IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 18, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0510-MR
MICHAEL GARLAND APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT V. HONORABLE JOHN D. SIMCOE, JUDGE NO. 21-CR-01165
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal comes before the Court as a matter of right 1 from Hardin
Circuit Court. Michael Garland was convicted of first-degree trafficking in a
controlled substance (TICS) and first-degree persistent felony offender (PFO).
He was sentenced to twenty years in prison. He now argues that a palpable
error occurred when the trial court erroneously instructed the jury on the first-
degree TICS charge that included a theory of possession with intent to transfer.
He also argues that several palpable errors occurred in the sentencing phase
that cumulatively rendered the sentencing phase fundamentally unfair. For the
following reasons, we affirm the trial court.
I. Facts
Garland and his friend, Angelica, were driving to a concert on December
1, 2021. Officer Chris Smith of the Grovetown Police Department observed the
1 Ky. Const. § 110(2)(b). vehicle carelessly driving and pulled the vehicle over. On approaching the
vehicle, Officer Smith observed that Garland was nervous and refused to look
at him. Officer Smith asked if there was any contraband in the vehicle and
Garland admitted there was some marijuana. When Garland was ordered out
of the vehicle and a pat down search was executed, Garland attempted to pull
away when Officer Smith was about to pat his right-hand pocket. Officer Smith
then detained Garland in handcuffs. Garland managed, nonetheless, to reach
inside his pocket and grab hold of two bags of drugs. After Officer Smith
secured the bags, one was revealed to be marijuana and the other he believed
to contain methamphetamine. Laboratory analysis would later confirm the
substance was methamphetamine and the amount was 10.646 grams.
Garland was advised of his Miranda rights at the scene and Garland
informed Officer Smith that he was only a “middleman.” Garland testified this
was only a “cryptic” reference to the fact that the methamphetamine belonged
to Angelica, who apparently was crying after the drugs had been found.
Garland denied knowing the bag contained methamphetamine. He
asserted that earlier that day, he and Angelica had gone to another woman’s
house, named Amanda. Angelica had used the bathroom while Garland looked
at Amanda’s car about possibly fixing it for her. When the two were about to
leave, Amanda had gone back into the house and found the bag of
methamphetamine. Not wanting the drugs in her house, she approached
Garland and stuck the bag in his pocket, merely informing him that it was
marijuana belonging to Angelica and that he should give it back to her.
2 Garland testified he did not think to look at the bag nor he did he think to
immediately give the bag to Angelica, simply assuming when she wanted the
drugs, she would begin to look for them. Amanda was called to testify by
Garland and supported this story.
The jury convicted Garland as described above and he was sentenced to
twenty years in prison. We now consider the merits of the appeal.
II. Standard of Review
An unpreserved error will only be reversed for manifest injustice. RCr 2
10.26. Any error in a jury instruction is presumptively prejudicial. Stewart v.
Commonwealth, 306 S.W.3d 502, 508 (Ky. 2010). Nonetheless, an unpreserved
error for jury instructions is still subject to palpable error review. Id. Thus, the
error must be “so manifest, fundamental and unambiguous that it threatens
the integrity of the judicial process.” Martin v. Commonwealth, 207 S.W.3d 1, 5
(Ky. 2006). “[A] reviewing court must plumb the depths of the proceeding . . . to
determine whether the defect in the proceeding was shocking or
jurisprudentially intolerable.” Id. at 4. Because all the errors alleged by
Garland are unpreserved, all are subject to the same standard. But Garland
has argued the sentencing phase errors had a cumulative impact. Under that
theory, “multiple errors, although harmless individually, may be deemed
reversible if their cumulative effect is to render the trial fundamentally unfair.”
Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). But the individual
2 Kentucky Rules of Criminal Procedure.
3 errors must be “substantial, bordering, at least, on the prejudicial.” Id. “[W]e
have declined to hold that the absence of prejudice plus the absence of
prejudice somehow adds up to prejudice.” Id.
III. Analysis
A. Jury Instruction not Palpably Erroneous
Garland has identified Instruction Number Four as the erroneous
instruction. It reads,
You will find the Defendant guilty of First-degree Trafficking in a
Controlled Substance (Two Grams or More of Methamphetamine) 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 the 1st day of December, 2021,
and before the finding of the Indictment herein, he acting alone
or in complicity with another, had in his possession a quantity
of two (2) or more grams of methamphetamine; AND
B. That he knew the substance so possessed by him was
methamphetamine; AND
C. That he had the methamphetamine in his possession with the
intent of selling, distributing, or transferring it to another
person or persons.
