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

Briefs O ctober 2, 2001
STATE OF TENNESSEE v. ANTHONY D. BYNUM
Appeal from the Circuit Court for Weakley County No. CR73-2000 William B. Acree, Judge

No. W2001-00111-CCA-R3-CD - Filed December 31, 2001

The defendant, Anthony

D. Bynum, wa s convicted of posses sion of an hyd rous ammo nia, a Cla ss E fe lo ny. The tria

l court se ntenced the defe ndant tothree ye ars, one ye ar to be served in the Weakley County Jail and the balance to be served on probation. The defenda nt was fined $1,000.00. In thi s appeal of right, the defendant asserts that the evidenc e was insufficien

t to support his conviction and that his sentence was excessive. The judgment of the trial cour t is affirmed. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J OSEPH M. T IPTON and R OBERT W. W EDEMEYER , JJ., joined. Joseph P. Atnip, District Public Defender (at trial and on appeal); Ke vin McAlpin, Assistant District Public Def

ender ( at trial and on appeal); and Clifford K. McGown, Jr., Waverly , Tennessee (on appeal) , for the

appella nt, Anthon

y D . By num.
Paul G. Summ ers, Attorney G eneral and Reporter; Thomas E. Williams, Jr., Assistant Attorney General; and Thomas A. Thomas, District Attorney General, for the appellee, State of Te nnessee.
OPINION

On July 21, 2001, Deputy Bret Davis of t

he Weakle

y Co unty Sheriff’s Department arrived at the defendant’s residence to serve an arre st warra

nt for fa ilure to pay child supp ort. Dep uty

Davis
was able to see the defendant, but the defendant r efused to open the door. Deputy Davis called for backup and within

minutes, D eputy

Steve Todd arrived to assist. Deputies Randall McGowan and Stac y Bostwick arrived at the residence a short time later. The officers positioned themselves outside while Deputy Todd talked to the de fendant through the front door.

While stand

ing n ext to a truc k parked in front o f the def

endant’ s reside

nce, De puty McGowan smelled what he believed to be anhy drous ammonia. The smell originated in a small tool box on the front seat of the truck. Deputies McGowan and B ostwick opened the box and found an-2-

igloo thermos. Deputy B ostwick opened the container

and poured what he believed to be anhy drous ammonia on the ground. Deputy McGowa n had participated in the discovery and destruction of over twenty-five

methamphetamine labs in Weakley County and was aware that anhy

drous ammonia is used in the manufacture of methamphetamine. I t was Deputy McGowa

n’s opinion that the liquid, no part of which remained for laboratory testing, was anhy drous ammonia. Deputy Bostwick, who had been trained in detection and des t ruction of clandestine methamphetamine labs by the Drug Enforcement Administration, testified that anhy drous amm onia is used as a

precursor in the “Nazi La b” method of manufacturingmethamphetamine. He described the “Naz i Lab” method as the most common method being use d in Weakley County at the time of the offense. It wa s his opinion that the liquid was anhydrous ammonia. Deputy Steve Tod

d test ified tha t w hen he convinced the defendant to come outside, he informed the defe ndant tha t the othe r office rs had found anhy

drous amm

onia in his truck. At that point, the defendant admitted to Deputy Todd that the anhydrous a mmonia was his but denied any involvement in the manufacture of methamphetamine. The def endant la ter told D eputy

Bostwick that he had stolen the anhy drous ammonia to sell to others who were manufacturing methamphet amine. T he officers searched the de fendant’s residence but found no evidence of the manufacture of methamphetamine.

Ini ti al ly, the defendant asserts that the evidence is insufficient to support his conviction. On
a ppeal, of course, the state is entitled to the strongest legitimate view of the evide nce and al l
reasona ble infere nces whi c h might be drawn therefrom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their t estimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury a s the trier of fact. Byrge v. State , 575 S .W.2d 292, 295 (Ten n. Crim. Ap

p. 1978). When the su fficiency of the ev idence i s challenged, the relevant question is whether, after reviewing the evidenc e in the lig ht most fav orable to the state , any

rationa l trier of fact could have f

ound the e ssential e

lements of the cr

ime beyond a
reasona ble doubt. Tenn. R. A

pp. P. 13(e); Williams , 657 S.W.2d at 410 (Tenn. 1983). Questions concerning the credibility of the witnesse s, the weight and value of the evidenc e, as well as all factual issues raised by the e vidence are resolved by

the trier of fact. Liak

as v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bea rs the burden of showing that the evidence was legally

insufficient to sustain a guilty ve rdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).

The defendant was charged with violating Tennessee Code Annotated section 39-17-433(a ) which pr ovides:

It is an offense for a person to possess, whet he r acquired through theft or other means, anhy drous ammonia, as defined in § 43-11-303(a), with the intent to: (1) Use such anhy drous ammonia in the manufacture of a cont rol led substance; or-3- (2) Knowing ly c onvey

such anh ydr ous ammoni a to anoth

er for use in the manufacture of a controlled substance. Tenn. Code Ann. § 39-17-433(a) (Supp. 2000).

