Houston v. Com.

Decision Date03 September 1998
Docket NumberNo. 96-SC-993-MR,96-SC-993-MR
Citation975 S.W.2d 925
PartiesWilliam Terrell HOUSTON aka Terrell Lionel Pauling aka Michael Morris, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky
OPINION OF THE COURT

Appellant, William Terrell Houston, was convicted in Fayette Circuit Court of various drug related offenses and of being a persistent felony offender in the second degree. He was sentenced to a total of twenty-four years imprisonment and he appeals to this Court as a matter of right.

Appellant's first claim of error regards the enhancement of the penalty imposed upon him pursuant to KRS Chapter 218A, the Controlled Substances Act. Appellant was convicted of trafficking in cocaine, a Class C felony under Kentucky law. KRS 218A.1412(2)(a). This offense was enhanced to a Class B felony pursuant to KRS 218A.992, which provides for penalty enhancement when the defendant is in possession of a firearm at the time of a drug related offense 218A.992. Enhancement of penalty when in possession of a firearm at the time of commission of offense.

(1)Other provisions of law notwithstanding, any person who is convicted of any violation of this chapter who was at the time of the commission of the offense in possession of a firearm, shall:

(a)Be penalized one (1) class more severely than provided in the penalty provision pertaining to that offense if it is a felony; or

(b)Be penalized as a Class D felon if the offense would otherwise be a misdemeanor.

(2)The provisions of this section shall not apply to a violation of KRS 218A.210.

According to the evidence at trial, Lexington police officers obtained a search warrant for an apartment based on a confidential informant's disclosure that he had purchased cocaine at that location. Appellant was the only person present at the apartment when police executed the search warrant. The police found quantities of crack cocaine in the kitchen, living room, and in a bedroom of the apartment. They also found firearms in the kitchen and the living room. Appellant told police that he was from Detroit and that he had only been in Lexington for a couple of weeks. He told police that neither the crack cocaine nor the firearms in the apartment belonged to him, but that the contraband belonged to other people from Detroit who were also staying there.

Appellant argues that he should have been granted a directed verdict on the issue of possession of a firearm. He asserts that because he did not have actual, physical possession of a gun a directed verdict was appropriate under the holding of Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991). Indeed, appellant did not have actual physical possession of any of the firearms in this case--the police found three firearms in the apartment, but none on appellant's person. A loaded thirty-eight caliber revolver was found on a bottom shelf in the kitchen, a loaded twenty-two caliber revolver was found on a top shelf in the kitchen, and a loaded twenty-two caliber handgun was found on a TV stand in the living room. When the police entered the apartment, they found appellant running from the living room to the bedroom, a room in the apartment where no guns were found. No fingerprints were found on any of the guns.

Contrary to appellant's contention however, actual physical possession of a firearm is not required for a jury to find that one has possession of a firearm for purposes of KRS 218A.992. Rather, we hold that a drug violation penalty may be enhanced under KRS 218A.992 if the violator has constructive possession of a firearm. Since as early as 1972, Kentucky courts have utilized the concept of constructive possession to connect defendants to controlled substances. In Rupard v. Commonwealth, Ky., 475 S.W.2d 473 (1972), defendants were convicted of possession of marijuana with the intent to distribute or sell after it was determined that they had constructive possession of drugs stored in an abandoned farmhouse. The Court in Franklin v. Commonwealth, Ky., 490 S.W.2d 148 (1972), cert. denied, 414 U.S. 858, 94 S.Ct. 66, 38 L.Ed.2d 108 (1973), held that the evidence was not sufficient to convict a woman of possession where it was not proved at trial that she frequented a barn where drugs were stored. However, in that case, the Court also noted the "general rule relating to the possession of dangerous drugs is that the possession need not be exclusive. Two or more persons may be in possession of the same drug at the same time and this possession does not necessarily have to be actual physical possession." Id., at 150. See also: Lindsay v. Commonwealth, Ky., 500 S.W.2d 786 (1973).

Kentucky courts have continued to utilize the constructive possession concept to connect defendants to illegal drugs and contraband. In Leavell v. Commonwealth, Ky., 737 S.W.2d 695 (1987), a defendant who had the key to a vehicle's trunk wherein marijuana was later found was held to be in constructive possession of that drug. In the more recent case Clay v. Commonwealth, Ky.App., 867 S.W.2d 200 (1993), the Court of Appeals similarly held that although cocaine was not found on the defendant's person, the defendant could be connected to the drug by the theory of constructive possession. See also: Dawson v. Commonwealth, Ky., 756 S.W.2d 935 (1988); Hargrave v. Commonwealth, Ky., 724 S.W.2d 202 (1986), cert. denied, 484 U.S. 821, 108 S.Ct. 81, 98 L.Ed.2d 43 (1987).

