Court of Criminal Appeals of Tennessee, Nashville
Session March 10, 2015
Appeal from the Circuit Court for Giles County No. 16005 Robert L. Holloway, Jr., Judge
Patrick McNally and James O. Martin, III (on appeal), Nashville, Tennessee, and Randal L. Sands (at trial), Pulaski, Tennessee, for the appellant, Ashley Altman.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General (Senior Counsel); T. Michel Bottoms, District Attorney General; and Beverly White, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Camille R. McMullen and Roger A. Page, JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
In October 2012, the Giles County Circuit Court grand jury charged the defendant with one count each of manufacturing marijuana, possession of a firearm during the commission of a dangerous felony, and possession of drug paraphernalia. The trial court conducted a jury trial in August 2013.
The State's proof at trial showed that Pulaski Police Department ("PPD") Investigator Kenneth Bass received information that marijuana was being grown at 417 Morningside Drive. On May 2, 2012, Investigator Bass and Investigator Joey Turner went to the Morningside Drive residence and conducted a "trash pull" whereby the officers retrieved the garbage that had been set outside the residence for pick up by the local sanitation agency. In that trash pull, Investigator Bass found an electric bill and a box of "Miracle Gro" and learned that the house was occupied by the defendant and Nicole Velez. On June 6, the two investigators returned for a second trash pull, in which they found another electric bill in the defendant's name and receipts from Home Depot and a gardening shop. The receipts listed items such as "buckets, bloom booster, fans, plastic bags, flex-duct, screw hooks, and chains, " as well as 400-watt and 600-watt light bulbs. The officers also discovered "leaves and stems" that, when subjected to a field test, tested positive for marijuana base.
Investigator Bass then obtained a search warrant for the defendant's residence and executed that search warrant on June 7. During the search, officers discovered an obscured trapdoor in the floor of the utility room, which led to the basement of the residence. In the basement, officers discovered 71 marijuana plants growing in "kidney swimming pools" and plastic buckets. Timers controlled lights for the plants, and exhaust fans had been installed to force air from the basement outside the house. On the main floor of the house, officers found "a bucket with marijuana stems in it, a pair of garden gloves, four pairs of trimming scissors, a dehydrator, and a magazine [with] different kinds of styles of marijuana." In one of the bedrooms, officers located a marijuana grinder, some loose marijuana, and a "glass pipe used for smoking marijuana." In or on the bedroom nightstand, PPD Investigator Gerrod Shirey discovered a Glock pistol, and, according to Investigator Bass, the handgun had "ammunition in one magazine." Photographs of the marijuana plants and other evidence collected from the scene were admitted into evidence. Investigator Turner described the defendant's basement as "one of the most elaborate grows that" he had ever encountered.
After the defendant was arrested, she executed a rights waiver and told investigators that Ms. Velez was a former roommate who had moved out of the residence because she did not approve of the defendant's marijuana use. The defendant explained that the marijuana plants did not belong to her and that she was merely "growing them in her basement for somebody else" so that she could earn extra money. The defendant admitted that she cared for the plants and that she was expecting to receive a portion of the marijuana sales once the plants were harvested.
Special Agent and forensic scientist Kassandra Franklin-Beavers with the Tennessee Bureau of Investigation ("TBI") testified that she received samples of the plants seized from the defendant's residence. Agent Franklin-Beavers analyzed one sample and determined that the 5.13 grams tested positive for marijuana.
With this evidence, the State rested. Following the trial court's denial of the defendant's motion for judgments of acquittal and a Momon colloquy, the defendant elected to testify.
The defendant testified that she had financial problems following the death of her father and that an acquaintance from whom she had previously obtained marijuana, Harold Rosenbaum, told her she could make between $10, 000 and $20, 000 per month by allowing him to set up a marijuana growing operation in her basement. The defendant admitted that the pistol found in her bedroom nightstand belonged to her. She explained that she had purchased the handgun in 2009 as a requirement for her former employment as an armed guard. The defendant testified that she kept the pistol for "protection, in case of a burglary or . . . somebody coming in my home with an intent to harm me."
Based on this evidence, the jury convicted the defendant as charged of manufacturing marijuana, possession of a firearm during the commission of a dangerous felony, and possession of drug paraphernalia. Following a sentencing hearing, the trial court sentenced the defendant as a standard offender to consecutive three-year sentences on both the conviction of manufacturing marijuana and the conviction of possession of a firearm during the commission of a dangerous felony. In addition, the trial court imposed a sentence of 11 months and 29 days for the conviction of possession of drug paraphernalia. Following the mandatory service of three years' incarceration for the ...