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State v. Kilgore

Court of Criminal Appeals of Tennessee, Nashville

January 10, 2018


         Assigned on Briefs June 20, 2017

         Appeal from the Circuit Court for Marion County No. 10230F Thomas W. Graham, Judge

         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.

          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.

          Alan E. Glenn, J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ., joined.


          ALAN E. GLENN, JUDGE


         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 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 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:

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 ...

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