Garland argues that subpart C of this instruction erred by instructing the jury
on a possession with intent to transfer theory that is contrary to statute.
4 “A person is guilty of trafficking in a controlled substance in the first
degree when he or she knowingly and unlawfully traffics in . . . Two (2) grams
or more of methamphetamine[.]” KRS 3 218A.1412(1)(b). “Traffic” is defined as
“to manufacture, distribute, dispense, sell, transfer, or possess with intent to
manufacture, distribute, dispense, or sell a controlled substance[.]” KRS
218A.010(56). We have held that the statute excludes an understanding of
traffic as possession with intent to transfer. Commonwealth v. Rodefer, 189
S.W.3d 550, 552 (Ky. 2006). What we said in Rodefer remains just as true
under the current version of the statute, as it existed in 2006, so Rodefer
remains good law until the General Assembly chooses to alter the definition of
traffic to include possess with intent to transfer under the second definition
found in KRS 218A.010(56). Therefore, Garland is correct that the trial court
erroneously instructed the jury.
But, just as in Rodefer, we do not believe this amounted to palpable error
because Garland’s own testimony did not negate an alternative theory of the
crime charged as instructed. Id. at 553. In Rodefer, the defendant “admitted
that the cocaine was his, and that he ‘shared’ the cocaine with one of his two
accomplices on the night of the crime.” Id.
Thus, his own testimony would have supported a conviction of trafficking under the “transfer” alternative of KRS 218A.010(34), though not under the “possession with intent to [traffic]” alternative. In view of Appellant's own testimony that he, in fact, committed the offense of which he was convicted, albeit by an alternative method, we conclude that the faulty instruction did not result in manifest injustice, much less seriously affect the fairness, integrity, or public reputation of judicial proceedings.
3 Kentucky Revised Statutes.
5 Id. Similarly, Garland’s own testimony was that he was a “middleman” on
behalf of Angelica. He testified his admission to Officer Smith on the night of
the arrest was a “cryptic” attempt to alert the officer that the
methamphetamine belonged to Angelica. We do not believe this testimony was
an effective denial of possession. We have noted that KRS Chapter 218A does
not define possession, so we have referred to its common definition as
ownership. Pate v. Commonwealth, 134 S.W.3d 593, 598 (Ky. 2004). In so
holding, we have also held the statute allows for constructive or actual
possession. Id. (citing Houston v. Commonwealth, 975 S.W.2d 925, 927 (Ky.
1998)). And we have also held that possession does not require exclusivity. Id.
(citing Franklin v. Commonwealth, 490 S.W.2d 148, 150 (Ky. 1972)). All that is
necessary to establish constructive possession is evidence “that the contraband
was subject to the defendant's dominion and control.” Id. at 598-99 (cleaned
up).
Thus, Garland’s testimony that he was only a “middleman” holding the
methamphetamine for Angelica at best was an attempt to say Angelica had
constructive possession of the methamphetamine. But Angelica’s constructive
possession does not negate Garland’s actual possession—and Garland did not
deny the methamphetamine was found in his pocket. Moreover, even if
Angelica had constructive possession, since possession does not require
exclusivity, Garland could also still be exercising possession either actual or
constructive simultaneously with Angelica. Thus, the evidence still supported
6 conviction of the crime charged as trafficking in a controlled substance by
possession with intent to distribute. KRS 218A.010(56).
