Beaty v. Com.

• Decision Date: 23 October 2003
• Docket Number: No. 2001-SC-0890-MR.,2001-SC-0890-MR.
• Parties: Roger BEATY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

125 S.W.3d 196

Roger BEATY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2001-SC-0890-MR.

Supreme Court of Kentucky.

October 23, 2003.

Rehearing Denied February 19, 2004.

Euva D. Hess, Assistant Public Advocate, Appellate Division, Department of Public Advocacy, Frankfort, Counsel for Appellant.

A. B. Chandler, III, Attorney General, State Capitol, Samuel J. Floyd, Jr., Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

Appellant, Roger Beaty, was convicted by a Logan Circuit Court jury of five counts related to the possession, trafficking, or manufacturing of illegal drugs and drug paraphernalia and one count of operating a vehicle under the influence of alcohol or an impairing substance (DUI). All sentences imposed for those convictions were ordered to run concurrently for a total of twenty years imprisonment. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), contending that: (1) the trial court improperly allowed a prosecution witness to testify despite the untimely production of the witness's statement in violation of RCr 7.26; (2) there was insufficient evidence to convict him of "knowingly" manufacturing methamphetamine; (3) the jury instruction as to manufacturing methamphetamine failed to require proof of scienter; (4) the trial court failed to allow him to present his defense that the crime was committed by another person; (5) the constitutional guarantee against double jeopardy was violated by his dual convictions of manufacturing methamphetamine and possession of a controlled substance in the first degree; and (6) the trial court failed to properly address the jury's error in returning verdicts sentencing him for both a first and second offense of possession of drug paraphernalia.

I. FACTS.

On November 8, 2000, Logan County Deputy Sheriff Jimmy Phelps observed a white Chevrolet erratically weaving from side to side on the highway. Upon stopping and approaching the vehicle, Phelps detected a strong odor of anhydrous ammonia. Appellant was the driver of the Chevrolet; his girlfriend, Marion Ann Hanks, was in the front passenger seat. Phelps asked Appellant to exit the vehicle, and as he did so, Phelps observed that he was unsteady on his feet. Appellant failed the field sobriety tests and was arrested and charged with DUI. KRS 189A.010(1). Because the breath test was negative, Phelps concluded that Appellant was under the influence of a substance other than alcohol. Appellant refused to submit to a blood or urine test at a local hospital.

A search incident to the arrest revealed substantial evidence of illegal drug activity. In a bag concealed in the area of his groin, Appellant possessed three small bags of marijuana, a bag of cocaine, a set of scales, and other assorted drug paraphernalia. When Hanks was asked to exit the vehicle by another officer, she attempted to hide under the vehicle a bag containing marijuana and rolling papers. Officers found marijuana seeds in the front seat, open containers of beer and gin, and, in the glove compartment, a prescription pill bottle containing crack cocaine and bearing the name "Kenneth Huskey," who, as explained infra, was the boyfriend of the vehicle's owner.

The back seat and trunk of the vehicle contained a methamphetamine laboratory. A search of the back seat revealed several garbage bags and a duffel bag containing a piece of burnt aluminum foil bearing methamphetamine residue, several thousand Sudafed tablets, starter fluid, ether fuel, drain cleaner, iodized salt, brass fittings, tubing, pipe wrenches, hoses, duct tape, vice grips, bolt cutters, and glass jars. The trunk contained three propane tanks (one containing anhydrous ammonia) and a gallon jar containing a liquid white residue later found to be methamphetamine. Phelps testified that upon examining the jar and the equipment, he determined that Appellant "was actually in the process of cooking while driving down the road."

The vehicle was owned by Hanks's friend, Pamela Kuhl. Appellant and Hanks testified that they had borrowed the car merely to do laundry and were ignorant of the contents of the back seat and trunk. Hanks claimed that the car was always messy and that she had not noticed the equipment in the back seat. Kuhl, and Kuhl's boyfriend, Kenneth ("Spook") Huskey, testified that the car was empty when they loaned it to Hanks in the early afternoon of November 8, 2000.

