RENDERED: DECEMBER 11, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2018-CA-1179-MR
WILLIE JAMES SMITH APPELLANT
APPEAL FROM BELL CIRCUIT COURT v. HONORABLE ROBERT V. COSTANZO, JUDGE ACTION NOS. 16-CR-00158 AND 16-CR-00391
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: KRAMER, LAMBERT, AND K. THOMPSON, JUDGES.
KRAMER, JUDGE: Willie James Smith was convicted of two counts of first-
degree trafficking in a controlled substance (methamphetamine), one count of first-
degree trafficking in a controlled substance (hydrocodone), third-degree trafficking
in a controlled substance (clonazepam), third-degree possession of a controlled
substance (alprazolam), one count of use of drug paraphernalia, and operating a motor vehicle under the influence. He received a PFO-enhanced sentence of
nineteen years’ imprisonment.
Smith presents the following issues: (1) whether the trial court
erroneously permitted the Commonwealth to introduce the content of telephone
calls he made while in jail, thereby violating KRE1 404(b), KRE 404(c), and the
hearsay rule pursuant to KRE 802, and also without proper authentication of the
calls; (2) whether data retrieved from cell phones seized from Smith at the jail was
properly admitted; (3) whether the trial court improperly instructed the jury; (4)
whether misdemeanor fines were improperly imposed; and (5) whether the trial
court erroneously imposed a sentence on a charge of which he was acquitted.
Smith admits only the cell phone data issue was properly preserved and requests
palpable error review for the remaining issues. Having reviewed the record, we
affirm in part, vacate in part, and remand for entry of a new judgment.
Smith was given a single jury trial in Bell Circuit Court on three
separate incidents described in two separate indictments: 16-CR-00158, arising
from a traffic stop on October 16, 2015; 16-CR-00391, arising from a traffic stop
on April 8, 2016; and also included in 16-CR-00391 was a charge arising from an
alleged undercover narcotics purchase on June 23, 2016.
1 Kentucky Rules of Evidence.
-2- On October 16, 2015, Trooper Kurt Lowe of the Middlesboro Police
Department observed a car operated by Smith run a stop sign and then pull into a
Taco Bell restaurant. He then observed Smith make a wide right turn as he left
Taco Bell. At that point, Lowe conducted a traffic stop. He testified Smith had
slurred speech and glassy eyes. Lowe then asked Smith to get out of the car and
perform field sobriety tests. Lowe testified he conducted a Terry2 frisk for safety
purposes and found $1,881 in cash on Smith in the following denominations: six
$100 dollar notes, two $50 dollar notes, forty-eight $20 dollar notes, thirteen $10
dollar notes, twelve $5 dollar notes, and thirty-one $1 dollar notes.
Lowe testified that, during the horizontal gaze nystagmus portion of
the field sobriety tests, he observed a blue, powdery residue in Smith’s right
nostril. Based on Lowe’s observations and Smith’s performance on the field
sobriety tests, Smith was arrested for operating a motor vehicle under the
influence. Lowe took him into custody and to the hospital for a blood test.
Upon reaching the hospital for the blood test, Lowe found that Smith
had removed his boots, causing him to suspect Smith had contraband on his
person. The boots were inspected, and nothing was found inside them.
Nonetheless, Lowe still suspected contraband, so he arranged a strip search of
Smith when they arrived at the jail after the blood test. That search was conducted
2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
-3- by Deputy Jailer Taylor. Taylor testified that prior to the search, he asked Smith if
he had anything illegal on his person and Smith responded: “I do, I have
something that’s going to put me away for a while.” Smith then reached into his
boxers and pulled out a plastic bag containing what looked like methamphetamine.
Taylor instructed Smith to “squat and cough” and at that point retrieved a second
baggie containing what appeared to be hydrocodone and clonazepam.
While Smith was being searched, Lowe stood at the counter in the
booking area. In front of him were two cell phones seized from Smith at the jail.