“Distribute” simply means “to deliver other than by administering or
dispensing a controlled substance[.]” KRS 218A.010(13). “‘Transfer’ means to
dispose of a controlled substance to another person without consideration and
not in furtherance of commercial distribution[.]” Id. at (57). To support a
conclusion that Garland possessed the methamphetamine with intent to
distribute, there had to be evidence in the record establishing or supporting a
reasonable inference that Garland’s possession was to deliver with personal
consideration or in furtherance of commercial distribution or both. It is true
that Garland denied knowing he possessed methamphetamine, but the jury
obviously rejected that testimony, and it is not our place to second-guess that
factual determination now. The amount of methamphetamine found on
Garland’s person was slightly more than 10.5 grams and Officer Smith testified
the typical individual dose of methamphetamine was 0.25 grams. Therefore,
even if the jury believed Garland’s testimony about being a middleman, it was
allowed to make a reasonable inference that the methamphetamine was not for
his own personal use and that his deliverance of the methamphetamine to
Angelica at some future point would be in furtherance of commercial
distribution. Dawson v. Commonwealth, 756 S.W.2d 935, 936 (Ky. 1988)
(possession of numerous controlled substances in pill form as well as location
they were found in supported inference that pills were possessed with intent to
sell); McGuire v. Commonwealth, 595 S.W.3d 90, 98 (Ky. 2019) (possession of
7 multiple baggies of methamphetamine, including one with 2.623 grams,
supported inference of intent to distribute); Jones v. Commonwealth, 567
S.W.3d 922, 926 (Ky. App. 2019) (constructive possession of more than three
grams of methamphetamine supported inference of intent to sell or distribute).
Therefore, “the faulty instruction did not result in manifest injustice, much less
seriously affect the fairness, integrity, or public reputation of judicial
proceedings.” Rodefer, 189 S.W.3d at 553.
B. No Cumulative Error in Sentencing Phase
Garland has argued that several unpreserved errors occurred in the
penalty phase of the trial that, cumulatively, rendered that phase
fundamentally unfair. First, he argues the Commonwealth improperly appealed
to the jury to protect the community in its closing argument. Second, that the
jury failed to fix an underlying sentence to the TICS charge prior to sentencing
on the PFO charge. Third, that evidence of his probation revocation for a
misdemeanor was improperly admitted. Finally, that the PFO jury instruction
violated unanimity because evidence had been submitted that he was on
probation for a misdemeanor at the time he committed the TICS offense. The
latter three allegations are not error in and of themselves, much less bordering
on the prejudicial. Brown, 313 S.W.3d at 631. Thus, Garland’s argument for
cumulative error fails.
We have long maintained that following the bifurcated trial procedure of
Commonwealth v. Reneer, 734 S.W.2d 794 (Ky. 1987), is best practice, but “we
have not yet held that the failure to do so is palpable error.” Owens v.
8 Commonwealth, 329 S.W.3d 307, 319 (Ky. 2011). Garland has not cited a case
either published or unpublished showing that Owens’ statement is now
incorrect. We have held that “a jury's failure to set a penalty for the underlying
offense before finding PFO status does not violate the provisions of the PFO
statute.” Id. (citing Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky. 1991)).
And we have also held that “the failure to instruct according to Reneer is a
procedural issue which we need not review without a contemporaneous
objection.” Id. (citing Miller v. Commonwealth, 283 S.W.3d 690, 704 (Ky. 2009)).
The door is not closed on the possibility that a failure to follow the procedure
instructed in Reneer could be palpably erroneous. Id. at 320. But it has proven
to be a steep bar and Garland has not met it here.
In like manner, Garland has not shown that admitting evidence of a
misdemeanor probation revocation in the penalty phase is erroneous, much
less palpably so. Although he cites to Conrad v. Commonwealth, 534 S.W.3d
779, 783-84 (Ky. 2017), for his argument, we find Conrad wanting in the
proposition argued. Conrad did involve an argument that evidence of probation
revocation was improperly admitted, but Conrad looked to Martin v.
Commonwealth, 409 S.W.3d 340 (Ky. 2013)—which did not involve that issue—
and found it controlling as to whether there was palpable error because there
was no evidence the impermissible evidence was sent back with the jury.
Conrad, 524 S.W.3d at 783-84. At best, Conrad simply assumed error and
proceeded to the palpable error analysis. But we have held that under KRS
532.055(2)(a), the list of relevant evidence for truth-in-sentencing is not
9 exhaustive; only illustrative. Garrison v. Commonwealth, 338 S.W.3d 257, 260
(Ky. 2011) (quoting Cornelison v. Commonwealth, 990 S.W.2d 609, 610 (Ky.
1999)). Accordingly, we held that evidence of parole revocation is relevant
under the truth-in-sentencing statute even though not specifically listed in it.
Id. For the same reason, we do not believe evidence of probation revocation is
irrelevant, therefore there was no error in admitting this testimony.