Although constructive possession has long been used to connect defendants to drugs, we have found no Kentucky cases which utilize the concept of constructive possession to connect defendants to firearms. However, we note that other jurisdictions have accepted the idea that a person may have constructive possession of a firearm. Argo v. State, 53 Ark.App. 103, 920 S.W.2d 18,20 (Ark.Ct.App., 1996) ("A showing of constructive possession ... is sufficient to prove a defendant is in possession of a firearm."); Simpson v. State, 213 Ga.App. 143, 444 S.E.2d 115, 117 (Ga.App., 1994)("...this court has previously held that constructive possession is sufficient to prove a violation of the subject offense [possession of firearm by a felon]."); State v. Eickelberg, 574 N.W.2d 1, 6 (Iowa, 1997) (Defendants' sentences properly enhanced under statute even though defendants did not actually possess firearms because there was sufficient evidence to "support the finding that defendants were in immediate possession or control of the firearms" while participating in a drug offense.); State v. Neeley, 704 So.2d 443, 447 (La.App., 1997) ("... constructive possession, as opposed to actual possession, is sufficient to satisfy the possession element [of the crime of possession of firearm by convicted felon]."); People v. Williams, 212 Mich.App. 607, 538 N.W.2d 89, 91 (Mich.App., 1995) ("Possession [of a firearm] may be actual or constructive and may be proved by circumstantial evidence."); Jones v. State, 111 Nev. 848, 899 P.2d 544, 546 (Nev., 1995) (" ... these actions permitted the jury to find the requisite knowledge and control necessary for constructive possession of a weapon."); State v. Messer, 107 Ohio App.3d 51, 667 N.E.2d 1022, 1025 (Ohio App., 1995)(" 'Possession' [of a firearm] may be either actual or constructive."); Hill v. State, 898 P.2d 155, 166 (Okla.Crim.App., 1995)("Lacking any direct evidence Appellant actually possessed either the cocaine or the gun, the State must prove he constructively possessed each."); State v. Wells, 147 Or.App. 125, 935 P.2d 447, 449 (Or.App., 1997)("Possession [of a firearm for purposes of being a felon in possession of a firearm] may be actual or constructive."); Commonwealth v. Woody, 451 Pa.Super. 324, 679 A.2d 817, 820 (Pa.Super., 1996)("We find that a jury could reasonably infer ... that appellant maintained constructive possession of the firearm and drugs recovered from his vehicle."); State v. Reyes, 671 A.2d 1236, 1237 (R.I., 1996)(Appellate court held that trial judge properly "reasoned that defendant had constructive possession of the weapon."); Archer v. Commonwealth, 26 Va.App. 1, 492 S.E.2d 826, 831 (Va.App., 1997)("Proof that appellant possessed the gun found under the mattress, either actually or constructively, was sufficient to support his conviction for possession of a firearm by a convicted felon.")

Whether the definition of possession includes the concept of constructive possession has apparently been a point of disagreement in the lower courts. Compare Clay v. Commonwealth, Ky.App., 867 S.W.2d 200 (1994)(constructive possession is enough to connect defendant to drugs in her home) with Powell v. Commonwealth, Ky.App., 843 S.W.2d 908 (1992)(actual possession is required to connect defendant to drugs). To resolve this conflict, we hold that for offenses arising under KRS 218A, the concept of "constructive possession" is applicable. Clay, supra; Leavell, supra; Rupard, supra. To the extent the Court of Appeals opinion in Powell v. Commonwealth, Ky.App., 843 S.W.2d 908 (1992), requires actual possession of contraband for the purposes of KRS Chapter 218A, it is overruled.

We believe that a directed verdict was not warranted in this case because a reasonable juror could have believed beyond a reasonable doubt that appellant had constructive possession of the firearms in this case. Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983). Evidence was introduced at trial which would support a reasonable juror's conclusion that appellant had constructive possession of the firearms. At the scene appellant told police that he had handled one of the firearms and that his fingerprints might be on it; and according to police testimony at trial, each of the guns was fully loaded; and the guns were apparently in plain view and were easily accessible.

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