Sevier v. Commonwealth, s. 2012–SC–000238–MR, 2013–SC–000265–TG.

Citation434 S.W.3d 443
Decision Date19 June 2014
Docket NumberNos. 2012–SC–000238–MR, 2013–SC–000265–TG.,s. 2012–SC–000238–MR, 2013–SC–000265–TG.
CourtUnited States State Supreme Court (Kentucky)
PartiesJason SEVIER, Appellant v. COMMONWEALTH of Kentucky, Appellee. Carolyn Baughman, Appellant v. Commonwealth of Kentucky, Appellee.

OPINION TEXT STARTS HERE

Kathleen Kallaher Schmidt, Assistant Public Advocate, for appellants Jason Sevier and Carolyn Baughman.

Brandon Neil Jewell, Assistant Public Advocate, for appellant Carolyn Baughman.

Jack Conway, Attorney General of Kentucky, Kenneth Wayne Riggs, Assistant Attorney General, for appellee.

Opinion of the Court by chief justice MINTON.

A circuit court jury convicted Jason Sevier and Carolyn Baughman in a joint trial of manufacturing methamphetamine, possession of a methamphetamine precursor, first-degree possession of a controlled substance, fourth-degree controlled-substance endangerment of a child, and possession of drug paraphernalia. Sevier and Baughman were sentenced to twenty and fifteen years' imprisonment, respectively. Sevier appeals the resulting judgment directly to this Court as a matter of right. Baughman's matter-of-right appeal to the Court of Appeals was transferred to this Court and consolidated with Sevier's appeal. We issue a single opinion for these consolidated appeals.

Sevier and Baughman assign multiple, nearly identical errors on appeal. They contend that (1) the convictions for manufacturing methamphetamine and possession of a methamphetamine precursor violate double jeopardy; (2) the Commonwealth did not produce sufficient evidence to support the convictions for manufacturing methamphetamine, possession of a methamphetamine precursor, and fourth-degree controlled-substance endangerment of a child; (3) the jury instructions did not ensure that each appellant was found guilty beyond reasonable doubt of every element of every charged offense; (4) the trial court erred in failing to draw randomly and remove an alternate juror from the panel before the jury began deliberations; (5) the trial court erred by failing to swear the bailiff; (6) the trial court did not have jurisdiction to order the defendants to pay restitution to the government; and (7) the trial court improperly ordered the appellants to pay court costs and a public defender fee.

We affirm all convictions for both Sevier and Baughman, excepting their convictions for possession of a methamphetamine precursor, which we vacate because we find those convictions, when coupled with the manufacturing methamphetamine convictions, violate the double-jeopardy bar. We also reverse the trial court's imposition of court costs and fees. Accordingly, we remand the case to the trial court for entry of a judgment consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY.

Officers were dispatched to a trailer on a drug complaint. After the officers knocked and announced their law-enforcement status, Baughman emerged to speak to them. The officers informed her they were looking for Sevier. She retreated into the trailer and conferred with Sevier before returning and directing the officers to the bedroom he occupied.

As the officers entered the trailer, they immediately recognized the strong ammonia odor commonly associated with the manufacture of methamphetamine. As they entered Sevier's room, they saw lying on the bed a broken pipe that appeared to be one used to smoke methamphetamine. The pipe contained residue.

While one officer spoke to Sevier, another officer discovered two other people in the trailer—Rebecca Reeves and her seven-year-old daughter, Sally. 1 This prompted the officers to gather the occupants in the living room. At this time, the officers learned that Sevier and Reeves leased the trailer and shared one of its two bedrooms. They also found that Baughman stayed there because she had nowhere else to live. She shared the second bedroom with Sally. The officers then obtained written consent to search the trailer.

Their search produced chemicals and equipment commonly associated with methamphetamine production and consumption. In the kitchen, the officers found: a pickle jar containing flakes in “meth oil” 2 that was believed to be active and still reacting, a funnel, coffee filters, liquid drain cleaner, rock salt, and a milk jug of Coleman fuel.

In Sevier and Reeves's bedroom, the officers found four glass pipes and a piece of aluminum foil with residue consistent with methamphetamine, a digital scale, a roll of duct tape, and a coffee filter with methamphetamine residue. The officers found in Baughman's purse two pieces of aluminum foil with residue consistent with methamphetamine and a third piece of foil in a notebook in the room she shared with Sally.

