### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A pr il 8, 200 8 S es sio n

STA TE OF TEN NES SEE v. ER IC SH AN E HEL LER

Direc t Appeal from the Circ uit Court forWeakley County No. CR100- 2006 William B. Acree , Jr., Judge

No. W2007-01455-C CA-R 3-CD - Filed Jul y 24, 2008

The de fenda nt, Eric Shane H eller, w as convic ted of initi at ion of a proc ess to manufa cture methamphetamine and possession of methampheta mine with intent to ma nufac ture, sell or de liver, both Class B felonies. On appea l, the defe ndant argue s that the trial court err ed in f inding that the defe ndant lacke d standing to c ontest the sear ch war rant which led to his arre st, that the evidenc e wa s insufficient to sustain his c onvictions, and that the trial court erre d by issuing a jury instruction on the fl igh t of

the de fe nd a nt. Fol low ing ou r r e vie w o f the pa rt ie s’ brie fs , th e re c or d, a ndthe app lic able la w, we re ve rs e a ndva c a te the jud gme nts of the tr ia l c ou rt a nddis mis s th e de fe nd a nt’ s c on vic tio ns

.

Te nn. R . A pp. P . 3 App e al a s o f R igh t; Judg me nt s o f the Ci r c uit Co ur t R e ve r se d and Dismissed

J. C. M C L IN , J., delivere d the opinion of the court, in which J OHN E VERET T W I L L I AMS and N OR MA M C G EE O GLE , JJ., joined.

Jeff ery T. W ashburn, Dr esden, Te nnessee , for the a ppellant, Eric Shane Heller

.

Rob e rt E. Coo per, Jr., A tt orn ey G ener al a nd Re po rt er; Dav id H. F in dl ey, As si st ant At to rney Gen e ra l; Thomas A. Thomas, District Attorne y Gen er al ; an d Kevin McA lpin, Assist ant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

I. BACKGROUND

At trial, Marty Plunk testified that he wa s an investigator with the Wea kley County Sheriff’s De pa rt me nt o n M a y 2 5, 20 06 , a ndwa s w or king wi th fe llo w i nv e sti gator Ra nd a ll M c Go wan to appre hend seve ra l i n d i v i d u al s , i n cl u d i n g t h e d ef en d an t

. T h e d ef

en d an th ad an arre s twa rr an tp en d ing for violation of probation. Office r Plunk was awa re that the d ef

en d an t was known to fr equent a n automobile repa ir shop owned by Chad Fer rell. Offic er Pl unk had a description of t he vehicle the de fe nd a nt w a s d ri vin g a nd wh e n the of fi c e rs dr ov e by the sh op , the y no tic e d the de fe nd a nt’ s v e hic le parke d behind it. Office rs P lunk and McGow an par ked close to the shop to conduct surve illance.2

Offic er Plunk ca lled and spoke with an attorney in the District Attorney’s O fficeabout obtaining a

sear ch wa rra nt for the pr emises.

Offic er Plunk testified that he observe d the defe ndant’s vehicle pulling out from behind the
repa ir shop, and he believed that the defe ndant was in the car

. Offic ers Plunk and Mc Gowan stoppe d the ca r which w as driven by the defendant’s girlfriend, S ara Webb. Ms. Webb told the offic ers that

no bo dy wa s in the sh op a ndthat sh op e mpl oy e e Da rre ll Ro ge rs ha d b e e n th e re bu t ha d ju st l e ft

. Offic ers Plunk and McG owan lef t Ms. Webb in the compa ny of a f emale inve stigator and we nt back
to the sh op a nd kn oc ke d on the do or

. Th e inv e sti gator s n oti c e d th a t Ch a d Fe rr e ll’ s tr uc k w a s a lso parke d b eh i n d t h e shop, where it could not be seen f rom their prior obse rvation point. After knocking and ge tting no response, Off icer s Plunk and McGowan w alked a round t he shop, i dentified the mse lve s lo ud ly a s p oli c e of fi c e rs and st art e d to loo k th ro ug h w ind ow s a ndc ra c ks in the wa lls

. At this ti me, Off

icer Plunk called the District Attorney a s ec o n d time. While making the ca ll he noticed the odor

of chemicals associated with a methamphe tamine manufa cturing laboratory. The
po lic e of fi c e rs the n op e ne d a sto rm do or on the so uth e a st sid e of the sh op a nd the od or b ecam e noticeably stronge r. Off

icer Plunk ca lled for support from other office rs and returne d to his office to draw up a

formal se arc h war

rant whic h was a

pproved by a

judge. He radioed ba ck to Off icer McGowa n who was still on the scene to notify him t hat he ha d obt ai ned the wa rra nt. Office r McGowa n informed him that Chad Ferr ell had lef t the shop and had been taken into custody. Mr. Ferre ll told officers that ther e wa s no one else in the shop.

Offic er Plunk testified that Offic er Mc Gowan te rminated the phone call quickly af ter telling Offic er Plunk that a four

whee ler ha d just started up inside t h e building. Officer Plunk explained that by informing Officer M cGowan that the sea rch w arr ant was signed, O ffice r McGow an wa s authorize d to enter the shop in order to prevent the de struction of evide nce or to keep a nyone fr om getting hurt. Offic er Plunk returned to the shop af ter the office rs on the sce ne had e ntere d, set the

sear ch wa

rra nt down on a pool table inside the shop, an d b eg an s earching the shop off ice f or evidenc e of a

methamphetamine la

boratory.

Offic er Plunk testified that he ha d re ce i v ed training rega rding the manufa cture of methamphetamine. Spec ifical l y , Of fi cer Plunk had rec eived training in how to dis mantle a methamphetamine la

bora t o ry an d how to separ ate the c omponents for re covery by Drug En fo rcement Age nc y ( DE A) pe rs on ne l. H e e sti ma te d th a t he ha d p art ic ipate d ina t le a st f if ty in ves ti gation s r e su lti ng in the dis ma ntl ing of me thamph e ta min e la

bo ratorie s. Ba se d o n th e sme ll

aro un d th e sh op of

fi c e , Of fi c e r Plu nk be ga n his se arc h in that are a

. Of fi c e r Plu nk fo un d a

la dd e r i n the shop and discove red a cra wl space above the office . Using a pole, he was a ble to retrie ve a camouf laged plastic buc ket which ha d been pushed bac k into the cra wl space . From a conc eale d spot next to the bucket, Offic er Plunk also re trieved a white, ten-ga llon garbage bag. As soon as he obtained the ga

rbage bag, the strong c hemical odor became even stronger. Offic er Plunk took t he garba ge bag outside an d s et i t o n the pave ment without opening it. Officer Plunk st ated that he believed the contents of the ba g wer e in the finishing proce ss of methampheta mine manufa cture

.

