Dawayne Dixon v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: August 2, 2024
• Docket: 2023-CA-0754
• Status: Unpublished

Opinion

RENDERED: AUGUST 2, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0754-MR

DAWAYNE A. DIXON APPELLANT

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE KATHLEEN S. LAPE, JUDGE ACTION NO. 22-CR-00168

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.

ACREE, JUDGE: Dawayne Dixon, Appellant, was convicted in the Kenton

Circuit court of possession of a controlled substance in the first degree and

resisting arrest. Dixon asserts the circuit court coerced a guilty verdict as a result

of giving successive Allen1 charges to the jury. He also argues the evidence did not

1 Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). support his conviction and he was therefore entitled to a directed verdict. We

disagree with both arguments and affirm.

While driving, Detective Adkisson and Detective Lindeman of the

Covington Police Department stopped behind a vehicle driven by Aprille Nicholas.

Dixon was the passenger. The detectives noticed something thrown from the

passenger side window of the vehicle. They also observed Nicholas and Dixon

shoving each other inside the car.

Based on these observations, the detectives activated their lights.

Nicholas drove off, initiating a low-speed chase. Before Nicholas finally came to a

stop, the detectives noticed two syringes had been thrown from the passenger

window. Though they did not see who threw the syringes, Detective Adkisson did

observe Dixon reach over to Nicholas during the chase and did not see Nicholas do

anything other than drive; Detective Lindeman noticed both Nicholas and Dixon

moving around in the car, but mostly noticed Dixon. The detectives were ten to

twenty feet behind the car and its rear window was not tinted.

Officers recovered the two syringes and Nicholas and Dixon were

arrested. At trial, the parties stipulated the syringes contained methamphetamine.

Dixon was charged with first-degree possession of a controlled

substance and, based on other conduct not relevant to this appeal, resisting arrest.

The case proceeded to trial. Following the close of the Commonwealth’s case in

-2- chief, Dixon moved for a directed verdict. The circuit court denied the motion.

Dixon put on no evidence, and the jury began its deliberations. The jury asked to

rewatch Detective Adkisson’s body-worn camera footage and submitted three

questions to the court.

Approximately two hours after beginning deliberations, the jury told

the circuit court that it was deadlocked as to the possession charge. The court

adjourned for the evening, and the next morning the circuit court read the jury the

following Allen charge:

In order to return a verdict each juror must agree thereto. Jurors have a duty to consult one another and to deliberate with a view toward reaching an agreement if it can be done without violence to individual judgment. Each juror must decide the case in their own mind but only after an impartial consideration of the evidence with the other jurors. In the course of deliberations, a juror should not hesitate to reexamine their own views and change an opinion if the juror is convinced it’s erroneous, and no juror should surrender their honest conviction as to the weight of effect on the evidence solely because of the opinion of the other jurors or for the mere purpose of returning a verdict. And with those comments I’m going to send you back to deliberate.

Video Record (VR) 10/26/22 at 9:06:04-9:06:50.

The jury again resumed deliberations. A mere ten minutes later, the

jury informed the court it would not be able to reach a verdict as to the possession

charge but had reached a verdict on the resisting arrest charge.

-3- Prior to bringing the jury back into the courtroom, the circuit court

judge addressed the parties. She stated that in the short time since resuming

deliberations the jury could not have discussed the charges sufficiently. The judge

then brought the jury back into the room, told them that she did not believe the jury

had carried out the first Allen charge, and gave the jury a second Allen charge; the

second Allen charge was a recitation of the first. The jury resumed deliberations

and, after approximately forty minutes, returned a guilty verdict.

Dixon now appeals. He raises two issues, both related to his

possession conviction. First, he argues the trial court’s successive Allen charges

coerced the jury into reaching a guilty verdict on the possession charge. Second,

he argues the circuit court erred in denying his directed verdict motion because the

Commonwealth did not prove beyond a reasonable doubt that Dixon possessed the

syringes.

