McAlpin v. Commonwealth
| Decision Date | 26 January 2018 |
| Docket Number | NO. 2016-CA-001360-MR,2016-CA-001360-MR |
| Parties | JOSHUA MCALPIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
On February 10, 2011, the Louisville Metro Police Department ("Metro Police") responded to an apartment located in Louisville, Kentucky, to assist a probation officer in locating Amelia Durham, a fugitive probationer. Durham was on probation for a prior felony conviction. Durham and McAlpin have a child together, and Durham was known to live intermittently with McAlpin at the apartment. When Metro Police arrived at the apartment Durham, who was alone in the apartment at the time, attempted to exit the opposite direction. She was stopped by Metro Police and detained. Metro Police then proceeded to search the apartment.
During the search of the apartment, Metro Police discovered pills, some of which were identified as Suboxone,2 and various items consistent with the use of heroin including used and unused syringes, seven spoons, two pieces of aluminum foil, and four pieces of cotton. While Metro Police were still at theapartment, two other individuals arrived, Silas Koger and Clark Duerr. Both Koger and Duerr admitted to Metro Police that they were heroin addicts; however, both denied using heroin at that time. Both men were searched by Metro Police and no contraband was found on either man. Koger, however, admitted that a stack of laundry where one of the spoons was located belonged to him.
Eventually McAlpin returned to his apartment from his nearby dental office. McAlpin was searched by Metro Police. McAlpin was found with $925 on him, but otherwise no other contraband was found on his person. McAlpin was then taken to a bedroom within the apartment, where he was questioned by Detective Tom Schardein with Metro Police. McAlpin testified at his suppression hearing that he was placed in handcuffs while in the bedroom. Detective Schardein testified that he did not recall placing McAlpin in handcuffs. He further testified that he believes he would have noted this fact in his records if it had occurred. The records do not indicate that McAlpin was placed in handcuffs. While being questioned by Detective Schardein, McAlpin admitted to a history of opiate addiction. McAlpin, however, denied using or possessing heroin.
Subsequently, over three years following the initial search of McAlpin's apartment, on May 21, 2014, McAlpin was indicted for illegal possession of drug paraphernalia, and possession of a controlled substance first degree (heroin). At the conclusion of McAlpin's trial, the jury receivedinstructions on both "Possession of a Controlled Substance (Heroin)" and "Illegal Use or Possession of Drug Paraphernalia." McAlpin was convicted of both charges. Subsequently, after the jury's conviction, McAlpin and the Commonwealth agreed that the Commonwealth would recommend a sentence of three years, probated for five years. The trial court imposed a sentence of three years on each count to run concurrently, probated for five years. This appeal followed.
Unlawful use or possession of drug paraphernalia is a Class A misdemeanor. KRS3 218A.500(7). "Except as otherwise expressly provided, the prosecution of an offense other than a felony must be commenced within one (1) year after it is committed." KRS 500.050(2). None of the exceptions listed in KRS 500.050 apply in this case.
The indictment in this case was not returned until more than three years after the offense. Moreover, as McAlpin argues in his brief, the jury instruction on this count failed to include the requirement that McAlpin must have committed the offense within a year preceding the indictment.
In a misdemeanor case, it is error not to predicate conviction upon a belief from the evidence beyond a reasonable doubt that the offense was committed within twelve months before the finding of the indictment or the issuance of the warrant or other accusatory document.
Cooper and Cetrulo, Kentucky Instructions to Juries (5th Ed.), Criminal § 1.11.
The Commonwealth concedes that the faulty jury instruction, combined with the clear evidence that the prosecution was not timely commenced, creates palpable error. Moreover, in a commendable showing of candor, the Commonwealth also points out that McAlpin was sentenced to three years on a misdemeanor charge that has a maximum penalty of twelve months in jail. A defendant may not waive a sentence in excess of the statutory maximum. McClanahan v. Commonwealth, 308 S.W.3d 694, 695 (Ky. 2010) (). Based on the alleged errors and the Commonwealth's concession that the prosecution, jury instruction and sentence were improper, we must reverse McAlpin's misdemeanor drug paraphernalia conviction. This renders any additional arguments regarding this conviction moot. The remainder of our analysis focuses solely on the possession conviction.
McAlpin asserts that when the actual state of the evidence is reviewed closely, it becomes apparent that the Commonwealth failed to introduce sufficient proof that he possessed the heroin located in the apartment. This error was preserved by a motion for directed verdict at the close of the Commonwealth's proof, renewed at the close of all proof, and by a motion for judgment of acquittal/new trial.
The Kentucky Supreme recently reiterated the roles of the trial court and the appellate courts when entertaining challenges to the sufficiency of evidence in criminal cases. The Court explained:
In reviewing a motion for a directed verdict the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. Id. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserve for the jury questions as to the credibility and weight to be given to such testimony. Id. "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Id. (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). "[T]here must be evidence of substance, and the trial court is expressly authorized todirect a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence." Benham, 816 S.W.2d at 186-187; Banks v. Commonwealth, 313 S.W.3d 567, 570 (Ky. 2010).
Gullett v. Commonwealth, 514 S.W.3d 518, 527-28 (Ky. 2017).
McAlpin maintains that there was insufficient evidence to convict him of possessing the heroin located in the apartment because the Commonwealth did not offer any evidence to prove that any of the items containing heroin residue were actually under McAlpin's control. According to McAlpin, the most the Commonwealth's evidence proved is that McAlpin was present at the apartment on the day in question and may have had some prior knowledge that other residents or visitors were involved in using heroin.
Possession of heroin is a violation of KRS 218A.1415. Since that statute is outside the Penal Code, the Penal Code's definition of "possess" does not apply. Instead, we employ the common meaning of the word "possess." See Pate v. Commonwealth, 134 S.W.3d 593, 598 (Ky. 2004). "If a person owns; he possesses." Id.
Additionally, the Kentucky Supreme Court has held that "'possession' for purposes of KRS Chapter 218A includes both actual and constructive possession." Id. "To prove constructive possession, the Commonwealth must present evidence which establishes that the contraband was subject to the defendant's dominion and control." Id. at 598-99. However, the dominion andcontrol exerted by the defendant does not have to be exclusive. "Possession of dangerous drugs and, likewise, the instrumentalities used in their creation, 'need not be exclusive' and may be held by more than one person." Sevier v. Commonwealth, 434 S.W.3d 443, 455 (Ky. 2014); see also Franklin v. Commonwealth, 490 S.W.2d 148, 150 (Ky. 1972) (). While a defendant's exclusive control over a premises is sufficient to raise an inference of possession and knowledge, in cases where the defendant exercises only joint control the Commonwealth must introduce additional evidence to prove the defendant knew the substance was present and had it under his control. See Hayes v. Commonwealth, 175 S.W.3d 574, 594 (Ky. 2005). "Constructive possession, much like actual possession, may be proven...
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