IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 20, 2017

STATE OF TENNESSEE v. JAMES A. KILGORE

 Appeal from the Circuit Court for Marion County

No. 10230F Thomas W. Graham, Judge

No. M2016-02393-CCA-R3-CD

The Defendant, James A. Kilgore, pled guilty to attempted conspiracy to manufacture 

more than 300 grams of methamphetamine, a Class B felony, and attempted initiation of 

a process to manufacture methamphetamine, a Class C felony, in exchange for respective 

ten- and five-year sentences, to be served consecutively. The five-year term was to be 

served on supervised probation; whereas, the manner of service for the ten-year term was 

to be determined by the trial court. After a sentencing hearing, the trial court ordered that 

the Defendant serve the ten-year sentence in confinement, which, on appeal, the 

Defendant challenges as error. We affirm the sentencing decision of the trial court.

 

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Jared C. Smith, South Pittsburg, Tennessee, for the appellant, James A. Kilgore.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

James Michael Taylor, District Attorney General; and David O. McGovern, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

On December 7, 2015, the Defendant and twelve co-defendants were indicted for 

conspiracy to manufacture more than 300 grams of methamphetamine, initiation of a 

process to manufacture methamphetamine, and five counts of aggravated child abuse or 

01/10/2018
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neglect by exposing a child to the initiation of a process to manufacture 

methamphetamine. On September 2, 2016, the Defendant pled guilty to attempted 

conspiracy to manufacture more than 300 grams of methamphetamine and attempted 

initiation of a process to manufacture methamphetamine. 

At the plea hearing, the State recited the factual basis for the pleas as follows:

[H]ad the State gone to trial, we would be calling as our primary witness, 

Detective Chad Johnson with the Marion County Sheriff’s Department, 

who would testify that back in 2014 and 2015, he was investigating, 

attempting to locate various methamphetamine manufacturing locations in 

Marion County. That in the process of that, he began interviewing 

individuals that showed a particular interest and had information regarding 

an address in South Pittsburg. The detective would further testify that he 

began checking NPLX records and various pseudoephedrine purchase 

records and running that particular address and noticing that numerous 

amounts of pseudoephedrine had been bought by numerous persons 

indicating that was their residence. The officer, the detective would further 

testify that over the course of two or three months prior to what ultimately 

was the arrest date in this event that he began surveilling this particular 

location in South Pittsburg. That he obtained photographs of various 

individuals going in and out of the particular residence and more 

importantly going in and out of . . . a building, portable type building 

located in the rear of the building. There were two there, but one . . . had a 

particularly large amount of activity. He would be introducing in 

photographs that showed various pictures of the [D]efendant and various 

pictures of the co-defendants and others entering in and out of this 

particular building. There would be specific photographs in the weeks and 

months leading up to the arrest date where the [D]efendant himself was 

photographed carrying items that are typically used in the manufacture of 

methamphetamine, such as torches, tubing, containers that appeared to have 

various bi-layers of liquids, tri-layer liquids in them. Some of these 

photographs would have individual small children in the proximity as he 

entered and exited this particular . . . building. Sometimes going in and out 

of the residence that was located there as well. There were also 

surveillance pictures of other individuals coming and going from the 

property. And in his testimony he would be describing a conspiracy of over 

12 up to 20 people involved at this particular address purchasing 

pseudoephedrine, manufacturing methamphetamine, residing there, 

distributing amongst themselves, trading it. There would be additional 

statements by co-defendants . . . who would indicate that this conspiracy, in 
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fact, existed, and that methamphetamine was, in fact, being manufactured. 

Other individuals would testify that the [D]efendant himself had requested 

them to make various pseudoephedrine purchases in both Marion County, 

Hamilton County, and Alabama. Of course, the North Jackson, would be 

correct.

Judge, there would also be testimony from other law enforcement 

agencies on the date of the arrest. A search warrant was served on the 

location, . . . the [D]efendant . . . was found to be there along with 

approximately seven or eight more people. During the process of the arrest, 

several other folks showed up ultimately who were charged in this 13 

defendant conspiracy.

