### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON STATE OF TENNESSEE v. RETHA JEA N SMITH Direct Appeal from the Criminal Court for Henry County

No. 12853 Julian P. Guinn, Judge

No. W1999-00607-CCA-R3-CD - Decided - September 14, 2000
The defendant appeals her jury conviction and sentence for possession of a Schedule II controlled substance with the intent to manufacture, sell or deliver. She received a sentence of three years with one year to be served in confinement and the remainder to be served on co

mmunity corrections. The defendant raises the following issues for review: (1) whe

ther the evidenc

e is insufficient t

o sustain her conviction; (2) wh

eth er the pros ecuting attorney made improper remarks during his closing argument;and (3) whether her sente nce is excessive. Upon a review of the record, we affirm the judgment of the trial court but remand for the assessment of the fine. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed; Remanded for Assessment of Fine. R ILEY , J. delivered the opinion of the court, in which T IPTON and G LENN , JJ. joined. Steven L. West, M

cKenzie, Tennes see, for the app ellant. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer , AssistantAtt orney General; G. Robert Radford, District Attorney General; and Ste ven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Officers arrived at the defendant’s residence to execute an arrest warrant on Gary Osborne. Officer Archi

e approached the

back porch, dete

cted an ammonia-

type smell,

observed two mason jars with a white powder substance on the bottom and chemicals on top, and saw a bottle of

liquid fire and a jar of ether. Thereaf ter, the defenda nt appeared on the porch. The officers advised her they were looking for Osborne, and she stated he was not in the house. The defendant then advised the officers that they were “more than welcome to look” in the r esidence. Two officers testified that they smelled a strong chemical odor throughout

the house. Starter fluid and lithium batteries were observed in the living room, and there was a razor blade and white residue on the corner of

the kitchen ta

ble. In ad dition, Officer Archie searched the defendant’s bedroom and found a measuring cup with some burnt chemical residue, several boxes of-2-

pseudoephedrineon t he nig ht stand, a box of rolling papers on the bed, and a plate with a residue of methamphetamine. A s earch of the bathroom revealed a plate containing small bags of methamphetamine, lines of white powder, two razor blades, and a pen which appeared to have been used as a straw. There was a Pyrex bowl of anhy drous ammonia in the bathtub. Narcotics Officer Wyrick explained that the items found were used in running a “Na zi style” methamphetamine lab. He testified that this type of lab is establishe

d by using ho

usehold products. He stated that officers observed all the products which were needed for this kind of operation, and the smell of a chemical odor indicated the operation was ongoing. He explainedthat the mason jars found on the bac k porch an d in the bathroom were “cooking.” This refers to the process of chemically

extracting the compound ephedrine, which is the primary ingredi e nt of methamphetamine. Wyrick furth er explained that th

is process would ta

ke approxima

tel y four to eight hours. Co-defendant

Jeremy Fre

eland testified th

at he produced the m

ethamphetamine f

or his personal use, and the defendant had no knowledge that the dru g was being manufactured. The defendant testified the residence was not her home. She st ated she was ther

e only the one night and hadno knowledge of the

drug operation. However, the de fendant identifie

d the property

as her home to the officers; a

utility receipt listed the defendant as the owner of the property; and a receipt from a local drug store showed the defendant purchased four bottles of rubbing alcohol and severalboxes of pseudoephedrine tablets the day before the searc h. The jury convicted the def en dant of possession o

f methamphetamine

with the intent to manufacture, sell or deliver and assessed a fine of $50,000. The defendant received a sentence of three yearswith one year to be served in confinement and the remainder on community c

orrections. In this appeal as of right, the defendant contends the evidence is insufficient

to support her conviction; the prosecu tor made improper remarks in his clos

ing argument; a

nd her sentence

is excessive. We reject these contention s and affir m the judgment of the trial court; however, we remand for the assessment of the appropriate fine.

I. SUFFICIENCY OF THE EVIDENCE A. Standard of Review In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits the state's witnesses and resolves all conflicts in favor of the state. Statev. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to thestrongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id. This Courtwill not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that the facts contained in the record and the inferences which may be drawn therefrom-3-

are insufficient, as a matter of law, for a rational trier of fact to find the a ccused guilty beyond a reasonable doub

t. State v. Brewer , 93 2 S. W.2 d 1, 19 ( Ten n. C rim . Ap p. 1 996 ). A ccor din gly, it is the appellate court

