State v. Keeton

STATE OF TENNESSEE v. JEREMY KEETON

No. M2009-01928-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

August 16, 2011 Session

Filed June 26, 2012

Direct Appeal from the Circuit Court for Wayne County

No. 14050

Stella Hargrove, Judge

A Wayne County jury convicted the Defendant, Jeremy Keeton, of manufacturing marijuana by growing or cultivating not less than 100 nor more than 499 marijuana plants, and the trial court sentenced him to twelve years in the Tennessee Department of Correction. On appeal, the Defendant contends: (1) that he is being denied an "effective appeal" because the record on appeal does not include an official transcript of his cross-examination of a material prosecution witness; (2) the trial court erred when it denied his motion to suppress; (3) the evidence is insufficient to sustain his conviction; and (4) the trial court erred when it sentenced him by not considering a relevant mitigating factor. After a thorough review of the record and applicable authorities, we conclude there exists no reversible error in the judgment of the trial court. We, therefore, affirm the trial court's judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and DONALD HARRIS, SR. J., joined.

William M. Harris (on appeal), Lawrenceburg, Tennessee and J. Daniel Freemon (at trial), Lawrenceburg, Tennessee for the appellant, Jeremy Keeton.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; T. Michel Bottoms, District Attorney General, and Douglas Dicus, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case arises from the Defendant's growth and maintenance of marijuana plants near his residence. For growing these plants, the Defendant was indicted on charges of manufacturing marijuana by growing or cultivating more than 500 marijuana plants, a Class A felony. See T.C.A. §39-17-417(j)(13)(A) (2010). At the Defendant's trial on these charges, the following evidence was presented:

Van Samuel Lafevers testified and described the Defendant as his friend of many years and said the two lived within a mile of each other. He said that the Defendant asked him to help him water a marijuana patch. The two had gone together on two or three occasions to a marijuana patch that Lafevers believed belonged to the Defendant. The two rode on the Defendant's four-wheelers or in the Defendant's vehicle to get to the marijuana patch, which was in close proximity to the Defendant's house. The patch was planted among pine trees and surrounded by a wire that Lafevers had given to the Defendant. While the two were at the patch together, the Defendant watered the plants. Lafevers testified that he showed police officers where the marijuana patch was located and told them that he had helped the Defendant water the patch. On cross-examination, Lafevers agreed it was illegal to water marijuana plants, and he conceded he had not been charged for so doing. He said police officers said he would not be charged with an offense if he told the truth while testifying.

Justin Keith Rideout testified that he was friends with the Defendant and that the two had been close for approximately eighteen months. Rideout said that, in June 2006, he and the Defendant discussed growing marijuana. He told investigators that he knew that the Defendant grew marijuana and that Lafevers would know where the marijuana was located. On cross-examination, Rideout said he admitted to officers that he was also growing marijuana, and he showed them where his patch of marijuana was located.

Steve Wilson, an investigator with the Wayne County Sheriff's Department, testified that Justin Rideout and Van Lafevers were separately interviewed by police and both men told officers that the Defendant was growing marijuana. Based upon this information, Investigator Wilson and Agent Vance Jack, with the Tennessee Bureau of Investigations, went to a wooded area close behind 5801 Berry Road, which the investigator described as having a "small, wood-frame[d] house with . . . a metal roof" located on the property. Officers learned that the Defendant lived at the house with his wife and their infant. Investigator Wilson saw and photographed two four-wheelers and one three-wheeler that were parked on the side of the Defendant's home.

A couple of days later, officers returned to the property, and went to a field behind the Defendant's house that was mostly flat, and contained a couple of ponds. Investigator Wilson noticed a "couple of very predominant four-wheeler trails" that went between theDefendant's house and field behind his house. The investigator saw that, behind the field, there was a very narrow strip of hardwood timber, which he referred to as "buffer timber." The officers found the marijuana planted among the buffer timber. The officers took aerial photographs of the marijuana discovery. The officers also took multiple photographs of the marijuana plants.

