Mr. Painter sat in the front passenger‟ s seat

, and the woman sat in the back passenger‟s seat. Officer George said he and Director

Miller followed the SUV

, hoping to learn whether the three would make any other stops

or visi t a cook. As th e SUV headed to ward Tullahoma

, Officer George decided to conduct a traffic stop of the SUV based upon the unlawful vehicle r e gistration.

Officer George testified that when he stopped the SUV , the Defendant was the

driver

. Officer George asked the Defendant for his driver‟s license, and the Defendant

said he did not have one

. When asked where he had been that evening

, t he Defe ndant did

not mention th e pharmacy

. Officer George checked on the Defendant‟s license status and

determined that it was suspended or revoked.

In an audio

- recorded interview

, Officer George asked the Defendant about the location of the box of pse udoephe drine, and t he Defendant replied the box was “going back to a Billy Mays.” Officer George was familiar with Billy or William Mays because

Officer George knew he was a methamphetamine cook and had arrested him recently for promotion of methamphetamine manu facture.

Officer George did not remember if the Defendant told him that Mr. Painter had purchased pseudoephedrine that evening , but Officer George knew the identity of the- 3

-

purchaser because he had access to the pharmacy logs. Officer George said he aske d the

Defendant where the pseudoephedrine was located in the SUV . T he Defendant replied the pseudoephedrine might be in the center console are a. Officer Georg e found in the

console a box of pseudoephedrine in a CVS shopping bag along with a CVS receipt

. Officer Ge or ge testified that the Defendant said that Mr. Mays planned to use the pseudoephedrine to manufacture methamphetamine and that in return t he Defendant

would receive about a quarter to one

- half gram of fi nished methamphetamine.

Portions of the recording were played for the jury. In the recording, Officer George asked the Defendant where “ the pills ” were going, and the Defendant asked if he

w as “ going to get in trouble. ” Officer George replied the Defendant was in trouble, and

the Defendant ask ed , “Are you going to carry me to jail now?” Officer George repli ed

that it depended upon what the Defendant told him and that if Officer George received “a bunch of lies,” he would take everybody to jail. The Defendant asked how he co uld keep everybody out of jail, and Officer George told the Defendant to tell him the truth. The

Defendant sai d he would do anything if Officer George kept everybody out of jail . As

Officer George said he needed to know what the Defendant knew, the Defendant interjected, “ Do you know Billy Mays?” Officer George replied he had recently arrested Mr. Mays.

In the recording, t he Defendant asked Officer George if Mr. Mays had been arrested recently

, and Officer George said yes. As the Defendant began speaking about

what he wa s trying to do

, Officer George said , “Let me explain what you are trying to do.

You‟re trying to get a box of pseudoephedrine , you an d that gentleman and that woman

. . . . A n d you‟re trying to take it to [Mr. Mays] so that he can cook meth with it. Corr ect?”

The Defendant ultimately agreed and said he was “trying to make this look good.”

In the last portion of the recording that was played

, Officer George asked the Defendant what the Defendant would receive from Mr. Mays in exchange for taking the

box of pseudoephedrine to Mr. Mays

. The Defendant said Mr. Mays would give him

“ [ h ] alf a „G‟” to be split am ong the Defendant and the other two people

. The Defendant

said that he and the other people might be able to receive “ a „G‟” sometimes but that it dep ended upon how “tight” Mr. Mays was.

The recording was stopped , and Officer George testified that “half a „G‟” and “a

„G‟” meant one

- half gram of finished methamphetamine and one gram of finished methamphetamine, respectively

. He said that the box of pse udoephedrine contained 2.4

“ milligrams ” of pseudoephedrine and that it would yield about 1.2 grams of methamphetamine.

Officer George testified th at after interviewing the De fendant, he interviewed the

other two people

. Officer George then spoke to the D e fendant a second time in the- 4

-

presence of Director Miller. T he Defendant verified he was taking the pseudoephedrine to Mr. Mays to receive methamphetamine.

On cross

- examination, Officer George testified that Mr. Painter did not exceed the legal limit of pseudoephedrine that could be purchase d and that only Mr. Painter went

inside CVS

. Officer George said that he did not find pseudoephedrine or methamphetamine on the Defendant‟s person when they spoke

, an d the Defendant did tell Officer George that “they” ate at the Mexican restaurant

. Officer George said he did

not remember where the Defendant said he was taking Mr. Painter. Officer George said that after speaking with all of the SUV‟s occupants, he determined that the woman was not involved in the pseu doephedrine purchase. Officer George said that other than pseudoephedrine, no other common items used to ma nufacture metha mphetamine were

found in the SUV

.

On redirect examination, Officer George testified that some common ingredients

used to ma nufactu re methamphetamine were not as regulated as pseudoephedrine and

were easier to obtain. He sa id he determined that only the D efendant knew Mr. Mays.