Of fice r P lun k te sti fi e d th a t th e mix tur e fo un d in sid e the ba g w a s a pe lle t, p ow de ry , w hit e substance , wet and in a

semi-liquid state. Acc ording to Offic er Plunk, sever al components of methamphetamine ma nufac ture we re f ound in the bucket, including Liquid Fi re, sa lt, plastic tubing,3

a ndc of fe e fi lte rs . So me of

the c of fe e fi lte rs we re we t a ndc on taine d the sme ll of a so lve nt c he mic a l, possibly denatured a lcohol or Coleman camp fuel. In ad d i t i o n , tinfoil strips were found inside a stove in the shop. The tinfoil strips wer e eight to te n inches long, two inc hes wide and folded in the
cente r. Off

icer Plunk opined t hat m ethampheta mine users plac e the dr ug in the cre ase of

the folded tinfoil, heat underne ath the foil until it produce s smoke which is then inhaled using a c rude tool such as an ink pe n tube or old car ante nna. Of fice r Plunk stated that sever al of the tinfoil strips appea red to be us ed. Offic er Pl unk also noted t hat needles, syringes, and scales we re f ound inside the shop.

Offic er Plunk testified that he found batterie s in a trash can in the shop. The lithium strips had bee n remove d from the batteries and use d. Offic er Plunk stated that the whit e garbage bag and its c on te nts we re pla c e d in to a bio -h a z arde vid e nc e ba g a ndse a le d. Al so a mon g the re c ov e re d it e ms

wer e more t h an fi ft y Ziploc bags with the cor ners c ut out. Office r Plunk stated that methamphetamine was frequently pl ace d in the bags, twisted into a tear drop shape and sold. Off icer Plunk contacted Spec ial Agent Mike W oodham of the DEA and informed him that Mr. Ferre ll and the def endant ha d been a

rre sted. The f

ollowing day, Agent Woodham took posse ssion of the seize d materia ls for ana lysis. The most dangerous compone nts of the methampheta mine manufactur e proce ss were documented and then destroye d in compliance w ith the l aw

. Of fi cer Plunk further testified t hat anyone inside the building at the time he and Of fice r McGow an we re ye lling, ide nti fy ing the mse lve s a s p oli c e of fi c e rs , a nd a tte mpt ing to ga in e ntry, wo uldha ve c le arl y b e e n a ble to h e ar the m.

On cross-e xamination, Offic er Plunk testified that there was a n outstanding warr ant for the defe ndant’s arr est and stated that the defe ndant knew that police wer e looking fo r h i m

. Of fi cer Plu n k al s o s t at ed that one of the vehicles f ound inside the shop belonged to Sara Webb. O ffice r Plunk testi fi ed t h at the manuf acturing proce ss used by the def endant wa s commonly describe d as the Na z i or

Bir c h me tho d. Of

fi c e r Plu nk op ine d that the a mmo nia wa s u se d late in the pr oc e ss t o bind the l ithium battery strips with the s tripped down ephedrine. He further testified that in either the Birch or N azi method, anhydrous ammonia was require d to c omplete the proce ss. Offic er Plunk admitted that no anhydrous ammonia was seize d at the crime scene , but Office r Plunk stated that he

sm ell ed a c omb inatio n o f anh yd ro us a mmo nia a ndCol e ma n c a mp f

ue l e ma natin g f

ro m th e wh ite garba ge bag. Offic er Plunk also ac knowledged that in the searc h war rant a ffidavit he indicated that he smelled odors r elated to the production of metha mphetamine, “inc luding but not l imited to, anhydro us ammonia, ether , denatur ed alc ohol.” Howe ver, no c ontainers we re f ound in the shop which held any of those c omponents. Offic er Plunk asserted that the smells of those substance s were prese nt and emanated from the white plastic garba ge bag. O ffice r Plunk also noted that an empty, clea r, plastic conta iner wa s found inside the plastic camouflage bucket. Offic er Plunk said that he believed that the chemica ls pr esent in that pla stic container wer e poured into the white pla stic bag during the manufa cturing proc ess. Offic er Plunk cla rified that camp fuel, denatur ed alcohol or ethe r could be used intercha ngeably in the methamphetamine manufa cturing proce ss. Offic er P lunk acknow ledged that no hydr ogen chloride gas ge nerator was se ized during the investigation. He furth er ac k n o wledged that a hydroge n chloride ga s gener ator wa s gener ally require d to transform methamphetamine liquid and ga ses into powder f lakes or “ crystals” for c onsumption.

Offic er Plunk testified that t he shop owner , Chad Ferre ll, was the subject of an ongoing DEA investigation and admitted to having manufa cture d sever al pounds of methamphe tamine. Off icer4

Plunk st ated that a

chemical heat re action wa s occur ring inside the white plastic ba g. Police office rs moved the bag outside and set it on the paveme nt. When the garba ge bag w as plac ed inside the biohaza rd evide nce ba g, office rs not iced that the pavement underne ath t he garbage had turne d black. Offic er Plunk admitted that no Sudafed or ephedrine was r ecove red f rom the shop. Off

icer Plunk stated that the defe ndant did not have an owner ship inter est in the shop. Offic er Plunk testified that wi th the pr op e r c omp on e nts , me thamph e ta min e c ou ld be man ufa c tur e d w ith in t wo to f ou r h ou rs

. Officer Plunk stated that investigators we re una ble to tell whether

the material in the garba ge bag

was re ady to be laid out to dry or w hether it was still processing.

Randall McGowan testified that he and Offic er Plunk observed the shop belonging to Chad Ferre ll and stopped a ve hicle they be lieved belonged to the defendant after it l eft the pr emises. Afte r questioning Sara We bb, the def endant’ s girlfriend, he and Of fice r Plunk went bac k to the shop and attempted to l ocate the defendant. Offic er McGowan testified that he opened a storm door on the
exterior of the building which led into the off ice. As soon as he opened the storm door, he smelled the strong che mical odor a ssociated with methamphe tamine manufa cture

.

