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State v. McCullough

Court of Criminal Appeals of Tennessee, Jackson

May 9, 2018

STATE OF TENNESSEE
v.
MICHAEL SHANE MCCULLOUGH

          Assigned on Briefs March 13, 2018

          Appeal from the Circuit Court for Obion County No. CC-16-CR-24 Jeff Parham, Judge

         Defendant, Michael Shane McCullough, was indicted in February of 2016 by an Obion County grand jury for disorderly conduct, criminal littering, initiation of a process to manufacture methamphetamine, and promotion of methamphetamine manufacture. After a jury trial, Defendant was found guilty of criminal littering, initiation of process to manufacture methamphetamine, and promotion of methamphetamine manufacture. Defendant appeals from his convictions, challenging the sufficiency of the evidence for the methamphetamine-related convictions. Because we determine that the evidence was sufficient to support the convictions, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          Megan B. Allen, Martin, Tennessee, for the appellant, Michael Shane McCullough.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Tommy A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Alan E. Glenn, JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         At trial, Oliver Long testified that he lived in a rural part of Obion County. Around midnight on Friday, October 9, 2015, he was awakened by his girlfriend. Mr. Long kept a dog "out front in a cage and [the dog] was barking real bad." When Mr. Long got out of bed and looked out the window, he saw someone driving by slowly on a four-wheeler. The four-wheeler came up and down the road a few times; the dog continued to bark incessantly. Mr. Long called the police to report the disturbance. He was unable to identify the person on the four-wheeler. On cross-examination, Mr. Long admitted that he did not know Defendant and was unaware that Defendant lived on the same road.

         Deputy Michael Moore of the Obion County Sheriff's Office was dispatched to the area near Mr. Long's house to investigate the noise complaint involving the four-wheeler. When he arrived, he did not see or hear anything. Officer Wheeler remained in the area for approximately thirty minutes. At that time, he heard a "loud four-wheeler" coming up the road near the intersection of Mt. Moriah, Campground, and Hank Miller roads. Deputy Moore followed the four-wheeler and initiated a traffic stop by activating his blue lights.

         The four-wheeler slowed down and Deputy Moore observed a "white ball-looking, about baseball-size object fly from [the hand of the driver] and into the ditch." The driver, later identified as Defendant, eventually stopped. Deputy Moore informed Defendant of the reason for the stop and asked Defendant to identify the object that he threw from the four-wheeler. Defendant denied throwing anything. Deputy Moore attempted to perform a cursory search of the ditch for the thrown object while watching Defendant but was unable to locate anything at that time. Deputy Moore instructed Defendant to take the four-wheeler home and "park it, " letting him go with just a warning.

         Once Defendant left the area, Deputy Moore searched the ditch for about five minutes. He found a "white plastic bag [sort of] like a Walmart bag, just a piece of a Walmart bag, and it had two smaller bags wrapped up in it. Both of them had white powder in them, or a white substance." This was the only thing Deputy Moore "found that matched the description of what [he] saw." The ground was wet from rain earlier that evening but the bag was relatively dry. Deputy Moore secured the item as evidence and drove to Defendant's house. Deputy Moore spoke with a family member at the house but was unable to speak with Defendant because Defendant "left" when the officer pulled up to the house.

         When Deputy Moore arrived at the Sheriff's Office, he performed a field test on the substance in the bag. It was positive for ephedrine. Special Agent Brock Sain of the Tennessee Bureau of Investigation ("TBI") crime lab identified the substance as ephedrine or pseudoephedrine, weighing 14.62 grams. In his opinion, the substance appeared to be "tablets crushed up, " a "substance that is an over-the-counter drug" that is "used in the manufacturing of methamphetamine."

         Michael Simmons of the Obion County Sheriff's Department testified as an expert in the investigation of methamphetamine laboratories. Officer Simmons explained that pseudoephedrine and ephedrine are precursors for methamphetamine. In order to make methamphetamine, it is necessary to "grind" the precursor to "separate the binder from it" so that it "dissolves" quicker when placed in the solvent. Officer Simmons explained that he had seen items like those ...


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