RENDERED: SEPTEMBER 10, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0318-MR
DAJUAN QUARLES APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT v. HONORABLE JOHN L. ATKINS, JUDGE ACTION NOS. 19-CR-00376 AND 19-CR-00640
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Dajuan Quarles brings this appeal from a February 5, 2020,
judgment of the Christian Circuit Court sentencing appellant to ten-years’
imprisonment. We affirm in part, vacate in part, and remand.
On March 10, 2019, Officer Edward Eastman observed appellant
driving his motor vehicle on Nelson Drive in Hopkinsville, Kentucky. Officer
Eastman initiated a stop of the vehicle because a bench warrant had been issued for appellant’s arrest. Upon stopping the vehicle, the officer requested that appellant
step out of the vehicle while a passenger remained in the vehicle. The officer
placed appellant under arrest and informed appellant that he smelled marijuana
emanating from the vehicle. Due to the smell of marijuana, Officer Eastman told
appellant that he intended to search the vehicle at which time appellant said, “go
ahead.” Upon the search, the officer recovered a rifle in the back seat covered by a
jacket. Officer Eastman also discovered a .38 caliber handgun inside a backpack
also located in the backseat.
Appellant was subsequently indicted upon possession of a firearm
(handgun) by a convicted felon (Kentucky Revised Statutes (KRS) 527.040),
possession of a firearm by a convicted felon (KRS 527.040), and with being a
persistent felony offender in the second degree (KRS 532.080(2)).1 A jury trial
ensued, and appellant was found guilty of all indicted offenses. By judgment
entered February 5, 2020, the circuit court sentenced appellant to ten-years’
imprisonment. This appeal follows.
Appellant contends the circuit court erred by denying his motion for a
directed verdict of acquittal upon possession of a firearm (handgun) by a convicted
1 It must be noted that Kentucky Revised Statues (KRS) 527.040 criminalizes the possession of a firearm by a convicted felon. If the firearm is a handgun, the punishment is enhanced to a Class C felony from a Class D felony. A firearm is defined in KRS 527.010(4) as “any weapon which will expel a projectile by the action of an explosive,” and KRS 527.010(5) defines handgun as a “pistol or revolver originally designed to be fired by the use of a single hand, or any firearm originally designed to be fired by the use of a single hand.”
-2- felon and possession of a firearm by a convicted felon. In particular, appellant
claims the Commonwealth failed to demonstrate that he knowingly possessed the
two guns. Appellant alleges that he was unaware that the two guns were inside the
vehicle and that the guns belonged to his passenger. Appellant points out that the
passenger admitted to ownership of both guns; thus, appellant argues the evidence
demonstrated that the guns were not knowingly possessed by him.
A directed verdict of acquittal is proper when a reasonable juror could
not find defendant guilty of the offense beyond a reasonable doubt. See
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). When considering
the motion, all reasonable inferences from the evidence must be viewed in a light
most favorable to the Commonwealth. Id. Our review proceeds accordingly.
Kentucky Revised Statutes (KRS) 527.040 codifies the offense of
possession of a firearm by a convicted felon and provides, in relevant part:
(1) A person is guilty of possession of a firearm by a convicted felon when he possesses, manufactures, or transports a firearm when he has been convicted of a felony, as defined by the laws of the jurisdiction in which he was convicted, in any state or federal court and has not:
....
(2) (a) Possession of a firearm by a convicted felon is a Class D felony unless the firearm possessed is a handgun in which case it is a Class C felony.
-3- Under KRS 527.040, possession of a firearm “may be proven through either actual
possession or constructive possession.” Johnson v. Commonwealth, 90 S.W.3d 39,
42 (Ky. 2002), overruled on other grounds by McClanahan v. Commonwealth, 308
S.W.3d 694, 698 (Ky. 2010). And, a person has constructive possession when he
or she “does not have actual possession but instead knowingly has the power and
intention at a given time to exercise dominion and control of an object, either
directly or through others.” Id.
At trial, the Commonwealth introduced evidence that appellant was
driving the motor vehicle prior to the search and that the motor vehicle was
registered to appellant. See Leavell v. Commonwealth, 737 S.W.2d 695, 697 (Ky.
1987) (holding that a “person who owns or exercises dominion or control over a
motor vehicle in which contraband is concealed, is deemed to possess the
contraband.”). The evidence also established that the rifle was merely lying in the
backseat with a jacket covering it. Although the passenger claimed the rifle
belonged to him, it is clear that the rifle was within the reach of appellant as
operator of the vehicle, and a reasonable inference from the evidence was that
appellant knowingly exercised dominion and control over it. It was within the sole
province of the jury to weigh this evidence and make reasonable inferences
therefrom.
