         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 : MARCH 22, 2007
                                                          ROT~T, .~ BE~PUBLIS~D


             '   Ouprkme Courf of ~i
                                 2005-SC-000767-MR


ROBERT J. HILL                                                            APPELLANT


                     APPEAL FROM GRAYSON CIRCUIT COURT
V                     HONORABLE ROBERT A. MILLER, JUDGE
                               NO. 04-CR-00064


COMMONWEALTH OF KENTUCKY                                                    APPELLEE


                    MEMORANDUM OPINION OF THE COURT


                                     AFFIRMING

       Appellant, Robert J . Hill, was convicted by a Grayson Circuit Court jury in

September 2005, of: (1) trafficking in a controlled substance, first degree, (2)

possession of drug paraphernalia, subsequent offender, and (3) being a

persistent felony offender, second degree. For these crimes, Hill was sentenced

to twenty-five years in prison . Hill now appeals to this Court as a matter of right.

Ky. Const. §110(2)(b). He asserts five arguments in his appeal : (1) that there was

insufficient evidence for a jury to convict him of trafficking in a controlled

substance, first degree, (2) that the trial court erred in admitting testimony about

Hill's name on court papers without producing the papers according to the best

evidence rule, (3) that he was denied due process by the Commonwealth's

failure to collect the court papers and bag in which drug paraphernalia was
found, (4) that the trial court provided faulty instructions on possession of drug

 paraphernalia, and (5) that he was denied his right to a fair trial when the

Commonwealth's attorney was permitted to make arguments in violation of the

"Golden Rule ." For the reasons set forth herein, we affirm Hill's convictions.

       On or about May 5, 2004, officers of the Leitchfield Police Department

came to the home of Sallie Whitehead. Hill was the only person in the house

when the police arrived. Upon noticing visible drug paraphernalia, the police

obtained a search warrant and searched the house. The search turned up

multiple items that could be used in the trafficking and usage of

methamphetamines including -- plastic baggies, straws, surveillance equipment

found in Whitehead's bedroom, and a glass pipe and scale found in the living

room . The scale in the living room was in a bag that contained men's clothing

and court papers that the police testified had Hill's name on them . The police did

not confiscate the bag or court papers . Several items taken from the house

tested positive for traces of methamphetamine including the scale from the bag.

       Prior to trial, Hill's counsel filed a motion in limine to prohibit any testimony

about the court papers found in the bag with the scale . According to Hill, the best

evidence rule required the Commonwealth to first produce the papers prior to

introducing any testimony regarding the papers. The trial court overruled this

motion and admitted testimony that the court papers contained Hill's name .

       At trial, Whitehead testified that the bag and its contents belonged to Hill

and that Hill had previously sold her methamphetamine and used it with her. The
jury found   Hill guilty on all counts and sentenced Hill to twenty-five years .

Additional facts will be set forth as necessary in the opinion .

      1. There was sufficient evidence to support a jury verdict that Hill was

                     guilty of trafficking a controlled substance

         Hill's first allegation is that he should have been granted a directed verdict

on trafficking in a controlled substance because there was insufficient evidence

to support a jury verdict on this charge . He argues that since no amount of

methamphetamine suitable for sale was found in the house, he cannot be guilty

of possession with intent to sell .

         In reviewing a trial court's disposition on a directed verdict motion, the

proper standard is whether there is evidence sufficient to induce a reasonable

juror to believe that the defendant is guilty . Commonwealth v. Benham, 816

S.W.2d 186, 187 (Ky. 1991) . The trial court in making its decision must "draw all

fair and reasonable inferences from the evidence in favor of the Commonwealth ."

Id.

        In this case, we find that the trial court was correct in rejecting the motion

for a directed verdict, and that the verdict reached by the   jury is supported by
sufficient evidence . "It is unnecessary for a conviction of trafficking in a

controlled substance that the controlled substance be seized by the police or that

it be introduced at trial." Graves v. Commonwealth, 17 S .W.3d 858, 862 (Ky.

2000). "Conviction can be premised on circumstantial evidence of such nature

that, based on the whole case, it would not be clearly unreasonable for a jury to

find guilt beyond a reasonable doubt." Id. KRS 218A .1412 also states that "[a]
person is guilty of trafficking in a controlled substance in the first degree when he

knowingly and unlawfully traffics in . . . a controlled substance that contains any

quantity of methamphetamine . Id. (emphasis added).

