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Jones v. Commonwealth

Court of Appeals of Kentucky

February 1, 2019



          BRIEFS FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Stephen F. Wilson Assistant Attorney General Frankfort, Kentucky



          MAZE, JUDGE.

         On March 28, 2017, a Russell County grand jury returned an indictment charging Brandon Jones and a co-defendant, Tabitha Morgan, with three counts of trafficking. The first count was for first-degree trafficking in methamphetamine (second or greater offense); the second count was for third-degree trafficking of tramadol (second or greater offense); and the third count was for trafficking in a legend drug (second or greater offense). Following a trial, a jury convicted Jones of all three counts and fixed his sentence at a total of ten years' imprisonment. The trial court entered a judgment imposing the jury's sentence. Jones now appeals to this Court.

         We conclude that there was sufficient evidence that Jones was in constructive possession of the drugs to submit the issue to the jury. We also conclude that there was sufficient evidence to support a jury instruction that Jones intended to traffic in the drugs. However, we conclude that the trial court erred by allowing the Commonwealth to introduce evidence of a prior trafficking conviction as additional proof of intent to traffic. Finally, we conclude that the Commonwealth failed to prove that the capsules contained a legend drug. Consequently, Jones was entitled to a directed verdict on the charge of trafficking in a legend drug. Hence, we reverse all three trafficking convictions and we remand for a new trial on the counts of trafficking in methamphetamine and trafficking in tramadol.

         The charges in this case arose on November 21, 2016, when Kentucky State Police Trooper Billy Begley and several Russell County Sherriff's deputies went to the home of Sheldon Grider to serve arrest warrants on Jones and Morgan. Jones's aunt, Pamela Hammonds, opened the door and admitted the officers to look for Jones and Morgan. Trooper Begley found Jones and Morgan sleeping in the rear bedroom. The officers entered the room, woke up Jones and Morgan, and told them about the warrants. After turning on the lights, Trooper Begley saw a pill bottle on the dresser and a corner of an open baggie sticking out with a white substance in it. There was no label on the bottle. Trooper Begley also saw tablets and capsules laying on the dresser next to the pill bottle.

         At trial, the Commonwealth presented the testimony of Rebecca Stone, a forensic chemist employed by the Kentucky State Police's Central Laboratory. Stone testified that the white powder weighed 3.024 grams and tested positive for containing methamphetamine. Stone also testified that there were fourteen white tablets which she identified from their markings as tramadol, a Schedule IV controlled substance. Finally, Stone testified that there were forty-three capsules, which she did not submit to testing. However, Stone testified that the capsules "possibly" contained gabapentin. Gabapentin is not a federally-scheduled controlled substance, but the Food & Drug Administration prohibits dispensing it without a prescription.

         Jones primarily argues that the Commonwealth failed to prove an essential element of all three offenses beyond a reasonable doubt. On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then is the defendant entitled to a directed verdict of acquittal. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). When ruling on a directed verdict motion, the trial court must assume the evidence for the Commonwealth is true and draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Id. But to survive a motion for a directed verdict, the Commonwealth must produce more than a mere scintilla of substantive evidence. Sawhill, 660 S.W.2d at 5.

         First, Jones argues that the Commonwealth failed to prove that he actually or constructively possessed any of the drugs found in the bedroom where he and Morgan were sleeping. Possession may be proven through either actual possession or constructive possession. Johnson v. Commonwealth, 90 S.W.3d 39, 42 (Ky. 2002), overruled on other grounds by McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky. 2010). "Constructive possession exists when a person does not have actual possession but instead knowingly has the power and intention at a given time to exercise dominion and control of an object, either directly or through others." Id. (quoting United States v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995)).

         Jones points out that the drugs were all found on the top of a dresser in Grider's house, with nothing to readily identify who owned them or who placed them there. Jones also contends that other people in the house had equal or greater access to the guest bedroom. However, Jones and Morgan were found sleeping in the bedroom where the drugs were found. Moreover, the drugs were in plain sight and, thus, were in Jones's immediate control. Consequently, we conclude that the trial court properly submitted the issue of possession to the jury.

         Second, Jones argues that the Commonwealth failed to prove any intent to sell or traffic in the drugs. KRS[1] 218A.010(55) provides that the term "traffic" "means to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance . . . ." KRS 218A.1431(3) similarly defines the term with respect to trafficking in methamphetamine. The parties in this case agree that intent to traffic is an essential element of the offenses with which Jones was charged. Commonwealth v. Atkins, 331 S.W.3d 260, 264 (Ky. 2011).

         Jones correctly points out that officers did not find any paraphernalia, scales, baggies, or large amounts of money in the room or the house. Consequently, Jones argues that there was no evidence indicating that he was engaged in trafficking the drugs for sale or distribution. However, intent to traffic may be inferred where the quantity of drugs is inconsistent with personal use or accompanied by circumstances that are inconsistent with personal use. ...

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