Commonwealth of Ky. v. Adkins

• Decision Date: 20 January 2011
• Docket Number: No. 2009–SC–000782–DG.,2009–SC–000782–DG.
• Citation: 331 S.W.3d 260
• Parties: COMMONWEALTH of Kentucky, Appellant,v.James David ADKINS, Appellee.
• Court: United States State Supreme Court — District of Kentucky

331 S.W.3d 260

COMMONWEALTH of Kentucky, Appellant,

v.James David ADKINS, Appellee.

No. 2009–SC–000782–DG.

Supreme Court of Kentucky.

Jan. 20, 2011.

Jack Conway, Attorney General, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, KY, Counsel for Appellant.Jamesa J. Drake, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellee.Opinion of the Court by Justice ABRAMSON.

Following a jury trial in the Ohio Circuit Court, James David Adkins was found guilty of first-degree trafficking in a controlled substance (methamphetamine), in violation of Kentucky Revised Statute (KRS) 218A.1412, and of possession of drug paraphernalia, in violation of KRS 218A.500. He was sentenced to concurrent terms of confinement of five years and twelve months, respectively. At trial, Adkins presented an “innocent possession” defense, and on appeal to the Court of Appeals, he argued that the trial court erred by refusing a jury instruction that expressly addressed that defense. In a unanimous Opinion, a panel of the Court of Appeals agreed with Adkins that the jury instructions did not adequately address his defense and so reversed his conviction and remanded for a new trial. We granted the Commonwealth's motion for discretionary review to consider to what extent our statutes provide for an innocent possession defense, and specifically we asked the parties to address the issue in light of KRS 218A.220, which exempts certain persons whose possession of controlled substances is incidental and temporary from the criminal offense provisions of the KRS Controlled Substances chapter. Agreeing with the Court of Appeals that Adkins was entitled to an instruction embodying his innocent possession defense, we affirm.

RELEVANT FACTS

At trial the Commonwealth's proof included testimony to the effect that on March 16, 2007 a member of the Ohio County Sheriffs Department arrested Adkins on unrelated charges at Adkins's brother's home. That particular house fronts Highway 69 in Dundee, Kentucky, and is close to and occupies the same parcel of land as Adkins's own home. During the search of Adkins's person incident to the arrest, the officer removed from Adkins's pocket a small sock containing several unused plastic baggies, two straw-like implements suitable for snorting or smoking methamphetamine, and two baggies containing what proved to be almost seventeen grams of that drug. Other testimony was to the effect that methamphetamine is commonly packaged for illegal sale in small baggies and that seventeen grams of methamphetamine is considerably more than a person would ingest at any one time. Based on this evidence the Commonwealth argued that Adkins had violated that portion of the trafficking statutes which makes it unlawful to possess methamphetamine “with the intent to ... distribute, dispense, or sell” it. KRS 218A.010(34) (2006).¹

Adkins conceded that he possessed the methamphetamine and other items the officer found in his pocket, but he denied that he did so with the intent to “distribute, dispense, or sell” the drug. He testified that a short time before his arrest, he found the sock lying in the driveway that serves both his and his brother's residences and placed it into his pocket to keep it away from his young son. Also, because he believed it had been dropped by one of his brother's acquaintances, a reputed drug dealer, Adkins attempted to report it to the sheriff by phone. In support of this version of events, Adkins and two of his friends testified that they had seen the acquaintance leaving from the brother's driveway earlier that day, and both Adkins and one of those friends testified that they saw a small object fall from the acquaintance's truck as he was preparing to pull away. Adkins testified that when he was unable to contact the sheriff by phone he intended to turn the drugs in at the sheriff's office and to report his suspicions about his brother's acquaintance. This evidence of innocent or lawful possession entitled him, Adkins argued before the trial court, to an instruction expressly recognizing innocent possession as a defense to the charges against him.

The trial court denied Adkins's request and instead, following the model instruction found at § 9.11B of Cooper's Kentucky Instructions to Juries (2010), instructed the jury as follows:

You will find the defendant, James David Adkins, guilty of trafficking in a controlled substance in the first degree under this instruction, if and only if, you believe from the evidence beyond a reasonable doubt all of the following:

1.) That in this county on or about March 16, 2007, and before the finding of the indictment herein, he had in his possession a quantity of methamphetamine, AND

2.) That he knew the substance so possessed by him was methamphetamine, AND

3.) That he had the methamphetamine in his possession with the intent to sell, distribute or dispense it to another person.