As Dixon concedes, the Allen charge issue is unpreserved. Under our

rules of criminal procedure, if a “palpable error which affects the substantial rights

of a party” is unpreserved, our appellate courts may consider the issue on appeal

“and appropriate relief may be granted upon a determination that manifest injustice

has resulted from the error.” RCr2 10.26. “To discover manifest injustice, a

reviewing court must plumb the depths of the proceeding . . . to determine whether

2 Kentucky Rules of Criminal Procedure.

-4- the defect in the proceeding was shocking or jurisprudentially intolerable.” Martin

v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). Pursuant to RCr 10.26, we elect to

review this issue and apply the manifest injustice standard.

At the end of the 19th century, the Supreme Court of the United States

affirmed a trial court’s instruction to a deadlocked jury which instructed it to

continue deliberating. Allen, 164 U.S. at 501, 17 S. Ct. at 157. Kentucky codified

the Allen charge principle by adopting RCr 9.57(1), as follows:

If a jury reports to a court that it is unable to reach a verdict and the court determines further deliberations may be useful, the court shall not give any instruction regarding the desirability of reaching a verdict other than one which contains only the following elements:

(a) in order to return a verdict, each juror must agree to that verdict;

(b) jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

(c) each juror must decide the case, but only after an impartial consideration of the evidence with the other jurors;

(d) in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change his or her opinion if convinced it is erroneous; and

(e) no juror should surrender his or her honest conviction as to the weight or effect of the evidence

-5- solely because of the opinion of other jurors, or for the mere purpose of returning a verdict.

RCr 9.57(1). “Prior to the adoption of RCr 9.57, . . . the trial judges of this

Commonwealth were afforded substantial discretion as to how to instruct a

deadlocked jury, so long as the instruction did not attempt to coerce the jury or

indicate the judge’s own opinion as to the verdict.” Commonwealth v. Mitchell,

943 S.W.2d 625, 626 (Ky. 1997) (citations omitted). This discretion has been

substantially tempered considering RCr 9.57.

To determine whether an Allen charge coerced the jury to reach a

verdict, “[o]ur test always has been to look at the language of the statement or

instruction itself to determine whether it actually forced an agreement or whether it

merely forced deliberations resulting in an agreement.” Mitchell, 943 S.W.2d at

628 (citations omitted). Therefore, it has long been the rule “that statements which

merely impress upon the jury the propriety and importance of coming to an

agreement do not rise to the level of reversible error.” Id. (citations omitted).

In Wright v. Commonwealth, the Kentucky Supreme Court rejected an

appellant’s proposal that the Supreme Court adopt a rule which would rule

multiple Allen charges as per se coercive. 590 S.W.3d 255, 264 (Ky. 2019).

Rather, “our appellate courts should address the issue of whether giving multiple

Allen charges in any given case was coercive, and therefore reversible error, based

on the totality of the circumstances surrounding the instructions given.” Id.

-6- Therefore, the mere fact that multiple Allen charges were issued here does not

automatically mean the charges were coercive.

The circuit court’s first Allen charge in Wright was remarkably similar

to the Allen charge at issue in the present appeal. See id. at 263. However, when

the jury in Wright informed the circuit court that it was deadlocked a second time,

the court asked the jury foreperson if additional deliberations would be helpful. Id.

The foreperson answered in the affirmative, the court reread its Allen charge, and

the jury resumed deliberations. Id. When reading its second Allen charge, the

circuit court stated that “[n]one of us is asking for an arm twisting” and that it was

not demanding a certain amount of time for deliberations. Id. at 263-64. For these

reasons, the Supreme Court determined that the circuit court’s statements and the

circumstances surrounding them did not demonstrate that the jury had been forced

to reach a verdict. Id. at 264.

Time is a relevant circumstance to consider when determining

whether a jury verdict was coerced. In Elders v. Commonwealth, a panel of this

Court discussed whether a verdict had been coerced. See 395 S.W.3d 495, 503-

505 (Ky. App. 2012). In discussing the legal standard for determining whether

coercion exists, we noted “[t]he time lapse between the alleged coercive comment

and the verdict may be relevant as part of the totality of circumstances, though not

decisive.” Id. at 504 (quoting Bell v. Commonwealth, 245 S.W.3d 738, 742-43

-7- (Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d

813 (Ky. 2008)).

