Fulcher v. Com.

• Decision Date: 18 November 2004
• Docket Number: No. 2002-SC-0855-MR.,No. 2002-SC-0879-MR.,2002-SC-0855-MR.,2002-SC-0879-MR.
• Citation: 149 S.W.3d 363
• Parties: Ricky Lee FULCHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee, and Ricky Lee Fulcher, Appellant, v. Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

149 S.W.3d 363

Ricky Lee FULCHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee, and Ricky Lee Fulcher, Appellant, v. Commonwealth of Kentucky, Appellee.

No. 2002-SC-0855-MR.

No. 2002-SC-0879-MR.

Supreme Court of Kentucky.

November 18, 2004.

As Modified on Denial of Rehearing December 6, 2004.

Emily Holt, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, George G. Seelig, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

Following a trial by jury in the Logan Circuit Court, Appellant, Ricky Lee Fulcher, was convicted of two counts of manufacturing methamphetamine, KRS 218A. 1432(1); two counts of possession of anhydrous ammonia in an unapproved container with intent to manufacture methamphetamine, KRS 250.489(1), KRS 250.991(2); two counts of possession of drug paraphernalia, KRS 218A.500(2); and one count of possession of marijuana, KRS 218A. 1422. The conviction of possession of marijuana and one each of the convictions of the three other offenses were obtained pursuant to Indictment No. 01-CR-157, which stemmed from a search of Appellant's residence and property on July 24, 2001. The other three convictions were obtained pursuant to Indictment No. 01-CR-179, which stemmed from a search of Appellant's residence and property on August 3, 2001. The indictments were jointly tried. RCr 9. 12; Harris v. Commonwealth, Ky., 556 S.W.2d 669, 669-70 (1977). However, for purposes of sentencing, the offenses occurring on August 3, 2001, were treated as subsequent offenses, i.e., the convictions of manufacturing methamphetamine and possession of anhydrous ammonia in an unapproved container were enhanced from Class B felonies to Class A felonies, KRS 218A. 1432(2); KRS 250.991(2), and the conviction of possession of drug paraphernalia was enhanced from a Class A misdemeanor to a Class D felony, KRS 218A.500(5).

Appellant was sentenced to thirty years imprisonment and appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). He asserts that (1) there was insufficient evidence to convict him of either manufacturing methamphetamine or possession of anhydrous ammonia; (2) the trial court erroneously instructed the jury on the offense of manufacturing methamphetamine so that he was denied his right to a unanimous verdict; (3) the constitutional proscription against double jeopardy was violated in two respects: (a) the trial court's instructions on manufacturing methamphetamine and possession of anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine caused him to be convicted twice of the same offense, and (b) the convictions of separate offenses occurring on July 24, 2001, and August 3, 2001, were premised upon the same evidence; (4) the trial court erred in permitting a witness to testify to prior misconduct by Appellant in violation of RCr 7.26(1), KRE 401(b), and KRE 401(c); and (5) the offenses occurring on August 3, 2001, were not "subsequent offenses" for purposes of subsequent offense enhancement.

I. SUFFICIENCY OF THE EVIDENCE.

A. Indictment No. 01-CR-157.

On July 24, 2001, an unidentified caller reported to the Russellville Police Department that two Caucasian males had robbed a boy and fired a weapon at him in the vicinity of Cave Springs Road in Logan County, Kentucky. Law enforcement units from the Kentucky State Police, the Logan County Sheriff's Office, and the Auburn Police Department began searching for the two men. While driving down Gasper River Road, some of the officers passed Appellant's residence and noticed a number of people standing in the yard, all of whom, upon observing the marked police vehicles, immediately ran into the woods behind the residence. While giving chase, the officers noticed two marijuana plants growing in Appellant's back yard and the scent of ammonia emanating from an open window in the residence. Unable to obtain a response to knocks on the door of the residence, the officers sought and obtained a search warrant for the residence and surrounding property.

While the officers were awaiting arrival of the search warrant, Appellant emerged from the residence claiming to have been asleep. The officers ordered him to remain outside until after the warrant was executed. One of the persons who had run into the woods, David Harrison, was apprehended but not charged. Six others, C.J. Anderson, Johnnie Finn, Kandi Finn, Andrea Freeman, Jody Cherry, and Matthew Jones, voluntarily returned to the residence and were subsequently arrested.