Lowe testified that one of the cell phones repeatedly alerted with incoming text
messages, and he looked at the screen when the phone lit up and saw a message
from a woman wanting something “on credit.” Warrants were obtained to search
the phones, and Lowe sent the phones to the Kentucky State Police (KSP)
electronic crimes laboratory for a forensic examination.
A KSP forensic chemist testified that the first item seized during the
search was found to be 13.994 grams of methamphetamine. The four white tablets
in the second item had marking and trade dress consistent with hydrocodone, and
the nine and one-quarter blue tablets found in the third item had marking and trade
dress consistent with clonazepam. A forensic biologist detected the presence of
Xanax (the brand name of alprazolam), methamphetamine, amphetamine, and a
metabolite of marijuana in Smith’s blood.
-4- In his defense, Smith testified that on October 16, 2015, i.e., the date
he was pulled over, he spent the day installing a subwoofer in a car for which he
received $1,000; this accounted for most of the money that was in his possession.
Smith stated the rest of the funds were his Christmas savings. He also testified that
he found methamphetamine and pills under the back seat of the car on which he
had worked. Smith testified that he snorted the pills and was under the influence
when he was pulled over. Smith testified that he used three to five grams of
methamphetamine per day, and he intended to use the methamphetamine he found.
The April 8, 2016 case arose after Lowe once again initiated a traffic
stop of Smith. Lowe testified he was patrolling the neighborhood because
residents suspected drug trafficking and requested an increased police presence in
the area. Lowe stopped Smith because his license plate was not illuminated.
Smith consented to a search of his person, but Lowe did not find any drugs or
contraband. Smith then consented to a search of the vehicle. Lowe testified he
found needles and syringes in the headliner, a small clear bag of suspected
methamphetamine near the front passenger seat, and digital scales on the floor in
the rear of the passenger area. Smith and his passenger both denied ownership of
the items and were arrested. The owner of the car would later testify that the
paraphernalia found was hers.
-5- Lowe then conducted a search incident to arrest. Lowe noticed a hole
cut in the zipper area of Smith’s pants and found a small black jewelry bag tied to
the zipper. The bag contained a white crystalline substance and blue tablets inside
a container. Smith also had cash totaling $972 in his possession.
A KSP laboratory technician testified that the bag attached to Smith’s
zipper contained 12.319 grams of methamphetamine. Eight of the blue tablets
were visually identified as having markings and trade dress consistent with a
pharmaceutical preparation of Xanax, while four of the blue tablets were visually
identified as being a non-controlled substance.
Evelyn Roberts, an acquittance of Smith’s and a recovering addict at
the time of trial, testified that the car Smith drove on April 8, 2016, was hers and
the needles, syringes, and digital scales found in the car belonged to her. She also
testified that when addicted, she could use up to seven grams of methamphetamine
a day.
Jason Peace testified that during the first week in April 2016, he
purchased a car from Smith and paid him $1,000 cash. Smith testified that the
$972 found on him when he was arrested on April 7, 2016, was the proceeds of
that sale.
Smith denied knowing the scales and needles were in the car. He
acknowledged that there were 13 grams of methamphetamine in the baggie hidden
-6- inside his zipper and told the jury he intended it for his personal consumption.
Smith testified that he was not a drug dealer but admitted being a drug addict.
As noted, Smith was also charged with trafficking arising from an
alleged undercover buy on June 23, 2016. The police wired a confidential
informant (CI) with a pocket recorder, gave him forty dollars, and dropped him off
near Smith’s home with instructions to purchase narcotics. The CI purchased
twenty dollars of methamphetamine from Smith. An audio recording of the
transaction was introduced. In that recording, the CI can be heard referring to
Smith as “Jim Bob” and “Red” and there was discussion about drug trafficking and
drug use. At trial, the CI equivocated regarding the identity of the person who sold
him the methamphetamine.
