Finn v. Com.

Decision Date20 May 2010
Docket NumberNo. 2008-SC-000749-DG.,2008-SC-000749-DG.
Citation313 S.W.3d 89
PartiesHarry FINN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Roy Alyette Durham, II, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Heather Michelle Fryman, Assistant Attorney General, Office of Criminal Appeals, Julie Scott Jernigan, Assistant Attorney General, Office of the Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Chief Justice MINTON.

We accepted discretionary review to consider whether Kentucky law allows a conviction for possession of a controlled substance when the quantity of the controlled substance in the defendant's possession is so small that it is not visible to the naked eye. We conclude that Kentucky law allows a conviction under those circumstances, particularly when, as here, other evidence tends to prove that the defendant knowingly possessed the substance.

In the past, we have consistently rejected arguments that a defendant must possess a "usable amount" of a controlled substance to be convicted of unlawful possession of a controlled substance because our statutes criminalize unlawful possession of "any amount" or "any quantity" of a controlled substance.1 Now we likewise reject Harry Finn's argument that possession of microscopic amounts of a controlled substance could never justify a conviction for criminal possession of a controlled substance. Instead, we hold that a conviction for possession of a microscopic quantity of a controlled substance is valid so long as there is other evidence that the defendant possessed the requisite mental state for the possession offense for which the defendant is charged.

I. FACTS AND PROCEDURAL HISTORY.

This case arose in a routine traffic stop for minor traffic infractions during which the officer noticed signs that the driver, Finn, was intoxicated. After Finn failed a field sobriety test, the officer arrested Finn without incident for driving under the influence (DUI). The officer also arrested Finn's passenger for alcohol intoxication in a public place after noticing that she smelled strongly of alcohol. Finn does not contest the lawfulness of the search of his automobile or his person as incident to arrest.

The police found a cigarette pack concealed within a work glove on the front seat of the automobile. The glove was not seized, but police found inside the cigarette pack a baggie containing marijuana, which they seized. Police also found and seized from the cigarette pack a glass pipe containing suspected cocaine residue, and a Chore Boy®, which is a scouring pad commonly used in smoking pipes of crack cocaine. All seized items were found in an area accessible to both occupants of the vehicle.

Upon searching Finn's person, the police also found and seized a white plastic pen casing containing suspected cocaine residue. According to the testimony of the police officer who initially stopped Finn and who searched Finn's person, Finn told the officer that the pen casing was his "push rod"; and Finn admitted to using the pen casing to ingest cocaine and to having already consumed all of the cocaine.2 Although it appears somewhat unclear from our review of the testimony whether the officer may have possibly seen, or thought he saw, suspected cocaine residue on the pen casing, we will assume for purposes of our review that any residue was not readily visible to the officer's naked eye. Unmistakably, police suspected the presence of cocaine residue on the pen casing because Finn admitted to having used the pen casing as a push rod to smoke cocaine.

Following Finn's arrest, he submitted to toxicology tests at a hospital. No drugs were detected in Finn's blood, but his urine tested positive for cocaine. Trial testimony indicated that the presence of metabolites of a drug in urine but not in the blood would indicate that a drug had "cycled out" of the system.

The items seized from Finn's vehicle and person were also submitted for laboratory testing. Lab tests indicated that the glass pipe and the pen casing both tested positive for the presence of cocaine. But the lab technician testified that because police put the glass pipe and the pen casing inside the same evidence bag, it was possible that one had contaminated the other. The lab technician also testified that the actual amount of cocaine was on a microscopic level and could not be seen by the naked eye.

Among other charges, Finn was charged with possession of a controlled substance and possession of drug paraphernalia; and the case went trial. Finn contends that the trial court erred by denying his motion for a directed verdict on these charges. The jury found him guilty of possession of cocaine, second offense, and other offenses3 and recommended a sentence of ten years' imprisonment. The trial court entered judgment accordingly.

Finn appealed to the Court of Appeals, arguing, among other issues,4 that the immeasurable amount of cocaine found was insufficient to support the possession conviction. The Court of Appeals rejected that argument and affirmed the conviction. We then granted discretionary review.