Investigator Wilson, along with Agent Jack and the county sheriff, Sheriff Carl T. Skelton, then "began pulling" the marijuana plants, and each kept track of how many plants they pulled. The three officers added their numbers together, and then verified this count by recounting all the plants, which were placed in one of their vehicles. The officers determined that they seized a total of 526 marijuana plants, which they then transported to the Sheriff's Department. Investigator Wilson sent several samples from these plants to the "TBI" for analysis. The report confirmed that the plants were marijuana.

Investigator Wilson testified that he returned to the same location the next day, and retrieved several other items. He retrieved a fertilizer bag and a clear baggie and also wire that had been used around the patch. On that day, he found an additional twelve plants, for a total of 538 plants seized, each of which he opined was a marijuana plant.

On cross-examination, Investigator Wilson testified that, after the samples were sent to the TBI for testing, the remainder of the plants seized were purposefully destroyed by law enforcement. Investigator Wilson acknowledged that 500 individual plants could not be made out in the photograph and that the number of plants allegedly being grown by the Defendant was a relevant issue to his punishment. He said, however, that the officers went to great lengths to ensure that they had counted the plants accurately. He agreed the plants were destroyed before the Defendant was charged in this case.

Investigator Wilson identified the fencing that he gathered from the crime scene, and he estimated that it was twenty-three feet long. He said that all of the marijuana plants the officers found were inside the fencing. The investigator agreed that the fencing was a common material and that he had found some that was used, apparently, to create a "pen" in the Defendant's yard. Investigator Wilson also found some rolled up fencing material that was not in use next to the Defendant's house. He acknowledged that there are numerous legitimate uses for this type of wire fencing. Investigator Wilson testified he was not certain which four-wheeler made the four-wheeler trails, and he stated that there are multiple legitimate uses for four-wheelers. He did not know whether the Defendant's four-wheelers were "racing" four-wheelers, and he was unsure whether the four-wheeler trails were actually a practice racing track. He maintained that the trails went from the Defendant's house to a spot located near where the marijuana plants were found.

Investigator Wilson testified that the Defendant did not own the property upon which the marijuana was found, and the property was owned by a pine company. The investigator agreed that there was another home located nearby, but he said the police officers did not take any photographs of that house. He agreed that a man nicknamed "Little Red Bahr" lived in that house when "it [wa]s convenient for him . . . when he [was] not in jail." He said Bahr's trouble with the law mostly involved theft. He did not know whether Bahr was in jail at the time he found the marijuana plants. The investigator said he did not question Bahr about the marijuana plants he found in this case.

Special Agent William H. Stanton, Jr., an agent with the TBI Crime Laboratory, testified that he tested the substance submitted to him by officers in this case and determined it was 3.9 grams of marijuana. He said that when officers found large patches of marijuana plants it was not uncommon for them to send a representative sample of the plants instead of the entire plant seizure. Even if officers sent the entirety of all the plants, he would still have to analyze only a representative sample. On cross-examination, Agent Stanton testified that officers are not precluded from sending all of the plants seized, and they are not required to destroy the sample either. Agent Stanton testified that, after police officers seize a plant, it is placed in a brown paper bag so it does not rot. While inside that bag, it will shrink and lose weight as the water evaporates from the plant. The agent agreed that the amount he analyzed was slightly more than one-eighth of an ounce.

Vance Jack, a Special Agent with the TBI, testified that law enforcement officers first interviewed Rideout, who told them to speak with Lafevers about the Defendant growing marijuana. Agent Jack confirmed he spoke with Lafevers, who led them to the Defendant's marijuana patch. Agent Jack confirmed that there were four-wheeler trails leading between the Defendant's house and a spot close to the marijuana patch. The agent said there was a large patch upon which it appeared multiple four-wheelers had skidded to a halt. From that area, the officers walked through a very narrow line of hardwood trees. After the hardwood trees,...