Adkins sought to have the word “unlawfully” inserted in subsection (1) of this instruction so that it would read “he unlawfully had in his possession a quantity of methamphetamine.” The trial court refused this insertion because it was reluctant to alter the model instruction and because in its view subsection (3) of the instruction gave Adkins an adequate avenue for arguing his innocent possession defense.

The Court of Appeals disagreed. Relying on cases reiterating that the trial court is to instruct on the whole law of the case and in particular is to instruct on statutory defenses if the defense is reasonably deducible from the evidence, Fredline v. Commonwealth, 241 S.W.3d 793 (Ky.2007) (intoxication); Mondie v. Commonwealth, 158 S.W.3d 203 (Ky.2005) (protection against burglary); Mishler v. Commonwealth, 556 S.W.2d 676 (Ky.1977) (intoxication), the Court of Appeals held that Adkins had presented sufficient evidence of an innocent possession defense to entitle him to an affirmative instruction encapsulating that defense. We granted discretionary review to consider whether “innocent possession” is a defense with a statutory basis, and in particular we asked the parties to consider KRS 218A.220 and to brief its applicability to this case. Before addressing that specific question, however, we consider Adkins's more general claim that the trafficking statute itself provides him with the innocent possession defense he asserts.

ANALYSIS

I. The Court Of Appeals Correctly Determined That “Innocent Possession” Is A Defense Implicit In The Controlled Substance Statutes.

The Commonwealth argues that the Court of Appeals opinion was wrong for a couple of reasons. The Commonwealth's first contention is based on a hypothetical inapplicable to this case. According to the Commonwealth, because Adkins was not charged with illegal possession, but with trafficking, Adkins's proposed instruction risked suggesting to the jury that if Adkins acquired the drugs innocently he could not be guilty of trafficking, whereas, as the Commonwealth points out, even a person who obtains drugs law fully, such as through a proper prescription, can be guilty of the form of trafficking alleged against Adkins if he intends to provide the drugs to others and has no right to do so. In that event, however, the possession itself, coupled with the unlawful intent, becomes illegal, and we find ourselves back at Adkins's claim that his particular possession, not merely his acquisition, of the drug was lawful. Adkins clearly did not obtain the methamphetamine by prescription so that part of Commonwealth's hypothetical is not germane to this case. We focus on the facts before us in addressing whether Adkins was entitled to a more specific jury instruction and leave for another day the proper instruction for the Commonwealth's hypothetical prescription drug trafficker.

The Commonwealth primarily maintains that Adkins's defense was not the sort of affirmative, statutory defense at issue in the cases upon which the Court of Appeals relied, but is better understood, as the trial court understood it, as simply the denial or converse of one of the elements of the actual offense, and thus does not require its own express instruction. We disagree.

With the adoption of the Penal Code, of course, our criminal law became exclusively statutory, KRS 500.020, and since then, accordingly, our jury instruction cases have focused on whether the evidence would permit the finding of a statutory defense. If so, they have required an instruction affirmatively reflecting that defense in some manner. See, e.g., Thomas v. Commonwealth, 170 S.W.3d 343 (Ky.2005) (extreme emotional disturbance); Mondie, 158 S.W.3d at 209 (protection against burglary); Walker v. Commonwealth, 127 S.W.3d 596 (Ky.2004) (mistake of law). The evidence in this case similarly supports the giving of an instruction affirmatively reflecting the defense of innocent possession of a controlled substance.

What constitutes innocent possession of a controlled substance? As courts in several sister states which have addressed the “innocent possession” defense have noted, it is easy to imagine numerous circumstances in which a person might take possession of a controlled substance without any unlawful intent. See, e.g., State v. Miller, 193 P.3d 92 (Utah 2008); Ramsubhag v. State, 937 So.2d 1192 (Fla.App.2006); People v. E.C., 195 Misc.2d 680, 761 N.Y.S.2d 443 (N.Y.Supr.Ct.2003); People v. Martin, 25 Cal.4th 1180, 108 Cal.Rptr.2d 599, 25 P.3d 1081 (2001); Adams v. State, 706 P.2d 1183 (Alaska App.1985). A parent confiscating drugs from his or her child, a teacher finding drugs in his or her classroom, a daughter picking up a prescription for her bedridden parent, a homeowner finding medicine left behind by a guest, all could be, deemed illegal possessors under strictly construed possession statutes. Moreover, if the teacher transferred the drugs to his or her principal, or the...