Offic er Mc Gowan te stified that Offic er Plunk left t o obtain a search warr ant. Afte r Off icer Plunk lef t, Cha d Ferre ll e merge d from the building and wa s taken into custody. Mr. Ferr ell informed the police of

fice rs that no one e lse was in the buildi ng. Offic er McGowan and ot her of fice rs on the

scene waited a

bout an hour until Offic er Plunk ca lled Offic er McGowan and told him that the sea rch

war rant ha d been signe d. As he wa ited for authorization t o enter the pre mises, Office r McGow an stated that he hear d a vehicle, be lieved by the of fice rs to be a f

our-whe eler

or motorcyc le, start up and run f or a w hile befor e being shut off by someone i n side. After Offic er Plunk ca lled and ind ic a te d th a t th e wa

rr a nt h a d b e e n e xe c ute d, Mr . Fe rr e ll pr ov ide d Of fi c e r Mc Go wa n w ith a

ke y to the office door. As Off

icer McGowa n went to open the door , the def endant ope ned it from the inside and wa s taken into custody. Off icer McGowan testified that the odor of methamphe tamine

ma nu fa c tur e wa s so str on g tha t off ic e rs ha d to ope n the sli din g ba y doo rs to the sh op to ve nti la te it befor e conduc ting their sear ch.

On cr oss-exa mination, Office r McGow an stated that when he e ntere d the s h o p, he did not notice if ther e we re pa int cans or ga s cans or other items which could gene rate an odor. H e stated that what he main ly n o ti c e d w a s th e s tr o n g s me ll o f me th a mp h e tami n e man u f a c tu r e ; an h y d r o us ammoni a, ethe r and de nature d alcohol. Of fice r McGow an admitted that police did not find a ny container s holding a ny of those substance s. He stated that Mr. Ferre ll had a history of involvement with methamphetamine. Of fice r McGow an also stated that he was f amiliar with an investigat ion involving Mr. Ferrell wiring large sums of money to Cal i fornia. O ffice r McGow an admitted that the majority of the items attributed to the manuf actur e of me thamphetamine we re loc ated in the ceiling above the offic e, although a few items, including the l ithium battery strips, had bee n burned in a wo od sto ve ne ar the of fi c e

. Ho we ve r, the sto ve wa s c old a nd Of fi c e r Mc Go wa n was abl e to

rea ch in an d r e trie v e th e li th iu m b a tt e r y s trip s

. O f f ic e r M c G o w a n te s ti f

ie d th a t a f e w it e ms wer e found outside underneath a concr ete slab.

Mike Woodha m testified that he wa s a Spec i al Agent with the United States Drug Enforc ement Administration (DEA) . He state d that the fe dera l government was a lrea dy involved in an ongoing investigation of C h ad F errell for the distribution of significant qua ntities of5

methamphetamine. Since DEA office rs wer e alre ady working on a ca se against Mr. Ferrell, it was
agre ed that Age nt Woodham would take any new ca s e and combine it with t he pending c ase. H e stated that he c ame t o t h e crime scene and picke d up the evidenc e dire ctly from Of fice r Plunk. Spe c ia l A ge nt W oo dh a m tes tif ie d tha t the se iz e d s ub stanc e s w e re se nt t o M ia mi f or te sti ng . H e a lso stated that the DEAwas wa iting on the U.S. Attorney’s Off ice to take the ca se to the gra nd jury.

On c ro ss- e xa min a tio n, Ag e nt W oo dh a m te sti fi e d th a t hi s d e pa rt me nt h a d b e e n in vo lve d in at least one investigation of Mr. Ferre ll prior to this incident. Agent Woodha m was aw are that Mr. Ferre ll had rec eived shipments of drugs from California, a nd in excha nge, had se nt large quantities of money ba ck. Agent Woodham stated that as a ge nera l rule, his decision as to whe ther to conduc t an investigation was ba sed on what the United States Attorney’ s Offic e wa nted to prosec ute.

Elizabe th Atkins testified that she was a fore nsic che mist wit h the DEA and had performed
a gas c hromatogra

ph mass spectrome ter a nd infrar ed spec trophoto meter a nalysis of the substance sent to her by Spec ial Agent Woodham. She stated that the s ubstance weighed 76.8 gr ams and that the su bs ta nc e c on ta ine d me thamph e ta min e , a Sc he du le II dr ug . M s. Atkin s e xp la ine d th a t Sc he du le I drugs we re the most addictive an d had no medicina l value. She further e xplained that as the Schedule number

of a dr ug incre ases, that dr

u g is genera lly considered le ss addictive and

corr espondingly, possesses an incr ease d medicinal value

.

On cr oss-exa mination, Ms. Atkins testified that the amount of metha mphetamine conta ined in the substance w as believe d t o be less than one perc ent. She stated that if a ny amount of

me thamph e ta min e wa s p re se nt i n th e su bs ta nc e , s he wa s o bli gate d to re po rt it, no ma tte r h ow sma ll
a qu an t i ty. She also testified that the substance did not contain, as fa r as she could see , any anhydrous a mmonia. The substance was a n off- white p owder when she rec eived it. Ms. Atkins de sc ri be d th e su bs ta nc e a s an “i ne rt su bs ta nc e ” wi th a ve ry sma ll q ua nti ty o f m e thamph e ta min e in it.

Pam Belew testified that she w as the Circuit Court Cler k for Wea kley County. She stated that in May of 2006, t he def endant wa s arr ested a nd appea red in Ge nera l Sessions court before being rele ased on bond. Later that ye ar, the court rec ord indicated that Judge William B. Acree issued a capia s warr ant and r evoked the bond for the de fendant after he failed to a

ppear for a court-or dere d
report date on Oc tober 26, 2006. S h e s t at ed t h at the def endant a ppear ed at a ll other schedule d hearings prior to the Octobe r 26, 2006 hea ring date.

Dar rell Rogers testified tha t h e was a mecha nic who wor

ked at the shop ow ned by Chad Ferre ll. He stated that he worke d on a ca r owne d by Sara W ebb on M ay 2 5, 2006 and that the defe ndant would meet him to assist him wi t h t h e ca r. He state d that Ms. Webb’ s car was located insid e th e s h o p a n d h a d b e e n th e r e f o r tw o o r th r e e w e e k s b e c a u s e p ar ts h a d b e e n o r dere d from

overse as. He stated that the white Merc ury Cougar that Of fice rs Plunk and McGowan had identified as belonging to the def

endant ha d actua lly b een loaned to Ms. Webb w hile her c ar w as being
repa ired.

Sara W ebb testified that she was dating the defe ndant at the time and had been at the shop on May 25, 2006. She stated that at around 1:00 or 1:30 p.m., s he ar rived at the shop and obser ved6

Chad Ferre ll coming out of the woods behind the shop with a bucket and a backpa ck. She followe d Mr. Ferre ll into t he shop and saw the defe ndant i n the s hop office

. She stated t hat Dar rell Rogers

wa s su pp os e d to be wo rking on he r c ar that day a ndth a t th e de fe nd a nt w a s th e re to h e lp h im. Howeve r, Da

rre ll Rogers was not at the shop at that time. She stated that she and the defe ndant had been to the shop on pr evious occ asions while her car was be ing worked on.