II. ANALYSIS.

A. Directed Verdict Not Warranted.

Finn argues that the Court of Appeals erred in affirming the trial court's judgment because his convictions for possession of cocaine and use of drug paraphernalia5 could not be justified based upon the microscopic amounts of cocaine actually found in his possession. We reject his assertion of error, and we do so especially in light of the fact that the microscopic amounts of cocaine residue found on the ink pen casing and glass pipe6 were not the only evidence of Finn's knowing possession of cocaine presented to the jury. The jury also heard the police officer's testimony that Finn admitted to using his pen casing as a push rod to ingest cocaine and to having used up his cocaine through smoking. The cocaine residue left on the pen casing or glass pipe at the time of Finn's arrest was not necessarily the only cocaine that the jury believed Finn to have possessed. In reality, it is likely that the jury believed Finn to have been in possession of a substantially larger quantity of cocaine on or around the date of his arrest. As Finn told the arresting officer, he thought that he had already consumed all of his stash of cocaine.

Even assuming that the jury only believed Finn to have been in the possession of the microscopic amount of cocaine residue found on the glass pipe or push rod, we find no reversible error because the evidence showed that Finn knowingly possessed cocaine; and our statutes and precedent do not require that the amount of cocaine or other controlled substance exceed some minimum quantity threshold. Possession of any amount—no matter how small—of a controlled substance suffices for a first-degree possession of controlled substances conviction so long as the person has knowingly and unlawfully possessed the substance.

Kentucky Revised Statutes (KRS) 218A.1415(1) states that a person is guilty of Possession of a Controlled Substance in the First Degree "when he knowingly and unlawfully possesses: a controlled substance... that is classified in Schedules I or II which is a narcotic drug...." Cocaine is a Schedule II narcotic drug.7 And we have long held that "cocaine residue is, in fact, cocaine and we find no argument to the contrary."8 Despite the fact that some other courts in other jurisdictions may require that the government prove that the defendant possess a "usable quantity" of a controlled substance to sustain a conviction for possession of a controlled substance,9 we have consistently held under Kentucky law that the possession of any amount of a controlled substance suffices to meet the actus reus (forbidden act)10 requirement of KRS 218A.1415(1): unlawful possession of a controlled substance.11 And the General Assembly has not seen fit to amend materially the possession statute to require possession of a particular threshold amount of the controlled substance, such as a weighable amount, a usable amount, or an amount visible to the naked eye.

We see no reason to depart from our precedent despite Finn's argument that the use of the term "any quantity" in KRS 218A.1415(1)12 would not include mere residue, especially a microscopic amount of such residue. Finn premises this argument on selected dictionary definitions of quantity that indicate that may mean an amount that can be measured. We consider it more likely that the legislature intended any quantity to mean any amount in accordance with common usage.13

Finn also contends that as the legislature explicitly allows the presence of drug residue on an item to be considered as evidence that the item is drug paraphernalia14 and because the statutes theoretically could—but do not define—residue as any quantity, any quantity must necessarily mean more than drug residue. Although his argument is somewhat hard to follow, it appears that he contends that the legislature did not intend to criminalize the possession of mere residue (or traces) of controlled substance on drug paraphernalia under the drug possession statute. According to Finn, the appropriate conviction would only be for possession of drug paraphernalia because drug possession convictions should be reserved for possession of a more sizeable amount than mere residue. Finn asserts that the mentioning of the presence of residue in the drug paraphernalia statute:

Suggests that the legislature had a desire to punish the intent to use or use of illicit drugs, but did not wish to punish those persons who possessed drug paraphernalia with a filmy residue as harshly as someone who possessed rock or powder cocaine, pills or methamphetamine, for that matter. Moreover, most Americans have daily contact with cocaine residue.

Finn also asserts that "practical...

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    • May 30, 2014
    ...of controlled substances conviction so long as the person has knowingly and unlawfully possessed the substance." Finn v. Commonwealth, 313 S.W.3d 89, 92 (Ky. 2010). Thus, Whitney's attorney was not professionally incompetent in allowing him to plead guilty to a felony charge, and the trial ......

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