       While the police may not have found an amount of methamphetamine

suitable for sale at the time of the police search, there was adequate

circumstantial evidence to prove that Hill had recently possessed such an

amount with the intent to sell. The jury heard testimony that Hill had sold

methamphetamines to Whitehead . In addition, there were trace amounts of

methamphetamine in the house where Hill resided . Sufficient evidence

supported the jury's verdict on this charge .

   II. The best evidence rule was not violated by testimony regarding the

                      ownership of court papers in the bag

       Hill next alleges that the trial court erred by admitting testimony about

ownership of court papers found in a nylon bag containing scales. Hill argues

that according to the best evidence rules, KRE 1001-1008, a witness cannot

testify regarding the content of certain papers unless the party moving to admit

the testimony admits the actual papers into evidence .

       However, the best evidence rule applies only when a party is trying to

prove the content of a writing . Robert G. Lawson, The Kentucky Evidence Law

Handbook §7.20(4) (4th ed . 2003) . The mere existence of a writing that could

prove a material fact does not automatically trigger application of the rule. Id. In

the case at bar, the Commonwealth was not eliciting testimony to prove the

contents of the papers but to provide evidence that the bag containing scales
 belonged to Hill.' Since the content of the papers were not in question, the best

 evidence rule does not compel the production of the papers, and oral testimony

can be elicited. See Bower v. Commonwealth , 357 S .W .2d 333, 335 (Ky. 1962)

 (a pre-rules case holding that it was not necessary to produce a document with a

vehicle identification number on it since the document itself was not in question

and oral testimony about the vehicle identification number would be adequate) .

See also State v. Williams , 710 N.W.2d 427, 431 (N .D. 2006) (holding that

testimony about a deed proving that the defendant did not own certain property

did not compel the production of the deed because the issue was not proving the

contents of the deed), Lilly v. State, 649 A .2d 1055 (Del . 1994) (ruling that a

witness could testify that the defendant's name was in a tavern sign-in book

without production of the document) . Thus, there was no error in the trial court's

admission of testimony regarding the presence of Hill's name on papers found in

a nylon bag along with drug paraphernalia without production of the papers.

   111. Hill was not denied due process when the Commonwealth failed to

  collect the papers found in the bag and when the trial court denied Hill's

                  request for a missing evidence instruction .

       Hill's third allegation is that he was denied due process by the

Commonwealth's failure to collect the court papers found in the bag with the

scale. Hill believes that the police's failure to collect the papers shows bad faith.

He implies that the court papers would have been collected if they did not contain



' In addition to the testimony about Hill's name being on the court papers, there
was testimony from Whitehead that the bag belonged to Hill and several
witnesses who testified that men's clothing was located in the bag.
exculpatory evidence. Thus, Hill argues that the trial court should have provided

a missing evidence instruction .

       A failure to preserve potentially useful evidence does not rise to a violation

of due process without a showing that the police acted in bad faith . Collins v.

Commonwealth , 951 S.W.2d 569, 572 (Ky. 1997) (citin Arizona v_. Youngblood ,

488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)) . In this matter, Hill fails to

show that the police acted in bad faith. Other than conjecture, Hill provides

nothing to suggest that the papers contained exculpatory evidence or that the

police acted in bad faith by not collecting them .

       The lack of a missing evidence instruction also does not show a lack of

due process in this case because our decision in Collins does not compel an

instruction in a situation like this . See Collins , 951 S.W.2d at 573 (holding that

providing a missing evidence instruction in a situation where the police failed to

collect potentially exculpatory evidence provided "more process than was due") .

In fact a missing evidence instruction would have been improper . See Este v.

Commonwealth , 64 S .W .3d 805, 810 (Ky.2002) (stating that absent some degree

of bad faith a defendant is not entitled to an instruction that the jury may draw an

adverse inference from the failure to preserve or collect any evidence) . Thus, no

error occurred.

IV. The jury instructions on possession of drug paraphernalia were proper

      The next allegation of error is that the jury instructions given on the charge

of possession of drug paraphernalia did not satisfy the requirement of unanimity .

See Hayes v. Commonwealth , 625 S.W.2d 583 (Ky. 1981), Boulder v.
Commonwealth , 610 S .W .2d 615 (Ky. 1980), Davis v. Commonwealth , 967

S .W .2d 574, 582 (Ky. 1998), Burchett v. Commonwealth, 98 S.W.3d 492 (Ky.