As to the unanimity issue, the PFO instruction read
You will find the Defendant guilty of being a First-Degree Persistent
Felony Offender under this Instruction if, and only if, you believe from
the evidence beyond a reasonable doubt all of the following:
A. That prior to December 1, 2021, the Defendant was
convicted of 11-CR-00230: First-Degree Illegal Possession of
a Controlled Substance Methamphetamine by final
Judgment of the Hardin County Circuit Court on March 23,
2012; AND that prior to committing the offense for which he
was convicted on March 23, 2012, he was convicted of 09-
CR-01121: Manufacturing Methamphetamine by final
Judgment of the Jefferson County Circuit Court on May 27,
2011;
B. That he was eighteen years of age or older when he
committed both of the two offenses of which you believe he
was so convicted;
10 C. That pursuant to those 2 convictions, he was sentenced to a
term of imprisonment of one year or more for each
conviction;
D. (1) That he completed the service of the sentence imposed on
him pursuant to at least one such prior conviction no more
than five years before December 1, 2021; OR
(2) That he was discharged from parole or probation from the
sentence imposed on him pursuant to at least one of such
prior conviction no more than five years before December 1,
2021; OR
(3) That he was on probation, parole, conditional discharge,
conditional release, or furlough or appeal bond, from at least
one such prior conviction at the time he committed the
offense of which you have found him guilty in this case; AND
E. That he is now twenty-one years of age or older.
Garland argues that because the jury heard testimony that he was, at the time
of the offense, on probation for a misdemeanor conviction, that a juror might
have believed under Part D(3) of the instruction that said misdemeanor
probation was a qualifying offense and convicted him as a PFO for the
misdemeanor probation.
“A jury must be credited with some intelligence and understanding[.]”
Fields v. Wilkins, 277 S.W.2d 467, 468 (Ky. 1954). “[I]t is presumed that the
jury will follow instructions issued to it by the trial court.” Goncalves v.
11 Commonwealth, 404 S.W.3d 180, 197 (Ky. 2013) (quoting Morgan v. Scott, 291
S.W.3d 622, 643 (Ky. 2009)). Part A of the instruction clearly identified the two
felony convictions the jury was supposed to consider. We believe jurors of
ordinary intelligence understood the language in Part D—to wit: “one such
conviction”—was in reference to the two convictions listed in Part A. In Travis v.
Commonwealth, we considered the issue of jury instructions in the penalty
phase containing surplus language unsupported by any evidence presented.
327 S.W.3d 456, 462 (Ky. 2010). Garland is correct that Travis is not
controlling here but only because his case presents a fundamentally different
issue—that there was evidence in the record the jury might have used to
convict him if they had ignored Part A of the instruction. Tellingly, Garland
failed to cite Part A of the instruction in his brief, and his argument that a juror
might have relied upon evidence contrary to Part A is speculative—indeed, "too
speculative and doubtful to call for a consideration.” Huber & Huber Motor Exp.
v. Martin’s Adm’r, 96 S.W.2d 595, 599 (Ky. 1936).
In a different context, we have held that “[s]o long as the instruction . . .
enables the jury to identify the instruction with a specific crime established by
the evidence and avoids the likelihood of confusion with other offenses
presented against defendant in the same trial, then the instructions are
adequately differentiated.” Banks v. Commonwealth, 313 S.W.3d 567, 573 (Ky.
2010). Part A identified the appropriate convictions to consider, and by so
doing excluded the evidence of his probation for a misdemeanor conviction
12 from consideration; “and we believe reasonably intelligent men would not have
been misled by the instruction.” Wilkins, 277 S.W.2d at 468.
Finally, we agree with Garland that the Commonwealth improperly
addressed the jury with an appeal to the sense of the community.
Commonwealth v. Mitchell, 165 S.W.3d 129, 132-33 (Ky. 2005). We decline to
review this particular error in depth, however, because a single error obviously
cannot justify relief under a cumulative error theory. Garland has not argued
this error alone justifies reversal for flagrant prosecutorial misconduct; nor has
he requested palpable error review under that theory. “[W]hen an issue is
unpreserved at the trial court, this Court will not review it unless a request for
palpable error review under RCr 10.26 is made and briefed by the appellant.”
Webster v. Commonwealth, 438 S.W.3d 321, 325 (Ky. 2014). Therefore,
Garland’s cumulative error theory fails.
IV. Conclusion
For the aforementioned reasons, we affirm Garland’s convictions.
All sitting. All concur.
13 COUNSEL FOR APPELLANT:
Erin Hoffman Yang Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Thomas A. Van De Rostyne Assistant Attorney General