There would be testimony from other members of the Marion 

County Sheriff’s Department as to what was seen there. Members of the 

South Pittsburg Police Department, Mark Wilson with TBI, also would 

testify that various individuals also had possession of methamphetamine on 

their person. That there w[ere] numerous items that would corroborate the 

previous photographs . . . of [the Defendant]. These items were found in 

the building as suspected, appeared to be a meth lab, if not operational they 

at least very recently in the past had been operational. We would be 

entering statements by various co-defendants as to the cooking and the 

frequency of the cooking, and the presence of these children. 

Judge, that would be the gist of this case. It would . . . indicate that . 

. . over 600 grams of pseudoephedrine had been purchased amongst all of 

these co-defendants and there would be testimony that when 

pseudoephedrine is used in this particular type of manufacture that 

conservatively 50 percent of it, you can have a 50 percent ratio return, so 

600 grams of pseudoephedrine could conservatively create 300 grams of 

methamphetamine. Everything I’ve described except the purchases in 

Hamilton County and in Alabama would have occurred in South Pittsburg, 

Marion County, Tennessee. 

The Defendant agreed to be sentenced to consecutive terms of ten years for the 

attempted conspiracy offense and five years for the attempted initiation offense. The 

Defendant further agreed that the five-year term would be served on supervised probation 

and that the trial court would determine the manner of service for the ten-year term. 

The presentence report prepared by the Tennessee Department of Correction 

includes the following “Agency Statement” regarding the charges against the Defendant:
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On September 24, 2015 your affiant executed a search warrant at the 

property in which the [D]efendant was found. During the search[,] officers 

discovered chemicals and equipment that are used to manufacture 

methamphetamine, finished product methamphetamine, and items used to 

smoke methamphetamine. The investigation into this property has revealed 

that the defendants along with others known and unknown are engaged in a 

conspiracy to manufacture methamphetamine. Officers also located 2 small 

children ages 2 and 4 inside the residence when the search warrant was 

executed. Officers also determine[d] that three more children who are 7 

years of age also live in the residence. The residence had little food in it 

and the sleeping conditions for the children were very cramped.

The trial court conducted a sentencing hearing on November 21, 2016, at which 

Detective Chad Johnson with the Marion County Sheriff’s Office testified that, in Marion 

County, “methamphetamine is probably our number two problem behind prescription 

medication.” With regard to this particular case, Detective Johnson recalled that he 

received information that individuals were manufacturing methamphetamine at a 

particular address, and he pulled the pseudoephedrine purchase records for any 

individuals residing at that address. He discovered that the Defendant purchased 63.6 

grams of pseudoephedrine from June 18, 2014 to September 13, 2015. Additionally, the 

Defendant tried to purchase pseudoephedrine five times, “but the system blocked him, 

because he was over his limit.” 

During the course of the investigation, Detective Johnson and another detective 

conducted surveillance of the address in question. Detective Johnson said that there was 

“an outbuilding located to the rear of the residence . . . where everyone was living. The 

outbuilding was a small building that had a couple of chairs in it, and then it also 

contained the meth lab that we ultimately found.” One photograph taken of the scene 

showed “two small children playing within just a few feet of the entrance” to the 

outbuilding. Detective Johnson noted that “it’s a dangerous environment for anyone to 

be in that’s unprotected while they’re that close to those type of chemicals.” 

After Detective Johnson testified on behalf of the State, the Defendant presented 

the testimony of four individuals and testified on his own behalf. Tim Roggli, the owner 

of Four Seasons Lawn Care and Landscaping, testified that the Defendant had been 

working for him for eight months at the time of the sentencing hearing. He said that the 

Defendant was a good employee, requiring no supervision and “was at work regularly.” 

He stated that the Defendant could still work for him if the court granted the Defendant 

some type of alternative sentence. 
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Brent Basham, with the Probation and Parole Offices of the Tennessee Department 

of Correction, testified that he was assigned to supervise the Defendant while he was on 

bond awaiting sentencing. As part of the Defendant’s conditions of bond, he was ordered 

to have a drug screen once a week, but later the screenings were changed to once every 

other week. Regarding the drug screenings, Mr. Basham stated:

There’s a couple of times that the drug screen was believed to be 

positive for marijuana, and so we . . . sent them for confirmation to the lab, 

like we do with any other potentially positive drug screen, and then the lab 

was sending us back -- we never got a confirmed positive from the lab, but 

there were, I believe, four different times -- well, three times that it was 

reported that it was diluted, and then one time we got an invalid report.