The Commonwealth sought to introduce text messages and
photographs retrieved from the cell phones seized from Smith at the jail through
Sergeant Bill Collins, a digital forensics supervisor at the KSP electronic crimes
laboratory. Smith objected arguing that he had not been provided notice under
KRE 404(b)-(c) nor notice of what specific items within the voluminous discovery
from the cell phones the Commonwealth intended to introduce. Smith also
objected to the use of any messages outside the October 15-16, 2015 dates based
on relevancy. He argued there was no proof that prior to that time he had exclusive
-7- possession of the phones. The trial court limited the Commonwealth to a two-
week period ending October 16, 2015.
Collins testified about communications recovered from the phone
from October 2, 2015 through October 16, 2015. He testified that the texts
contained numerous slang references to drugs as well as explicit references to
drugs including: “Do you got strips?” “Red I need drugs.” “Red plz I need
drugs.” “Red need a dime and a strip if possible.” “You got any ice cream?”
Photographs of what appeared to be drugs were also introduced. Collins testified
that there were 18 different user accounts on one of the phones seized, two of
which had indicators relating them to Smith. He acknowledged he could not tell
who had actually operated the phone at any given moment.
In response to his denial of being a drug dealer, on cross-examination
the prosecutor read to Smith the alleged substance of telephone calls Smith made
to his girlfriend while he was in jail. After asking Smith about his daughters and
their ages, the oldest being twenty-four years old, the prosecutor asked Smith if he
ever sold drugs to a twenty-four year old, which Smith denied. She then asked,
“So on May 12, 2017, at 7:25 p.m. did you have a conversation with your
girlfriend concerning what Lachelle3 and your daughter owe you?” Smith
answered, he did not recall. The prosecutor then asked, “You don’t recall that?
3 We note that Lachelle is not the CI’s name.
-8- Specifically, at 7:26 p.m., a female says, ‘Okay, I know that Lachelle owes fifty-
five and uh your daughter owes fifty, right?’ You say, ‘Yeah.’ Do you recall
saying that?” Smith replied, “No, ma’am.” The prosecutor then asked Smith if he
denied saying it and Smith answered that he did not recall saying it. The
prosecutor reiterated, “So you don’t deny it?” Smith answered, “I can’t deny or
say I did, if I don’t recall it.”
The Commonwealth continued reading more of the alleged out-of-
court conversation, and Smith continued to deny his recollection of it. In addition
to the above conversation which appeared to be about his daughter’s debt, the
prosecutor also introduced what it claimed were two additional calls:
Commonwealth: And on May 13, 2017, you make a telephone call to your girlfriend again, at 5:06 p.m. And do you recall having a conversation regarding a vehicle in the garage downstairs that you were having someone work on? Do you recall that?
Smith: No.
Commonwealth: Specifically, girlfriend says, “Okay, I don’t know. They’re not making very much progress, as far, as like, doing anything.” And then you say, “I’m just trying to give them a dope bump every day.” Do you recall saying that?
Smith: A what?
Commonwealth: A “dope bump every day.” Do you recall saying that?
-9- Commonwealth: Do you deny saying it?
Smith: I don’t recall saying it.
Commonwealth: And on May 14, 2017, at 12:47 p.m. you make another call to your girlfriend and you have a conversation where she doesn’t want to talk about things, but you then say, “To call them other things.” Do you recall having that conversation?
Smith: No, ma’am.
Commonwealth: Specifically, at 3:45 minutes into that recording girlfriend says, “Look, she gave me-God, I hate talking about this on the phone, I hate this phone.” You then say, “You know, nickels, dimes, quarters and dollars?”
Smith: Money, yeah.
Commonwealth: Do you recall saying that?
Smith: No, I don’t recall.
Commonwealth: Do you deny saying it?
Smith: I don’t recall it. I don’t understand the relevance to May 12, 2017 to 16—
Commonwealth: And all those calls, Mr. Smith, were about drugs, were they not?
Smith: Well, I guess if you assume they are, they are. I mean, I don’t recall—
Commonwealth: And in fact you trafficked in drugs, Mr. Smith.
Smith: No, not in fact, ma’am.
-10- In closing argument, the Commonwealth discussed the calls and
argued it was more likely that Smith intended to traffic the drugs found during both
traffic stops, rather than ingest them himself, because he talked like a drug dealer.