The defendant argues that the evidenc e was insufficien

t to suppor

t his convi ction bec ause

the state failed to prove beyond a

reasonable doubt

that the substance discovered at his residence wa s anhydrous ammonia. He asse rts that, b ecause

the defi nition of a

nhy drous amm

onia is chemically specific, laboratory te sts were required to prove the that the requisite level of nitroge n was pre sent. We disagree.
Here, Deputies McGowan and Bostwick both testified that they identified the substance as anhydrous ammonia. They also testi fied th at t hey

had substa

ntial tra ining an d experie

nce in detecting and destroying

methamphetamine labs and that anhy drous ammonia is utilized in th e most common method of

methamphetamine manufac tu re. The d eputies s tated tha t becaus e of thei

r training and experience, they were familiar with the smell of a nhydrous ammonia. While the olfactory obse

rvations of

the offic ers may

not be eno

ugh, sta nding a lone, to c onvict him

under the statute, the defe

ndant c onfessed t o Deputy Bostwic k that the substance was indeed anhy drous ammonia. Moreove

r, he adm itted that he intend ed to sell the substance to others for the purpose of manufacturing methamphetamine. Only slig ht evidence of the corpus de licti , i.e. that the substance
was i ndeed anhydrous ammonia, is nec essary to cor roborate a confession and thus sustain a conviction. State v. Er

vin , 731 S.W.2d 7 0, 71 (Te nn. Crim. App. 1987). Here, the testimony of the officers was sufficient corroboration. Under the circ umstances, a rational trier of fact could have found the essential elements of the crime . Thus, the evidence was legally sufficient to support the conviction. See Jackson v. V irginia , 443 U.S. 307 (1979).

The defendant next contends that his sentence was excessive because the trialcourt ordered
one ye ar in

the We a kley County

Jail rather than requiring the entire sentence to be served in the Department

of Corre ction . Whe n ther e is a ch allen ge to the length, range, or manner of service of
a sentence, it is the d uty of this court to conduct a de novo review with a presumption that the determinations made by

the trial court ar e corre ct. Tenn . Code Ann . § 40-35- 401(d). T his presumption is “conditioned upon the a ffirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see Statev. Jones , 883 S.W.2d 597, 600 (Tenn. 1994). “If the trial court applies ina ppropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls.” State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden i s on the defendant to show the improprie ty o f the sen

tence. T enn. Code

Ann. § 40- 35-401, Se

ntencing Commission Co mments.
Our review requires an analy sis of (1) the evidence, if any, re ceived at the trial and sentencing hearin g; (2) the p

resente nce rep ort; (3) the pri nciples 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-4-

defend ant's potentia

l for reh abil itati on 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 con victio n, the presumptive sentence is the minimum in the range if there are no enhanc ement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If there ar e enhancement but no mitigating factor s, the trial court may set the
sen tence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A sentence involving

both enha

ncement and mitig ating f

actors r equires an ass ign ment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35- 210(e). The se ntenc e must then b e reduc ed wit hin t he range by any weight assigned to the mitigating factors present. Id.

The defendant concedes that the trial court complied with the re quirements of the Sentencing Act and cons idered t

he appro priate f actors in determining the def end ant ’s s ent enc e. A s a R ang e II multiple offender convicted

of a C la ss E fel on y, the defendant faced betwee n two and four ye ars of incarceration. The tria

l c ourt properly de

termined that two enhancement factors applied: (1) the defendant has a pre vious histo

ry of crimin al c onvictions or crimin al behav ior in add ition to thos e necessary to establish the appropriate range; and (2) the defendant has a previous history of unwilling ness to comply

with the c onditions o f a sente nce involving re

lease in the community and enhanced the sentence to three y

ears. See Tenn. Code Ann. § 40-35-114(1), (8). The trial cou rt also determinedtha t no mitigat ing factors applied. The trial cou

rt imposed

a sentence of spl

it confinement and ordered the defenda nt to serve one ye ar in jail with the balance on probation.

A sentence of

split confinement involves the grant of probation after the partial service of a sentence. Tenn. Code Ann. § 40 -35-30 6(a). Suc h a sente nce may include a

jail or wo

rkhouse sentence of up to one year with the probationary te

rm to extend for any per

iod thereafter up to the statutory maximum for the offense. Id. Tennessee Code Annotated section 40-35-314(a) pr ovides that when a defe ndant’s s entence is eight ye ars or le ss and com

bined with

a sentence of spl

it confinement

of up to one y

ear, “t he court shall designate the place of confineme nt as a local jail or workhouse.” The def

endant’ s sentenc e fits squa rely within this s tatute; th

us, the trial court did not err by orderin g him to se

rve one y ear in ja il.

In our view , the sent

ence imp osed by

the trial court d oes not circu mvent the de fendan t's releas e eligibil

ity d ate as contemplated by Tennessee Code Annotated § 40-35-501(d). See State v. Jeffery T. Cox , No. M1999- 01 429-CCA-R3-CD (Tenn. Crim. App., at Nashville, July 7, 2000) (noting that a sentence of split confinement may not be used t o circum

vent a defendant ’s relea se eligibil ity date). By

our calculations, h ad the defe ndant been ordered to serve his sentence in the pe ni te nt ia ry, he would b e eligi ble for r elease after se rving 35 %, or 383 d ay s, se ve ra l d ays in excess of one year. B ecause

the defe ndant is to be conf ined in the

local jai l, the tria

l court re tains full jurisdiction over the manner of service of his sentenc e. Tenn. Code Ann. § 40-35-212(c); see Tenn. R. Crim. P. 35, Committee Comment. During his jail term, the defendant may apply to the trial court to serve the balance of his sentence on proba tion. Tenn. Code Ann. § 40-35-306(c).-5-

Accordingly , the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE