IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JANUARY 21, 2021 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0730-MR
DEQONTAY DUNNAWAY APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT V. HONORABLE KEN M. HOWARD, JUDGE NO. 19-CR-00123
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Deqontay Dunnaway was convicted of trafficking in a controlled
substance in the first degree, first offense, and being a persistent felony
offender in the first degree (PFO I), following a jury trial in the Hardin Circuit
Court. He appeals as a matter of right, asserting the trial court should have
granted his motion to suppress evidence seized after a warrantless search of
his vehicle. He further asserts the trial court abdicated its gatekeeping role of
determining whether evidence of his prior drug dealing was more prejudicial
than probative and permitted such evidence to be introduced in violation of
KRE1 404(b). We affirm.
1 Kentucky Rules of Evidence. FACTS
On January 27, 2019, Kentucky State Police Trooper John Adams
effected a traffic stop on a vehicle operated by Dunnaway for speeding and
improper lane usage. Trooper Adams detected the smell of burnt marijuana as
he approached the vehicle. Dunnaway was asked to exit the vehicle and
accompany Trooper Adams to his cruiser. Upon questioning, Trooper Adams
learned Dunnaway did not have a valid operator’s license and the vehicle had
been rented by Dunnaway’s passenger, Adria Shouse, two days earlier.
Dunnaway refused Trooper Adams’ request to search the vehicle.
While Trooper Adams and Dunnaway were sitting in the cruiser, Trooper
Richard Ellis arrived on scene and approached the vehicle to speak with
Shouse. Trooper Ellis smelled burnt marijuana and noticed an open alcoholic
beverage container in the vehicle. Shouse denied smoking marijuana and
refused a request to search the vehicle.
Dunnaway and Shouse gave inconsistent stories about their travels.
Dunnaway was evasive in answering some of the Troopers’ questions and he
became nervous and agitated when pressed about marijuana usage. Based on
their observations and belief contraband was in the vehicle, the Troopers
executed a warrantless search and located a black bag behind the driver’s seat.
Within the black bag was a sealed bag containing approximately 220 grams of
cocaine and another bag containing 499 pills which appeared to be ecstasy and
several of which tested positive for methamphetamine. Dunnaway and Shouse
were both arrested and Dunnaway admitted the drugs belonged to him.
2 Dunnaway was indicted for trafficking in a controlled substance
(cocaine), first degree, second or subsequent offense, trafficking in a controlled
substance (ecstasy, greater than ten dosage units), second degree, second or
subsequent offense, and PFO I. Dunnaway filed a pretrial motion to suppress
the evidence seized, asserting the warrantless search of the rented vehicle was
improper and did not fall within an exception to the warrant requirement and
further, that the roadside detention was improperly extended beyond the time
necessary to issue the appropriate traffic citations. Following a hearing, the
trial court denied the motion. A subsequent motion to set aside or vacate the
order denying suppression was likewise denied.
Prior to trial, the Commonwealth provided notice of its intent to
introduce testimony about a traffic stop in Shelby County approximately three
weeks prior to the instant traffic stop where Dunnaway was driving a rented
car and found to be in possession of approximately 125 grams of cocaine and
$20,000 in currency. Dunnaway informed the arresting officer the drugs and
money were his “livelihood.” The Commonwealth sought to introduce this
evidence to show Dunnaway’s “intent to sell, knowledge, pattern of conduct
and/or absence of mistake.” Dunnaway objected to the introduction of this
testimony. In a written order, the trial court determined the evidence of
Dunnaway’s possession of drugs in a similar circumstance was relevant to
whether he had the cocaine for personal use or for trafficking. Further, the
trial court concluded the probative value outweighed any prejudicial effect.
The order also indicated the trial court would offer a limiting admonition upon
3 presentation of the testimony at trial. The matter then proceeded to a jury
trial.
During trial, the Commonwealth dismissed the trafficking charge related
to ecstasy and the second or subsequent offense portion of the other trafficking
charge. The jury found Dunnaway guilty of the remaining counts and
recommended a sentence of twenty years’ imprisonment. He was subsequently
sentenced in conformity with the jury’s recommendation and this appeal
followed.
Dunnaway presents two allegations of error in seeking reversal of his
convictions. First, he asserts the search of his vehicle was improper and the
trial court should have granted his suppression motion. Second, Dunnaway
argues the trial court abdicated its responsibility of screening the
Commonwealth’s proffered evidence of his prior drug dealing activities in a
different county for which he had been charged, but not yet convicted, to
determine whether it was more prejudicial than probative.
STANDARDS OF REVIEW
Review of a trial court’s denial of a motion to suppress is conducted
utilizing a two-part test. We first “defer to the trial court’s factual findings if
they are supported by substantial evidence and only review such findings for
clear error.” Bond v. Commonwealth, 453 S.W.3d 729, 732 (Ky. 2015) (citations
omitted). Then, “when the findings of fact are supported by substantial
evidence, we review the court’s application of the law to those facts de novo.”
Id. (citation omitted).
4 “To determine whether evidence of prior bad acts is admissible, we must
decide if the evidence is relevant ‘for some purpose other than to prove the
criminal disposition of the accused[,]’ probative as to the actual commission of
the prior bad act, and not overly prejudicial under KRE 403.” Kerr v.
Commonwealth, 400 S.W.3d 250, 260 (Ky. 2013) (quoting Meece v.
Commonwealth, 348 S.W.3d 627, 662 (Ky. 2011)); (citing King v.
Commonwealth, 276 S.W.3d 270, 275 (Ky. 2009)). We review KRE 403
“evidence in the light most favorable to its proponent, giving the evidence its
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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: JANUARY 21, 2021 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0730-MR
DEQONTAY DUNNAWAY APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT V. HONORABLE KEN M. HOWARD, JUDGE NO. 19-CR-00123
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Deqontay Dunnaway was convicted of trafficking in a controlled
substance in the first degree, first offense, and being a persistent felony
offender in the first degree (PFO I), following a jury trial in the Hardin Circuit
Court. He appeals as a matter of right, asserting the trial court should have
granted his motion to suppress evidence seized after a warrantless search of
his vehicle. He further asserts the trial court abdicated its gatekeeping role of
determining whether evidence of his prior drug dealing was more prejudicial
than probative and permitted such evidence to be introduced in violation of
KRE1 404(b). We affirm.
1 Kentucky Rules of Evidence. FACTS
On January 27, 2019, Kentucky State Police Trooper John Adams
effected a traffic stop on a vehicle operated by Dunnaway for speeding and
improper lane usage. Trooper Adams detected the smell of burnt marijuana as
he approached the vehicle. Dunnaway was asked to exit the vehicle and
accompany Trooper Adams to his cruiser. Upon questioning, Trooper Adams
learned Dunnaway did not have a valid operator’s license and the vehicle had
been rented by Dunnaway’s passenger, Adria Shouse, two days earlier.
Dunnaway refused Trooper Adams’ request to search the vehicle.
While Trooper Adams and Dunnaway were sitting in the cruiser, Trooper
Richard Ellis arrived on scene and approached the vehicle to speak with
Shouse. Trooper Ellis smelled burnt marijuana and noticed an open alcoholic
beverage container in the vehicle. Shouse denied smoking marijuana and
refused a request to search the vehicle.
Dunnaway and Shouse gave inconsistent stories about their travels.
Dunnaway was evasive in answering some of the Troopers’ questions and he
became nervous and agitated when pressed about marijuana usage. Based on
their observations and belief contraband was in the vehicle, the Troopers
executed a warrantless search and located a black bag behind the driver’s seat.
Within the black bag was a sealed bag containing approximately 220 grams of
cocaine and another bag containing 499 pills which appeared to be ecstasy and
several of which tested positive for methamphetamine. Dunnaway and Shouse
were both arrested and Dunnaway admitted the drugs belonged to him.