Further, the prosecutor repeated to the jury that in the alleged jail call about his
daughter owing him money and then stated, “[Smith] goes into how he paid for it,
how much he’s getting out of it and what’s left and what his daughter-daughter!-
owed them.” After repeating the girlfriend’s statements regarding the vehicle
being repaired, Smith’s alleged “dope bump” statement, the girlfriend’s statement
regarding money, and Smith’s response, the Commonwealth stated:
Code words, code words for trafficking. [T]he jail calls were never introduced to prove that [Smith] was trafficking at the time. Rather, again, it’s introduced to prove the totality of the circumstances. He’s a drug dealer. And that’s why in the beginning I said I’d come back before you and ask you to find him guilty on it, and that’s what I’m doing. After everything, he’s a drug dealer.
Smith was found guilty on all charges related to the 2015 stop. The
jury recommended a sentence of fifteen days and a $250 fine for driving under the
influence, six years for first-degree trafficking (methamphetamine) enhanced to ten
years for PFO-I, three years for trafficking (hydrocodone), ten months and a $400
fine for third-degree trafficking (clonazepam), and six months and a $250 fine for
use of drug paraphernalia. With regard to the 2016 stop, the jury convicted Smith
of first-degree trafficking (methamphetamine) and recommended a sentence of six
-11- years and a $250 fine. He was acquitted of possession of drug paraphernalia under
Count VIII. However, after some confusion reading the verdicts, the trial court
instructed the jury to fix a punishment for Count VIII. The jury thereafter
recommended a sentence of six months and a $250 fine. Despite the
recommendation of the fines, the trial court did not impose any of the fines in the
final judgment and sentence, and all sentences were ordered to run consecutively.
Smith’s total sentence was nineteen years’ imprisonment.
On appeal, Smith argues that the prosecutor’s questioning Smith
about the alleged jail phone calls was error. He argues that the calls were
inadmissible under KRE 404(b) as evidence of other crimes, wrongs, or acts, he
did not receive proper notice under KRE 404(c), and any possible relevance was
outweighed by undue prejudice. Smith further argues that the content of the
conversation between him and his girlfriend, as read to the jury by the prosecutor,
was inadmissible hearsay under KRE 802 and that the calls were not properly
authenticated. Smith concedes his arguments are unpreserved and requests review
pursuant to RCr4 10.26:
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.
4 Kentucky Rules of Criminal Procedure.
-12- The concept of “manifest injustice” is “the key emphasis in defining . . . a palpable
error under RCr 10.26[.]” Johnson v. Commonwealth, 405 S.W.3d 439, 457 (Ky.
2013). “[T]he required showing is probability of a different result or error so
fundamental as to threaten a defendant’s entitlement to due process of law.”
Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). “Thus, what a palpable
error analysis ‘boils down to’ is whether the reviewing court believes there is a
‘substantial possibility’ that the result in the case would have been different
without the error.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)
(quoting Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003)).
Smith defended the trafficking charges on the basis that he did not
intend to sell the drugs found on his person but rather possessed them for his
personal use. The Commonwealth argues that the content of the jail phone calls
was admissible because it was “highly indicative of drug trafficking” and
“probative evidence on the issue of whether Smith possessed with the intent to use
or distribute.” (Appellee’s Brief at 18.)
We understand the Commonwealth’s argument, but we are
nonetheless concerned about the highly questionable method by which the
prosecutor introduced this evidence. KRE 404(c) requires that the Commonwealth
provide reasonable pretrial notice to the defendant of its intent to introduce
possible KRE 404(b) evidence at trial. Here, the record is devoid of any evidence
-13- that such notice was given. In its brief to this Court, the Commonwealth merely
argues that the required notice would not have “changed how the line of
questioning went.” (Appellee’s Brief at 19.) That assertion is speculative and does
not satisfy the Commonwealth’s obligation to give the defendant reasonable notice
of KRE 404(b) evidence that will be introduced.
