IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: OCTOBER 20, 2016 NOT TO BE PUBLISHED
$uprrtur Court of rt.firttfuritv 2015-SC-000695-MR
CHRISTOPHER KANE APPELLANT
ON APPEAL FROM FLEMING CIRCUIT COURT V. HONORABLE STOCKTON B. WOOD, JUDGE NO. 15-CR-00028
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On April 27, 2015, police officers lawfully searched the home of
Appellant, Christopher Joseph Kane, and discovered drugs and materials used
in the manufacturing of methamphetamine. Several other individuals and
Appellant's young child were also present at the scene. Investigating officers
testified that the house was in a pitiful state of disrepair and reeked of animal
urine and feces.
As a result of the search, Appellant was indicted by a Fleming. County
grand jury on a host of charges. Appellant was jointly tried with his
confederate, James Flora. A Fleming County Circuit Court jury convicted
Appellant of manufacturing methamphetamine and possession of marijuana
and recommended a total sentence of twenty years' imprisonment, which was imposed by the trial court. Appellant now appeals his judgment and sentence
as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution.
Three issues are raised and addressed as follows.
Allegedly Inadmissible Evidence
For his first argument, Appellant complains that the trial court
erroneously admitted photographs of two discarded 2-liter plastic bottles into
evidence. Admissible evidence must be relevant, probative, and not unduly
prejudicial. Bell v. Commonwealth, 875 S.W.2d 882, 889-91 (Ky. 1994). See
also KRE 401; 402; and 403. This issue is preserved by the defense's motion in
limine. We review for the trial court's decision for an abuse of discretion.
The Commonwealth explained that the bottles were discovered
immediately behind Appellant's residence and were consistent with the "shake
and bake" method of manufacturing methamphetamine and argued that the
bottles were part of the totality of the evidence demonstrating intent to
manufacture. Appellant argues that the unknown white substance contained
in the bottles was too speculative to be considered by the jury.
Contrary to Appellant's argument, this evidence is highly relevant and
probative of Appellant's intent to manufacture methamphetamine. See Pate v.
Commonwealth, 243 S.W.3d 327, 333 (Ky. 2007). In denying Appellant's
motion in limine, the trial court specifically noted that the bottles were part of
the crime scene and that an officer would testify that the police left the bottles
there, did not test them, and did not know what was inside of them.
Investigating Deputy Sherriff, Garret Ingram, testified that the bottles were consistent with the "shake and bake" style of a methamphetamine "cook." He
further explained that he did not field test them or send them to a lab for
testing. Deputy Ingram could not say what was inside the bottles.
Accordingly, this evidence was relevant, probative, and not unduly prejudicial
to Appellant. Thus, the trial court did not abuse its discretion in admitting this
evidence.
Directed Verdict
Appellant next alleges that the trial court erred in denying his motion for
a directed verdict on the manufacturing methamphetamine charge. We will
reverse the trial court's denial of a motion for directed verdict "if under the
evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]"
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing
Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) (emphasis added)). Our
review is confined to the proof at trial and the statutory elements of the alleged
offense. Lawton v. Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011). The jury
was instructed under KRS 218A.1432(1)(b) which states in pertinent part:
(1) A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully:
(a) Manufactures methamphetamine; or
(b) With intent to manufacture methamphetamine possesses two (2) or more chemicals or two (2) or more items of equipment for the manufacture of methamphetamine.
The list of relevant materials discovered at Appellant's residence and in his
nearby vehicle is extensive. In addition to the 2-liter soft drink bottles
3 containing an unknown substance previously discussed, here is a non-
exhaustive description of the materials discovered at the crime scene: 1) a
package of Claritin D brand allergy medicine containing pseudoephedrine
located on the bedside dresser; 2) 25 feet of medical gas tubing located on top
of the Claritin D package; 3) one empty and one unopened package of lithium
batteries; 4) a partially opened can of Coleman brand camp fuel two or three
feet away from Liquid Fire drain cleaner; 5) several empty cold packs that had
been cut open and with the beads of ammonium nitrate missing; 6) an empty
gallon jug of paint thinner in a barn about 20 to 30 yards from the house; and
7) a burned container which appeared to be a Coleman brand camp fuel
container located in a burn pit in Appellant's yard.
