IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4){C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 13, 2019 NOT TO BE PUBLISHED
2018-SC-000087-MR
JOSHUA MCALPIN APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2016-CA-001360-MR JEFFERSON CIRCUIT COURT NO. 14-CR-001309
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE LAMBERT
AFFIRMING IN PART AND REVERSING IN PART
Joshua McAlpin is appealing his conviction of one count of first degree
possession of a controlled substance. McAlpin was sentenced to three years
imprisonment for this conviction following a jury trial in Jefferson Circuit
Court. He asserts the following arguments on appeal: (1) the jury instructions
violated his right to a unanimous verdict; and (2) there was insufficient
evidence to sustain his conviction. Based upon the following, we affirm in part
and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 10, 2011, officers from both the Kentucky Division of
Probation and Parole and the Louisville Metro Police Department went to
McAlpin’s apartment in search of Amelia Durham. Amelia, a known heroin user, was a parolee who failed to comply with her conditions of release, and the
officers were trying to locate and arrest her. Amelia was staying on and off at
McAlpin’s apartment, and Amelia’s father gave the officers McAlpin’s address.
When the officers knocked Amelia came to the apartment door and
agreed to let them in. They did a standard “safety sweep” of the apartment to
verify that no one but Amelia was there. During this sweep they saw several
syringes and spoons in plain sight scattered throughout the apartment.
Shortly after the officers’ arrival two other men came to the apartment:
Silas Koger and Clark Duerr. Silas, like Amelia, was staying at McAlpin’s
apartment from time to time. Both Silas and Clark were admitted heroin
users. The officers searched Silas and Clark’s persons and vehicles but found
nothing illegal. After ascertaining that neither of the men had any active
warrants, they let the pair leave. It was later determined, and was undisputed,
that one of the spoons found in the home belonged to Silas. The spoon was
found hidden in a laundry basket near the entrance of the home. The basket
and all the clothing in it belonged to Silas.
Shortly after Silas and Clark left, McAlpin arrived home from work. His
person and vehicle were also searched and nothing illegal was found. There
was conflicting evidence at trial about whether McAlpin was a heroin addict:
the investigating officers said he was, but Amelia testified that, although he
had abused prescription pills in the past, he was not a heroin user. Amelia
2 also testified that all of the spoons, cotton pieces,1 and syringes found, apart
from the spoon that belonged to Silas, were hers.
Ultimately, the officers arrested Amelia and wrote a citation for McAlpin
that they did not file at the clerk’s office. McAlpin was indicted over a year
later in June 2012, and the case went to trial in June 2016. McAlpin was
convicted of one count of possession of a first-degree controlled substance and
one count of possession of drug paraphernalia. He was sentenced to three
years on each count to run concurrently.
The Court of Appeals vacated McAlpin’s possession of paraphernalia
conviction because: (1) the one-year statute of limitations ran prior to his
indictment; (2) the jury instructions failed to include the requirement that the
offense be committed within a year preceding the indictment; and (3) he was
sentenced to three years when possession of paraphernalia carries a maximum
penalty of only twelve months. The Court of Appeals affirmed his possession
conviction, which he now appeals to this Court.
Additional facts are discussed below as necessary.
II. ANALYSIS
A. MCALPIN’S RIGHT TO A UNANIMOUS VERDICT WAS NOT VIOLATED
McAlpin’s first argument is that the jury instruction on Possession of a
Controlled Substance violated his right to a unanimous verdict under Johnson
1 One of the investigating officers testified that, after mixing heroin in its powdered form with water in a spoon, a heroin user will put a small piece of cotton in the mixture to act as a kind of filter. After the cotton has absorbed the mixture they will pull it into a syringe directly from the piece of cotton.
3 v. Commonwealth,2 Kingrey v. Commonwealth,3 and their progeny. He
concedes this error was not preserved and has therefore requested palpable
error review under RCr4 10.26. RCr 10.26 provides:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
This Court has previously held that a violation of a defendant’s right to a
unanimous verdict “also touches on the right to due process” and is therefore
“a fundamental error that is jurisprudentially intolerable.”5 Therefore, a
violation of the right to a unanimous verdict is automatically deemed palpable
error.
The right to a unanimous jury verdict under the U.S. Constitution does
not apply to the states, but it is nonetheless protected under Section 7 of
Kentucky’s Constitution.6 This Court dealt with untangling the issue of juror
unanimity at length in both Johnson and Kingrey. McAlpin now argues that
these cases require a finding that his right to a unanimous verdict was
2 405 S.W.3d 439 (Ky. 2013). 3 396 S.W.3d 824 (Ky. 2013). 4 Kentucky Rules of Criminal Procedure. 5 Johnson, 405 S.W.3d at 457; See also, Kingrey, 396 S.W.3d at 831-32. 6 Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978) (“Section 7 of the Kentucky Constitution requires a unanimous verdict reached by a jury of twelve persons in all criminal cases.”).
4 violated. However, we believe those cases are distinguishable from the
circumstances before us.
In Johnson, the defendant was convicted of murdering and committing
one count of first-degree criminal abuse against the decedent, her two-year-old
son.7 A forensic pathologist testified that the infant suffered three distinct leg
fractures at different times prior to his death. Id. at 443. She described the
first fracture as a “toddler fracture.” Id. at 445. This kind of fracture is fairly
common and, in her opinion, was not indicative of abuse. Id. However, the
other two fractures were indicative of abuse. Id. at 446. The pathologist
determined that the remaining two fractures occurred at different times based
on the amount of healing that occurred. Id. The second fracture likely
occurred in mid-September 2009, while the third fracture occurred around the
first week of October 2009. Id.
The unanimity issue in Johnson emanated from the jury instructions on
First-Degree Criminal Abuse which read:
You will find the Defendant guilty of First-Degree Criminal abuse under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about and between, the dates of August 28, 2009 and October 23, 2009, and before the finding of the indictment herein, she intentionally abused [the decedent];
B. That she thereby caused a serious physical injury to [the decedent];
7 Johnson, 405 S.W.3d at 441.
5 C. That [the decedent] was at that time 12 years of age or less; AND
D. That the abuse inflicted was other than the fatal injury to [the decedent’s] abdomen that occurred on or about October 23, 2009.
Id. at 447-48 (emphasis added). We held that this instruction violated the
defendant’s right to a unanimous verdict because the child’s second and third
leg fractures each could have independently qualified as criminal abuse, but
both of the fractures occurred “between the dates of August 28, 2009, and
October 23, 2009,” and the instructions “did not require the jury to
differentiate which of the two instances was the basis of the conviction.” Id. at
448-49.
Put simply, the defendant’s right to a unanimous verdict was violated
because it was impossible to determine upon which of the two fractures the
jury chose to convict. For instance, it is possible that five of the jurors based
their vote to convict on the second fracture while the remaining seven based
their vote on the third fracture. This Court ultimately held “that such a
scenario—a general jury verdict based on an instruction including two or more
separate instances of a criminal offense, whether explicitly stated in the
instruction or based on the proof—violates the requirement of a unanimous
verdict.” Id. at 449.
A similar scenario presented itself in Kingrey, which this Court rendered
the same day as Johnson. In that case, the defendant hosted a party for his
6 sixteen-year-old daughter, Emma.8 He rented a venue and bought a large
amount of alcohol for the party. Id. Everyone in attendance apart from the
defendant was under the age of eighteen. Id. One of the party’s attendees was
the defendant’s sixteen-year-old niece, Sophia. Id. Because of a truth or dare
game that the defendant started and controlled, Sophia undressed completely.
Id. While naked, Sophia received a lap dance from another girl at the party
and performed oral sex on her boyfriend. Id.
Prior to this party another incident occurred when Sophia was fifteen.
Id. The defendant brought Sophia and her then fourteen-year-old boyfriend
home and had Sophia “model” underwear sets and walk around completely
nude while the defendant and Sophia’s boyfriend watched. Id.