2003). Since this issue was not preserved for review, it must be reviewed under

a palpable error standard . RCr 10.26. The jury instructions provided by the trial

court were as follows :

       You will find the Defendant guilty of Possession of Drug Paraphernalia
       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 May 5, 2004, and before the finding of
       the indictment herein, he, acting alone or in complicity with others, had in
       his possession a pipe and/or straws and/or scales and/or a cutting agent,
       and/or rolling papers and/or plastic baggies ; AND
       B . That he, acting alone or in complicity with others, did so with the intent
       to use said items to inhale or ingest or otherwise introduce into the human
       body a controlled substance and/or to package a controlled substance
       and/or to store a controlled substance and/or to conceal a controlled
       substance and/or to contain a controlled substance .

Hill argues that the jury instructions gave alternative theories of the crime that

were not supported by evidence presented by the Commonwealth . In particular

he believes that the instruction regarding the straws, cutting agent, rolling papers,

and plastic baggies are unsupported by the evidence. Since those items were

found in Whitehead's master bedroom, Hill argues he did not have possession of

the items or knowledge of their existence .

       Hill's argument is not persuasive . The evidence presented at trial could

reasonably convince a juror that Hill had constructive possession of the items or,

at least, he was complicit in Whitehead's possession of the items with intent to

use them for illicit purposes. It was presented at trial that Hill stayed in

Whitehead's house for up to two weeks before the police search of the house.

There was also evidence that Whitehead's house was used for drug trafficking .
Whitehead further testified that Hill had sold her methamphetamine before and

had used it with her . A reasonable juror could analyze these facts and conclude

that Hill not only knew Whitehead was a methamphetamine user and dealer but

actively helped her perform these tasks. It is also completely reasonable to

assume that Hill was present when Whitehead used the paraphernalia found in

the bedroom and may have used it himself . See Clay v. Commonwealth , 867

S.W .2d 200, 202-03 (Ky. 1993) (holding that it was not unreasonable for a jury to

assume defendant had constructive possession of cocaine when it was found in

her house in areas she had likely been). We find no palpable error.

 V . The prosecutor did not violate the "Golden Rule" in making her closing

                                 arguments at trial .

       Hill's final allegation of error is that the prosecutor violated the "Golden

Rule" by trying to make the jury feel victimized by the actions of Hill . This issue

was not preserved for review at the trial court and it must be reviewed under a

palpable error standard . RCr 10.26. The Golden Rule argument involves the

prosecutor asking jurors to place themselves in the victim's position and rule

accordingly . Lvcans v. Commonwealth , 562 S.W.2d 303, 305 (Ky. 1978) . Hill

believes that this rule was violated by the following statements from the

Commonwealth's attorney :

      Communities speak through their juries . Meth and its distribution in our
      community is a scourge. . . twenty-five years in the penitentiary is not really
      twenty-five years in the penitentiary . . . He's not a user, he's a dealer. And
      he is peddling this crap in our community. . .Mercy to the guilty is cruelty to
      the innocent .
Hill also alleges that the statement "This is not the defendant's first rodeo . And

he apparently did not learn anything the first time around," led the jury to

presume guilt and skip to the sentencing phase improperly .

       Yet, this Court has always given broad latitude in allowing counsel to

present a case to the jury. Morgan v. Commonwealth , 189 S .W .3d 99, 114 (Ky.

2006). A trial will not be reversed based upon the closing arguments unless the

statements made render the entire trial fundamentally unfair. Stopher v.

Commonwealth , 57 S.W.3d 787, 805 (Ky. 2001). While the statements made by

the Commonwealth's attorney are impassioned, they do not render the entire trial

"fundamentally unfair." See Mor an, 189 S.W.3d at 114 . (holding that closing

statements including the words "give him a clear, strong message . . . that this

won't be tolerated in Ballard County. That we are going to be safe . [The victim]

can be safe, as long as he is locked away" were within the broad latitude

afforded counsel) . In addition, the statement "This is not the defendant's first

rodeo," does not appear to be concluding that Hill is guilty, but is a permissible

comment on Hill's prior drug related offenses . Thus, the prosecutor's closing

statements do not constitute palpable error.

       For the reasons set forth herein, the judgment and sentence of the

Grayson Circuit Court is affirmed .

       All concur.
ATTORNEY FOR THE APPELLANT

Rebecca Lynn Hobbs
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601

ATTORNEY FOR THE APPELLEE

Gregory Stumbo
Attorney General of Kentucky

Clint Evans Watson
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