Officers found more evidence during a consensual search of Reeves's car parked outside the trailer. The car contained batteries with the lithium strips removed and three HC1 generators, or smoke bottles, which tested positive for hydrochloric acid. These smoke bottles are commonly used to house a chemical reaction that generates gaseous hydrochloric acid that can then be introduced into the chemical mixture like that stored in the pickle jar. This introduction spurs yet another chemical reaction that ultimately produces methamphetamine flakes. The officers determined that one of the smoke bottles had been recently used and was still reacting. The top of this bottle had been modified to accept a piece of plastic tubing that was secured by duct tape. The volatility of the HC1 generators and the mixture in the pickle jar necessitated the deployment to the scene of an independent hazardous-waste disposal company to stabilize and remove the tainted items.

The discovery of this evidence resulted in the arrest of Sevier, Baughman, and Reeves on charges of manufacturing methamphetamine, possession of a methamphetamine precursor, first-degree possession of a controlled substance, fourth-degree controlled-substance endangerment of a child, and possession of drug paraphernalia. The three were tried jointly and convicted on all counts. Sevier and Baughman were sentenced to a total of twenty and fifteen years' imprisonment, respectively. Sevier appealed the resulting judgment to this Court, and Baughman appealed the judgment against her to the Court of Appeals. 3 As recommended by the Court of Appeals, we granted Baughman's request to transfer her appeal to this Court; and we consolidated it with Sevier's appeal.4

II. ANALYSIS.
A. Sevier's Convictions for Manufacturing Methamphetamine and Possession of a Methamphetamine Precursor Violate Double Jeopardy.

Sevier alleges that his convictions for manufacturing methamphetamine and possession of a methamphetamine precursor violate double jeopardy because both convictions may have been procured on the basis of his possession of pseudoephedrine. This issue is unpreserved, but we review it nonetheless because of its constitutional magnitude.5

Section Thirteen of the Kentucky Constitution states [n]o person shall, for the same offense, be twice put in jeopardy of his life or limb[.] 6 To determine if a person has been in jeopardy for the same offence twice, we apply the test as announced in Blockburger v. United States.7 Under Blockburger, [t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact the other does not.” 8 When two different statutes define the “same offense,” under the Blockburger test, it is typically because one is a lesser-included offense of the other.9 Accordingly, to resolve Sevier's double-jeopardy claim, we must compare the statutes under which he was convicted with the jury instructions used to reach those convictions.

Sevier was convicted of manufacturing methamphetamine under the theory that he possessed two or more chemicals or items of equipment used to manufacture methamphetamine.10 Under this theory, one violates Kentucky Revised Statutes (KRS) 218A.1432(1)(b) when he (1) with intent to manufacture methamphetamine (2) possesses two or more chemicals or two or more items of equipment for the manufacture of methamphetamine. In reaching this end, the trial court instructed the jury for this charge as follows:

You will find the defendant(s) guilty of Manufacturing Methamphetamine under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt that in this county on or about March 6, 2011, and before the finding of the indictment herein, he or she knowingly had in their possession with the intent to manufacture methamphetamine two or more of the chemicals and/or two or more of the items of equipment for its manufacture.

To convict Sevier of possession of a methamphetamine precursor, the Commonwealth alleged that Sevier possessed pseudoephedrine and intended to use it as a precursor to manufacture methamphetamine. Although no pseudoephedrine was found in the trailer, the Commonwealth argued that the trailer's occupants must have possessed it at some time because pseudoephedrine is a necessary ingredient of the chemical reaction taking place in the pickle jar.11 Therefore, under the Commonwealth's theory, Sevier violated KRS 218A.1437 when he (1) possessed pseudoephedrine (2) with the intent to use it as a precursor to manufacture methamphetamine. The trial court's instruction regarding this charge read as follows:

You will find the Defendant(s) guilty of Possession of Methamphetamine Precursors under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about March 6, 2011, and before the finding of the indictment herein, he or she had in their possession a drug product containing pseudoephedrine;

B. That he or she knew that the substance possessed by them was a drug product containing pseudoephedrine;

AND

C. That he or she intended that the drug product containing...

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    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
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    ...... for a possession-of-a-methamphetamine-precursor conviction." Sevier v. Commonwealth , 434 S.W.3d 443, 451-52 (Ky. 2014) (noting that the ......
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