The defendant was ultimately convicted of several offenses in relation to
several victims, but the one pertinent to our analysis was his conviction of one
count of using of a minor under the age of 18 in a sexual performance in
relation to Sophia. Id. at 828. The jury instructions required a finding that the
defendant used Sophia in a sexual performance between January 1, 2007, and
May 31, 2008. Id. at 830. But both the party and the incident with Sophia
“modeling” for the defendant occurred during this date range: Id. The
defendant argued, and this Court agreed, that his right to a unanimous verdict
was violated because “some jurors might have convicted him of knowingly
employing, authorizing, or inducing Sophia to engage in a sexual performance
8 Kingrey, 396 S.W.3d at 827.
7 at the party, while other jurors convicted him of doing so when he asked
Sophia to model the underwear sets.” Id. We therefore remanded the case and
echoed our holding in Johnson that “[a] general jury verdict based on an
instruction including two or more separate instances of a criminal offense
violates the requirement of a unanimous verdict.” Id. at 831.
In this case, McAlpin argues his right to a unanimous verdict was
violated because there were several different potential sources of heroin found
in the home—four pieces of cotton and seven spoons—from which the jury
could have found that he possessed heroin, but nothing in the jury
instructions specified which item was to be considered the heroin source.
Therefore, he argues, there was no way to know from which item the jury
determined McAlpin possessed heroin. For example, half of the jurors could
have believed he possessed heroin because of Spoon number five, while the
other half believed he possessed heroin because of Cotton Piece number three.
We disagree.
The holdings in those cases state that a “general jury verdict based on an
instruction including two or more separate instances of a criminal offense
violates the requirement of a unanimous verdict.”9 This is because both of
those cases dealt with two instances of conduct, occurring on different dates,
either of which could have qualified for a conviction of the charged offense.
9 Id.; Johnson, 405 S.W.3d at 449.
8 Here, there was only one alleged instance of criminal conduct that occurred on
one day, as the jury instructions clearly reflect:
You will find the defendant, Joshua McAlpin, guilty of Possession of a Controlled Substance First Degree (Heroin) under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in Jefferson County, Kentucky on February 10, 2011, Joshua McAlpin knowingly had in his possession a quantity of heroin; AND
B. That Joshua McAlpin knew the substance possessed by him was heroin.
Therefore, unlike in Johnson and Kingrey, we know that the jury chose to
convict McAlpin because it believed beyond a reasonable doubt that McAlpin
possessed heroin on February 10, 2011. The evidence did not demonstrate
another instance of possession of heroin that occurred on a different date, and
the jury instructions did not have a date range within which time both
instances were committed. Therefore, Johnson and Kingrey do not apply, and
McAlpin’s right to a unanimous verdict was not violated.
B. THE EVIDENCE WAS INSUFFICIENT TO CONVICT MCALPIN FOR
POSSESSION OF HEROIN
McAlpin next argues that the Commonwealth’s evidence was insufficient
to convict him of possession of heroin, and that the trial court therefore should
have granted his motion for directed verdict.10 We agree.
10 This error was properly preserved by McAlpins’s motion for directed verdict at the end of the Commonwealth’s proof, renewed motion for directed verdict at the close
9 “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.”11
Therefore, to reverse McAlpin’s conviction, we must be satisfied that it was
clearly unreasonable for the jury to find that he possessed heroin. “The
definition of ‘possession’ under the Kentucky Penal Code only applies to penal
code offenses, and KRS12 Chapter 218A does not define “possess” or any of its
cognate forms.”13 The most common definition of criminal possession, and the
one utilized by the jury instructions in this case, is “to have actual physical
possession or otherwise to exercise dominion and control over a tangible
object.”14 That definition encompasses the two different kinds of possession:
actual and constructive. To have actual possession means that one has
“actual physical possession” of a tangible object, while constructive possession
means that one “exercise[s] dominion and control over a tangible object.”