-4- As to the handgun found in a backpack, the passenger of the vehicle
initially disclaimed ownership thereof but later recanted. Based upon the
conflicting evidence, the jury could have reasonably believed that the handgun was
not owned by the passenger but by appellant. Considering the whole of the
evidence, we are of the opinion that the Commonwealth introduced sufficient
evidence demonstrating that appellant possessed both guns; thus, the circuit court
properly denied appellant’s motion for a directed verdict.
Appellant next asserts that his convictions of possession of a firearm
by a convicted felon and possession of a firearm (handgun) by a convicted felon
violated the constitutional prohibition against double jeopardy.2 Appellant argues
that the circuit court recognized same but failed to properly dismiss the lesser
offense of possession of a firearm by a convicted felon.
In response, the Commonwealth argues that double jeopardy was not
offended as the trial court indicated that the offense of possession of a firearm by a
convicted felon was “merged into Count I.” Judgment at 2.
The law is well-settled that double jeopardy is violated when a
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RENDERED: SEPTEMBER 10, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0318-MR
DAJUAN QUARLES APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT v. HONORABLE JOHN L. ATKINS, JUDGE ACTION NOS. 19-CR-00376 AND 19-CR-00640
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Dajuan Quarles brings this appeal from a February 5, 2020,
judgment of the Christian Circuit Court sentencing appellant to ten-years’
imprisonment. We affirm in part, vacate in part, and remand.
On March 10, 2019, Officer Edward Eastman observed appellant
driving his motor vehicle on Nelson Drive in Hopkinsville, Kentucky. Officer
Eastman initiated a stop of the vehicle because a bench warrant had been issued for appellant’s arrest. Upon stopping the vehicle, the officer requested that appellant
step out of the vehicle while a passenger remained in the vehicle. The officer
placed appellant under arrest and informed appellant that he smelled marijuana
emanating from the vehicle. Due to the smell of marijuana, Officer Eastman told
appellant that he intended to search the vehicle at which time appellant said, “go
ahead.” Upon the search, the officer recovered a rifle in the back seat covered by a
jacket. Officer Eastman also discovered a .38 caliber handgun inside a backpack
also located in the backseat.
Appellant was subsequently indicted upon possession of a firearm
(handgun) by a convicted felon (Kentucky Revised Statutes (KRS) 527.040),
possession of a firearm by a convicted felon (KRS 527.040), and with being a
persistent felony offender in the second degree (KRS 532.080(2)).1 A jury trial
ensued, and appellant was found guilty of all indicted offenses. By judgment
entered February 5, 2020, the circuit court sentenced appellant to ten-years’
imprisonment. This appeal follows.
Appellant contends the circuit court erred by denying his motion for a
directed verdict of acquittal upon possession of a firearm (handgun) by a convicted
1 It must be noted that Kentucky Revised Statues (KRS) 527.040 criminalizes the possession of a firearm by a convicted felon. If the firearm is a handgun, the punishment is enhanced to a Class C felony from a Class D felony. A firearm is defined in KRS 527.010(4) as “any weapon which will expel a projectile by the action of an explosive,” and KRS 527.010(5) defines handgun as a “pistol or revolver originally designed to be fired by the use of a single hand, or any firearm originally designed to be fired by the use of a single hand.”
-2- felon and possession of a firearm by a convicted felon. In particular, appellant
claims the Commonwealth failed to demonstrate that he knowingly possessed the
two guns. Appellant alleges that he was unaware that the two guns were inside the
vehicle and that the guns belonged to his passenger. Appellant points out that the
passenger admitted to ownership of both guns; thus, appellant argues the evidence
demonstrated that the guns were not knowingly possessed by him.
A directed verdict of acquittal is proper when a reasonable juror could
not find defendant guilty of the offense beyond a reasonable doubt. See
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). When considering
the motion, all reasonable inferences from the evidence must be viewed in a light
most favorable to the Commonwealth. Id. Our review proceeds accordingly.
Kentucky Revised Statutes (KRS) 527.040 codifies the offense of
possession of a firearm by a convicted felon and provides, in relevant part:
(1) A person is guilty of possession of a firearm by a convicted felon when he possesses, manufactures, or transports a firearm when he has been convicted of a felony, as defined by the laws of the jurisdiction in which he was convicted, in any state or federal court and has not:
....
(2) (a) Possession of a firearm by a convicted felon is a Class D felony unless the firearm possessed is a handgun in which case it is a Class C felony.