However, Mr. Basham recalled that the last drug test with suspect results was seven 

months prior to the sentencing hearing. In addition, Mr. Basham said that the Defendant

always reported as required, he had always been able to contact the Defendant when he 

needed anything, and the Defendant was responsive when Mr. Basham left messages for 

him. 

Lisa Hoosier, the Defendant’s mother, testified that the Defendant “was a good 

kid. He was nosey, fast, and good hearted, and he’s still good hearted.” She said that, in 

school, the Defendant had problems with reading and failed two grades early on. He 

enjoyed going to school; “he just didn’t understand what he was doing when he got 

there.” Ms. Hoosier said that the Defendant had “weekend visitation” with his father, 

when his father “had a place to live.” Asked about the amount of contact the Defendant 

had with his father, Ms. Hoosier replied, “He had too much contact with him.” She said 

that the Defendant’s behavior was good before his visits with his father, but, afterwards, 

“It’d take me two or three days to get it smacked out of him . . . because he’d come back 

with attitude, I can do what I want to, I can [do] it there, I can do [it] here. It was . . . an 

ever[y] week issue.” She recalled that the Defendant started spending more time with 

his father when he got older, and, when he turned eighteen, “he just up and left and 

moved in with [his father].” 

Ms. Hoosier testified that she signed for the Defendant’s bond and that he stayed 

with her immediately after his release. After a couple of months, the Defendant moved 

out and “bought him a little camper and he’s got it set up at a campground.” When asked 

if she had noticed a change in the Defendant’s behavior since his release on bond, Ms. 

Hoosier stated:

He’s doing good. He’s a lot better. . . . [F]or a good while, at least a 

year and a half[,] I didn’t see him very much and when I did see him, when 
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he did come over to the house he would be possibly high. I’m sure high, 

and he would come over only to get money. Be there Christmas Day or 

birthdays, whatever he knowed was the day mama’s handing out money, 

that’s the day he’d be there. He ain’t that way no more, you know. 

Ms. Hoosier said that she would support the Defendant if the trial court were to grant him 

some type of alternative sentence. 

The Defendant testified that he went to live with his father at the age of eighteen 

because “[t]here wasn’t as many rules.” In 2006, about six months after he moved in 

with his father, the Defendant was charged with five counts of theft of property and six 

counts of forgery. He pled guilty to one count of theft of property and one count of 

forgery and was sentenced to three years’ probation. His next felony charge was in 2008 

for burglary of a vehicle that occurred while he was on probation for the theft and forgery 

convictions. Because of that conviction, he “did 22 months, a full revocation, and come 

out with 15 months of parole.” He completed his parole with “no problems. [He] 

finished it out and hadn’t been in any trouble in three years until this.” 

The Defendant testified that, after he was released on parole, he eventually moved 

in with a cousin, Tina Hood, and some other family members. A few months later, his 

father and an uncle also moved into Ms. Hood’s house. The Defendant explained that his 

father and uncle “got kicked out of the place that they was living at . . . and Tina Hood . . 

. g[a]ve them a place to stay.” Not long after his father and uncle moved in, the 

methamphetamine issue surfaced. The Defendant said, “He just brought it with him. It 

was like no one could tell them no. They thought that they could go anywhere and do it.” 

Regarding his involvement with the present methamphetamine-related offenses, the 

Defendant said he “cooked a few there, but it was most [of the] time get[ting] the boxes 

for them.” The Defendant said that the children at the residence were those of his cousin 

and an ex-girlfriend. 

The Defendant expressed remorse for being involved with methamphetamine 

around young children. He stated that he did not get into trouble when he was not around 

his father and that his mother was “a great support group. She lets me know if I’m doing 

bad.” He said that he obtained a steady job shortly after being released on bond. He 

maintained that, if placed on probation, he would “work everyday, and take [his] drug 

tests as [he was] suppose[d] to.” If sentenced to community corrections, he assured the 

court, “I’ll be here when I’m told to be here, to do as I’m told. I’ve done everything that 

I’m suppose[d] to since I’ve been out, paid my lawyer fees, reported for six months every 

week.” He said that he had separated himself from his co-defendants in this case. 
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On cross-examination, the State confronted the Defendant with other convictions 

appearing in his presentence report, including a misdemeanor theft which occurred a 

couple of months after the felony theft and forgery offenses for which he received three 

years’ probation. There was also a charge for driving on a revoked license a few months 

after that, as well as a misdemeanor theft and the aforementioned felony burglary of a 

vehicle less than a year later. His probation was revoked, and he served twenty-two 

months in jail. After he was released on parole, he had a disorderly conduct charge. He 

then began purchasing pseudoephedrine for the methamphetamine production. 