's duty to a

ffirm the convict

ion if the evidenc

e, viewed under

these standards, was sufficient for any rational trier of fact to have found the essential ele ments of the offense beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virgini a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2

d 560 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). B. Analysis The defendant contends the state did not prove she was aware tha t methamphetamine was being produced in the r

esidence, or tha

t she was involved i

n the manufactureof methamphetamine. She further argues the proof does not reveal that methamphetamine was produced ot h er than for Freeland’s personal use. Viewing the evidence in the light most favorable to the state, we conclude t he evidence is sufficient to support the defendant’s conviction. Officer Wyrick described the lab and testified that, basedon his experience as a narcotics officer, the lab was an ongoing operation. All three officers testified that the smell of

chemical odor

was extremely

pungent. In

addition, a measur

ing cup with a burnt chemical residue, a plate with methamphetamine res idue, and several boxes of pseudoephedrinetablets were found in the be droom w here the defendant was sleeping. Furthermore, the defendant had recently purchased sever al bot tles of rubbing alcohol and boxes of pseudoephedrinetablets, which are key ingredients in methamphetamine. Although the defendant testified this was not her residence, the officers presented contrary evidence. Furthermore, the nature of the drug operation and the presence of small bags of drugs indicated the drugs were not s

trictly for personal use. The weight and c

redibility of

the witnesses’ testimony are mattersentrusted exclusiv ely to the jury as the trier of fact. Brewer , 932 S.W.2d at 19. Thus, the j ur y was free to discount the defendant’s explanation if they found her testimony wa s not credible. L

ikewise, the jury

could assess the credibility of co-defendant, Jeremy Freeland. There was sufficient e

vidence to convic

t the defendant of

possession with inte

nt to manufacture, sell or deliver methamphetamine. This issue is without merit.

II. CLOSING ARGUMENT A. Standard of Review “It is un professional conduct for a prosecutor intentionally to misstate the evidence or mislead the jury

as to the inferences it may draw.” State v. Philpott , 882 S.W.2d 394, 408 (Tenn. Crim. App. 1994); see also State v. Hicks , 618 S.W.2d 510, 518 (Tenn. Crim. App. 1981). It is as much his or her duty to refrain from improper methods calculated to produce a wrongful conviction-4-

as it is to use every legitimate means to bring about a just one. Berger v. United States , 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed.1314 (1935). B. Analysis The defendant conte

nds the district att

orney inap

propriately

argued the jur

y should “send a message” to the community since juveniles we

re in volve d in the drug operation. The defendant alleges that the only juvenile at the house was her fourteen-y ear-old son. First, we note that there is no indication in the record that the district attorney stated or implied the jury should “send a message” to the community regarding

juveniles and drug act ivi ty. Furthermore, the defendant’s objection to th

e state’ s characterization of the other persons in the house as juveniles was sustained by the trial court, and the jury was instructed to ignore counsel’s statement. Thus, the trial court gave a prompt and proper instruction which was sufficient to nullify any prejudicial effect. See Philpott , 882 S.W.2d at 408. This issue is without merit.

III. SENTENCING The defendant contends that her sentence is “excessive and unduly har sh.” Her sole argument is that her co-defendant, Jeremy Freeland, was more culpable, yet received a

less severe sentence. The defendant contends that Freeland was sentenced to three y ears, with 210 days to be serve d in confinement an d the balance to b

e served on commu

nity corre ctions. However

, his sentence does not appear

in the record except through statements of counsel. Nevertheless, we see no reason to disturb the defendant’s sentence. The trial court is not requ ired to give co-defendants the same sentence. State v. Michael Leon Chambers , C.C.A. No. 01C01-9505-CC-00143, Putnam County (Tenn. Crim. App. filed June 20, 1996, at Nashville), perm. to app. denied (Tenn. 1996). We do note that Free lan d pl ed gu ilt y, andthe record does

not indicate wheth

er his sentence was ne

gotiated pursua

nt to that plea. Nor does the record contain the findings of the trial court that sentenced Freeland, or the proof w h ich wa s presented at his sentencing hearing. The defendant’s pr e -sentence report does not contain Freeland’s sentence but doe s re veal tha t Fre ela nd w as o nly t wen ty-t wo ye ars o f age, whereas defendant was thirty-five. Each case

rests upon its own merits, andwe need not look to other cases where the trial court has properly considered the sentencing principles applica ble to the defen dant. See State v. Johnny Wayne Tillery , C.C.A. No. 01C01-9506-CC-00182, Giles County (Tenn. Crim. App. filed Ma rch 30, 1998, at Nashville), perm. to app. denied (Tenn. 1998). Thus, the defendant has not established any unjustified disparity in her sentence

.

IV. FINE-5-

Although not raised by the parties, w e note the case must be remanded for entry of the amount of the fine. The jury set the defendant’s fine in the amount of $50 ,000. The trial court confirmed

this fine at sentencing; however, the judgment does not contain the amount of the fine. Defendant

filed a moti on to reduce the fine which was heard at the motion for new trial. The assessment

of the fine was “st aye d, pending f urther acti on of the [t rial] cour t.” The tri al judge indicatedhe would “conside r it at a later dat

e.” Nothing fur

ther appears in

the record

concerning the fine. We, therefore, remand to the trial court to determine the amount of the appropri ate fine pursuant to Tenn. Code Ann. § 40-35-301(b).

CONCLUSION Upon a thorough review of the record, we affirm the judgment of the trial court but re mand for entry of an appropriate fine.