Ms. Webb testified that at one point she and the defendant walked i nto the s hop and obser ved Mr . Fe rr e ll s pr a y p a int ing the bu c ke t he ha d c arrie d infr om the wo od s. Ms. W e bb wa s f a mil iar w ith the smell of a methamphetamine lab. She stated that the shop did not smell li ke a me thamphetamine laboratory, and she did not observe the manufa cturing of a ny methamphetamine. H oweve r, she wa s

able to s me ll the sp ray pa int us e d by Mr. Fe rr e ll to pai nt the bu c ke t. She state d tha t she wa s o nly at the shop fo r t we nty or thirty minutes before leaving. She admitted that soon af ter lea ving the shop, she was pulled over by O ffice rs Plunk and McGowan and she told them that the de fendant was not present at the shop. She admitted that she had use d methamphetamine in the pa st but had

rec eived suc cessf

ul treatment to get off

of the drug. Ms. W ebb testified that she and the de fenda nt

e nd e d th e ir

re la tio ns hip so me tim e prior to t ri a l. She state d tha t she ne ve r s a w w hat Mr . Fe rr e ll d id with the bucket a fter painting it or what was in the bucke t. She also stated that she ne ver sa w the defe ndant with the bucke t or the bac kpack in his possession.

On cr oss-exa mination, Ms. Webb testified that she lied to the office rs about the de fendant’s
prese nce at the shop because she kne w there was a war rant out for h i s ar re st. She stated that the defe ndant rode with Mr

. Ferre ll to the shop that day. Ms. W ebb did not know whether the def endant had bee n out in the woods with Mr. Ferr ell prior to her arrival. She stated that it was commonplac e for metha mphetamine manuf actur ers to complete at l east some of t he manufacturing process in t he

wo od s b e fo re mov ing the fi na l st a ge s o f the pr oc ess ind oo rs . M s. W e bb state d o n r e -c ro ss examination that although she had an idea as to what Mr. Ferrell was doing with the buc ket and the ba c kp a c k, sh e didno t a sk a ny qu e sti on s.

The de fenda nt testified that on May 25, 2006, he rec eived a call from Mr. Ferre ll informing him that the last of th e p ar ts neede d to complete a r epair of Ms. We bb’s vehicle had ar rived. Mr. Fe rr e ll a gr e e d to pic k th e de fe nd a nt up an d bri ng him to the sh op wh e re he wa s g oin g to me e t D arr e ll Rogers to work on the c ar. The defe ndant testified that his original plan wa s to simpl y provide the parts to Mr. Rogers a nd then l eave

. Howeve r, Mr. Rogers di d not arrive for some time, and in the interim, Ms. Webb c ame to see him a bout de positing money in the bank. The defe ndant stated that he knew that Offic ers Pl unk and McGowan were looking for him. He asked Mr. Ferre ll if he had anything illegal in his sho p an d t o ld Mr. Ferre ll that the police wer e looking for him base d on an

ou tst a nd ing arr e st w arr a nt.

The de fenda nt testified that when Mr. Fer rell brought the bucket and the bac kpack into the building, he h ad a ba d fee ling and instructed Ms. We bb to go ahea d and lea ve without him. He stated that if he ha d been c aught with Ms. Webb, it would have been a viol ati on of her

probation. He state d that afte r Ms. We bb left, he w as pre tty much stuck at the shop without a way to le ave. Acc ording to the defe ndant, he attempted to c all Mr. Rogers to tell him t o come on up to the shop. The de fenda nt stated that afte r Ms. We bb’s depa rture, he hear d about her

stop on a police scanner ins ide the sh op . W ith in t e n to fif te e n minu te s of Mr . Fer

re ll br ing ing the bu c ke t and ba c kp a c k in to7

the sh op , p oli c e su rr ou nd e d th e bu ild ing a ndwe re kn oc kin g on the do or

. Th e de fe nd a nt r e fu se d to open the door

beca use of the war

rant for his a

rre st. The defe ndant reiter ated sever al times that he ha d n o in te re st i n th e bu sin e ss andthat hi s o nly inv ol ve me nt w ith Mr . Fe rr e ll w a s th a t he le t hi m work on Ms. We bb’s ca

r. He did not see any anhydrous ammon i a o r usable lithium strips in t he sh op . H e a lso did no t sm e ll a nh yd ro us a mmo nia or e the r. Th e de fe nd a nt d id n ot s e e a wh ite pla sti c garba ge bag and did not know anything about t he it ems place d above the office in the cr awl spac e.

The de fenda nt testified that the war rant for his arre st pertained to a

misdemeanor pr obation violation for possession of less than a quarte r ounce of marijuana

. Specifica lly, the de fendant failed to appea r for a mee ting with his probation off icer rega rding the marijuana

violation. The defe ndant
state d th a t be c a us e he kn e w o ff ic e rs ha d a

wa rr a nt f or his arr e st, he wa s n ot g oin g to vo luntarily

su rr e nd e r h ims e lf

to a uth oriti e s. Th e de fe nd a nt s ta te d th a t the re a so n that he didno t app e ar f or his schedule d court-or dere d hearing on October 26, 2006 was be cause he lea rned from his attorney that he would be a

rre sted at the co u rt h o u s e for outstanding wa rra nts originating in Kentucky. He testified that he ha d come to court for all of his other court a ppear ance s while out on bond.

The defe ndant testified that he was not involved in initiating a proce ss of methampheta mine manufa cture . He state d that he had not be en out in the woods with Mr. Ferre ll at any point on May 25, 2006. He state d that he wa s in the office for a bout an hour-and-a- half before Ms. Webb a rrived.

On cr oss-exa mination, th e def endant testified that during a portion of the time he was wa iting fo r M r. Rog e rs , h e a ndMr . Fe rr e ll w or ke d o n th e c yli nd e r h e ad he wa s p la nn ing to i ns ta ll i n M s. W e bb ’s c ar. He state d th a t a lth ou gh it w a s a pp ro xim a te ly o ne hu nd re d de gr e e s in the sh op , h e did not open the lar ge bay door s to the shop for ventilation and did not spend much time working on the cyli n d er

. In t h e ti me re maining before Ms. Webb a rrived, the defe ndant waited in the airconditioned office while Mr. F err ell went in and out of the buildi ng. The de fendant informed Mr. Fe rr e ll that th e po lic e we re loo kin g for him . Mr. Fe rr e ll a ssu re d h im that th e sh op wa s c le a n a ndtol d him “that there was nothing illegal or messed up in the shop.” The de fendant testified that he starte d the four- whee ler be cause he thought about escaping, and he believed that he had bee n set up by Mr. Fe rr e ll.