2 Dunnaway was indicted for trafficking in a controlled substance
(cocaine), first degree, second or subsequent offense, trafficking in a controlled
substance (ecstasy, greater than ten dosage units), second degree, second or
subsequent offense, and PFO I. Dunnaway filed a pretrial motion to suppress
the evidence seized, asserting the warrantless search of the rented vehicle was
improper and did not fall within an exception to the warrant requirement and
further, that the roadside detention was improperly extended beyond the time
necessary to issue the appropriate traffic citations. Following a hearing, the
trial court denied the motion. A subsequent motion to set aside or vacate the
order denying suppression was likewise denied.
Prior to trial, the Commonwealth provided notice of its intent to
introduce testimony about a traffic stop in Shelby County approximately three
weeks prior to the instant traffic stop where Dunnaway was driving a rented
car and found to be in possession of approximately 125 grams of cocaine and
$20,000 in currency. Dunnaway informed the arresting officer the drugs and
money were his “livelihood.” The Commonwealth sought to introduce this
evidence to show Dunnaway’s “intent to sell, knowledge, pattern of conduct
and/or absence of mistake.” Dunnaway objected to the introduction of this
testimony. In a written order, the trial court determined the evidence of
Dunnaway’s possession of drugs in a similar circumstance was relevant to
whether he had the cocaine for personal use or for trafficking. Further, the
trial court concluded the probative value outweighed any prejudicial effect.
The order also indicated the trial court would offer a limiting admonition upon
3 presentation of the testimony at trial. The matter then proceeded to a jury
trial.
During trial, the Commonwealth dismissed the trafficking charge related
to ecstasy and the second or subsequent offense portion of the other trafficking
charge. The jury found Dunnaway guilty of the remaining counts and
recommended a sentence of twenty years’ imprisonment. He was subsequently
sentenced in conformity with the jury’s recommendation and this appeal
followed.
Dunnaway presents two allegations of error in seeking reversal of his
convictions. First, he asserts the search of his vehicle was improper and the
trial court should have granted his suppression motion. Second, Dunnaway
argues the trial court abdicated its responsibility of screening the
Commonwealth’s proffered evidence of his prior drug dealing activities in a
different county for which he had been charged, but not yet convicted, to
determine whether it was more prejudicial than probative.
STANDARDS OF REVIEW
Review of a trial court’s denial of a motion to suppress is conducted
utilizing a two-part test. We first “defer to the trial court’s factual findings if
they are supported by substantial evidence and only review such findings for
clear error.” Bond v. Commonwealth, 453 S.W.3d 729, 732 (Ky. 2015) (citations
omitted). Then, “when the findings of fact are supported by substantial
evidence, we review the court’s application of the law to those facts de novo.”
Id. (citation omitted).
4 “To determine whether evidence of prior bad acts is admissible, we must
decide if the evidence is relevant ‘for some purpose other than to prove the
criminal disposition of the accused[,]’ probative as to the actual commission of
the prior bad act, and not overly prejudicial under KRE 403.” Kerr v.
Commonwealth, 400 S.W.3d 250, 260 (Ky. 2013) (quoting Meece v.
Commonwealth, 348 S.W.3d 627, 662 (Ky. 2011)); (citing King v.
Commonwealth, 276 S.W.3d 270, 275 (Ky. 2009)). We review KRE 403
“evidence in the light most favorable to its proponent, giving the evidence its
maximum reasonable probative force and its minimum reasonable prejudicial
value.” Major v. Commonwealth, 177 S.W.3d 700, 707 (Ky. 2005) (citing Turpin
v. Kassulke, 26 F.3d 1392, 1399-400 (6th Cir. 1994)).
