FROM RUSSELL CIRCUIT COURT HONORABLE VERNON MINIARD, JR.,
JUDGE ACTION NO. 17-CR-00048
FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate
Department of Public Advocacy Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Stephen F. Wilson Assistant Attorney General Frankfort,
BEFORE: LAMBERT, JONES, AND MAZE, JUDGES.
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
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.
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
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.
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.
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)).
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
Jones argues that the Commonwealth failed to prove any intent
to sell or traffic in the drugs. KRS 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
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.