We are also concerned about how the substance of the jail phone calls
was presented to the jury without even an attempt to authenticate those calls under
KRE 901. The prosecutor merely read from notes that purportedly contained the
content of the phone calls. The prosecutor did not provide any explanation for the
notes, say who prepared the notes, or call a law enforcement officer or jail
employee to verify the process for recording, assessing, or duplicating jail phone
calls. Essentially, the prosecutor acted as a witness to the content of the out-of-
court conversations used against Smith. It is not appropriate for the prosecutor to
act as a witness. See Dillon v. Commonwealth, 475 S.W.3d 1, 19-20 (Ky. 2015).
For these reasons alone, the trial court should not have permitted the
prosecutor to read from notes which purported to contain the content of the jail
phone calls. However, that leaves the question as to whether the error was
palpable regarding the trafficking charges. After serious consideration, we
conclude it was not. Smith did not deny possession of the drugs, and his sole
defense was to assert he merely intended to consume those drugs rather than traffic
-14- in them. However, Smith was found on two occasions with significant quantities
of drugs and cash, and on one occasion with a digital scale. Despite Smith’s
protestations and witness testimony alleging otherwise, when these items are found
together they frequently amount to substantial evidence of drug trafficking
activities. See, e.g., Commonwealth v. Carman, 455 S.W.3d 916, 919 (Ky. 2015);
Johnson v. Commonwealth, 277 S.W.3d 635, 640 (Ky. App. 2009); Simpson v.
Commonwealth, 159 S.W.3d 824, 828 (Ky. App. 2005).
Smith was also apprehended with multiple cell phones in his
possession, which is also frequently indicative of drug trafficking. See, e.g.,
United States v. Meadows, 822 F. App’x 434 (6th Cir. 2020). The evidence against
Smith at trial also included a recorded controlled purchase of drugs from Smith by
a confidential informant, testimony that Smith’s nickname was “Red,” and text
messages on Smith’s cell phone stating, inter alia, “Red I need drugs.” Based on
the aforementioned standard of review for palpable error, we cannot say there was
a “substantial possibility that the result[,]” i.e., Smith’s convictions for drug
trafficking, “would have been different without the error.” Brewer, 206 S.W.3d at
349 (internal quotation marks and citation omitted).
We also cannot say that the error resulted in a manifest injustice
regarding Smith’s remaining convictions. Smith’s alleged intent to traffic drugs
was not an element on the possession charges, the paraphernalia charges, or
-15- operating a motor vehicle under the influence. Therefore, the jury did not use the
improperly admitted evidence to convict Smith on those charges and there is not a
substantial probability that the result would have been different. Id.
For his second issue on appeal, Smith argues the trial court
erroneously admitted data retrieved from the cell phones seized from Smith at the
jail. This issue is preserved. The admission of the text messages obtained from
Smith’s phone is an evidentiary issue that is reviewed for an abuse of discretion.
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) (citations omitted).
The cell phone data was retrieved from Smith’s cell phones seized on
the day of his arrest on October 16, 2015, and the trial court limited admission to
data ranging from October 2, 2015 through October 16, 2015. Smith undeniably
had access to the cell phones. The fact that Smith was contacted by individuals to
buy and sell drugs and there were pictures of drugs on the cell phones close in time
to his being found in possession of drugs is relevant to the issue of intent. Walker
v. Commonwealth, 52 S.W.3d 533, 536 (Ky. 2001). Smith argues that while that
may be true, there was no evidence that the cell phones were not being used by
other people during the same time period.
-16- The fact that others may have had access to Smith’s cell phones prior
to October 15, 2015, when they were seized at the jail does not preclude their
admission. The fact that the cell phones may not have been in Smith’s exclusive
possession goes to the weight the jury gives the evidence, not its admissibility.
Furthermore, many of those text messages were addressed to “Red” which, as the
confidential informant testified, was Smith’s nickname. Given that Smith denied
he intended to distribute the drugs he possessed, the trial court did not abuse its
discretion in determining that the probative value was not outweighed by the
prejudicial effect. KRE 403.