The Defendant admitted that his girlfriend at the time of the methamphetamine 

conspiracy had children who were also living in the house next to the building where the 

methamphetamine was being made. He insisted that he tried to get her to leave, but she 

did not. The Defendant acknowledged that two children belonging to his cousin also 

lived in the house. However, he denied that he cooked methamphetamine in the house 

where the children were living but admitted there was methamphetamine in the house. 

The Defendant explained that, although he initially did not want to get involved 

with methamphetamine, he was “making money . . . off buying the boxes,” and he “didn’t 

have a job at the time.” He was also using methamphetamine. 

Maria Alvara, the Defendant’s girlfriend at the time of the sentencing hearing, 

testified that she was an assistant manager of a Dollar General store. She was pregnant 

with the Defendant’s child. She said that the Defendant was currently paying their bills, 

but the Defendant’s mother and her mother would help support her if the Defendant went 

to jail. 

At the conclusion of the sentencing hearing, the trial court ordered that the 

Defendant serve the ten-year portion of his sentence in confinement.

ANALYSIS

The Defendant challenges the trial court’s imposition of a sentence of 

confinement. He asserts that the trial court “fail[ed] to consider all of the sentencing 

alternatives. . . . [in that it] reviewed only full probation as a sentencing alternative.” 

A trial court is to consider the following when determining a defendant’s sentence 

and the appropriate combination of sentencing alternatives:

(1) The evidence, if any, received at the trial and the sentencing hearing;

(2) The presentence report;
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(3) The principles of sentencing and arguments as to sentencing 

alternatives;

(4) The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and 

enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the 

courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant’s own 

behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b).

The trial court is granted broad discretion to impose a sentence anywhere within 

the applicable range, regardless of the presence or absence of enhancement or mitigating 

factors, and “sentences should be upheld so long as the statutory purposes and principles, 

along with any enhancement and mitigating factors, have been properly addressed.” 

State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s 

sentencing determinations under an abuse of discretion standard, “granting a presumption 

of reasonableness to within-range sentencing decisions that reflect a proper application of 

the purposes and principles of our Sentencing Act.” Id. at 707. This standard of review 

also applies to “questions related to probation or any other alternative sentence.” State v.

Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

Under the revised Tennessee sentencing statutes, a defendant is no longer 

presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254 

S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the 

“advisory” sentencing guidelines provide that a defendant “who is an especially mitigated 

or standard offender convicted of a Class C, D or E felony, should be considered as a 

favorable candidate for alternative sentencing options in the absence of evidence to the 

contrary.” Tenn. Code Ann. § 40-35-102(6).

A defendant shall be eligible for probation, subject to certain exceptions, if the 

sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant 

is not, however, automatically entitled to probation as a matter of law. The burden is 

upon the defendant to show that he is a suitable candidate for probation. Id. § 40-35-

303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 
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932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the 

defendant “must demonstrate that probation will ‘subserve the ends of justice and the best 

interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456 

(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. 

App. 1990)).

There is no bright line rule for determining when a defendant should be granted 

probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires 

a case-by-case analysis. Id. Factors to be considered include the circumstances 

surrounding the offense, the defendant’s criminal record, the defendant’s social history 

and present condition, the need for deterrence, and the best interest of the defendant and 

the public. Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation 

would unduly depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d 

558, 559 (Tenn. 1997); Bingham, 910 S.W.2d at 456.

In determining if incarceration is appropriate in a given case, a trial court should 

consider whether:

(A) Confinement is necessary to protect society by restraining a defendant 

who has a long history of criminal conduct;

(B) Confinement 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) Measures less restrictive than confinement have frequently or recently 

been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1). Furthermore, the defendant’s potential for 

rehabilitation or lack thereof should be examined when determining whether an 

alternative sentence is appropriate. Id. § 40-35-103(5).

