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State v. Berry

Court of Criminal Appeals of Tennessee, Nashville

September 8, 2014

STATE OF TENNESSEE
v.
GARY BRIAN BERRY

Assigned on Briefs August 12, 2014

Appeal from the Circuit Court for Hickman County Nos. 12-5068CR, 12-5135CRA Timothy L. Easter, Judge

Richard Boehms, Duck River, Tennessee, for the appellant, Gary Brian Berry.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Kim R. Helper, District Attorney General; and Sean Duddy, Assistant District Attorney General, for the appellee, State of Tennessee.

James Curwood Witt, Jr., J., delivered the opinion of the Court, in which Norma McGee Ogle and D. Kelly Thomas, Jr., JJ., joined.

OPINION

JAMES CURWOOD WITT, JR., JUDGE

The defendant entered pleas of guilty in case number 12-5068CR to four counts of promoting the manufacture of methamphetamine, a Class D felony, and in case number 12-5135CRA to one count of manufacturing .5 grams or more of methamphetamine, a Class B felony, and one count of possession with intent to sell .5 grams or more of methamphetamine, also a Class B felony. The State agreed that the sentences imposed for each of the defendant's convictions in both cases should be served concurrently. The State also agreed to dismiss the remaining charges in each of the indictments and to dismiss the charges against the defendant contained in the indictment in case number 12-5067CRB.

At the guilty plea submission hearing, the prosecutor recited the following statement of facts for case number 12-5068CR:

Your Honor, had this case proceeded to trial the State would show that on the 26th day of October 2011, agents with the . . . Drug Task Force did conduct an interview with the defendant while he was in custody in Hickman County Jail with regard to purchases of Sudafedrin [sic] that they had determined the defendant had been making. The agents did activate a digital recorder to record this interview. . . . Agent Jones asked the defendant if the Sudafedrin [sic] pills and other components used to manufacture Methamphetamine were for himself or if he was buying them for someone else. The defendant stated they were for someone else and that he could sell a box of Sudafedrin [sic] for $50 a box. . . . He could not recall, but he had begun buying these about two – two and a half years prior to this interview due to a developing Methamphetamine habit, and that on occasions instead of receiving money for the Sudafedrin [sic] boxes, he would actually . . . receive back a quantity of Mehtamphetamine. . . .
. . . . Defendant did answer that the pills were delivered back to here in Hickman County to be used for the production of Methamphetamine.
That would amount to the State's proof along with signature log showing that the defendant had, indeed, purchased the Sudafedrin [sic] on the dates contained in the indictment.

The prosecutor recited the following statement of facts for case number 12-5135CRA:

Your Honor, had this case proceeded to trial the State would show that on the 3rd day of March 2012, . . . Deputy Nordan with the Hickman County Sheriff's Department, had gone to the residence of 1694 . . . Highway 100 located here in Centerville, Hickman County, Tennessee, to serve a warrant on an individual . . . other than the defendant . . . when Deputy Nordan approached the door of that residence he immediately detected an odor he knew to be consistent with the manufacture of Methamphetamine. On knocking on the door the defendant . . . did open the door. At that point due to the exigent danger associated with the process for manufacture of Methamphetamine, Deputy Nordan did ask the . . . defendant to step out, did detain the defendant at that point. . . . There was a conversation with the defendant with regard to consent to a search of the residence, that consent was granted.
Prior to entering into the residence, Agent Ashmore . . . did have a conversation with the defendant with regard to what he might find in the residence. . . . The defendant told Agent Ashmore that it was a one bottle cook and that all the items were in the bathroom. ...

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