An investigating detective testified that these items could be used to
manufacture methamphetamine. It is also noteworthy that Appellant's
disheveled home that was originally built in the mid-19th century was secured
by a video surveillance system.
However, Appellant argues that his alleged legal possession of common
household items located in several places throughout the living space is as
consistent with innocence as it is with guilt. Appellant testified at trial that he
used many of the items for allegedly legal purposes. For example, Appellant
claimed that lithium batteries were for his child's toys. Appellant's wife also
testified that she used the ice packs for her back. The jury was clearly
unconvinced. In any event, the Commonwealth presented more than enough
evidence here to justify an instruction to the jury on manufacturing
4 methamphetamine. Thus, the trial court did not abuse its discretion in
denying Appellant's directed verdict motion.
Wanton Endangerment
Appellant also takes issue with evidence introduced by the
Free access — add to your briefcase to read the full text and ask questions with AI
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: OCTOBER 20, 2016 NOT TO BE PUBLISHED
$uprrtur Court of rt.firttfuritv 2015-SC-000695-MR
CHRISTOPHER KANE APPELLANT
ON APPEAL FROM FLEMING CIRCUIT COURT V. HONORABLE STOCKTON B. WOOD, JUDGE NO. 15-CR-00028
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On April 27, 2015, police officers lawfully searched the home of
Appellant, Christopher Joseph Kane, and discovered drugs and materials used
in the manufacturing of methamphetamine. Several other individuals and
Appellant's young child were also present at the scene. Investigating officers
testified that the house was in a pitiful state of disrepair and reeked of animal
urine and feces.
As a result of the search, Appellant was indicted by a Fleming. County
grand jury on a host of charges. Appellant was jointly tried with his
confederate, James Flora. A Fleming County Circuit Court jury convicted
Appellant of manufacturing methamphetamine and possession of marijuana
and recommended a total sentence of twenty years' imprisonment, which was imposed by the trial court. Appellant now appeals his judgment and sentence
as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution.
Three issues are raised and addressed as follows.
Allegedly Inadmissible Evidence
For his first argument, Appellant complains that the trial court
erroneously admitted photographs of two discarded 2-liter plastic bottles into
evidence. Admissible evidence must be relevant, probative, and not unduly
prejudicial. Bell v. Commonwealth, 875 S.W.2d 882, 889-91 (Ky. 1994). See
also KRE 401; 402; and 403. This issue is preserved by the defense's motion in
limine. We review for the trial court's decision for an abuse of discretion.
The Commonwealth explained that the bottles were discovered
immediately behind Appellant's residence and were consistent with the "shake
and bake" method of manufacturing methamphetamine and argued that the
bottles were part of the totality of the evidence demonstrating intent to
manufacture. Appellant argues that the unknown white substance contained
in the bottles was too speculative to be considered by the jury.
Contrary to Appellant's argument, this evidence is highly relevant and
probative of Appellant's intent to manufacture methamphetamine. See Pate v.
Commonwealth, 243 S.W.3d 327, 333 (Ky. 2007). In denying Appellant's
motion in limine, the trial court specifically noted that the bottles were part of
the crime scene and that an officer would testify that the police left the bottles
there, did not test them, and did not know what was inside of them.
Investigating Deputy Sherriff, Garret Ingram, testified that the bottles were consistent with the "shake and bake" style of a methamphetamine "cook." He
further explained that he did not field test them or send them to a lab for
testing. Deputy Ingram could not say what was inside the bottles.
Accordingly, this evidence was relevant, probative, and not unduly prejudicial
to Appellant. Thus, the trial court did not abuse its discretion in admitting this
evidence.