Appellant was indicted on nine counts: driving erratically in violation of KRS 189.300 (Count I); DUI in violation of KRS 189A.010(1)(c) (Count II); trafficking in marijuana (less than eight ounces) in violation of KRS 218A.1421(2)(b) (Count III); manufacturing methamphetamine in violation of KRS 218A. 1432(1)(a) (Count IV); possession of a controlled substance in the first degree in violation of KRS 218A.1415 (Count V); possession of anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine in violation of KRS 250.489 and KRS 250.991(2) (Count VI); possession of drug paraphernalia, second offense, in violation of KRS 218A.500(2) (Count VII); violating the open container laws, KRS 189.530(2) (Count VIII); and being a persistent felony offender in the second degree (Count IX).¹ Counts I, VIII, and IX were eventually dismissed. A Logan Circuit Court jury convicted Appellant on all remaining counts (including possession of marijuana, a lesser included offense under Count III, which was subsequently dismissed pursuant to KRS 505.020) and recommended that his sentences run concurrently for a total of twenty years. The trial court entered a judgment in accordance with the verdicts and sentenced Appellant to a total of twenty years in prison. We affirm Appellant's convictions and sentences for DUI, trafficking in marijuana, and possession of drug paraphernalia, second offense, but reverse and remand for a new trial Appellant's convictions of manufacturing methamphetamine, possession of a controlled substance in the first degree, and possession of anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine.

II. DELAYED DISCOVERY.

Appellant first complains that Kenneth Huskey was allowed to testify despite a discovery violation. On November 15, 2000, Huskey, gave the following statement to the police:

Marion Ann and Roger came by my girlfriend's house and ask [sic] to borrow the car to go wash close [sic]. He took me to the store about 3:00—3:30, took me back to my girlfreind's [sic] house and left. [T]here was nothing in the backseat [sic] of the car when [I] was in there. Not to my knowledge was anything in the trunk!!

The Commonwealth concedes that RCr 7.26(1) required the prosecutor to furnish Huskey's statement to Appellant no later than forty-eight hours prior to trial and that the Commonwealth did not produce the statement until the day before trial. Appellant made a motion in limine to preclude Huskey from testifying because of this discovery violation. The trial court overruled the motion and explained in an order denying a motion for a new trial that Appellant had failed to allege that the late submission prejudiced him or that he would have "done anything differently" if the statement had been provided in a timely manner.

We find no abuse of discretion. "[E]ven if the forty-eight hour rule is violated, automatic reversal is not required. Some prejudice must be found, or the error, if any, is harmless." Gosser v. Commonwealth, Ky., 31 S.W.3d 897, 905 (2000), citing McRay v. Commonwealth, Ky.App., 675 S.W.2d 397, 400 (1984). See also Roach v. Commonwealth, Ky., 507 S.W.2d 154, 155 (1974); Hicks v. Commonwealth, Ky.App., 805 S.W.2d 144, 149 (1990). Here, the error was harmless.

Appellant claims he was prejudiced by Huskey's testimony, but in so arguing he commits a kind of category mistake.² The relevant inquiry, instead, is whether Appellant was prejudiced by the Commonwealth's tardiness. Appellant does not claim that receiving the statement on time (one day earlier than he did receive it) would have impacted his defense. Appellant did not request a continuance, does not claim that Huskey's statement was exculpatory, compare Mounce v. Commonwealth, Ky., 795 S.W.2d 375, 378 (1990), and does not claim that he was surprised. While Appellant now suggests that he would have liked to have questioned Huskey about a pending indictment against Huskey, the statement contained no information relevant to that issue. Thus, the violation of the rule in this case did not result in prejudice.

III. SUFFICIENCY OF THE EVIDENCE.

Appellant next contends that the trial court erred by failing to direct a verdict on the charges of manufacturing methamphetamine and possessing anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine. Both charges contain a requirement that the conduct be undertaken "knowingly." KRS 218A. 1432; KRS 250.489(1); KRS 250.991(2). In arguing that the evidence of scienter was insufficient, Appellant maintains, as he did at trial, that he was completely ignorant of the fact that there was a methamphetamine laboratory in the vehicle.

"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." Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991). As Appellant admits, direct evidence of his awareness of the laboratory was not required to support his conviction. Love v. Commonwealth, Ky., 55 S.W.3d 816, 825 (2001). Knowledge may be inferred from circumstantial evidence. Id.; McRay, supra, at 399.

There was overwhelming evidence from which to infer Appellant's knowledge of the methamphetamine laboratory. First, Appellant was driving the vehicle. Leavell v. Commonwealth, Ky., 737 S.W.2d 695, 697 (1987) ("The person who owns or exercises dominion or control over a motor vehicle...