The de fenda nt testified t h at h e had previously been a rre sted for posse ssion of methamphetamine. H e stated that he had cooperated and assisted police officer s in the past and ha d
t h o s e ch ar g es had been re moved. With re gard to the outstanding ar rest wa rra nt for his probation violation, the defe ndant stated that he had be en in contac t with his bail bondsm an and “ was going to take ca re of it” sooner or

later.

Af te r d e lib e ratio n, the ju ry fou nd the de fe nd a nt g uil ty o f i nit ia tio n o f a pr oc e ss t o manufa cture a contr olled substance and fo r p ossession with intent to m anufa cture , sell or deliver methamphetamine, both Class B felonies. The defe ndant rec eived a twelve- year sentenc e for eac h conviction. In a ddition, the defendant was fined $2,000.

II. AN AL YSI S8

On appe al, the def

endant a rgues that the trial court e rre d by failing to grant the de fenda nt’s motion to s uppress, that ther e wa s insufficient evide nce to sustain the c onvict i o n s against the defe ndant, and that the trial court e rre d by giving a flight instruction to t he jury.

A. M ot ion to Suppr e ss

The de fenda nt filed a pre -tri al m otion to suppress and ar gued that the se arc h war rant wa s inv a lidbe c a us e the gr ou nd s st a te d b y th e a ff ia nt, Of fi c e r P lun k, were fraudu le ntl y o r r e c kle ssl y made. The trial court de nied the def endant’ s motion and determined that the d ef en d ant lacke d standing to contest the war rant a nd that Offic er Plunk’s statements we re pr oper.

In re viewing a trial court’s determinations rega rding a suppression hearing, “ [q]ue stions of

cre dibilit y of the witnesse s, the weight and va lue of the e vidence , and re solution of conflicts in the evidenc e ar e matter s entrusted to the trial judge a s the trier of fac t.” State v. Odom

, 928 S.W.2d 18, 23 (T e nn . 1 99 6) . T hu s, “ a tr ia l c ou rt ’s fi nd ing s of fa c t in a su pp re ssi on he a

ri ng wi ll b e up he ld u nle ss the evidenc e pr ep onderates otherwise .” Id . Neve rtheless, a ppellate c ourts will review the trial court’s a pplication of law to the f

acts pure ly de novo. See State v . Walton

, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore

, the state, as the prevailing party, is “entitled to the strongest legitimate view of the e vidence adduce d at t he suppre ssion hearing a s well as all re asonable and legitimate infe renc es that may be dr awn f

rom that evidenc e.” Odom , 928 S.W.2d at 23. “In e valuating the cor rec tness of a trial c ourt’s ruling on a pr etrial motion t o s u p p ress, appellate c ourts may consider the proof adduce d both at the suppression hearing and at trial.” State v. He nning , 975 S.W.2d 290, 299 (Tenn. 1998).

The de fenda nt argue s that he had standing to conte st t h e v al i d ity of the sear ch wa rra nt b ec ause the war

rant listed him personally as a n individual, and as such, he had an e xpectation of privac y in his person. One who challenge s the re asonable ness of a sear ch or se izure has the initial burden of establishing a legitimate expec tation of privac y in the place to be sea rche d. State v. Oody

, 823 S.W.2d 554, 5 6 0 (T en n. Crim. App. 1991). One w ho does not have such an e xpectation of privac y lacks “ standing” to cha llenge the se arc h. See State v. Patterson , 966 S.W.2d 435, 441 n. 5 (Tenn. Crim. App. 1997) . A per son who is a “c asual visitor” or a “transient party guest” does not have a rea sonable expec tation of privac y in the host’s residenc e or a partment. See U

nited States v. Di x , No. 94-4065, 1995 W L 351182 (6th Cir., June 9, 1995) ( “As a casua l, albeit fre quent, visitor to his sister’s apartment, who did not keep c lothing there, who did not rec eive mail ther e, and w ho had no key, Dix had no rea sonable e xpectation of privacy in the pr emises.”) . There are seven f actor s to b e c on sid e re d w he n d e te rm ini ng if a le git imate e xp e c ta tio n o f p ri va c y e xis ts:

(1 ) ow ne rs hip of the pr op e rt y; (2 ) wh e the r the de fe nd a nt ha s a po sse sso ry int e re st i n the thing seized; (3) whether the def endant ha s a possessory inter est in t he plac ed [sic] se arc hed; (4) w hether the def endant ha s the right to exclude othe r[s] f rom the pla c e ; ( 5) wh e the r h e ha s e xh ibi te d a subje c tiv e e xp e c ta tio n th a t th e pla c e wo uld

rema in f ree from intrusion by the state; (6) whether the defe ndant took n o rm al
prec autions to maintain his p ri v acy; a nd (7) whe ther he was legitimately on the premises.9

Oody , 823 S.W.2d at 560 (c iting United States v. Hay del , 649 F.2d 1152 (5th Cir. 1981)).

Th e tr ia l c ou rt de te rm ine d that the de fe nd a nt la c ke d stand ing to c ha lle ng e the se arc h w arr a nt. We conclude that the evidence preponder ates a gainst the finding of the trial c ourt only with regar d
to the de fe nd a nt’ s st a nd ing to ch a lle ng e the se arc h of his pe rs on . Be c a us e the de fe nd a nt w a s d ir e c tly identif i ed as t h e o b

ject of the sear ch wa

rra nt, he possesses the r equisite standing to challenge a

sear ch of his per son. A n i n d i v i d ual has a rea sonable e xpectation of privacy in his or he r per son. State v. C o t h ran , 115 S.W.3d 513, 521 (Tenn. Crim. App. 2003) (citing State v. Transou , 928 S.W.2d 949, 958 (Tenn. Crim. App. 1996) ). Howe ver, w e co n cl u d e that the evidence does not preponde rate against the trial c ourt’s ruling that he lac ked standing to cha l l en g e a s ear ch of the
property belon g i n g t o Mr. Ferre ll because he had no r easona ble expe ctation of priva cy or a possessory i n t er es t i n t h e property. The de fendant was not an owne r of the shop, he had no
po sse ss ory int e re st i n th e sh op , n o righ t to e xc lud e oth e rs fr om e nte ri ng , a ndno re a so na ble
expec tation that the shop would remain f ree from governmental invasion. See O ody , 823 S.W.2d
at 5 6 0

. In our view , of the seve n fac tors enumer ated in Oody

, th e d e f e n d a n t o n ly q u a li f

ie d under fac tor (7), that he was legitimately on the pre mises. Se e id

. The de fendant was legitimately on the
pr e mis e s b e c a us e he wa s p ic ke d u p b y M r. F errel l who brough t hi m to the sh op to w or k o n M s. Webb’ s car

. Howeve r, it is clea r from the evidenc e and f

rom the def

endant’ s own statements that he was only on the pre mises as a “ casua l visit or.” Se e Di x , 1995 WL 351182 at *2. The def endant
state d at tria l:

I don’t have - it’s not my business. I don’t have no inter est in the business. Chad [F e rr e ll] le t’ s me pa

rk a ve hic le , or wo rk on a ve hic le the re , or som e thi ng lik e that. But other than that, I ha ve no intere st in this shop. I have no control over what he’ s hid in his shop or what he does in his shop.

