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McGuire v. Commonwealth

Supreme Court of Kentucky

October 31, 2019

HUBERT MCGUIRE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM HENDERSON CIRCUIT COURT HONORABLE KAREN LYNN WILSON, JUDGE NO. 16-CR-00378

          COUNSEL FOR APPELLANT: Julia Karol Pearson Assistant Public Advocate

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General Joseph A. Newberg II Assistant Attorney General

          OPINION

          MINTON CHIEF, JUSTICE.

         A circuit court jury convicted Hubert McGuire of first-degree trafficking in a controlled substance, second-degree fleeing and evading police, tampering with physical evidence, resisting arrest, and of being a first-degree persistent felony offender, and the trial court sentenced him to a total of twenty years' imprisonment.

         McGuire now appeals the resulting judgment to this Court as a matter of right[1] alleging three errors: (1) the trial court abused its discretion by allowing certain testimony; (2) the trial court erred in denying McGuire's motion for a directed verdict of acquittal on the first-degree trafficking charge, and (3) the trial court erred in denying McGuire's motion for a directed verdict on the tampering with physical evidence charge. We affirm in part, reverse in part, and remand to the trial court for entry of a new judgment consistent with this opinion.

         I. BACKGROUND.

         When Officer Jake Isonhood spotted Hubert McGuire standing on the street corner, he knew there was an outstanding arrest warrant for McGuire. Isonhood detained and attempted to arrest McGuire; but McGuire took off running, and a chase began. Isonhood caught up to McGuire and took him down, as McGuire continued to resist. In the struggle, Isonhood saw McGuire reach for an unidentified item in his waistband, so Isonhood deployed his taser. But the taser was ineffective. Isonhood took off running again, and the chase continued. While Isonhood was running behind McGuire, Isonhood saw McGuire throw his arm out away from the right side of his body. Isonhood deployed his taser a second time and was able to arrest McGuire.

         During the search of McGuire's person, Isonhood found eight unused small plastic baggies and money in small denominations. After subduing McGuire, Isonhood retraced the route of the foot chase to the place where he had seen McGuire throwing his arm away from McGuire's right side. At that spot, he found two more baggies: one containing 2.623 grams of methamphetamine and one containing marijuana. Isonhood later testified that the baggies were lying on the ground less than ten feet to the right of McGuire's flight path and their location was consistent with being thrown in the direction he saw McGuire's hand moving.

         At trial, Isonhood testified that, based on his experience, the small plastic bags like those found on McGuire were commonly used to hold drugs, the quantity of methamphetamine found on McGuire was inconsistent with personal use, and that customarily people in possession of methamphetamine for personal use are found with only one small plastic bag and some tool for ingesting the drug-such as a needle or spoon-but McGuire was found with multiple bags and tools for ingesting the drug.

         The jury convicted McGuire of first-degree trafficking in a controlled substance, second-degree fleeing and evading police, tampering with physical evidence, resisting arrest, and of being a first-degree persistent felony offender. The jury fixed McGuire's sentence for the trafficking conviction at 10 years' imprisonment, enhanced as a first-degree persistent felony offender to 15 years and the sentence for tampering with physical evidence at five years' imprisonment, enhanced as a first-degree persistent felony offender to 10 years. And the jury recommended these sentences to run consecutively. The jury fixed the punishment for the two misdemeanor convictions, second-degree fleeing or evading the police and resisting arrest, at 12-months each, which, by law, run concurrently.

         At sentencing, the trial court imposed the sentences recommended by the jury for all convictions except for the trafficking conviction. The trial court imposed an enhanced sentence of ten years' imprisonment for trafficking in a controlled substance as a first-degree persistent felony offender.

