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RENDERED: DECEMBER 15, 2016
NOT TO BE PUBLISHED

§§npreme Tnnri of Beni ch NAL

2015-sc-00069 1_MR ©AT E'_____________./°'l” '<""“ ad"‘°"' DC

STEVEN DOUGLAS ROARK APPELLANT

 

ON APPEAL FROM BELL CIRCUIT COURT
V. HONORABLE ROBERT COSTANZO, JUDGE
NO. l4-CR-00285

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT
AFFIRMING

A grand jury charged Steven Douglas Roark With two counts of
possession of a controlled substance first-degree, first offense; manufacturing
methamphetamine, first offense; theft by unlawful taking value of less than
$500; and of being a second-degree persistent felony offender (PFO). At trial,
the jury convicted Roark of all these charges.

The trial court followed the jury’s punishment recommendations,
sentencing Roark to thirty days in the county jail on the theft charge and to
three years’ imprisonment to be served concurrently on each of the two
possession charges. As to the methamphetamine-manufacturing charge-a
Class B felony for the first offense as found by the jury_the trial court

sentenced Roark to a maximum of ten years enhanced by the PFO conviction to

a maximum of twenty years’ imprisonment All sentences were ordered to be
served concurrently.

Roark appeals the resulting judgment as a matter of right,1 raising a
single issue. He asserts that his conviction for manufacturing
methamphetamine must be reversed because the Commonwealth introduced
insufficient evidence at trial that he possessed two or more items of equipment
used to manufacture methamphetamine, as specifically charged in the
indictment He argues that this issue is preserved for appellate review by his
motion for a directed verdict that the trial court erroneously denied at the close
of all the evidence. But the Commonwealth responds that Roark failed to
preserve this issue for appeal when he failed to object to the trial court’s jury
instruction on the methamphetamine-manufacturing charge. We agree with the
Commonwealth and affirm the judgment

I. FACTUAL AND PROCEDURAL BACKGROUND.

Roark, a suspected shoplifter, was arrested in a Walmart parking lot. In
a search incident to his arrest, in addition to items of clothing stolen from
Walmart and oXycodone, the police found Roark in possession of (1) a used
coffee filter containing methamphetamine residue, (2) a can of Drano and
second container of drain cleaner, and (3) pills suspected to contain
ammonium nitrate, a chemical sometimes used in the making of

methamphetamine,

 

1 Ky. Const. § 110(2)(b).

Based upon these seized items, the indictment charged in Count III the
offense of manufacturing methamphetamine “by possessing the equipment for
manufacturing methamphetamine with intent to manufacture
methamphetamine . . . ” in violation of Kentucky Revised Statute
218A. 1432(1)(b).2 At trial, the Commonwealth introduced uncontroverted
evidence that all of these items seized from Roark were commonly used to
make methamphetamine

At the close of the evidence, Roark’s counsel moved for a directed verdict
as to Count III only, stating simply: “I move for a directed verdict on the count
of manufacturing methamphetamine lt requires two or more chemicals or two
or more pieces of equipment, and I don’t believe the Commonwealth has
sufficiently proved it.” The Commonwealth responded that its expert on
methamphetamine manufacturing had testified to the existence of four items of
manufacturing equipment found in Roark’s possession-Drano, drain cleaner,
a coffee filter, and pills of ammonium nitrate. Without additional argument
from either side, the trial court denied the motion.

The written jury instruction the trial court distributed to counsel and
ultimately gave to the jury on the manufacturing-methamphetamine charge

permitted the jury to find Roark guilty if satisfied from the evidence beyond a

 

2 KRS 218A.1432(1) A person is guilty of manufacturing methamphetamine
when he knowingly and unlawfully:

(b) With intent to manufacture methamphetamine possesses two (2) or more
chemicals or two (2) or more items of equipment for the manufacture of
methamphetamine,

(c) Manufacture of methamphetamine is a Class B felony for the first offense
and Class A felony for a second or subsequent offense.

3

reasonable doubt that Roark “knowingly had in his possession with the intent
to manufacture methamphetamine two or more items of equipment for its
manufacture.” When asked if she agreed to the trial court’s proposed
instructions, Roark’s counsel responded simply, “Yeah, they’re fine.”

II. Analysis.

Roark argues on appeal that the judgment must be reversed because the
trial court abused its discretion by failing to grant his directed-verdict motion
on the methamphetamine-manufacturing charge because the Commonwealth’s
evidence, at best, proved the existence of two or more chemicals but not two or
more items of equipment, as the jury was specifically instructed. The
Commonwealth argues in response that the trial court did not err in denying a
directed verdict of acquittal on that charge because of the unrebutted
testimony of its expert. But as a threshold matter, the Commonwealth
contends that Roark’s failure-of-proof issue is not preserved for appellate
review.

Case law guides us in determining whether Roark’s directed-verdict
motion sufficiently apprised the trial court that he objected to submitting the
case to the jury because of insufficient evidence of Roark’s knowing possession
of two items of equipment with intent to manufacture methamphetamine In
Seay v. Commonwealth, we stated “[t]he proper procedure for challenging the
sufficiency of evidence on one specific count is an objection to the giving of an

instruction in that charge.”3 We further elaborated this rule by stating, “[t]hat

 

3 Seay v. Commonwealth, 609 S.W.2d 128, 130 (Ky.1980).

4

rule applies only when there are two or more charges and the evidence is
sufficient to support one or more, but not all, of the charges. ln that event, the
allegation of error can only be preserved by objection to the instruction on the
charge that is claimed to be insufficiently supported by the evidence.”4

Roark argues that his facts are different from those in Seay because the
directed-verdict motion in Seay was a general motion, while his was a specific
motion, We recognize that perhaps Roark did make a specific directed-verdict
motion regarding the absence of proof by the Commonwealth regarding two or
more chemicals or equipment, but we fail to find that this distinction changes
the procedural requirements for preserving his objection.5

Roark’s failure to object to the giving of the jury instruction, Which Roark
contends was not supported by the evidence, is a crushing blow to his appeal.6
Having failed to preserve this alleged error on appeal, we need not delve into
the sufficiency-of-the-evidence argument Roark presents on appeal. Roark did
not request palpable-error review.

III. Conclusion.
For the above reasons, the ruling of the lower court is affirmed.
All sitting. Minton, C.J.; Cunningham, Hughes, Noble, Venters and ,

Wright, JJ., concur. Keller, J., concurs in result only.

 

4 Combs v. Commonwealth, 198 S.W.3d 574, 578-79 (Ky. 2006) (citing Miller v.
Commonwealth, 77 S.W.3d 566, 577 (2002); Campbell v. Commonwealth, 564 S.W.2d
528, 530-31 (Ky. 1978); Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky.
1977)). '

5 Seay, 609 S.W.2d at 130.
6 Id.

COUNSEL FOR APPELLANT:

Roy Alyette Durham II
Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Joseph Todd Henning
Assistant Attorney General