In determining the manner of service for the ten-year portion of the Defendant’s 

sentence, the trial court first noted that the principles of sentencing indicate “the desire 

not to . . . incarcerate a person . . . if there’s any way we try to find a way to do something 

short of full incarceration on a sentence.” The court said that it reviewed the sentencing 

considerations in determining whether incarceration was appropriate and found “the[re] 

[are] very many negatives here unfortunately.” 

The court considered the presentence report and noted the Defendant’s history of 

criminal convictions, which included three felony convictions committed while on 
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probation. The presentence report shows that the Defendant was convicted in Marion 

County case number 7884 of theft of property and forgery on August 9, 2006, and was 

sentenced to consecutive terms of eighteen months on probation. Then, on October 8, 

2008, the Defendant was convicted in Marion County case number 8449 of burglary of 

an automobile and misdemeanor theft and was sentenced to an effective term of three 

years on probation. His probation in case number 7884 was fully revoked on October 8, 

2008, and his probation in case number 8449 was fully revoked on April 27, 2010. The 

court summarized that the Defendant had three felony convictions, four misdemeanor 

convictions, and “at least two, maybe three probation revocations, which is a terrible 

record, and that’s one of the things that we look to is previous actions and criminal 

history of the [D]efendant.” 

The court next considered the Defendant’s physical and emotional condition and 

social history. The court noted that the Defendant’s social history was not good “based 

on the discussion of him being kind of hither and yon” and having “very little record of 

employment.” The presentence report lists the Defendant’s current employment with 

Four Seasons Lawn Care and Landscaping as his only record of employment. 

The court next considered the facts and circumstances surrounding the offenses

and the nature of the offenses. The court noted that the Defendant admitted that “he 

knew exactly what was going on. He didn’t like it he says, but he knew what was going 

on. [He claimed that] [h]is father was the bad influence.” The court observed that it was 

“really troubling” that the Defendant and the others living in the house “didn’t really care 

about themselves or anybody else,” and there were “all these little kids running around.” 

The court considered the Defendant’s prior history again, this time giving special 

attention to the Defendant’s history of failure to appear. The presentence report indicates 

that a capias was issued in October 2006 because the Defendant failed to appear on a 

charge of misdemeanor theft. 

The court considered the Defendant’s potential for rehabilitation and determined 

that it “can’t give him anything but a negative on that, because his history shows that he’s 

been on probation, he’s committed crimes over a period of almost 10 years when he had a 

chance to do so, and he ended up getting into trouble.” The court specifically addressed 

whether it appeared that the Defendant would abide by the terms of probation and 

commented, “Well, we’ve said that already, that he’s not abided by terms of previous 

probations.” 

The court next determined that the “interest of society in being protected from 

possible future criminal conduct of the [D]efendant [is] great.” The court elaborated that 

the “fact that he has several theft offenses in addition to this drug thing, but he’s had 
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problems with theft since he was 18 years old. He’s got -- all the burglaries. He’s got 

out and out theft, he’s got forgeries . . . .” 

The court next considered whether measures less restrictive than confinement had 

frequently or recently been applied unsuccessfully and observed that “[t]hey certainly 

have been frequently applied in that those probations ended up being revoked, and all that 

in some ways is recent, it’s within the last eight or ten years,” and the Defendant is only 

twenty-eight years old. 

The court lastly considered whether a sentence of full probation would unduly 

depreciate the seriousness of the offenses, noting that the offenses were particularly 

serious in that the house where the “meth cooking [was] going on” was in a populated 

part of town and in close proximity to parks and other houses. 

The record shows that the trial court engaged in a detailed and thorough analysis 

to determine whether the Defendant should be granted anything less than a sentence of 

full confinement. The court was certainly aware of the Defendant’s request for 

consideration for a variety of non-incarcerative options, such as probation and 

community corrections, and the court, in its discretion, determined that incarceration was 

appropriate. Again, the “abuse of discretion standard[] accompanied by a presumption of 

reasonableness” applies to all sentencing decisions, including “questions related to 

probation or any other alternative sentence.” Caudle, 388 S.W.3d at 278-79. The trial 

court did not abuse its discretion in imposing a sentence of confinement.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the 

trial court. 

_________________________________ 

ALAN E. GLENN, JUDGE