On recross

- examination, Officer George testified that Mr. Painter said he knew the

Defendant would give th e box of pseudoephedrine to someone to manufacture methamphetamine , but Mr. Painter did not know the identity of the third person

.

Drug Task Force Assistant Director Tim Miller , an officer with the Bedford County Sheriff‟s Department

, testified that on M arch 14, 2013, he and Officer George

follow ed and stopped an SUV containing a person who had made a suspicious pseudoephedrine purchase from CVS. Although he did not participate in the initial

interviews of the SUV‟s occupants and could not overhear any o f the conversations, he was present during the Defendant‟s s econd interview

. Director Miller heard the Defendant say that Mr. Pai nter bought the pseudoephedrine for the Defendant and that

the Defendant was taking it to som eone named Billy or William Mays in order for the Defendant, Mr. Painter, and the other people involved to receive some methamphetamine.

On cross

- examination, Director Miller testified that the Defendant drove the SUV

, that Mr. Painter was the front seat passenger, and that the woman an d a child were the

b ack seat passengers. Director M iller did not see the pseudoephedrine but knew that Mr. Painter bought it and that Officer George removed it from the SUV

.

The Defendant testified that on the day of the incident, he told Officer Georg e and

Director Miller that he was taking the pseudoephedrine purchased by Mr. Painter to Mr. Mays. The Defendant explained that a couple of months before the incident, the police stopped him for “driving on suspended. ” Franklin County Deputy Sam Davidson told the

Defendant that if th e Defendant help ed with an investigation of Mr. Mays, Deputy- 5

-

Davidson would iss ue the Defendant a citation and later drop the charge . The Defendant explained th at the reason he gave Officer George Mr. May s ‟s name was “to get out of a driving charge.” The Defendant s aid he had never met Mr. Mays.

On cross

- examination, the Defendant testified that he did not know Mr. Mays or

that Officer Geo rge was looking for Mr. Mays. The Defendant said he only knew that Mr. Mays manufactu red methamphetamine because Deputy Davidson told him

.

Regarding the recording, the Defendant agreed that when Officer George asked where the pills were going, he knew Officer George could only be referring to the pseudoephedrine pills . The Defendant sai d that he did not link the pills to Mr. Mays and

that t he Defendant was “just bringing up [Mr.] Mays at that time.”

The Defendant testified that when he said one G, he did not understand why he would receive one gram if the box of pseudoeph edrine only y ielded one gram. When

asked how he knew M r. Mays would give him one

- half gram if he did not know Mr. Mays, the Defendant said, “I don‟t know who [Mr.] Mays is.”

The Defendant testified that he drove from Winchester t o the Mexican restaurant

b ecause it w as his favorite. He said he only stopped at the restaurant and “ the Dollar Store, ” which was located next to CVS

.

The Defendant testified that in the portion of the recording not played to the jury,

Officer George first asked if anything was in the SU V and that the Defendant said no

. The Defendant said he later learned the pseudoephedrine was in the SUV . He said he did

not know what Mr. Painter did with the pseudoephedrine. When asked how he knew to which pills Officer George was referring if he did not know the pills were in the SUV , the

Defendant s aid he did not know.

Upon this evidence, the jury found the Defendant guilty of promotion of methamphetamine manufacture. The trial court sentenced the Defendant to four years. This appeal followed.

I

Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to support his conviction

because he did not purchase pseudoephedrine and because he did not intend to promote
the manufacture of methamphetamine. The State argues the jury discredited the Defendant‟s testimony

. We agree with the State

.- 6

-

In determining the sufficiency of the evidence, the standard of review 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 State v. Vasques , 221 S.W.3d 514, 521 (Tenn. 2007). The State is “afforded the strongest legiti mate view of the evidence
and all reasonable inferences” from that evidence. Vasques , 221 S.W.3d at 521. The appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility of witnesses [and] the weight and value to be given the evidence . . . are resolved by the trier of fact.” State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall , 976 S.W.2d 121, 140 (Tenn. 1998); see also State

v. Sutton , 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review „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)).

A person is guilty of promoting the manufacture of methamphetamine if he or she “[s]ells, purchases, acquires, or delivers any chemical, drug, ingred ient, 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)

. Deliver y “means the actual, constructive, or attempted t ransfer from one person to another of a controlled substance, whether or not there is an agency relationship [

. ] ” Id . § 39

- 17

- 402(6) (2014).

The record reflects tha t Mr. Painter purchased pseudoephe drine from the Shelbyville CVS p harmacy on March 14, 201 3

. Mr. Painter left the pharmacy in an SUV

that Officer George stopped for unlawful vehicle registration. The Defendant drove the

SUV and admitted he was taking th e pseudoephedrine to Mr. Mays for Mr. Mays to use to cook methamphetamine . The Defendant a lso admitted that he would recei ve methamphetamine in exchange for delivering the pseudoephedrine to Mr. Mays

. The

Defendant told Officer George the pseudoephedrine was in the center console of the

SUV , and Officer George found the substance in that locat ion. The Defendant said Mr. Painter purchased the pseudoephedrine on the Defendant ‟s behalf.

