### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A pril 1, 200 3
STATE OF TENN ESSEE v. MICHAEL JOSE PH COOK Appeal from the Circuit Court for Obion County No. 2-113 William B. Acree, Jr., Judge

No. W2002-01924-CCA-R3-CD - Filed June 27, 2003

The defendant, Michael Joseph Cook, was convicted of manufacturing a Schedu le II controlled substance and conspiracy

to manufacture a Schedule II controlled substanc e, Class C and D fe lonies. The trial court merged the conspiracy conviction i nto the Cl ass C felony and imposed a f our-yea r community

based alternative sentence. As a par t of the sentence, the defendant was ordered to serve one ye ar in jail

. In this appeal of rig ht, the defendant contends that the evidence was insuff icient and that his sentence is excessive. The judgment of the trial court is affirme d.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
G ARY R. W ADE , P.J., delive red the o pinion of t

he court , in which D AVID G. H AYES and T HOM AS T. W OODA LL , JJ., joined.
Didi Christie, Brownsville, Tennessee (on appeal), and William Rand

olph, Assis tant Distr

ict Public Defender (at trial), for the appe llant, Michael Joseph Cook.
Paul G. Summers, Attorney Gene ral & Reporter; Thomas E. Williams II I, Assistant Attorney Genera l; and Kevin McAlpin, Assistant District Attor ney Ge neral, for the appellee, State of Tennessee.
OPINION
In early 2002, Of

ficer Matt Woods of the Obion County Sheriff' s Department, Kent Treece, and Shawn Palmer, all of

whom wer

e member s of the Tw enty -Seventh Judicial Dis trict Dru g Task Force, had found evidence of methamphetamine production in a wooded area

known as Jun

k Pile Hill just outside the Samburg city limits. On Fe bruary 5 of

that year, the

three officers went to the area and discovered Shane Glisson crouching nea r the front of a truck and

the defendant

walking in the direction of the truck. The officers smelled a strong odor of ether, an ingr edient required for the manufactureof methamphetamine, and approximately six feet from the truck, observed a "pill soak," a closed one-gallon glass jar conta ining some of th e ingredients necessary for the production of methamphetamine. At trial, one officer testified that anhydrous ammonia, a component used in the-2-

production of the ille gal drug, may have already been poured i nto the "pil l soak." A short distance from the truck wa s an empty container that, according to the offic ers, smelled like anhydr ous ammonia. There w ere als o empty boxes of suphedrine, a base ingredient of methamphe tamine, at the scene. A duffel bag, which lay beneath a discarded couch located near the truck, contained ether, pliers, "liquid f

ire," c offee f

ilters, tu bing, g lass jars , and lithiu

m batteri es, all

of which arecommonly used in the man

ufactur e of meth ampheta

mine. Hidd

en under neath the front bum

per of th e vehicl e was a baggie containing proc essed methamphetamine. The defendant, who was the owner of the truck, and Glisson claimed to the officers that they had driven to the site to repair the engine. Special Agent Brian L

ee Eaton, a foren sic scien tist with the TBI, perfor

med an analy sis on the baggie co nfiscated by the officers. The substance contained .6 g rams of methamphetamine, a Sched ule II drug.
Shane Glisson, who had pled guilty to manufacturing methamphetamine as a par t of a plea agreement

with the st

a t e, testified for the defense. Glisson claimed ownership of the methamphetamine found under the defendant's bumper a nd, despite his prior plea, contended that neither he nor the defendant were manufa cturing metham

phet amine at t

he time of

their ar rest. Glisson testified that he and the defendant had simply

travele d to the loc ation in or der for him to use methamphetamine that was already in his possession and that the remaining items found at the scene did not belong to them.
The defenda

nt claime d that he h ad drive n to the wooded area so that Shane Glisson could "do a line" of methamphe t amine. He explained that he parked near a c ouch and "down where they dumped a bunch of stuff." The defenda nt testified that when the officer s arrived he "popped the hood" on his truck at

