Pate v. Com.

• Decision Date: 20 May 2004
• Docket Number: No. 2002-SC-0890-MR.,2002-SC-0890-MR.
• Parties: Lawrence Elmer PATE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

134 S.W.3d 593

Lawrence Elmer PATE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2002-SC-0890-MR.

Supreme Court of Kentucky.

May 20, 2004.

As Modified July 23, 2004.

Amy Michelle Daniel, Erlanger, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Carlton S. Shier, Assistant Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice KELLER.

I. INTRODUCTION

A Pendleton Circuit Court jury found Appellant, Lawrence Elmer Pate (a/k/a Tommy Pate), guilty of Manufacturing Methamphetamine, and the trial court, in accordance with the jury's recommendation, imposed a twenty (20) year sentence of imprisonment. Appellant appeals to this Court as a matter of right¹ and contends (1) the evidence was insufficient to warrant his conviction; (2) the trial court erred in forcing Appellant's wife to testify after she invoked her spousal privilege; (3) the trial court erred in denying Appellant's Motion for a New Trial, and (4) the trial court erred in failing to suppress evidence obtained as the result of a warrantless search of Appellant's vehicle. A review of the record reveals Appellant's contentions to be meritless, and we affirm his conviction.

II. BACKGROUND

On May 9, 2002, Kathy Pate (a/k/a Katherine Pate), Appellant's wife, who had come to the Pendleton County Sheriff's Office to make a domestic violence complaint against Appellant, informed Deputy Sheriff Craig Peoples that on the previous weekend, she, Appellant, and Alicia Aulick Gregg (a/k/a Alicia Aulick or Alicia Gregg) had gone to Illinois and returned with a tank of anhydrous ammonia that Appellant stored behind Alicia Gregg's trailer-residence. She also informed Deputy Peoples that Appellant was armed with a .38 handgun and provided him with a description of Appellant's vehicle and its license plate number.

Deputy Peoples testified that he proceeded immediately to Gregg's residence because of the extremely volatile nature of anhydrous ammonia. He located the tank, discovered that the anhydrous ammonia was housed in an unapproved container and based upon the discoloration of the tank's brass fittings, he determined that the tank created a risk of exploding. He contacted the Fire Department and the Drug Enforcement Administration to facilitate the destruction of the tank.

A short time later, Deputy Peoples noticed a vehicle, much like the one that Kathy Pate had described as Appellant's, approaching Gregg's residence. The vehicle stopped, as if to turn around, and Deputy Peoples drove up behind the vehicle, blocking it, confirmed the license plate number, and recognized the driver as Appellant. He then ordered Appellant out of the car and onto the ground where he was handcuffed and placed under arrest. Alicia Gregg was a passenger in Appellant's vehicle.

Deputy Peoples frisked Appellant, attempting to locate the .38 weapon that Kathy Pate had stated Appellant would be carrying. He did not find the handgun; however, he found a pocket knife on Appellant's person and a search of the car revealed a quantity of .38 shells. The search of the vehicle also revealed an array of methamphetamine precursors. Specifically, Deputy Peoples discovered camping fuel, a butane torch, table salt, two packs of lithium batteries, Rooto drain opener, STP Oil Treatment, three boxes of pseudoephedrine, three boxes of suphedrine, five boxes of nasal decongestant, a plastic tea jug, mixing spoons, and plastic tubing. Receipts, in the name of Katherine Pate, for nasal decongestant and muriatic acid² were also found in the car, along with maps of all Wal-Mart and Dollar General Store locations within a fifty-mile radius of Cincinnati, Ohio.³ Appellant was charged with Manufacturing Methamphetamine and Carrying a Concealed Deadly Weapon.⁴

III. ANALYSIS

A. Directed Verdict

Claiming insufficiency of the evidence, Appellant contends that he was entitled to a directed verdict on the charge of Manufacturing Methamphetamine. We review a motion for directed verdict under the standard set forth in Commonwealth v. Benham:⁵

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. 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. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserve[e] to the jury questions as to the credibility and weight to be given to such testimony.⁶

Appellant was convicted of violating subsection (1)(b) of KRS⁷ 218A.1432 which reads as follows:

(1) A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully:

(a) Manufactures methamphetamine; or

(b) Possesses the chemicals or equipment for the manufacture of methamphetamine with the intent to manufacture methamphetamine.