There fore , we c onclude that the trial court did not err in determining that defe ndant lacke d standing to challenge the sear ch of the prope rty or pre mises on which methampheta mine and contr aband w ere dis c ov e re d. Ev e n tho ug h the de fe nd a nt ha d stand ing to c ha lle ng e the se arc h o f h is p e rs on , h e sti ll lacke d standing to c hallenge the sear ch of the property, and beca use the incriminating drug-related materia ls w e r e f

o u n d o n th e p r o p e r ty a n d n o t o n th e d e f e n d a n t’ s p e r s o n , w e n e e d n o t a d d r ess the

va lid ity of

the se arc h w arr a nt o n it s me ri ts.

B. Sufficiency of

the Evidenc e

The de fenda nt argue s that the evidenc e wa s insufficient to sustain his co n victions for ini tiatio n o f m e thamph e ta min e ma nu fa c tur e a nd fo r pos se ssi on of me thamph e ta min e wi th int e nt t o deliver.

Upon re view, we reiter ate the well-e stablished rule that once a j ury finds a de fendant guilty, his or her pr esumption of innocenc e is remove d and re place d with a presumption of guilt. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992) . There fore , on appea l, the convicted de fendant has the bu rd e n o f d e mon str a tin g to the app e llate c ou rt wh y th e e vid e nc e wi ll n ot s up po rt the jury’ s v e rd ic t. S ta t e v . Ca rru the rs , 3 5 S. W .3 d 5 16 , 5 57 -5 8 ( Te nn . 2 00 0) ; Sta te v . Tu gg le , 639 S.W.2d 913, 914 (T e nn . 1 98 2) . T o me e t th is b ur de n, the de fe nd a nt mus t e sta bli sh that no “ ratio na l tr ie r o f f a c t” c ou ld10

have found the essential elements of the crime be yond a re asonable doubt. J ac k so n v . V irg ini a , 443 U. S. 3 07 , 3 19 (1 97 9) ; State v. Ev ans , 1 08 S.W .3 d 2 31 , 2 36 (T e nn . 2 00 3) ; see Tenn. R. App. P. 13(e)

. In contrast, the j ury’s verdict, approved by the t rial judge, a ccr edits the state’s witnesse s and re solves all conflicts in fa vor of the state. St at e v. H ar ris , 8 39 S.W .2 d 5 4, 75 (T e nn . 1 99 2) . T he state is entitled to the s trongest l egitimate vi ew of the evidence and all rea sonable inferenc es which may be draw n from that evide nce. Car ru the rs , 35 S.W.3d at 558. Questions conc erning the c redibility of the wi tn ess es, co nf

lic ts i n tria l te sti mon y, the we igh t a ndva lue to b e giv e n th e e vid e nc e , a nda ll fa c tua l iss ue s raise d by the e vid e nc e are re so lve d by the tr ie r of fa c t a nd no t t hi s co urt. State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997) . We do not at t empt to re-w eigh or re -eva luate the evidenc e. State v. Rice , 184 S.W.3d 646, 662 (Tenn. 2006) . Likewise, wedo not replac e the jury’ s infere nces dr awn f

rom the c i rc u m s tantial evidenc e with our own infe renc es. Sta te v . R e id , 91 S.W.3d 247, 277 (Tenn. 2002)

.

A def endant may be convicted on the basis of direct or circ umstantial evidence or a combination of both. Sta te v . W int e rs , 137 S.W .3 d 641 , 654 (T e nn . Crim . App . 2 00 3) ; se e als o S tat e

v . P e nd e rg ra ss , 13 S.W.3d 389, 392-93 (Te nn. Crim. App. 1999)

. In fac t, c ircumstantial evidenc e alone may be sufficie nt to support a convic tion. State v. Tharpe

, 726 S.W.2d 896, 899-900 (Te nn. 1987). Howe ver, the circ umstantial evidence “must be so s trong and c ogent as to exc lude eve ry other re asonable hypothesis save the guilt of the de fendant, and t h at beyond a rea sonable doubt.” Sta te v . Cr

awf or d

, 470 S.W.2d 610, 612 (Tenn. 1971) . “A we b of guilt must be woven ar ound the defe ndant from whic h he cannot esca pe and from which fac ts and circ umstances the jury could dra w

no other reasona

ble i nfer ence save the guilt of t he defenda nt beyond a rea sonable doubt.” Id. at 613.

“Possession” may be actua l or constructive and may be pr oven by cir cumstantial evidenc e. See State v . Shaw , 3 7 S. W .3 d 9 00 , 9 03 (T e nn . 2 00 1) ; State v. Bigsby , 4 0 S. W .3 d 8 7, 90 (T e nn . Crim. Ap p. 20 00 ). Con str

uc tiv e po sse ssi on re qu ir e s p ro of that a pe rs on ha d the po we r a nd int e nti on a t a given time to exer cise dominion and control over the drugs either direc tly or through others. Shaw

, 37 S.W.3d at 903 (c iting State v. Patterson , 966 S.W.2d 435, 444 (Tenn. Crim. App. 1997)). In

essenc e, “c ons t ru ct i v e p ossession is the ability t o reduc e an obje ct to actua l possession.” State v. Ro ss , 49 S.W.3d 833, 845-46 (Tenn. 2001) (citations omitted). Howeve r, the mer e pre sence in an

are a wh e re dr

ug s are dis c ov e re d, or the me re a sso c ia tio n w ith a pe rs on wh o is in p os se ssi on of dr ug s, is not, alone, sufficie nt to support a finding of construc t i v e p o s s es s i on. Shaw , 37 S.W.3d at 903 (citing Patterson , 966 S.W.2d at 445). The intention to sell or deliver dr ugs may be infe rre d from the amount of the dr

ug possessed by the a ccuse d along w i t h other re levant fa cts surrounding the

arr est. See Te nn . Code Ann. § 3 9- 17 -4 19 ; see also State v. J ohn Fitzgerald Belew

, W2004-01456- CCA-R3-CD, 2005 WL 885106, *5 (T enn. Crim. App., at Jac kson, Apr. 18, 2005) (noting that the jury ca n infer intent to sell or de liver whe n amount of controlled substanc e and othe r rele vant fa cts surrounding ar rest ar e conside red toge ther).