Directed Verdict
Appellant next alleges that the trial court erred in denying his motion for
a directed verdict on the manufacturing methamphetamine charge. We will
reverse the trial court's denial of a motion for directed verdict "if under the
evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]"
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing
Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) (emphasis added)). Our
review is confined to the proof at trial and the statutory elements of the alleged
offense. Lawton v. Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011). The jury
was instructed under KRS 218A.1432(1)(b) which states in pertinent part:
(1) A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully:
(a) Manufactures methamphetamine; or
(b) With intent to manufacture methamphetamine possesses two (2) or more chemicals or two (2) or more items of equipment for the manufacture of methamphetamine.
The list of relevant materials discovered at Appellant's residence and in his
nearby vehicle is extensive. In addition to the 2-liter soft drink bottles
3 containing an unknown substance previously discussed, here is a non-
exhaustive description of the materials discovered at the crime scene: 1) a
package of Claritin D brand allergy medicine containing pseudoephedrine
located on the bedside dresser; 2) 25 feet of medical gas tubing located on top
of the Claritin D package; 3) one empty and one unopened package of lithium
batteries; 4) a partially opened can of Coleman brand camp fuel two or three
feet away from Liquid Fire drain cleaner; 5) several empty cold packs that had
been cut open and with the beads of ammonium nitrate missing; 6) an empty
gallon jug of paint thinner in a barn about 20 to 30 yards from the house; and
7) a burned container which appeared to be a Coleman brand camp fuel
container located in a burn pit in Appellant's yard.
An investigating detective testified that these items could be used to
manufacture methamphetamine. It is also noteworthy that Appellant's
disheveled home that was originally built in the mid-19th century was secured
by a video surveillance system.
However, Appellant argues that his alleged legal possession of common
household items located in several places throughout the living space is as
consistent with innocence as it is with guilt. Appellant testified at trial that he
used many of the items for allegedly legal purposes. For example, Appellant
claimed that lithium batteries were for his child's toys. Appellant's wife also
testified that she used the ice packs for her back. The jury was clearly
unconvinced. In any event, the Commonwealth presented more than enough
evidence here to justify an instruction to the jury on manufacturing
4 methamphetamine. Thus, the trial court did not abuse its discretion in
denying Appellant's directed verdict motion.
Wanton Endangerment
Appellant also takes issue with evidence introduced by the
Commonwealth to support its claim that Appellant wantonly endangered his
child, who was present at the home where drugs, feces, and chemicals for
manufacturing methamphetamine were discovered. However, the trial court
subsequently granted Appellant's directed verdict motion on that charge.
Appellant nevertheless claims that he was unduly prejudiced by the
Commonwealth's presentation of irrelevant evidence concerning the dirtiness of
his home. Although Appellant's co-defendant objected to the introduction of
this evidence during trial, Appellant's trial counsel did not. Therefore, this
issue is unpreserved and we will review for palpable error. RCr 10.26; and
McCleery v. Commonwealth, 410 S.W.3d 597, 606 (Ky. 2013) (we will not
reverse unless "it can be determined that manifest injustice, i.e., a repugnant
and intolerable outcome, resulted from that error.").
We find the Appellant's argument unpersuasive. Evidence concerning
the physical state of the crime scene is always relevant. Appellant has also
failed to indicate any undue prejudice. Compare Thorpe v. Commonwealth, 295
S.W.3d 458 (Ky. App. 2009). In Thorpe, the Court of Appeals reversed the
appellant's conviction for fraudulently obtaining a prescription for a controlled
substance and remanded for a new trial. In so holding, the court stated that
"Thorpe was essentially on trial for her housekeeping and caregiving skills.
5 That evidence was clearly devastating to Thorpe, who received the maximum
sentence while little actual evidence of the charge crime existed." Id. at 463.
Unlike Thorpe, there was no error here, and certainly no palpable error.
Conclusion
For the foregoing reasons, we hereby affirm the judgment of the Fleming
Circuit Court.
All sitting. Minton, C.J.; Cunningham, Hughes, Keller, Venters, and
Wright, JJ., concur. Noble, J., concurs in result only.
COUNSEL FOR APPELLANT:
Molly Mattingly Assistant Public Advocate
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
James Coleman Shackelford Assistant Attorney General