The Defendant argues that although he told Officer George a nd Director Miller his plans for the pseudoephedrine , he did not know Mr. Mays or that Officer Geor ge was looking for Mr. Mays . The Defendant said he only mentioned Mr. Mays‟s name to avoid

a driving

- related charge and was not aw are the pseudoephedrine was in the SUV

.- 7

-

As the trier of fact, the jury w as free to disregard the Defendant‟s explanation

. In the light most favorable to the State, the Defendant drove Mr. Painter to a pharmacy for

him to purchase pseudoephedrine on the Defendant‟s behalf

, and the Defendant told

Officer George an d Director Miller that t he Defendant was taking the substance to Mr. Mays , a well

- known methamphetamine cook, in exchange for methamphetamine

. See id

. § 39

- 17

- 402(6). The evidence is sufficient to support the conviction, and t he Defendant

is not entitled to relief on this basis

.

II

Sentencing

The Defendant contend s that his four

- year sentence is excessive and contrary to

law because it “ does not fit the crime or the offender.” The State argues the trial court did not abuse its discretion by imposing the maxim um sentence because the court considered the appropriate sentencing principles. We agree with the State.

C hallenges to within

- range sentences regarding the length and manner of service, the application of enhancement and mitigating factors, and the determination of consecutive sentencing are generally reviewed for an a buse of discretion with a presumption of reasonableness. S ee S tate v. Bise , 380 S.W.3d 682, 70 6

- 0 8 (Tenn. 2012) ; State v. Caudle , 388 S.W.3d 273, 278

- 79 (Tenn. 2012); State v. Pollard , 4 32 S.W.3d 851, 859 (Tenn. 2013) . A t rial court must consider any evidence received at the trial and sentencing hearing, the presentence report, the principles of sentencing, counsel‟s arguments as to sentencing alternatives, the nature and characteristics of the criminal conduct, any mitigat ing or statutory enhancement factors, statistical information provided by the Administrative Office of the Courts as to sentencing practices for similar offenses in Tennessee, any statement that the defendant made on his own behalf, and the potential

for r ehabilitation or treatment. State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40

- 35

- 103 (2014),

- 210 (2014); State v. Moss , 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987)); see T.C.A. § 40

- 35

- 102 (2014).

Re lative to the application of enhancement and mitigating factors, “a trial court‟s misapplication of an enhancement or mitigating factor does not invalidate the sentence imposed unless the trial court wholly departed from the 1989 Act, as amen ded in 2005.”

Bise , 380 S.W.3d at 706. “So long as there are other reasons consistent with the purposes and principles of sentencing, as provided by statute, a sentence imposed . . . within the appropriate range” will be upheld on appeal. Id.

Re lative to the determination of consecutive sentencing , a trial court has broad discretion in determining whether to impose consecutive service. Pollard , 432 S.W.3d at- 8

-

859. A trial court m ay impose consecutive sentences if it finds by a preponderance of the

ev i dence that one of the criteria is satisfied in Tennessee Code Annotated section 40

- 35

- 115(b)(1)

- (7) (2014). In determining whether to impose consecutive sentences, though, a trial court must ensure the sentence is “no greater than that deserved for the of fense committed,” and is “the least severe measure necessary to achieve the purposes for which the sentence is imposed.” T.C.A. § 40

- 35

- 103(2), (4); see State v. Desirey , 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995).

Re lative to the manner of service of a sentence

, probation is generally available to a defendant sentenced to ten years or less. T.C.A. § 40

- 35

- 303(a) (2014). The burden of establishing suitability for probation rests with a defendant, who must demonstrate that probati on will “„subserve the ends of justice and the best interest of both the public and
the defendant.‟” State v. Souder , 105 S.W.3d 602, 607 (Tenn. Crim. App. 2002) (quoting State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)); see T.C.A. § 40

- 35

- 303 (b); State v. Carter , 254 S.W.3d 335, 347 (Tenn. 2008).

A sentence is based upon “the nature of the offense and the totality of the circumstances,” including a defendant‟s background. State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991); see State v. Trotte r , 201 S.W.3d 651, 653 (Tenn. 2006). A trial court is permitted to sentence a defendant to incarceration when:

(A) [c]onfinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;

(B) [c]onfinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or

(C) [m]easures less restrictive than confinement have frequently or re cently been applied unsuccessfully to the defendant[.]

T.C .A. § 40

- 35

- 103(1)(A)

- (C) ; see Trotter , 201 S.W.3d at 654.