1. Initiation of

A P r oc e ss t o M anuf

ac tu r e M e th am phe ta mi ne

In th e in st ant c a se , th e de fe nd a nt w a s c on vic te d o f o ne c ou nt o f i nit ia tio n o f a pr oc e ss t o manufa cture methamphetamine. Tenne ssee Code Annotated sec tion 39-17-435 states in pertinent
pa rt :11

(a ) I t is a n o ff

e ns e fo r a pe rs on to kno wi ng ly i nit ia te a pr oc e ss i nte nd e d to re su lt i n the manufa cture of any a mount of methamphetamine.

(b) I t shall not be a defen s e to a violation of this section that the che mical re action is not c omp le te , th a t no me thamph e ta min e wa s a c tua lly c re a te d, or that th e pr oc e ss would not actually cr eate methamphetamine if completed.

(c) For purposes of this sec tion, “initiates” means t o b egin t he extr action of an immediate methampheta mine prec ursor fr o m a comm erc ial product, to begin the active modific ation of a commerc ial product for use i n methamphetamine c reation,

or to h e a t or

c omb ine a ny su bs ta nc e or su bs ta nc e s th at c a n b e us e d in methamphetamine c reation.

(d) Expe rt testimony of a qualified law enforce ment office r shall be admissi ble for the propo s i t i on that a particular proc ess ca n be used to manuf actur e

me thamph e ta min e . Fo r p ur po se s o f this te sti mon y, a rebu tt able pr e su mpt ionis

c re a te d th a t a ny c omm e rc ia lly so ld p ro du c t c on ta ins or c on ta ine d th e pr od uc t th a t it is r e pr e se nte d to c on ta in o n it s p a c ka gin g o r l abe ls.

(e) A per son may not be prose cuted f or a violation of thi s section and of manufa cturing a c ontrol l ed s u b stance in violation of § 39-17-417 base d upon the

sa me se t of

fa c ts.

Tenn. Code Ann. §39- 17-435(a )-( e).

When vie wed in a light most favora ble to the prosec ution, we conclude that the evidenc e wa s not sufficient to sustain the d efendant’s c onviction for initiation of a proc ess to manufa cture methamphetamine. W e do not dispute that the prosecution was able to demonstrate severa l of the

re qu ir e d s ta tut ory e le me nts fo r i nit ia tin g th e ma nu fa c tur e of me thamph e ta min e . T he re c or d r e fl e c ts that po lic e of

fi c e rs dis c ov e re d r a w m a te ri a ls a ndc omm e rc ia l pro du c ts in Fer re ll’ s shop wh ic h c ou ld be us e d as pr e c ur so r ing re die nts a nd c omp on e nts in the me thamph e ta min e ma nu fa c turing pr oc e ss. Th e wh ite ga

rb a ge ba g r e c ov e re d b y p oli c e of fi c e rs c le arl y c on ta ine d c he mic a ls andingredi ents

u n d er g o i n g a chemica l rea ction. See Te nn . Co de An n. § 3 9- 17 -4 35 (c ). It is i mmate ri a l th a t on ly
trac e amounts of metha mphetamine we re de tected in the substance located in the white ga rbage bag. Se e id . at (b). I n addition, Office r Plunk was able to p ro v i d e ex p ert testimony rega rding the methamphetamine ma nufac turing proce ss based on his training and e xperie nce. Se e id . at (d).

Ho we ve r, the pr os e c uti onf ai l e d t o e s t a b l i sh that th e de fe nd a nt w a s th e ind ivi du a l r e sp on sib le for violating the statute. First, the defe ndant had no p o s s es s o ry interest in the shop whe re the substances a nd drug-making mate rials wer e discove red. Sec ond, no drugs

, drug manufa cturing materia ls or other items wer e found on the defe ndant’s person. Third, and pe rhaps most importantly, no proof wa s prese nted that showed that the re co v er ed substances and drug materials were in the defe ndant’ s actual or construc tive possession or that he wa s involved in any prepa ration, modification, or extra ction proce ss to manufac ture metha mphetamine. See State v . Williams , 62312

S.W .2 d 1 21 , 1 25 (T e nn . Crim. Ap p. 19 81 ); see also Cooper , 736 S.W.2d at 129. Fourth, testimony and other evidenc e offe red at trial implicated Mr. Fer rell, the a ctual owne r of the pr operty whe re the

commerc ial prec ursor

p r o d u c ts an d

s e mi-liquid, m ethamphetamine substance w ere discovere d. Any infere nce of possession a

rising f rom the re cover ed materials should be imputed to Mr. Ferrell rather than t o the def

endant. See Transou
, 928 S.W.2d at 956. Fifth a nd finally, the evide nce de monstrated that Mr. Ferre ll may have initi ated the methamphetamine manufac turing proce ss in the woods prior to the arrival of police of

fice rs, and without any involvement by the defendant. Because t he re cord is d e vo id o f e vid e nc e e sta bli sh ing the de fe nd a nt po sse sse d th e su bs ta nc e s f ou ndor pa rt ic ipate d in

a pr oc e ss t o manu fa c tur e me thamph e ta min e

. Th e pr os e c uti on faile d to pr ov e the de fe nd a nt’ s g uil t pursuant to Tenne ssee Code A nnotated sec tion 39-17-435.

Because t here was no indication that the defendant possessed the drugs, his mere prese nce at the shop or his association with Mr

. Ferre ll is insufficient to support a finding that the def endant possessed the dr

ugs. See Coope r , 73 6 S.W .2 d a t 12 9; Dishman v. State, 460 S.W.2d 855, 858 (Tenn. Crim. App. 1970). Clearly, the e vidence does not exc lude eve ry other reasona ble explanation and is n ot s uf fi c ie nt t o p e rm it the jury to inf e r that the de fe nd a nt wa s gu ilt y be yo nda re a so na ble do ub t. Se e Cra wfo rd , 4 70 S.W .2 d at 61 2- 61 3. As su c h, we c on c lud e that the e vid e nc e wa s in su ff ic ie nt t o permit a rational trier of fac t to sustain the defe ndant’s conviction for initiation of methamphe tamine manufa cture beyond a r easona ble doubt. There fore , we re v er se the de fendant’s conviction for initiation of a proce ss to manufac ture metha mphetamine.

2. Possession with In tent t o Sell or Deliver

The de fenda nt w as also convicte d of possession of methamphe tamine with intent to sell or deliver.

