Steven Jared Buck, Assistant Public Advocate, Counsel for Appellant.
Jack Conway, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Counsel for Appellee.
A Leslie Circuit Court jury found Appellant, Scottie Roberts, guilty of Manufacturing Methamphetamine, Possession of a Defaced Firearm, Use of or Possession with Intent to Use Drug Paraphernalia, Second-Degree Possession of a Controlled Substance, and Fourth-Degree Controlled Substance Endangerment to a Child. For these crimes, Appellant was sentenced to a total of twenty-two years' imprisonment and assessed $1,500 in fines. He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court erred by (1) failing to instruct the jury on Facilitation to Manufacturing Methamphetamine, (2) failing to instruct the jury on Unlawful Possession of a Methamphetamine Precursor, and (3) levying fines upon an indigent defendant. We now affirm in part and vacate in part.
In the early morning hours of June 6, 2011, police arrived at Appellant's home where Appellant and four other people had been using drugs. It is unclear why the
police were at Appellant's home. All five individuals told police that they used and would test positive for methamphetamine. Moreover, Appellant admitted that items found inside the house were used in the manufacture of methamphetamine, but neither Appellant nor any of the other occupants of the home admitted to taking part in the manufacturing process.
Police collected several items related to the manufacture of methamphetamine outside Appellant's house, in the living room, and in the kitchen. Among the items seized were ephedrine and three tobacco cans containing salt. Other items in the home were described as consistent with being part of a recent " cook."  The jury convicted Appellant on all counts.
A. Failure to Instruct Jury on Facilitation to Manufacturing Methamphetamine
Appellant first argues that the trial court erred to his substantial prejudice when it denied defense counsel's request for a jury instruction On Criminal Facilitation as a lesser included offense to Manufacturing Methamphetamine. Specifically, Appellant contends that there was no evidence proving that he was involved in the manufacturing process, and that a jury could reasonably have concluded that he was indifferent to the principal crime.  This issue is preserved.
Although both parties' briefs assume, without discussion, that Criminal Facilitation is a lesser included offense of the principal offense— in this case, Manufacturing Methamphetamine— we have previously held that that is not the case. Houston v. Commonwealth,975 S.W.2d 925, 930 (Ky.1998). In Houston, the appellant argued that he was entitled to an instruction on Criminal Facilitation as a lesser included offense to both Trafficking and Possession of a Controlled Substance. Id. at 929-30. We disagreed, initially noting that " [t]he fact that the evidence would support a guilty verdict on a lesser uncharged offense does not establish that it is a lesser ...