The standard of review for a trial court’s evidentiary ruling is abuse of
discretion. Meskimen v. Commonwealth, 435 S.W.3d 526, 534 (Ky. 2013)
(citing Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007)). The test
for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
ANALYSIS
In challenging the warrantless search of his vehicle, Dunnaway contends
the Troopers did not articulate probable cause to believe the vehicle contained
evidence of criminal activity and no other exception to the warrant requirement
exists.2 He asserts his speeding, operating on a suspended license, improper
2 Dunnaway has abandoned any assertion the traffic stop was impermissibly extended, and thus no further mention of this claim is warranted. 5 lane use and having an open alcoholic beverage container—even when taken
together—did not provide probable cause to justify a warrantless vehicle
search. However, Dunnaway’s assertions ignore one extremely important fact
which alone supported the Trooper’s actions. Both officers testified3 they
detected the odor of marijuana emanating from the vehicle as they separately
approached it. The trial court found this testimony to be credible and we are
presented with no viable argument the testimony did not constitute substantial
evidence supporting the trial court’s ultimate decision. As such, the trial
court’s factual finding was not clearly erroneous and will not be disturbed.
English, 993 S.W.2d at 945.
As to the trial court’s application of the law to these facts, we discern no
error. The automobile exception to the warrant requirement is applicable when
the vehicle is readily mobile and probable cause exists to believe evidence of
criminal activity may be contained in the vehicle. Chavies v. Commonwealth,
354 S.W.3d 103, 110 (Ky. 2011). As correctly noted by the trial court, it is
well-settled in this Commonwealth that the odor of marijuana provides the
probable cause necessary for officers to conduct a warrantless search of an
automobile. Dunn v. Commonwealth, 199 S.W.3d 775 (Ky. App. 2006).
Troopers validly executed the search of Dunnaway’s vehicle and suppression
was not required. The trial court did not err.
3 Although Dunnaway contends only Trooper Ellis testified to smelling burnt marijuana, as noted by both the Commonwealth and the trial court, Trooper Adams testified he too had detected the odor of marijuana.
6 Finally, Dunnaway contends the trial court abused its discretion when it
failed to assess the admissibility of evidence of Dunnaway’s prior arrest for
drug trafficking and impermissibly permitted the Commonwealth to introduce
such evidence in violation of KRE 404(b). We disagree.
The Commonwealth sought to present testimony from Trooper Stuart
Wiser regarding his interaction with Dunnaway on January 4, 2019, in Shelby
County, Kentucky, some three weeks prior to Dunnaway’s arrest in this case in
Hardin County on January 27, 2019. In both instances, Dunnaway was
operating a rented vehicle and was found to be in possession of a large quantity
of cocaine. In Shelby County, he admitted to Trooper Wiser selling narcotics
was his “livelihood.” The Commonwealth plainly stated its intent in
introducing evidence relative to Dunnaway’s prior arrest would be limited to
showing his intent to traffic cocaine and to counter any argument he possessed
the drugs for his personal use.
The testimony adduced at trial exactly tracked what the Commonwealth
had previously indicated it intended to offer. Trooper Wiser’s testimony was
relevant as it tended to make Dunnaway’s intent to traffic more probable. KRE
401. The trial court was presented with this proposed testimony prior to trial
and properly weighed the probative value versus the prejudicial effect as it was
required to do. Ross v. Commonwealth, 455 S.W.3d 899, 910-11 (Ky. 2015);
KRE 403. This balancing is clearly shown in the trial court’s well-reasoned
written order. Having reviewed the record, we cannot say the trial court
abused its discretion in permitting the Commonwealth to present the jury with
Trooper Wiser’s testimony.
7 Further, Dunnaway suggests the pretrial ruling was undermined by the
trial court’s admonition to the jury that the testimony could be used by them
only if they believed it was “probative and credible” to determine his intent to
traffic in cocaine. We are unconvinced the trial court abdicated its role as
gatekeeper in this evidentiary matter as it plainly fulfilled that role as evidenced
by its pretrial order on the admissibility of the testimony. The trial court’s
admonition to the jury served only to ensure the jury did not use Trooper
Wiser’s testimony for an improper purpose in their deliberations. Again, there
was no error.
CONCLUSION
For the foregoing reasons, the judgment of the Hardin Circuit Court is
AFFIRMED.
All sitting. All concur.
COUNSEL FOR APPELLANT:
William Daniel Carman Dan Carman, Attorney at Law, PLLC
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Kristin Leigh Conder Assistant Attorney General