Although Smith knew his cell phones were seized and was provided
with the forensic report in discovery, he argues that he was not given specific,
written notice of the Commonwealth’s intent to offer the cell phone data as
evidence. In Matthews v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005), the
Court explained that “where the accused has received ‘actual notice’ of the
intention to introduce KRE 404(b) evidence and the accused has suffered no
prejudice, the notice requirement in KRE 404(c) is satisfied.” (Citations omitted.)
We deem Smith to have received actual notice in this case. His cell phones were
seized when he was arrested, and those same cell phones were then searched
pursuant to a validly executed warrant in November 2015, approximately two and
one-half years before his trial. Through discovery, Smith also received a forensic
-17- report detailing the police findings regarding his cell phones. Although Smith did
not file a motion in limine to challenge the admissibility of the evidence, the record
reflects he had ample opportunity to do so. Id. at 20. The trial court did not abuse
its discretion in allowing the cell phone evidence.
For his third issue on appeal, Smith argues that the jury instructions
on the three trafficking charges were erroneous. He concedes the errors are
unpreserved. Smith does not claim that the first-degree trafficking instructions
should not have been given but that the instructions were not given correctly. He
asserts “[e]rroneous jury instructions are presumed to be prejudicial[,]” quoting
Carver v. Commonwealth, 328 S.W.3d 206, 210 (Ky. App. 2010).
KRS5 218A.1412(1) contains the elements of first-degree trafficking
in a controlled substance, a Class C felony: “A person is guilty . . . when he or she
knowingly and unlawfully traffics in . . . two (2) grams or more of
methamphetamine[.]” KRS 218A.1412(1)(b). A person is guilty of a Class D
felony when that person knowingly and unlawfully traffics in “[a]ny quantity of a
controlled substance specified in paragraph (a), (b), or (c) of this subsection in an
amount less than the amounts specified in those paragraphs.” KRS
218A.1412(1)(e) and (3)(b). The instructions on the two trafficking counts for
methamphetamine merely stated that Smith could be convicted if “he had in
5 Kentucky Revised Statutes.
-18- possession a quantity of methamphetamine, a controlled substance.” However,
during the penalty phase, the jury was instructed on a range of five to ten years for
both charges, the penalty range for a Class C felony.
Smith was also convicted of first-degree trafficking in a controlled
substance (hydrocodone). Under KRS 218A.1412(1)(c), trafficking in
hydrocodone is punishable as a Class C felony if the defendant traffics in “[t]en
(10) or more dosage units of a controlled substance that is classified in Schedules I
or II and is a narcotic drug, or a controlled substance analogue[.]” As noted above,
the punishment for trafficking in hydrocodone is lowered to a Class D offense for a
lesser quantity of the drug. KRS 218A.1412(1)(e) and (3)(b). The jury was
instructed to find Smith guilty if “he had in his possession a quantity of
Hydrocodone, a Schedule III narcotic.” During the penalty phase, the jury was
instructed to sentence Smith for a term of one to five years on this charge.
These instructions were erroneous in that the trafficking charges
should have mirrored the elements of KRS 218A.1412, including the amounts of
each drug at issue. “[An] instruction is sufficient so long as it accurately
incorporates all the elements of the crime and requires the jury to find each
element before it finds a defendant guilty.” Martin v. Commonwealth, 409 S.W.3d
340, 347 (Ky. 2013). With the methamphetamine-related charges, the trial court
should have instructed the jury to recommend Class C penalties only if Smith were
-19- found to have trafficked in more than two grams of the substance, not “a quantity.”
The instruction on trafficking in hydrocodone was also flawed. Not only was no
specific quantity of the substance included, but hydrocodone is a Schedule II
narcotic, not Schedule III. 902 KAR6 55:015 § 2; 21 CFR7 § 1308.12.
Erroneous jury instructions are presumed to be prejudicial, but they
are also subject to harmless or palpable error analysis. Owens v. Commonwealth,
329 S.W.3d 307, 317 (Ky. 2011). Harmless or palpable error analysis may also
apply to instructions such as those in the case sub judice, which omit essential
elements of the offense. Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky.