Glisson's suggestion and bega n to check the oil in an e ffort to d emonstra te their good intentions. It was the defendant' s contention that he had inadvertently parked n ear the "pill soak" and a duffel bag wh ich contain ed "all kind o f stuff." He deni ed any knowledge of the "p il l soak" and insisted that there was no methamphetamine odor in the area until officers opened the jar.
As a part of reb uttal , Office r Treec e testifi ed that the "pill so ak" wa s a one-g allon jar with a metal lid. He state d that the jar was n ot opened

at the time

of the defendant 's arr

est and th at it would not have been safe to have done so.
I Ini ti al ly, the defendant

claims that the evidence was insufficient because there was "no dire ct evidence" that he was actually manufacturing methamphetamine in the presenceof the officers. He points out that

he was not the owner of the property , that the site was often used as a dumping area by the g eneral public, and that no anhydrous ammonia was found in his possession.
On appeal, of cours e, the sta te is entit led to the strongest legitimate view of the evidenc e and all reasonable inferences which mig ht be drawn therefrom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Th

e credi bility of the wit

nesses, t he weig ht to be g iven thei

r testim ony, an d the reconciliation of confl

icts in the proof are matters entrusted to the jury as the trier

of fact. Byrg e v.-3-

State , 575 S.W.2d 292, 295 ( Tenn. Cri m. App. 197 8). When th e sufficiency

of the ev idence i s challenged, the relevant question is whether, after reviewing the evidence in the light most favo

rable to the state, any r

ational trier of fact could have found the essential e lements of the crime beyond a reasona ble doubt. Tenn. R. App. P. 13(e); State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concer

ning the credibi lity

of the witnesses, the weight and value of the evide nce, as w ell as all factual issues raised

by the evidenc e are resolved by the trier of

fact. Liak

as v. State , 199 Tenn. 298, 286 S.W.2d 85 6, 859 (19 56). Be cause a verdict of guilt agains t a defendant removes the presumption of

innocence and raises a presumption of g uilt, the convicted criminal defendant bears the burden o f showing

that the e vidence was leg ally

insuffic ient to sust

ain a guilty ve

rdict. Statev. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).
A criminal offense may

be established ex clusively by circumstantial evide

nce. Duchac v. State , 505 S.W.2d 23 7, 241 (Te nn. 1973) ; Marable

v. State , 203 Tenn. 440, 313 S.W.2d 451, 456-58 (1958); State v. Hailey , 658 S.W.2d 547, 552 (Tenn. Crim. App. 1983). The facts and circumstances must “be so strong and cogent

as to exclude every

other reasonable hy

pothesis save the guilt of the defend ant.” State v. Crawford , 225 Tenn . 478, 470 S. W.2d 610, 61 2 (1971). The weig ht o f th e circumstantial evidence is for the jury to determine. Williams v. State , 520 S.W.2d 371, 374 (Tenn. Crim. App. 1974) (citi ng Patterso n v. State , 4 Tenn. Crim. App. 657, 475 S.W.2d 201 (1971)). The samestandard of review is applicable whether the guilty verdict was based upon direct evidence or upon circumstantial evidence. State v. Brown , 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State , 208 Te nn. 75, 343 S. W.2d 895, 897 (1971). The cour t may not substitu

te its infe rencesfor those drawn by the trier of f

act in circumstantial evi dence c ases. Liakas , 286 S.W.2d a t 859; Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978).
Tennessee Code Annotated section 39-17-417(a)(1) provides that " [i]t is an off e nse for a defendant to knowingly . . . [m]anufacture a controlled substance[.]" At Tennessee Code Annotated section 39-11-302(b), "knowing" is def ined as re ferring

to "a pe rson who a

cts knowingly

with respect to the conduct or to circumstances surrounding the conduc twhen the person is aware of the nature of the conduct or that the circumstances exist;" that section also provides that a "person acts knowing ly

with respect to a result of theperson's conduct when the person is awa re that the conduct is reasonably

certain to cause the result." Tennessee Code Annotated section 39-17-402(14) provides as follow s: "Manufac t ure" means the production, preparation, propagation, compounding , conversion or processing of a controlled substance, e ither directly or indirectly by extraction from substances of naturalorigin, or independently by means of chemical syn thesis, and includes any pac kaging or repacka

ging of the substance or

labeling or relabeling of its con

tainer, except tha

t "ma nufactu re" does not include the preparation or compounding of a

controlled substance by

an individual for the individual's own use . . . .
A defendant may

be "criminally

responsible" for an offense committed by another if, acting with the intentto promote

or assist the commission of the offense, or to benefit in the proceeds or re sults of-4-

the offense, the def

endant so li cits, directs, aids or attempts to aid another person to commit the offense. Tenn. Code Ann. § 39-11-402(2).
The eviden ce established that all the ingred ients necessa