         II. ANALYSIS.

         1. The trial court did not err in admitting Officer Isonhood's testimony regarding the physical evidence.

         McGuire first argues that the trial court erred in allowing certain parts of Officer Isonhood's testimony because it expressed his opinion on the ultimate issue of whether McGuire was guilty of trafficking in a controlled substance. At trial, Officer Isonhood testified that, based on his experience, the small plastic bags found on McGuire's person are commonly used to carry drugs, the quantity of methamphetamine recovered after the arrest was inconsistent with personal use, and that persons in possession of methamphetamine for personal use typically only possess one small baggie and are also found with some means of administering the drug.

         McGuire's counsel failed to object to this testimony at trial, so we review for palpable error under RCr[2] 10.26. Palpable-error review allows reversal when "manifest injustice has resulted from the error."[3] Such an injustice occurs when there is a "probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law."[4] "When an appellate court engages in a palpable error review, its focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process."[5]

         Specifically, McGuire argues that Isonhood's testimony "invaded the jury's responsibility" because it amounted to an opinion on the ultimate issue of whether McGuire was guilty of trafficking in a controlled substance in violation of Stringer v. Commonwealth.[6] McGuire alleges this error amounts to a violation of his right to "a fair trial, fundamental fairness and due process under the Fifth and Fourteenth Amendments to the United States Constitution and §§2, 7, 11, and 14" of the Kentucky Constitution. We disagree and find the admission of this testimony to be consistent with the rule announced in Stringer.

         In Stringer, the defendant was convicted of first-degree sodomy and first-degree sexual abuse.[7] A medical expert at trial testified that his examination of the victim "revealed some hypertrophy and tearing in the vaginal area as well as some stretching and partial destruction of the hymen," and that "those findings were compatible with [the victim's] history that she had given [the medical expert]" and with "something being inserted in there, and, trying to stretch it."[8]

         In holding that the testimony was admissible, we explained that the testimony was not an "opinion as to the ultimate issue"-whether the defendant was guilty or innocent-but was instead only a relevant evidentiary fact tending to make the ultimate fact of guilt more or less probable.[9] We specifically noted that, "[i]f [the witness] had testified that he believed [the defendant] to be guilty, such would have been an opinion as to the ultimate issue. However, an opinion that a result is consistent with a factual scenario is not an opinion that the scenario occurred."[10]

         Similarly, in Kroth v. Commonwealth, [11] we held that the trial court did not err in allowing an officer "to testify that in his opinion the defendant had the pills in his possession for sale and not for personal use."[12] The officer, testifying as an expert, referred to the large quantity of drugs found in the defendant's home and "stated that such a large quantity indicated that they were for sale, not personal use, based on his ten years of experience as a narcotics officer."[13] And later in Sargent v. Commonwealth, [14] we permitted the testimony of police officers, acting as experts, to express their opinion that the large quantity of marijuana and unique packaging led them to believe it was possessed for sale rather than for personal use.[15]

         Like the witnesses in Kroth and Sargent, Officer Isonhood offered his opinion that, based on his experience as a patrol officer, the evidence recovered was consistent with trafficking and not personal use. He did not testify that he believed McGuire to be guilty or not guilty. "This type of expert opinion has been almost routinely admitted in drug cases."[16] Accordingly, Isonhood's testimony was not inadmissible as an opinion on the ultimate issue of guilt.[17]

         In the alternative, McGuire argues that Isonhood's testimony was inadmissible because Isonhood was not testifying as a qualified expert witness. McGuire argues Isonhood's opinion that the evidence found on McGuire's person was not consistent with personal use was outside the common knowledge of jurors and, therefore, without being qualified as an expert witness under KRE[18] 702, Isonhood could not testify to it.[19]

         KRE 701(c) prohibits a lay witness from testifying on subjects "[n]ot based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Whether a certain quantity of methamphetamine is consistent with personal use, whether a certain type of bag is generally used to carry drugs, and whether the items found on a person are indicative of personal drug use are all subjects outside the scope of lay witness testimony. Isonhood could not have testified to these opinions unless he was a qualified expert witness.

         But we defer largely to the trial court's discretion in determining how to qualify a witness for expert testimony. We have previously explained that KRE 701 was "specifically intended to combat the possibility of counsel avoiding the reliability standards set out in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579');">509 U.S. 579 [] (1993), 'by the simple process of offering scientific, technical, or other specialized knowledge' evidence through a witness that an attorney sought to identify as a lay witness."'[20] In order to satisfy Daubert, as codified in KRE 702, a witness must be qualified by 'knowledge, skill, experience, training, or education."'[21] And "[t]he decision to qualify a witness as an expert rests in the sound discretion of the trial court."[22] In making that decision, "a trial court has wide latitude in deciding how to test an expert's reliability and in deciding whether or when special briefing or other proceedings, i.e., at a Daubert hearing, is needed to investigate reliability, "[23] and "formal Daubert hearings are not always required."[24]

         The Commonwealth did not attempt to avoid the reliability standards of Daubert. Isonhood's testimony indicates that his opinion was based on his many years' experience as a police officer encountering individuals in possession of drugs. He testified that he had been a patrol officer for over five years and that, during that time, he had dealt with other individuals who were in possession of controlled substances. Based upon this background, we cannot say that that the trial court's failure formally to qualify Isonhood as an expert witness before allowing him to offer the testimony at issue created a "probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law."[25]

         2. The trial court did not err in denying McGuire's motion for a directed verdict on the charge of trafficking in a controlled substance.

         McGuire next alleges that the trial court erred in denying his motion for a directed verdict on the count of trafficking in a controlled substance. This issue was properly preserved for our review.

         When reviewing a trial court's ruling on a motion for a directed verdict, we turn to the standard outlined in Commonwealth v. Benham:

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.[26]

         On appellate review, we must determine whether, given the evidence as a whole, "it would be clearly unreasonable for a jury to find guilt[.]"[27] Only then is a defendant entitled to a directed verdict of acquittal.[28] Further, the Commonwealth need only produce more than a "mere scintilla" of evidence to defeat a defendant's motion for a directed verdict.[29]

         Further, the Commonwealth may prove its ease through either direct or circumstantial evidence, [30] and a jury may make reasonable inferences from circumstantial evidence.[31] While circumstantial evidence must "do more than point the finger of suspicion, "[32] a conviction can be premised on such evidence if, taking the evidence as a whole, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt.[33]

         Under KRS[34] 2I8A.I4I2(I), "[a] person is guilty of trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in: . . . [t]wo grams or more of methamphetamine." KRS 2I8A.OIO(55) defines "traffic" in regard to trafficking in the first degree as "to manufacture distribute, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance."[35]

         McGuire argues the Commonwealth failed to present sufficient evidence to show that McGuire was in possession of the methamphetamine, a necessary element of the trafficking statute quoted above. Specifically, McGuire alleges that the Commonwealth presented less than a mere scintilla of evidence because the only evidence put forth at trial was Isonhood's testimony that he observed McGuire's arm moving away from his body as he fled, that he did not see an object leave McGuire's hand, and that Isonhood returned to the area where he saw McGuire's arm moving and recovered the bag of methamphetamine. McGuire argues that his arm could have been moving because he was trying to remove the taser wires from his body and that a conviction based only on this evidence amounts to speculation, suspicion, or conjecture. Thus, McGuire argues, this error amounts to a violation of his rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and §§ 2 and 11 of the Kentucky Constitution.

