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Appellant v. Commonwealth

Court of Appeals of Kentucky

February 17, 2017



          BRIEF FOR APPELLANT: Linda Roberts Horsman Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky




         Christopher Dixon appeals from the Bell Circuit Court's order of judgment and sentence pursuant to jury verdict, entered November 30, 2015. We affirm the circuit court.

         On November 4, 2014, in Bell County, Kentucky, Officer Barry Cowan of the Middlesboro Police Department was dispatched to a trailer park to investigate a report of individuals manufacturing methamphetamine. Officer Cowan parked his cruiser at a nearby church and moved toward the trailer park on foot. As he approached, he saw two men in proximity to a green pickup truck. One of the men, later identified as Jonce Adams, was in the bed of the pickup truck. The other man, later identified as Dixon, was standing adjacent to it. Upon seeing Officer Cowan, Adams jumped out of the back of the truck, and the two men began walking away from the officer, moving between two trailers. When Officer Cowan hailed the men and indicated he wished to speak with them, Adams kept walking. Officer Cowan then witnessed Adams take items from his pockets and throw them at the open door of one of the trailers as he walked by. Officer Cowan recovered the thrown items and identified them as packs of pseudoephedrine, which is used in the manufacture of methamphetamine.

         In the meantime, Dixon had acceded to the officer's request and stopped walking. Dixon consented to a search of his person, at which point Officer Cowan discovered several more packages of pseudoephedrine and a coffee filter. In a subsequent search of the green pickup truck, Officer Cowan recovered a can of camping fuel, a duffel bag and a plastic shopping bag. The duffel bag contained a cold pack, drain opener, lithium batteries, coffee filters, a metal pipe, and a Powerade bottle containing an unidentified substance. The plastic bag contained tubing, wire cutters, scissors, a bowl, and pliers. Officer Cowan also found within the bag a prescription pill bottle, with Dixon's name on the label, holding a quantity of salt. Viewed together, the officer believed these items represented a nearly complete collection of chemicals and equipment necessary for the manufacture of methamphetamine.

         Officer Cowan arrested Dixon and Adams for manufacturing methamphetamine, [1] and the two men were tried separately. Dixon's jury trial took place on November 10, 2015. Officer Cowan and Lieutenant Tom Busic testified about the incident for the Commonwealth and explained to the jury how each of the aforementioned items found at the scene were either ingredients or tools used in the manufacture of methamphetamine. The jury found Dixon guilty of the charge and fixed his sentence at fifteen years' imprisonment. The trial court entered final judgment and sentenced Dixon in accord with the jury's recommendation on November 30, 2015. This appeal follows.

         Dixon presents three issues on appeal. For his first issue, he contends the trial court erroneously permitted the Commonwealth to inquire into a witness's number of felony convictions. Edward Simpson was the owner of the trailer where the arrests occurred and testified for the defense. He admitted being a convicted felon on direct examination. On cross-examination, the Commonwealth asked, "Is it fair to say that my office has had the responsibility of prosecuting you at least three times?" Dixon immediately objected to the question, but was overruled by the trial court. Simpson answered the question, stating that he had been convicted twice. In the ensuing bench conference, Dixon requested an admonition to the jury to instruct them that Simpson was a convicted felon, and no more information needed to be considered. The trial court declined to admonish the jury, reasoning that an admonition would bring more attention to Simpson's statement.

         KRE[2] 609 permits impeachment of a witness by asking if he is a convicted felon. "If his answer is 'Yes, ' that is the end of it and the court shall thereupon admonish the jury that the admission by the witness of his prior conviction of a felony may be considered only as it affects his credibility as a witness, if it does so." Commonwealth v. Richardson, 674 S.W.2d 515, 517-18 (Ky. 1984). Thus, it was certainly error for the trial court to allow an inquiry into the number of Simpson's convictions. However, like all evidentiary errors, when more than the mere fact of felony conviction is elicited from a witness, the issue becomes subject to harmless error analysis. Allen v. Commonwealth, 395 S.W.3d 451, 467 (Ky. 2013).

The test for harmlessness is whether the error substantially swayed the verdict. The inquiry is not simply whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Id. (Internal citations and quotation marks omitted). Similarly, a trial court's failure to give a warranted admonition constitutes error, but it may nonetheless be deemed harmless if there is no reasonable likelihood the jury was swayed by the error. Commonwealth v. Tramble, 409 S.W.3d 333, 339 (Ky. 2013).

         The Kentucky Supreme Court has previously found that an improper inquiry into felony convictions may be deemed harmless, even when the witness is subjected to more invasive questioning than what took place here. In Hodge v. Commonwealth, 17 S.W.3d 824 (Ky. 2000), the trial court erroneously permitted the prosecutor to ask about the number and nature of the witness's prior felony convictions. Id. at 848. Nonetheless, our Supreme Court found the error in Hodge to be harmless, "because there is no reasonable possibility that, absent the error, the verdict would have been different." Id. The Supreme Court also found it significant that the elicited statements were not those of the defendant, but only of a witness; "thus, there was no danger that the improper evidence would be considered for any purpose other than to affect her credibility." Id. at 849 (Comparing Hodge to Richardson, 674 S.W.2d at 517-18, where the prosecutor's impeachment was directed at testimony from the criminal defendant). As in Hodge, the Commonwealth's improper questioning in this case was merely of a witness, and not the defendant. Based on these factors, we conclude that the trial court's errors on this issue were harmless. The Commonwealth presented significant evidence, in the form of testimony and physical exhibits, supporting the argument that Dixon possessed the ...

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