At the sentencing hearing, the presentence report was received as an exhibit. The report showed that the forty

- four

- year

- old Def endant had previous convictions for

initiation of a process to manufacture methamphetamine, possession of a Schedule II

controlled substance , cruelty to animals, criminal trespassing, possession of less than o ne

half ounce of marijuana, driving under the i nfluence , and two counts of driving with a

revoked license

. The first co nviction occurred in 1989 when the Defendant was twenty years old , and the most recent occurred in 2014 at age forty

- four. At least three of the

c onvictions occurred during periods w hen the Defendant was serving a sentence on probation

.- 9

-

The report showed that the Defendant grad uated from high school and r eported

go od mental and physical health. He admitted using methamphetamine daily between ages thirty

- five and forty

- two and drin king alcohol weekly between ages eighteen and forty

- three. He had never been in a drug or alcohol treatment program. He was single

with three children. He reported self

- employment from 1995 to 2013.

During the hearing, the prosecutor noted t hat on May 28, 2014, t he Defendant pleaded guilty to violating his probation ary sentence for the initiation of a process to manufacture methamphetamine conviction

. The trial court found that the Defendant was

a Ran ge I offender based upon his single prior felony co nviction. Relative to enhancement factors, the court found that factor (1) applied based upon the Defendant‟s previous convictions and the twenty

- five

- year p eriod during which the convictions

occurred

. See T.C.A. § 40

- 35

- 114(1) (2014) (“The defendant has a previous history of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate range[.]”). The court also found that factor (8) applied because the Defendant failed to comply with the conditions for release i nto the community. See id . §

40

- 35

- 114 (8) (“The defendant, before trial or sentencing, failed to comply with the conditions of a sentence involving release into the community [

. ] ”). The court found that factor (13) applied because at the time of the offen se , the Defendant was released on bond and on probation. See id . § 40

- 35

- 114(13) (A), (C) (“ At the time the felony was committed, . . . the defendant [was] [r]eleased on bail or pretrial release, if the de fendant is ultimately convict ed of the prior . . . felony [or was ] [r]eleased on probation[.]”). The

court found that if a mitigating factor applied, it would have been factor ( 1) but that the court did not give the factor “a great deal of weight . . . under [the] circumstances

. ” Se e id . § 40

- 35

- 113(1) (2014) (“The defendant‟s criminal conduct neither caused nor threatened serious bodily injury[.]”). Based upon the enhancement factors, t he court

sentenced the Defendant to four years

.

Relative to consecutive sentencing, the trial c ourt found t hat the Defendant had an

extensive criminal record and that he committed the offense while on probation. See id. §

40

- 35

- 115(b)(2), (b)(6), (d). The court ordered the Defendant‟s sentence to be served consecutively to an y other existing sentences.

Relative to alternative sentencing, the trial court found that the presumption in favor of alternative sentencing was overcome because the Defendant had “little or no potential for rehabilitation in the absence of extensive in carceration” and because the risk he would commit another crime while on probation was “extremely high.” See id. § 40

- 35

- 103(5). The court noted the Defendant committed crimes while on probation and

while released on bail.

The Defendant does not argu e the trial court improperly applied the enhancement factors or failed to apply any mitigating factors. He also does not argue the court- 10

-

improperly ordered consecutive service or improperly denied alternative sentencing

. Instead, he argues a four

- year se ntence i s inappropriate under the facts of this case.

The record reflects that the trial court considered the appropriate principles of sentencing , weighed the enhancement and mitigating factors, and imposed a within

- range sentence for the Defendant‟s co nviction

. The court found, and the record supports, the

D efendant‟s lack of pot ential for rehabilitation

. See T.C.A. § 40

- 35

- 103(5) (“The . . . lack of potential for the rehabilitation or treatment of the defendant should be con sidered in determining the sentence alternative or length of a term to be imposed.”)

. The Defendant was serving an eight

- year suspended sentence for his 2011 initiat ion of a process to manufa cture methamphetamine conviction when he committed the present

offense in 2013

. Additiona lly, t he Defendant pleaded guilty in 2014 to violating his

p robationary sentence for the 2011 conviction. T he court did not abuse its discretion by sentencing the Defendant to four years and by denying probation , and he is not e ntitled to

relief on this b asis.

Relative to consecutive sentencing, the trial court found, and the record supports,

t hat the Defendant had an extensive criminal record and that he committed the offense while on probation. See id. § 40

- 35

- 115(b)(2), (b)(6)

. The Defendant‟s criminal history spans his entire adult life. The Defendant has failed repeatedly when given opportunities

to reform his conduct. The court did not abuse its discretion by ordering consecutive sentencing, and the Defendant is not entitle d to relief on this basis.

In consideration of the foregoing and the record as a whole, we affirm the judgment of the trial court.

___________________________________ __ ROBERT H. MONTGOMERY, JR., JUDGE