Jacobs v. Com.
| Decision Date | 22 April 1977 |
| Parties | Greta JACOBS, Appellant, v. COMMONWEALTH of Kentucky, Appellee |
| Court | United States State Supreme Court — District of Kentucky |
Dale B. Mitchell, Somerset, for appellant.
Robert F. Stephens, Atty. Gen., Robert William Hensley, Asst. Atty. Gen., Frankfort, for appellee.
This appeal results from a conviction for possession of a controlled substance. The evidence developed at trial indicates that several officers of the Pulaski County sheriff's office went to the residence of appellant, Greta Jacobs, to execute a search warrant and there found appellant and two other individuals, Don Todd and Robert Turner. The search of the premises resulted in the discovery of two vials of a liquid, later analyzed as phenmetrazine, which were found in plain view in a bathroom. Needles, syringes and various other articles were also seized, the majority of which items were found in places indicating them to have been hidden. Appellant emphatically denied that any of these items belonged to her and attempted to connect them to Turner, who it was shown had frequently stayed overnight at her home.
Appellant was subsequently convicted by the Pulaski Circuit Court of the offense of possession of phenmetrazine, a Schedule II nonnarcotic controlled substance under KRS 218A.070(3)(c). Three arguments are presented for the reversal of this conviction.
Appellant's first argument stems from the wording of KRS 218A.070, which she argues controls only those drugs which are shown not to have been removed from the schedule of controlled substances at the time of the alleged offense, and also only that quantity of phenmetrazine which is shown to hold a potential for abuse associated with a stimulant effect on the central nervous system, so that in the failure of the Commonwealth to prove the drug had not been so rescheduled and that appellant possessed such a quantity, she was entitled to a directed verdict of acquittal. Applying this same line of reasoning, appellant further contends the jury should have been instructed that before they could find her guilty of possession of a controlled substance as designated by the statute, they were required to find she possessed such a quantity as specified above and to further find that phenmetrazine had not been rescheduled at the time the offense was alleged to have been committed. After having carefully considered the statute in question, we do not so construe its language and must disagree with appellant's contentions. The troublesome section, KRS 218A.070, reads in part as follows:
As we read this language, the phrase "having a potential for abuse associated with a stimulant effect on the central nervous system" modifies "substances" rather than "quantity." As such, the language referred to is a phrase of description rather than, as appellant suggests, of limitation. The quantity of the drug possessed is therefore irrelevant under the statute, so that evidence of possession of any amount of the controlled substance is sufficient to withstand a motion for a directed verdict of acquittal. In regard to appellant's contention that the Commonwealth was required to prove the drug had not been rescheduled at the time of the alleged offense, we are of the opinion that since an enactment of the legislature is presumed valid and effective unless clearly shown otherwise, Commonwealth v. Robinson, 192 Ky. 374, 233 S.W. 791 (1921), it was incumbent on the defendant to raise the issue by introducing evidence indicating the drug had been rescheduled; and in her failure to do so we conclude her not entitled to the directed verdict of acquittal. Having so reached these conclusions, we similarly conclude there to have been no error in the court's instructions to the jury.
Appellant alleges as her second assignment of error that the trial court erred in refusing to allow a defense witness, James Roysden, to testify because, although subject to the rule of separation of witnesses invoked by defense counsel pursuant to RCr 9.48, Roysden had been present in the courtroom for a short time during the trial. RCr 9.48 provides as follows:
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