ry to manufacture methamphetamine, withthe exception of

anhydrou s ammo nia, w ere fou nd in the im media te area of the defend ant's vehicle, which was parked in a remote area away

from the road. Packaging f or suphedrine was near the truck. A "pill soak," which had been recently

placed there, likely

contained anhy drous ammonia and included the crushed suphedrine tablets. An empty recept acle smelled li

ke ammoni a. Within 10 feet of the passe

nger' s sid e of the t

r uck was a duffel bag containing methamphetamine lab materia ls. A baggie of

processed methamphetamine was hidden underneath the front bumper of the vehicle.
In our view , the jury

acted w ithin its p rerogat ive in determining that the circumstantial eviden ce was sufficient to establish that the defendant was guilty of manufacturing methamphetamine. Glisson admitted that he had pled guilty to the charge. The defenda nt had driven Gliss on to the remote location. The circumstances offer ed by the state sa

tisfactorily exclude d al l "reasonable hypotheses save the guilt of the defendan t." Crawford , 470 S.W.2d at 612.
II Next, the defenda

nt argues that the trial court erre d by failing to impose the minimum possible se nt en ce an d b y or de ri ng sp li t c on fi ne me nt fo ll ow ed by a period of probation. When there is a challenge to the length, rang e, or manner of service of a sente nce, it is the dut

y of this cour t to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-4 01(d). T his presumption is "conditioned upon the affirmative showing in the record

that the tr

ial cour t conside red the s entenci ng princ iples and all relevant facts and circumstan ces. " State v. Ashby , 823 S.W.2d 1 66, 169 (T enn. 1991 ); see State v. Jones , 883 S.W.2d 597, 600 (Tenn. 1994). "I f the trial court applies inapprop riate fa ctors or otherwis e fails to follow the 1989 Sentencing Act, the presumption of correctness fal ls." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impr opriety of t he sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Co mm ent s. If the trial court's findings of fact ar e adequately

supported by the record , this court may not modify the sente nce eve n if it woul d have pr

eferr ed a diff erent r esult. State v. Fletcher , 805 S.W.2d 785 (Tenn. Crim. App. 1991).
Our re vi ew re qu ir es an an al ysi s o f ( 1) th e e vi de nc e, if an y, received at the trial and sentencing hearin g; (2) the presentence repor t; (3) the p rinciples of sentencing and the arg uments of counsel relative to sentencing alternatives; (4) the nature a nd characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potential for rehabilitation or treatment. Tenn . Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In calculating the sentence for a Class B, C, D, or E felony convi ction, the presumptive sentence is the minimum in the range if there are no enhanc ement or mitigating factors. Tenn. Code-5-

Ann. § 40-35-210(c). If there ar e enhancement but

no mitigating factors, the trial court may set the sentence above the

minimum, but

still within

th e r ange. Tenn. Code Ann. § 40-35-210(d). A sentence involving

both enha

ncement and mi tig ating factors requires an assignment of relative weight for the enhancement factors as a means of increasing the sentence

. Tenn. Code Ann. § 40-35- 210(e). The sentence must then be reduced within the rang e, as appropriate, by any weig ht assigned to the mitigating factors present. Id. Especia lly mitigated or standard offenders convicte d of Class C, D, or E felonies are, of course, presumed t o be favorable candidates "f or alternative sentencing options in the absence of evidence to the contrary ." Tenn. Code Ann. § 40-35-102(6). With certain statutory exceptions, none of which apply her

e, pro bation mus t be automatically c onsidered by the tria l court if the sentence imposed is eight yea

rs or less. Tenn. Code Ann. § 40-35-303(b) (Supp. 2000). Among the factors applicable to probat ion considera

tion are the circumstances of the offense , the defendant's criminal record, soc ial history and prese nt condition, and the deterrent effect upon and best interest of the defendant and thepublic. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978). The nature and circumstances of the offenses may often be so egregious as to preclude the grant of probation. See State v. Poe , 614 S.W.2d 403, 404 (Tenn. Crim. App. 1981). A lack of candor may also militate against a grant of probation. State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1983).
The purpose of the Community Corrections Act of 1985 was to provide an alternative means of punishment for "selected, nonviolent felony offenders in front-end community basedalternatives to incarceration." Tenn. Code Ann. § 40-36- 103. The community corrections sentence providesa desireddegre e of flexibility that may be both bene