In the case at bar, McAlpin was not found to be in actual possession of
heroin, as none was found on his person. Therefore, the Commonwealth
needed to prove he had constructive possession of the heroin, i.e. that it was
of all proof, and motion for judgment of acquittal/new trial. Kentucky Rules of Civil Procedure (CR) 50.01; Pate v. Commonwealth, 134 S.W.2d 593, 597-98 (Ky. 2004). 11 Commonwealth u. Benham, 816 S.W.2d 186, 187 (Ky. 1991). 12 Kentucky Revised Statutes. 13 Pate, 134 S.W.3d at 598 (footnotes omitted). 14 See also, Hayes v. Commonwealth, 175 S.W.3d 574, 593 (Ky. 2005) (“‘possession’ for purposes of penal code offenses ‘means to have actual physical possession or otherwise to exercise actual dominion or control over a tangible object.”’).
10 under his dominion and control. In addition, there was joint control of
McAlpin’s home: it was undisputed that Amelia Durham and Silas Koger were
both staying there. “A defendant's exclusive control over the premises is
sufficient to raise an inference of possession and knowledge. However, joint
control of the premises requires further evidence to prove the defendant
knew the substance was present and had it under his control.”15
Thus, to meet its burden of proof the Commonwealth had to satisfy a
heightened standard in demonstrating that McAlpin (1) knew the substance
was present, and (2) had it under his control to prove he had constructive
possession of it. We are of the opinion it failed to do so.
To begin, it is impossible for anyone, let alone the jurors, to know where
the heroin actually came from. No measurable amounts of heroin were found
in the home; it was found in the form of residue. The forensic scientist who
tested those items testified:
CW:16 I believe you also said that part of your job is, after you perform analysis, you generate reports, is that correct?
WITNESS: Yes.
CW: I’m showing you what has already been marked as “Defense Exhibit 1” and “Defense Exhibit 2.” Do you recognize those?
15 Hayes, 175 S.W.3d at 594 (citing State v. Villaneuva, 147 S.W.3d 126, 130 (Mo. Ct. App. 2004)) (emphasis added). 16 Commonwealth.
11 CW: Is that a copy of the report you made and your signature down at the bottom?
WITNESS: Yes, it is.
CW: Now, there were two reports done in this case, is that correct?
CW: Can you describe to the jurors the contents of the first, the earliest report? Or what your findings were?
WITNESS: Sure. I received four different items. The first item was a round green tablet marked “TEVA” “883,” and there was no analysis performed on that item. Item 2 was one hexagonal orange tablet marked “N8” with a sword logo and several similar tablet fragments. That item was found to contain buprenorphine,17 a Schedule III narcotic. Item 3 was residue on four pieces of cotton, and no analysis was performed on that item. And then Item 4 was residue on seven metal spoons, a piece of metal clamp, and an empty syringe bag. Also no analysis performed.
CW: And the second report please?
WITNESS: In the second report item 1 was the same one round green tablet marked “TEVA” “833,” and that was identical in appearance to a pharmaceutical preparation of clonazepam, a Schedule IV non-narcotic. Item 2 is referring to report 1 and no analysis was performed. Item 3 was residue on four pieces of cotton, and that was found to contain heroin, a Schedule I narcotic. Item 4.1, residue on seven metal spoons, was found to contain heroin, a Schedule I narcotic.
17 Also known as Suboxone.
12 Item 4.2 was a piece of metal clamp and an empty syringe bag, and no analysis was performed. Item 5 was several syringes in a biohazard container, also no analysis performed.
CW: Thank you, one moment please. Just a couple more things. There were obviously two reports generated in this case. The first report, as you described, contained residue. Do you normally test residue?
WITNESS: Residue is normally only tested if it’s the only item submitted, or if there’s nothing else that’s testable. So, for example, the plastic bag, if it’s just a plain old plastic bag we would not have tested that as well.
CW: What if you were specifically requested to test it?
WITNESS: If it was not the only item in the case it would need to come from either the attorney or the law enforcement officer, like a direct request.
CW: Okay, thank you. I don’t have any more questions at this time, your honor.
(emphasis added).