2018).
Here, Smith was punished for two counts of trafficking in
methamphetamine as a Class C offense, meaning each count would have to involve
more than two grams of methamphetamine. The record reflects Smith was
apprehended with over thirteen grams in one of the charged incidents, and over
twelve grams in the other. Furthermore, Smith’s defense at trial did not center on
the amount of drugs recovered but instead focused on whether he had intent to
traffic those drugs. Indeed, in his brief before this Court, Smith admitted he was
apprehended with thirteen grams of methamphetamine. (Appellant’s Brief at 6.)
6 Kentucky Administrative Regulations. 7 Code of Federal Regulations.
-20- Therefore, the evidence as to the amounts of methamphetamine presented at trial
supported punishment on each count as a Class C felony—which is what the jury
ultimately did.
Similarly, although the instruction for trafficking in hydrocodone did
not explicitly provide that Smith trafficked less than ten dosage units, the jury
nonetheless appropriately fixed the sentence at three years, the middle of the range
appropriate for a Class D offense. The penalty for the offense is supported by the
evidence in the record, wherein a KSP forensic chemist testified that four pills
found upon Smith appeared to be hydrocodone. In sum, although the instructions
were undoubtedly flawed, they were not palpably erroneous. “In recognizing that
the proof presented at trial was sufficient to sustain Appellant’s conviction . . . we
reiterate our conclusion that the instructions, while defective, affected no
substantial rights of Appellant and resulted in no manifest injustice.” Owens, 329
S.W.3d at 317 (citation omitted).
For his fourth issue, Smith contends that because he was indigent and
appointed a public defender, fines for his misdemeanor convictions could not be
imposed pursuant to KRS 534.040. For this issue, however, the Commonwealth
correctly points out that, although the jury recommended fines for Smith’s
misdemeanor convictions, the trial court’s final judgment does not impose fines on
Smith. “Circuit courts speak only through written orders entered upon the official
-21- record.” Oakley v. Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012) (internal
quotation marks and citation omitted). Because the trial court did not impose fines,
there is no error to review on this issue.
For his final issue on appeal, Smith contends he was assessed a
penalty upon a charge for which he was acquitted. A review of the record
substantiates Smith’s argument. Although Smith was acquitted of the drug
paraphernalia charge arising from the 2016 stop (Count VIII), the trial court’s final
judgment imposes a penalty of six months’ incarceration for that charge. The
Commonwealth concedes the issue, stating that because the jury did not convict
Smith on the charge, his resulting conviction and sentence must be vacated. We
agree and vacate that portion of Smith’s sentence.
For the foregoing reasons, we vacate Smith’s conviction and sentence
for one count of possession of drug paraphernalia because the jury acquitted him of
that charge. We affirm Smith’s remaining convictions and remand for entry of a
new judgment not inconsistent with this Opinion.
LAMBERT, JUDGE, CONCURS.
THOMPSON, K., JUDGE, DISSENTS IN PART, CONCURS IN
PART, AND FILES SEPARATE OPINION.
THOMPSON, K., JUDGE, DISSENTING IN PART AND
CONCURRING IN PART: Respectfully, I dissent.
-22- I write separately to express my disagreement with the majority
decision to affirm the convictions on the trafficking counts on the basis that
reading from supposed transcripts of telephone calls Smith made to his girlfriend
while in jail was not palpable error.
I agree with the majority Opinion that the jailhouse phone calls were
introduced in a highly questionable manner with a clear failure to comply with
Kentucky Rules of Evidence (KRE) 404(c), lack of authentication pursuant to KRE
901, and essentially allowed the prosecutor to act as a witness to the content of the
out-of-court conversations.