-3- Under KRS 527.040, possession of a firearm “may be proven through either actual
possession or constructive possession.” Johnson v. Commonwealth, 90 S.W.3d 39,
42 (Ky. 2002), overruled on other grounds by McClanahan v. Commonwealth, 308
S.W.3d 694, 698 (Ky. 2010). And, a person has constructive possession when he
or she “does not have actual possession but instead knowingly has the power and
intention at a given time to exercise dominion and control of an object, either
directly or through others.” Id.
At trial, the Commonwealth introduced evidence that appellant was
driving the motor vehicle prior to the search and that the motor vehicle was
registered to appellant. See Leavell v. Commonwealth, 737 S.W.2d 695, 697 (Ky.
1987) (holding that a “person who owns or exercises dominion or control over a
motor vehicle in which contraband is concealed, is deemed to possess the
contraband.”). The evidence also established that the rifle was merely lying in the
backseat with a jacket covering it. Although the passenger claimed the rifle
belonged to him, it is clear that the rifle was within the reach of appellant as
operator of the vehicle, and a reasonable inference from the evidence was that
appellant knowingly exercised dominion and control over it. It was within the sole
province of the jury to weigh this evidence and make reasonable inferences
therefrom.
-4- As to the handgun found in a backpack, the passenger of the vehicle
initially disclaimed ownership thereof but later recanted. Based upon the
conflicting evidence, the jury could have reasonably believed that the handgun was
not owned by the passenger but by appellant. Considering the whole of the
evidence, we are of the opinion that the Commonwealth introduced sufficient
evidence demonstrating that appellant possessed both guns; thus, the circuit court
properly denied appellant’s motion for a directed verdict.
Appellant next asserts that his convictions of possession of a firearm
by a convicted felon and possession of a firearm (handgun) by a convicted felon
violated the constitutional prohibition against double jeopardy.2 Appellant argues
that the circuit court recognized same but failed to properly dismiss the lesser
offense of possession of a firearm by a convicted felon.
In response, the Commonwealth argues that double jeopardy was not
offended as the trial court indicated that the offense of possession of a firearm by a
convicted felon was “merged into Count I.” Judgment at 2.
The law is well-settled that double jeopardy is violated when a
defendant is convicted of possession of a firearm (handgun) by a convicted felon
2 We observe that the double jeopardy issue was unpreserved. However, the Kentucky Supreme court has held that “[a]n error made by a trial court that violates a defendant’s rights against double jeopardy is considered per se manifest injustice, and therefore mandates reversal.” Breazeale v. Commonwealth, 600 S.W.3d 682, 688 (Ky. 2020).
-5- and possession of a firearm by a convicted felon if both arise from the same course
of conduct. Hinchey v. Commonwealth, 432 S.W.3d 710, 714 (Ky. App. 2014);
see also Miracle v. Commonwealth, No. 2016-CA-001620-MR, 2018 WL 3202821
(Ky. App. Jun. 29, 2018). The proper remedy for violation of double jeopardy is to
vacate or dismiss the lesser offense. Kiper v. Commonwealth, 399 S.W.3d 736,
746 (Ky. 2012); Lloyd v. Commonwealth, 324 S.W.3d 384, 391 n. 26 (Ky. 2010);
Montgomery v. Commonwealth, 505 S.W.3d 274, 280 (Ky. App. 2016).
Here, the offenses of possession of a firearm (handgun) by a convicted
felon and possession of a firearm by a convicted felon against appellant clearly
arose from the same course of conduct. In its judgment, the circuit court indicated
that the offense of possession of a firearm was “merged.” However, the circuit
court should have either vacated or dismissed the offense of possession of a
firearm by convicted felon. See Kiper, 399 S.W.3d at 746; Lloyd, 324 S.W.3d at
391 n. 26; Montgomery, 505 S.W.3d at 280. Although appellant’s length of
imprisonment will remain unchanged (ten years), we vacate the February 5, 2020,
judgment and remand for the circuit court to dismiss appellant’s conviction of
possession of a firearm by a convicted felon. See Hinchey, 432 S.W.3d at 714;
Clark v. Commonwealth, 267 S.W.3d 668, 678 (Ky. 2008).
-6- For the foregoing reasons, the judgment of the Christian Circuit Court
is affirmed in part, vacated in part, and remanded for proceedings consistent with
this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Brandon Neil Jewell Daniel Cameron Assistant Public Advocate Attorney General of Kentucky Department of Public Advocacy Frankfort, Kentucky Frankfort, Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
-7-