(2) Manufacture of methamphetamine is a Class B felony for the first offense and a Class A felony for a second or subsequent offense.

In Kotila v. Commonwealth,⁸ we held that a person must possess all of the chemicals, as opposed to any of the chemicals, or all of the equipment necessary to manufacture methamphetamine in order to be properly convicted under KRS 218A.1432(1)(b).⁹ Thus, a trial court should direct a verdict in the defendant's favor if the Commonwealth fails to show that the defendant possessed either all of the chemicals or all of the equipment necessary to manufacture methamphetamine.

Appellant contends that the instant case is just the scenario contemplated by Kotila. Because it is undisputed that Appellant did not possess all of the equipment necessary to manufacture methamphetamine, he claims that he was entitled to a directed verdict when the Commonwealth failed to present evidence that he "possessed" anhydrous ammonia, a critical ingredient in the manufacture of methamphetamine.

First, we note that Appellant did not preserve this issue for our review. Although his lawyer moved for a directed verdict at both the conclusion of the Commonwealth's case and at the conclusion of all of the evidence, he did not state any grounds for the motion, much less specific grounds. At the conclusion of the Commonwealth's case, he merely stated, "I make a motion for a directed verdict, Your Honor," and at the conclusion of all of the evidence,¹⁰ he simply stated, "For the record, we would renew our motion for a directed verdict." These utterances were not sufficient. CR¹¹ 50.01 requires that a directed verdict motion "state the specific grounds therefor[,]"¹² and Kentucky appellate courts have steadfastly held that failure to do so will foreclose appellate review of the trial court's denial of the directed verdict motion.¹³ Accordingly, we find that the issue of whether the trial court erred in denying Appellant's directed verdict motion was not properly preserved for our review.

But, even if we disregard the lack of preservation and review this claimed error under RCr¹⁴ 10.26,¹⁵ the evidence was sufficient for the jury to convict Appellant of Manufacturing Methamphetamine because the dispositive question is whether the evidence was sufficient to support a finding by the jury that Appellant possessed anhydrous ammonia at the time of his arrest, and we find that it was.

The definition of "possession" under the Kentucky Penal Code¹⁶ only applies to penal code offenses,¹⁷ and KRS Chapter 218A does not define "possess" or any of its cognate forms. Consequently, we employ the common meaning of "possess."¹⁸ The AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed.2000) defines "possess" as "[t]o have as property; own." In other words, if a person owns; he possesses. Here, Kathy Pate's statements placed the tank's ownership in Appellant.

Additionally, we have held that "possession" for purposes of KRS Chapter 218A includes both actual and constructive possession.¹⁹ "To prove constructive possession the Commonwealth must present evidence which establishes that the contraband was subject to the defendant's dominion and control."²⁰ Appellant secreted the tank in a box behind Alicia Gregg's trailer; its location apparently known only to Appellant, Kathy Pate, and Alicia Gregg. Clearly this situation allowed Appellant to exercise a high degree of control over the tank. His control of the tank did not need to be exclusive.²¹

We find no merit in Appellant's assertions regarding his wife's credibility. Issues of credibility are solely within the purview of the finder of fact and a reviewing court will not substitute its judgment for the jury's on such matters. The evidence presented by the Commonwealth included (1) testimony by Deputy Peoples that he had received information that Appellant, Kathy Pate, and Alicia Gregg had placed a tank of anhydrous ammonia behind Alicia Gregg's residence; (2) Appellant was with Alicia Gregg when he was stopped; and (3) he was on the road to Alicia Gregg's residence in a vehicle which contained all of the necessary ingredients, except for anhydrous ammonia, with which to manufacture methamphetamine. The anhydrous ammonia was at Alicia Gregg's trailer; presumably Appellant's destination at the time of his arrest.

In Varble v. Commonwealth,²² we held that where a defendant was found in possession of all of the other chemicals necessary to manufacture methamphetamine and there was sufficient evidence to base a belief that the defendant had possessed anhydrous ammonia at the same time, then it was for the jury to decide whether he possessed those same chemicals at the same time that he possessed the anhydrous ammonia. We stated: "The requirement is that the chemicals or equipment be possessed simultaneously, not that they be possessed at the time of the arrest."²³ In the present case, the jury could have reasonably concluded that Appellant possessed the tank of anhydrous ammonia at the same time that he possessed the other...