At trial, the Commonwealth played without objection,¹ a videotape produced by the Drug Enforcement Agency (DEA) which described and demonstrated how methamphetamine is illegally manufactured by the ephedrine reduction method, sometimes referred to as the "Nazi method" because the Nazis used the method to manufacture methamphetamine for distribution to Wehrmacht soldiers during World War II. That is the method of manufacturing methamphetamine Appellant allegedly employed. Thus, the videotaped description of that method explains the significance of what was discovered during the search of Appellant's residence and property.

According to the videotape's narrator, the primary precursors of methamphetamine are ephedrine or pseudoephedrine, anhydrous ammonia, and sodium metal or lithium. Ephedrine and pseudoephedrine are active ingredients in common antihistamine tablets. To separate the ephedrine or pseudoephedrine from the corn starch and cellulose, binding agents used to hold the active ingredients together in tablet form, the tablets are first ground into powder and soaked in denatured alcohol or methanol. The ephedrine or pseudoephedrine dissolves in the alcohol, leaving the binding agents as a kind of "sludge," or "pill dough," that sinks to the bottom of the container. The alcohol mixture is then funneled through coffee filters into a heat-resistant glass bowl, usually "Corningware" or "Pyrex." The "pill dough" remains in the coffee filters and is discarded. The glass bowl is then heated until the alcohol evaporates, leaving a pure ephedrine or pseudoephedrine powder.

Sodium metal or lithium strips are then mixed into the powder. A wooden or plastic spoon is usually used for mixing because a metal utensil might cause an undesired chemical reaction. Anhydrous ammonia is then funneled into the mixture from, typically, a propane tank through a plastic tube or rubber hose. Application of the anhydrous ammonia to the mixture causes a chemical reaction that converts the ephedrine or pseudoephedrine into base methamphetamine. After the anhydrous ammonia evaporates, water is added to the mixture which reacts with the residual lithium and converts it into sodium hydroxide (lye). Ether is then added to dissolve the base methamphetamine and separate it from the sodium hydroxide. The methamphetamine/ether mixture is then funneled through coffee filters into another glass container, leaving the sodium hydroxide (and some methamphetamine residue) in the filters. The jar containing the methamphetamine/ether mixture is then connected by plastic tubing to a homemade hydrogen chloride gas "generator," usually a plastic gasoline container or a container of the type in which ketchup or dishwashing liquid is commercially sold. Sulfuric acid and common salt are mixed in the "generator" to create hydrogen chloride gas that passes through the tubing into the glass container and causes the methamphetamine to separate from the ether into a powdery form that sinks to the bottom of the container. The liquid ether is then drained off through coffee filters to leave the finished product of methamphetamine. These coffee filters, like the ones used to drain off the sodium hydroxide, will also contain some methamphetamine residue. There was evidence at trial that additional methamphetamine can be obtained by placing the coffee filters containing methamphetamine residue in a glass container and "cooking" them with hydrogen chloride gas from the "generator."

Based on the videotape and other evidence introduced at trial, the following chemicals would normally be required to manufacture methamphetamine by the "Nazi method": (1) ephedrine or pseudoephedrine, found in common antihistamine tablets; (2) anhydrous ammonia, commonly used in agriculture as a fertilizer and obtained (usually stolen) from farms or farm supply stores where it is kept outside in pressurized tanks; (3) sodium metal or, more commonly, lithium, which can be removed from commercially sold lithium batteries; (4) denatured alcohol, commonly found in commercial products such as "Coleman Fuel," or methanol, commonly found in automobile anti-freeze products; (5) ether, commonly found in automobile starting fluid products; (6) sulfuric acid, commonly found in commercial drain-cleaning products; and (7) common salt. The required equipment includes: (1) mixing bowls, including at least one heat-resistant bowl; (2) a device to crush the antihistamine tablets into powder form (the videotaped demonstration used a blender but, presumably, a hammer would suffice); (3) a stirring device, e.g., a wooden or plastic spoon (though the videotape did not rule out the use of other similar devices); (4) glass jars, usually Mason jars; (5) plastic funnels; (6) plastic tubing or rubber hose; (7) filters, usually coffee filters; (8) a storage container for anhydrous ammonia (usually a modified propane tank); (9) if lithium is used instead of the more volatile sodium metal, vise grips or pliers or some similar device to pry open the lithium batteries; and (10) a plastic or glass container for use as a hydrogen chloride "generator."

The July 24, 2001, search of Appellant's property was conducted by four Kentucky State Police officers. Outside Appellant's residence they found (1) the two marijuana plants; (2) two plastic containers containing "pill...