ficial to the defendant

yet serve legitimate societal aims. State v. G

riffith , 787 S.W.2d 340, 342 (Tenn. 1990). Even in c ases whe re the de fendant meets the minimum requirements of the Community Corrections Act of 1985, t he defendant

is not necessa rily entitled to be sentenced under the Act as a matter of law or right. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987). The fo llowing offende rs are e ligible f or commun

ity corrections: (1) Persons who, without this option, would be i ncarce rated in a correctional institution; (2) Persons who are convicted of prope rty-re lated, or drug/alcohol-related felony off en ses or other felony

offenses not involving crimes against the per son as provided in title 39, chapter 13, parts 1-5; (3) Pers ons who ar

e convic ted of non

violent fe lony offense s; (4) Persons who are convicted of f e lony offenses in whic

h the use or possession of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of beha vior indicating violence; (6) Persons who do not demonstrate a pattern of committing

violent of fenses; and-6- Persons who are sentenced to incar ceration o r on escape at the time of consideration will not be eligible. Tenn. Code Ann. § 40-36-106(a).
Ho we ve r, su bp ar t ( c) cr ea te s a "s pe ci al ne ed s" ca te go ry o f e li gi bi li ty: Felony offende rs not otherwise eligible under subsection (a), and w ho would be usually considered unfit for probation due to histories of a chronic alc ohol, dru g abuse, or menta

l health p roblems, but whose

special needs ar e treata ble and could be served best in the community rather than in a correctional institution, may be considered

e ligible f

or punishm

ent in the community

under the

provision s of this chapter.
T enn
. Code Ann. § 40-36-106(c). To be eligible for c ommunity corrections under subpart(c), the defendant must first be elig ible for probation under Tennessee Code Annotated section 40-35-303. State v. Staten , 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989).
In Ashby , our supr

eme court encouraged the g rant of considerable discretionary authority to our trial cou rts in matte

rs such a s these. 8 23 S.W.2d at 171; see also State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986 ). "[E]ach cas e must be bo ttomed up on its own facts." Taylor , 744 S.W.2d at 922. "It is not the p olicy

or purpos e of this c ourt to place trial judges in a judicial straight-jack

et in this or any other a

rea, and we are alway s reluctant to interfere wi th their traditional discretionary powers." Ashby , 823 S.W.2d at 171.
The present

ence inv estiga

tion estab lished tha

t the def endant, now 32 year s old, had two prior convictions of driving under the influence of an i ntoxicant. As a juvenile, he served a period of probation for burglary

and larc eny . He admit

ted to consiste

nt use of m arijuan a for ap proximatel

y eight years a nd occasional use for five y ears, ending in 2001. The defendant a cknowledged that he used coc aine on a

weekly basis for 10 ye ars, but s tated tha t he had di scontinue d use of th e drug in 2000. While he dropped out of high school, the de fendant lat er earned a Graduate E quivalent Diploma. Unmarried and with no children, he reported that he ha d worked at eight different jobs between 1989 and 2001, only one of which lasted as long as three y ears. After considering theevidence at trial, the presentence report, and the a

rgumen ts of coun sel, the trial cou

rt found t wo enhancement f

actors: a prior hist ory of crimin al behav

ior and a juvenile offense which would have been a felony if committed by an

adult. See

Tenn. Code Ann. § 40-35- 114 (1), (20 ) (1997) . There were no mitigati ng fac tors. Be cause th e defendant had two pri or convictions for driving under the influence and wa s on probation for one at the time of this offense, the trial cou

rt also conc lu ded that measures less restrictive than confinement had pr eviously been applied to the def

endant a nd were lar gely unsuccessful. It further

ruled that these factors, when combined with the defendant's prior h istory of drug

abuse, had overcome the presumption for alternative sentenc ing. Because of the presence of two enhancement factors and no mitigating-7-

factor s, the trial court, considering a possible rang e of between three and six years as provided by Tennessee Code Anno tated se ction 40- 35-112(a )(3), de termined that a sentence of one yea

r above the minimum was appropriate. The tria l court ne verthel ess aff

orded som

e lenie ncy by imposi ng a sentence of one yea

r in the count y ja

il f ollowed by three y

ears of community c orrections. That qualifies as an alternative sentence. I n our view, the record supports the ruling of the trial c ourt. Accordingly , the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE