JONES v. COMMONWEALTH

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Court of Appeals of Kentucky.

Rachel JONES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2008-CA-000597-MR.

Decided: May 22, 2009

Before NICKELL, STUMBO, and WINE, Judges. Kathleen K. Schmidt, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for appellant. Jack Conway, Attorney General of Kentucky, Michael J. Marsch, Assistant Attorney General, Office of Criminal Appeals, for appellee.

OPINION

This is an appeal from a judgment of the Laurel Circuit Court convicting Rachel Jones (hereinafter Appellant) of one count of trafficking in marijuana under eight ounces and two counts of third-degree trafficking in a controlled substance, second offense. Appellant received the maximum five-year sentence on each count, to run consecutively, for a total of fifteen years' imprisonment. Appellant raises three arguments on appeal. She claims that the trial court erred when it gave an erroneous instruction to the jury, that the trial court should have granted her motion for directed verdict, and that she was prejudiced when evidence of prior bad acts was introduced. We find that the trial court acted properly in each instance and affirm Appellant's conviction.

On January 22, 2007, Detective Brian Lewis, along with Stanley Howard, an informant, went to Appellant's residence for the purpose of a controlled buy of marijuana and Xanax. Howard had informed Lewis that Appellant would sell him drugs. Lewis gave Howard $100.00 and a video camera to record the buy. Howard entered the house while Lewis remained in the car.

When Howard returned from Appellant's house, he gave Lewis marijuana, fifteen Xanax pills, $60.00 in change, and the video camera. Lewis then put the drugs in an evidence bag and kept them under lock and key until he was able to give them to his superior at the Cumberland Drug Task Force. The drugs were then sent to the Kentucky State Police Crime Lab. This same procedure was followed on March 19, 2007, when Howard was able to purchase three Klonopin pills and one Xanax.

At trial, Lewis and Howard testified as to the events of the two nights. Joel Cunnagin, manager of the Cumberland Drug Task Force, testified about the chain of custody procedures followed by Lewis.

Lee Anne Garrison, an employee of the Kentucky State Police Crime Lab, testified that she examined the evidence from January, 22, 2007. She testified that she did a chemical test on the marijuana and that it was in fact marijuana and that she did a physical appearance test on the fifteen pills using a pharmaceutical database called Identidex. According to the database, the fifteen pills were alprazolam, a Schedule Four narcotic also known as Xanax.

Nancy Hibbits, also of the Kentucky State Police Crime Lab, testified that she received the four March 19, 2007, pills, three yellow tablets and one blue tablet. She testified that she used the Identidex database to identify the blue tablet as alprazolam. She also did chemical testing on the yellow tablets and identified them as clonazepam, a Schedule Four narcotic also known as Klonopin.

The jury found Appellant guilty of the three charges listed above, and the trial court entered its judgment on February 25, 2008.

Appellant first argues that the court gave the jury an improper instruction. The instruction stated that the jury could convict Appellant if it found beyond a reasonable doubt that on March 19, 2007, Appellant knowingly sold “a quantity of Clonazepam and/or Alprazolam, Schedule IV Controlled Substances․” Appellant claims that the “and/or” language violated the requirement that a unanimous verdict be reached by all the jurors. She claims that the “and/or” language gave the jury three alternative theories of how Appellant could have committed the crime: she could have sold both drugs, clonazepam only, or alprazolam only.

Appellant cites to Burnett v. Commonwealth, 31 S.W.3d 878 (Ky.2000), for the proposition that when presented with alternate theories of guilt, the Commonwealth must meet its burden of proof under each alternate theory. Only once this is accomplished does it become irrelevant which theory the jury believed, as long as each juror convicted on a theory that was proven beyond a reasonable doubt. Id. Here, Appellant argues that there was no evidence to support her conviction based on the selling of alprazolam because it was never chemically tested.

The Commonwealth argues that each theory was proven by the evidence in this case. Both the clonazepam and alprazolam were purchased by Howard from Appellant, the transactions were videotaped, the clonazepam was chemically tested, and the alprazolam was identified by its shape, color, and markings from the Identidex database.

Nothing less than a unanimous verdict is permitted in a criminal case. Unanimity becomes an issue when the jury is instructed that it can find the defendant guilty under either of two theories, since some jurors might find guilt under one theory, while others might find guilt under another. If the evidence would support conviction under both theories, the requirement of unanimity is satisfied. However, if the evidence would support a conviction under only one of two alternative theories, the requirement of unanimity is violated.

Davis v. Commonwealth, 967 S.W.2d 574, 582 (Ky.1998) (citations omitted). We find that the evidence presented at trial would support conviction under each theory presented in the jury instruction at issue. The video recording of the buys and the testimony of Lewis, Howard, Hibbits, and Garrison all support conviction.

Next Appellant argues that the trial court erred when it denied her motion for a directed verdict of acquittal.

On motion for a directed verdict, the trial judge must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991). 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. Id. The standard for appellate review of a denial of a motion for a directed verdict based on insufficient evidence is if, under the evidence as a whole, it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal. Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983).

Williams v. Commonwealth, 178 S.W.3d 491, 493-494 (Ky.2005).

Appellant claims that there was no evidence that she sold alprazolam because it was not chemically tested, and she claims there was no evidence that she knowingly sold Schedule Four narcotics because the pills were referred to as their common names, Xanax and Klonopin, and there was no testimony that these common names referred to alprazolam and clonazepam.

We disagree. There was sufficient evidence for a jury to reasonably find defendant guilty. Hibbits and Garrison both testified that the pills they were given from the controlled buys of January and March were alprazolam and clonazepam, both Schedule Four narcotics. These pills were either identified using chemical tests or physical comparison. Further, it is not unreasonable for drugs to be identified by their physical characteristics. See Miller v. Commonwealth, 512 S.W.2d 941 (Ky.1974) (where a case for trafficking in a controlled substance was submitted to the jury based on the sole evidence of the testimony of a nonexpert observer who was able to identify the substance due to her own past drug use). Also, the videotapes of the transactions were played for the jury. We therefore find the court correctly denied the motion for directed verdict.

Finally, Appellant argues that she was denied a fair trial when prejudicial evidence of other crimes was introduced to the jury through the unredacted videos of the drug transactions. Appellant notes that this error was not preserved, but requests review under Kentucky Rule of Criminal Procedure (RCr) 10.26.

A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

RCr 10.26. “[I]f upon consideration of the whole case the reviewing court does not conclude that a substantial possibility exists that the result would have been any different, the error complained of will be held to be nonprejudicial.” Jackson v. Commonwealth, 717 S.W.2d 511, 513 (Ky.App.1986) (citation omitted).

Appellant's argument revolves around comments made by Howard on the videotapes played for the jury. On the January video, Howard can be heard talking about how Appellant used to sell oxycontin, but that he does not know if she still does. On the March video, Howard and Appellant can be heard talking about Appellant paying eight dollars for an unidentified substance. Appellant claims these statements are evidence of other crimes and were prejudicial to her case.

Appellant relies heavily on Kentucky Rule of Evidence (KRE) 404(b) which states that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” She argues that these other crimes prejudiced her by telling the jury that she was a “drug dealer by character.” She claims that the effect of this was that the jury sentenced her to a total of fifteen years even though the prosecutor only recommended ten years. Also, she points out comments made by the trial judge during sentencing that from what he saw during trial, she was a habitual drug dealer who appeared to know what she was doing.

The Commonwealth argues that these two statements do not amount to palpable error. We agree. First, there was overwhelming evidence of Appellant's guilt. It was entirely reasonable for the jury to give Appellant the maximum sentence regardless of the prosecutor's recommendation. There is not a substantial possibility that the result would have been any different.

As for the comments made by the trial judge, when viewed in context, they do not suggest reliance on the prior bad acts. The judge states that the “evidence in this case ․ proved the defendant guilty beyond a reasonable doubt” and that from seeing the evidence, Appellant is a drug dealer and not a “sporadic drug dealer, not a drug dealer by opportunity, but a habitual, chronic drug dealer ․ at least during this period of time span that the court saw on this tape.”

He goes on to discuss that from the tape, it appeared Appellant knew what she was doing and seemed very experienced. It appears to us that the trial judge was not prejudiced by the two bad acts referred to in the videos, but that he was commenting on her actions during the current transactions. We do not view the complained of statements resulted in manifest injustice to Appellant. There was a vast amount of evidence against Appellant and we do not see that a substantial possibility exists that the outcome would have been different.

For these reasons, we affirm the conviction of Appellant.

STUMBO, Judge.

ALL CONCUR.