         We disagree. As we noted in a companion case, Commonwealth v. James, to prove actual possession sufficient to survive a motion for a directed verdict, "it is not necessary that the Commonwealth present evidence specifically identifying a particular item being dropped by the defendant as the illegal contraband if there is adequate circumstantial evidence linking the defendant to that contraband."[36] In that case, we upheld the trial court's denial of a motion for a directed verdict on a drug possession charge where an officer testified that he observed the defendant, while walking away from the officer attempting to stop him, drop several items to the ground.[37] The officer arrested the defendant and recovered a glass pipe containing methamphetamine on the ground in the area where he observed the defendant dropping items.[38] We found this circumstantial evidence sufficient for a jury reasonably to conclude that the defendant was in actual possession of the glass pipe, but merely dropped it as the officer approached.[39]

         Similarly, evidence showing that McGuire fled as soon as he saw Isonhood, that Isonhood observed McGuire's hand moving away from the right side of his body while McGuire was fleeing, and that Isonhood returned to the area where he saw McGuire's arm move and recovered the methamphetamine on the ground within ten feet of McGuire's flight path, and that the methamphetamine was found in a position consistent with it being thrown in the direction he saw McGuire's hand move, taken as a whole, was sufficient for a jury reasonably to infer that McGuire was in actual possession of the methamphetamine and tossed it away while he was fleeing police.

         Further, we also find the evidence sufficient for a jury reasonably to infer that McGuire possessed the methamphetamine with intent to distribute it. As noted in the previous section, the Commonwealth presented evidence in the form of testimony from Isonhood that, based on his experience, small plastic bags like those found on McGuire were commonly used to hold drugs, that the quantity of methamphetamine found on McGuire was inconsistent with personal use, and that persons in possession of drugs for personal use are usually found with only one bag and a means of administering the drug. Taken together, this evidence is sufficient for a reasonable jury to conclude that McGuire possessed the methamphetamine with the intent to distribute it.

         Accordingly, we find that the Commonwealth put forth sufficient evidence to overcome a motion for directed verdict on the charge of first-degree possession of a controlled substance. The trial court did not err in denying that motion.

         3. The trial court erred in denying McGuire's motion for a directed verdict on the charge of tampering with physical evidence.

         Finally, McGuire alleges that the trial court erred in denying his motion for a directed verdict on the charge of tampering with physical evidence. This issue is properly preserved for our review.

         Specifically, McGuire argues that his act of tossing drugs while being observed by a police officer during the chase does not meet the criminal act requirement under the tampering statute. We agree.

         KRS 524.100 makes it unlawful for a person to tamper with physical evidence. In relevant part, that statute provides the following:

(1) A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he:
(a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding; . . . .[40]

         Under the text of the statute, the Commonwealth is required to prove both that the defendant committed one of the proscribed criminal acts-"[d]estroys, mutilates, conceals, removes, or alters"-and that the defendant did so with the "intent to impair its verity or availability."[41] It is not alleged that McGuire destroyed, mutilated, or altered the evidence, so the specific issue in this case is whether McGuire "concealed" or "removed" the methamphetamine when he tossed it from his flight path while being pursued by Isonhood.

         In Commonwealth v. James, [42] we noted that KRS 524.100 was based on Section 241.7 of the Model Penal Code, and that twenty-eight other jurisdictions have enacted tampering statutes based on this model provision.[43]In keeping with the courts of those jurisdictions, we adopted a widely-recognized interpretation of our tampering statute that applies to a narrow set of circumstances: "where a defendant merely drops, throws down, or abandons drugs in the vicinity of the defendant and in the presence and view of the police, this conduct does not constitute' tampering by either concealment or removal that will support an evidence-tampering charge."[44]

         In adopting this interpretation, we noted several cases from other jurisdictions with MPC-based tampering statutes, one of them being State v. Lasu.[45] In that case, the defendant was walking through a service station while being followed by an officer when he pulled a bag of marijuana out of his pocket and dropped it into a cardboard bin of snack foods.[46] The bag landed on top, and the officer immediately retrieved it and arrested the defendant.[47] The Nebraska Supreme Court found these facts insufficient to establish that the defendant had either removed or concealed the bag of marijuana.[48] In so doing, the Court noted a critical distinction between proving the criminal intent and criminal act elements of the tampering statute: "[e]ven if Lasu ...


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