This testimony was the only expert testimony provided regarding the
testing of the items found at the home. The only discernable fact from this
testimony is that heroin was found on at least one of the four pieces of cotton
and on at least one of the seven spoons found. What we don’t know is how
those items were tested. Specifically, and crucially, we don’t know if those
items were tested individually or together. The lab report says: “Item 3 Residue
on four (4) pieces of cotton” and “Item 4.1 Residue on seven (7) metal spoons,”
instead of being itemized as, for example, “Item 3.1 Residue on cotton piece
13 one, Item 3.2 Residue on cotton piece two,” and so on. This suggests that the
cotton pieces and spoons were respectively tested together as a single item,
rather than individually.18
This testing is fatal to the Commonwealth’s case. Without knowing
which of the items found actually contained heroin residue, there is no way to
know where heroin was found within the home. Without any way of knowing
where the heroin items were found in the home, there is no way to sufficiently
connect them to McAlpin and prove he knew they were present and had them
under his control under the heightened joint control standard.19
To demonstrate this conclusion we note that the Court of Appeals found
it convincing that “the Commonwealth [introduced] evidence that spoons with
cotton residue [sic] stuck to them were found in the medicine cabinet next to a
prescription for amoxicillin with McAlpin’s name on it and on a dresser table in
the bedroom beside a gun with McAlpin’s name on it.” Even if this was what
the evidence actually demonstrated,20 it still would not have been enough to
18 The jurors picked up on this problem themselves. During deliberations they sent out a question that read, “were all seven spoons individually tested, did all spoons test positive for heroin?” The trial court’s response was that the jury had already heard the evidence, and the question could not be answered. 19 It is also worth noting that the testimony only identified where six of the seven spoons were found. In addition, an investigating officer described one of the spoons as being “hidden” in a laundry basket that belonged to Silas filled with laundry that belonged to Silas. Even if that spoon was found to have heroin on it, there would have been no way for McAlpin to know it was there because it was hidden. And if it was in a basket belonging to Silas, filled with Silas’ things, it was not subject to McAlpin’s dominion and control. 20 First, the investigating officer’s testimony was that he believed the Amoxicillin prescription was located in the bathroom, but there “was no way to tell from the
14 prove McAlpin had constructive possession of heroin. Because, from the
deficient testimony concerning the testing of the spoons, there is no way to
know if those spoons had heroin residue on them in the first place.
The Court of Appeals also found the following recorded phone
conversation between Amelia and McAlpin to be damning:
Amelia: Dude, they found so many fuckin’ syringes. Did you see how many syringes they found and spoons?
McAlpin: Yeah, I don’t know whose shit that was. That’s what I’m saying dude.
Amelia: It was Silas’ shit. Chance’s shit, your shit, my shit—
McAlpin: That’s what I’m saying dude, none of that shit was even ours and you and me are gettin’ charged with everybody else’s bullshit. That really pisses me off.
(emphasis added). Obviously, Amelia’s response of “your shit” suggests that
some of the illegal items found were McAlpin’s. However, in the same
conversation, McAlpin states that he did not know whose stuff it was and that
it was not his. We therefore believe this conversation is just as consistent with
innocence as guilt, and “circumstantial evidence as reasonably consistent with
innocence as guilt is insufficient to sustain a conviction.”21
picture.” Second, no gun was found in the home, let alone a gun “with McAlpin’s name on it.” 21 Turner v. Commonwealth, 328 S.W.2d 536, 538 (Ky. 1959) (citing Lorman v. Commonwealth, 269 S.W.2d 243 (Ky. 1954)).
15 Based on the foregoing, it was clearly unreasonable for the jury to convict
McAlpin for possession of heroin because there was insufficient evidence to do
so. A criminal conviction based on insufficient evidence is a denial of a
defendant’s right to Due Process. 22 McAlpin’s right to Due Process was
therefore violated, mandating a reversal of his conviction.
III. CONCLUSION
After thorough review of the record we find that McAlpin’s right to a
unanimous jury verdict was not violated. However, his conviction was based
on insufficient evidence. We therefore, reverse his conviction for possession of
heroin.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Franklin Todd Lewis Pasic & Lewis, PLLC
COUNSEL FOR APPELLEE:
Andy Beshear, Attorney General of Kentucky
James Coleman Shackleford Assistant Attorney General of Kentucky
22 Yates v. Commonwealth, 430 S.W.3d 883, 888 (Ky. 2014).