I am perplexed by the majority Opinion’s failure to address directly
whether these conversations were prohibited pursuant to KRE 404(b) because they
were used to “prove the character of [Smith] in order to show action in conformity
therewith.” I believe these conversations were directly used “to show a propensity
or predisposition to again commit the same or a similar act” which is prohibited
under the rule. Southworth v. Commonwealth, 435 S.W.3d 32, 48 (Ky. 2014). See
Billings v. Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992) (explaining a
defendant may not be convicted on the basis of having a criminal predisposition);
Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994) (explaining KRE 404(b)
must be strictly construed to eliminate evidence of criminal propensity towards a
specific crime). Additionally, the conversations constituted hearsay which should
-23- have been excluded pursuant to KRE 802 because through them the
Commonwealth was attempting to establish the truth of the content of the jail
phone calls to show that Smith was a drug dealer.
I disagree with the majority Opinion that this error which violated
multiple rules was not palpable. The majority Opinion focuses on Smith’s failure
to deny that he possessed the drugs and focuses on his sole defense being that he
planned to consume rather than traffic in the drugs and then casts aspersions on
this defense. The majority Opinion asserts that there was substantial evidence of
drug trafficking in this case, noting: on two occasions Smith was found with
significant quantities of drugs and cash; on one occasion Smith was found with a
digital scale; Smith was found with multiple cell phones which is indicative of
drug trafficking; and the confidential informant identified Smith as “Red” and
there were text messages on the phones for “Red.”
While this evidence indeed exists, there was also contradictory
evidence on many of these points from witnesses other than Smith himself. As to
the 2016 charges, Evelyn Roberts testified that the needles, syringes, and digital
scales in the car were hers, which potentially subjected her to criminal charges.
Smith denied knowing the scales and needles were in the car, and the jury must
have at least been partially persuaded by this argument as the jury acquitted Smith
of the possession of drug paraphernalia charge.
-24- As to the significant quantities of cash, Smith indicated the first
quantity of cash from the 2015 arrest was the result of him being paid to install a
subwoofer. As to the second quantity of cash from the 2016 arrest, Jason Peace
testified that he purchased a car from Smith and paid $1,000 in cash the first week
in April 2016, which was shortly before Smith was arrested on April 7, 2016, and
found to have $972 in cash. Smith testified this amount was the proceeds of that
sale.
As to the testimony by the confidential informant, at trial the
confidential informant equivocated as to the identity of the person who sold him
methamphetamine. While certainly there was a connection to Smith possibly
being “Red” and “Red” was referenced on text messages in which drugs were
sought, this proof is not as straightforward as the majority Opinion implies.
The jail phone calls were read to the jury for the explicit purpose of
establishing that Smith was a drug dealer. Over and over, the prosecutor read from
the transcript to establish that Smith sold drugs at other times and to other people,
including Smith’s daughter. The prosecutor also repeated portions of these
conversations in closing argument to persuade the jury to convict Smith of all of
the counts of trafficking. Use of the transcripts in this manner was highly
prejudicial.
-25- In Jones v. Commonwealth, 567 S.W.3d 922, 927 (Ky.App. 2019), the
Commonwealth was allowed to admit evidence that the defendant had a prior
trafficking conviction to establish knowledge or absence of mistake so that the jury
could infer that the sheer quantity of drugs involved meant the defendant was
trafficking. In reversing, the Court found that although this evidence was
marginally relevant to prove absence of mistake, it was more prejudicial than
probative and improperly relied upon to establish intent to traffic because it could
not qualify to establish a common scheme or plan where there was no “factual
commonality between the prior bad act and the charged conduct ‘that is
simultaneously similar and so peculiar or distinct that there is a reasonable
probability that the two crimes were committed by the same individual.’” Id.
(quoting Clark v. Commonwealth, 223 S.W.3d 90, 97 (Ky. 2007)). The Court
declined to find this error harmless, “given the less-than-overwhelming evidence
proving [the defendant]’s intent to traffic[.]” Id. The same reasoning should apply
here. I believe there is a substantial probability that the result on the trafficking
convictions would have been different had this clearly inadmissible evidence not
been permitted and would have reversed those convictions.
Accordingly, I dissent.
-26- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Molly Mattingly Andy Beshear Frankfort, Kentucky Attorney General of Kentucky
Joseph A. Newberg, II Assistant Attorney General Frankfort, Kentucky
-27-