These circumstances present a closer question than those in Wright.

One distinction is that the jury in the instant case did not inform the circuit court

that additional deliberations would be useful. The circuit court provided no

assurances that it was not demanding a verdict as were provided in Wright; the

circuit court did not state explicitly that it was not trying to force a verdict or that

the court did not expect the jurors to deliberate for a certain amount of time.

Instead, after the first Allen charge, the jury returned ten minutes later and

informed the court it was still unable to reach a verdict.

However, RCr 9.57(1) permits circuit courts to order further

deliberations if the court believes they would be useful, not if the jury believes they

would be. Simply, the circuit court did not believe the jury could have carried out

the Allen charge based on the short period of time between the initial charge and

the jury again relaying that it had been deadlocked; therefore, the circuit court

obviously believed further deliberations would be useful. And, none of the circuit

court’s statements to the jury constituted a direct instruction regarding the

desirability of reaching a verdict other than those statements permitted under RCr

9.57(1). Otherwise, the circuit court made no statement to the jury regarding the

desirability of the verdict. For these reasons, we believe the circuit court’s

-8- successive Allen charges to the jury was not a shocking or jurisprudentially

intolerable defect and, therefore, did not constitute palpable error.

Dixon next argues the circuit court erred in denying his directed

verdict motion on his possession charge. The Constitution of the United States

requires the government to prove “every element of the charged offense beyond a

reasonable doubt” to obtain conviction in criminal cases. Anderson v.

Commonwealth, 352 S.W.3d 577, 581 (Ky. 2011) (citing In re Winship, 397 U.S.

358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Miller v. Commonwealth, 77

S.W.3d 566, 576 (Ky. 2002); KRS3 500.070(1)). If this is not done, the accused’s

right to due process is violated. Id. (citing Winship, 397 U.S. at 364, 90 S. Ct. at

1072-73).

When considering a motion for directed verdict:

[T]he 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 reserving to the jury questions as to the credibility and weight to be given to such testimony.

3 Kentucky Revised Statutes.

-9- Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “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)).

“A person is guilty of possession of a controlled substance in the first

degree when he or she knowingly and unlawfully possesses[,]” among other drugs,

methamphetamine. KRS 218A.1415(1)(c). A conviction under this statute may be

supported by either actual or constructive possession. Commonwealth v. James,

586 S.W.3d 717, 721 (Ky. 2019) (citing Hargrave v. Commonwealth, 724 S.W.2d

202, 203-04 (Ky. 1986)). Further, “[i]t has long been the law that the

Commonwealth can prove all the elements of a crime by circumstantial evidence.”

Commonwealth v. Goss, 428 S.W.3d 619, 625 (Ky. 2014) (citing Commonwealth

v. O’Conner, 372 S.W.3d 855, 857 (Ky. 2012)).

When construing all evidence in a light most favorable to the

Commonwealth and assuming all of the Commonwealth’s evidence is true as

required, the circumstantial evidence presented to the jury would allow them to

conclude Dixon either actually or constructively possessed the syringes containing

methamphetamine. The syringes were thrown from the passenger side of the

vehicle, where Dixon sat. Detective Adkisson testified that he observed Dixon

-10- moving around in the car and reaching over to the driver’s side of the car during

the low-speed chase. Conversely, he did not see Nicholas do anything but drive

the car. Detective Lindeman also observed Dixon’s furtive and suspicious

movements in the car. The detectives were a mere twenty feet behind Dixon and

Nicholas and their view inside the vehicle was not obstructed by window tinting.

Based on this evidence, it would not be clearly unreasonable for a jury

to find Dixon guilty of first-degree possession of methamphetamine. Therefore, it

was not error for the circuit court to turn the case over to the jury by denying

Dixon’s directed verdict motion.

Based on the foregoing, we affirm the Kenton Circuit Court’s

judgment of conviction against Dixon.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Shannon Dupree Russell Coleman Frankfort, Kentucky Attorney General of Kentucky

Brystin Denguessi Kwin Assistant Attorney General Frankfort, Kentucky

-11-