Before we c onsider whe ther the e vidence was suff icient to sustain the defe ndant’s convic tion

on this c harge

, we are compelled to a ddress a n err or committed by the prose cution when it cha rged the def endant unde r both Tenne ssee C o d e Annotate d sections 39-17-435 and 39-17-417. Specifica lly, Tennessee C ode Annotate d section 39-17- 435(e) states that “[ a] pe rson may not be
prosec uted for a

violation of this section and of manuf acturing a controlled substance in violation of § 39-17- 417 based upon the same set of fac ts.” In addition, Tennesse e Pattern Jury Instruction 31.15, Comment 2, states that “[a] person may not be prosec uted for a violation of [Te nn. Code Ann. § 39-17-435] and also for

a violation of [Te nn. Code Ann. § 39-17- 417].” A lthough we ar e unaw are of a c a se in w hic h th is s pe c if ic statut ory c on fl ic t ha s b e e n a dd res sed

, it app e ars fr om the plain la ng ua ge of se c tio n 39 -1 7- 43 5 that the pr os e c uti on e rr e d b y tryin g th e de fe nd a nt u nd e r b othstatut e s.
Notwithstanding the err or committed by the prose cution, we revie w the re cord to de termine whether the evidenc e was sufficie nt to sustain the defe ndant’s conviction. Tenne ssee Co de An no ta te d s e c tio n 3 9- 17 -4 17 (a )( 4) pr ov ide s tha t “( a ) [i ]t is an of fe ns e fo r a de fe nd a nt t o k no wi ng ly . . . . (4) possess a

controlled subst an ce with intent to m anufa cture , deliver or sell the controlled substance.” “De livery” is statutorily define d as “the actua l, constructive, or attempted tra nsfer

from
one per son to another of

a controlled substance.” Tenn. Code Ann. § 39-17-402( 6). This c ourt has previ o u s l y concluded that the trier of fac t is entitl ed to consider the circ umstances surr ounding a

“ de liv e ry ” in o rd e r t o d e te rm ine if the de fe nd a nt a c tua lly so ld o r d e liv e re d d ru gs :13

With regard t o a dete rmination of the def endant’ s intent to sell or deliver, proof of intent usually consists of circumstantial e v i d en ce and the infe renc es that can be

rea sonably draw n from that evide nce. Se e Ha ll v . S tat e , 490 S.W. 2 d 4 9 5 , 496 (T e nn .1 97 3) ; State v. Charles Benson

, No . M2003-02127-CCA-R3-CD, 2004 WL 2266801, at *2 (T en n

. C rim. App. at Na shville, Oct. 8, 2004) (noting that the defe ndant’s culpa b l e m ental st ate is most often prove n by circ umstantial evidence and infe renc es dra wn from the sur rounding circ umstances)

.

B e le w , 2 0 0 5 WL 8 85106 at *5. As noted pre viously, in order for the jury to draw an infe renc e supporting an intent t o s ell or deliver , jurors may only do so “whe n the amount of the c ontrolled substance and other re levant fa cts surrounding the a rre st are c onsidered toge ther.” Id

.

A thr e sh oldiss ue be fo re thi s cou rt is a de te rm inatio n o f w he the r the de fe nd a nt kno wi ng ly possessed the dr

ugs with intent to m anufa cture , sell or deliver. As previously noted, a defe ndant’s

mere prese n ce i n an ar ea w here drugs or pa raphe rnalia a

re discove red doe s not show possession. Cooper
, 736 S. W .2 d at 12 9; se e als o W hit e d v . S tat e , 483 S.W.2d 594 (Tenn. Crim. App. 1972) ; Di sh ma n v . S tat e , 4 60 S.W .2 d 8 55 , 8 58 (T e nn . Crim. Ap p. 19 70 ). Li ke wi se , me re a sso c ia tio n w ith

a pe rs on wh o c on tr ols the dr ug s o r p ro pert y whe re the dru gs are dis c ov e re d is no t su ff ic ie nt t o support a finding that the pe rson possessed the dr ugs. Id

.

In the instant ca se, the re cor d is devoid of evidenc e esta blishing t he def

endant’ s actua l or constructive posse ssion o f an y of the re cover ed materials or components to the substanc e in the white garba ge bag or to any a spect of the manufa cturing proc ess. See W illiams , 623 S.W.2d at 125; see also Cooper

, 736 S.W.2d at 129. The recor d is devoid of any f acts whic h would allow the jury to infer that the de fenda nt, and not Mr. Ferre ll, wa s the individual who possessed and contr olled the materia ls recove red during the sear ch or was t he person responsible for mixing the chemicals in the white gar bage ba g. Because it is impos sible to ascertain whether the def endant wa s in possession of tho se ma te ri a ls, muc h le ss inv olv e d in the ma nu fa c tur e of the su bs ta nc e , it is e ve n mo re dif fi c ult to infer be yond a re asonable doubt that the defe ndant possessed the requisite intent to sell or deliver the substance . Furthermore , Elizabe th Atkins, the DEA’s forensic chemist, could onl y testify that the trac e amount of methamphetamine r ecove red f rom the substance in the white gar bage ba g was less than one pe rce nt of the t otal 76.8 gram amount. This amount was so negligibl e as to a lmost be

unasce r tain ab le

, a n d in o u r v ie w , d id n o t c o n s ti tu te a me a n in g f u l q u a n ti ty f

o r p u rp o s e s o f

sale or delivery. I n addition, Ms. Atkins w as unable to disc ern what stage of the manufa cturing proce ss had been c ompleted af

ter analyz ing the substance. Testimony was off ere d demonstrating that offic ers

wer e unable to f

ind the nece ssary c hemicals a nd essential mac hinery whic h would have be en used
to c omp le te the pr oc e ss andre nd e r i t r e a dy fo r u se . Sp e c if ica lly , p oli c e of

fi c e rs we re un able to locate a hydrogen ga s gener ator or anhydrous ammonia, two key compone nts used in the end stage s of the manuf

acturing proce ss. There fore , we c onclude that the de fendant is entitl ed to dismissal of his conviction for possession of metha mphetamine with intent to manufac ture, sell or de liver.

C. Flight Instruction14

The de fenda nt contends that the trial c ourt committed reve rsible er ror by instructing the jury on flight. Specifically, the de fenda nt argue s that t h e fl ight inst ruction to the jury cr eate d an impermissib l e, rebuttableinfere nce of guilt. However , having alre ady conc luded that the defe ndant’s convictions should be reve rsed, we decline to a ddress the propriety of the trial c ourt’s instruction on flight or to a ddress the question of whether any err or committed by the court in issuing such an instruc tion constitut ed re versible e rror

.

CO NC LU SION

For the a fo re me nti on e d r e a so ns , the jud gme nts of the tr ia l c ou rt

are re ve rs e d a ndthe c a se is dismiss ed.

___________________________________ J.C. McLIN, JUDG E