               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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: AUGUST 24, 2017
                                                          NOT TO BE PUBLISHED




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                                     20 l 6-SC-000302-MR


JOHNNY MARSHALL                                                       APPELLANT


                     ON APPEAL FROM OWSLEY CIRCUIT COURT
V.                     HONORABLE MICHAEL DEAN, JUDGE
                                 NO. 14-CR-0001


COMMONWEALTH OF KENTUCKY                                               APPELLEE



                       MEMORANDUM OPINION OF THE COURT

     AFFIRMING IN PART AND REVERSING IN PART AND REMANDING

      A circuit court jury convicted Johnny Marshall of manufacturing

methamphetamine, possession of drug paraphernalia, first-degree possession

of controlled substance, and of being a second-degree persistent felony

offender. The trial court sentenced Marshall to serve twenty-five years'

imprisonment. He appeals the resulting judgment as a matter ofright. 1

      Marshall contends the trial court erred by (1) denying his motion to

suppress evidence collected by law enforcement in a warrantless search of the

mobile home where he was located at the time of his arrest, (2) denying his

motion for a directed verdict of acquittal, (3) improperly instructing the jury



      1   Ky. Const. § l 10(2)(b).
resulting in double-jeopardy violations and (4) rendering judgment of

conviction in violation of his right to a unanimous jury verdict.

      Upon review of the record, we reverse the convictions for possession of a

controlled substance and possession of drug paraphernalia and affirm the

remaining convictions. Accordingly, we remand the case to the trial court for

entry of a new judgment consistent with this opinion.


               I. FACTUAL AND PROCEDURAL BACKGROUND.

      Three Jaw enforcement officers attempting to serve an arrest warrant on

Marshall found him at a mobile home. According to the Commonwealth; when

Marshall-who was alone in the home at the time-answered the officers' knock

at the door, one of the officers informed Marshall that they had a warrant for

his arrest. Marshall stated that he needed to get his shoes and headed inside

the trailer. As he did so, the officer grabbed Marshall and restrained him.

      The arresting officer testified about what happened next. According to

the officer, while seizing Marshall at the threshold of the mobile home, he saw

what appeared to be an actively bubbling methamphetamine Jab. When the

officer asked him about it, Marshall denied any knowledge of it. But he

consented to the officers' request to be allowed to look around, and when they

did so, the arresting officer testified that they confirmed the presence of an

actively working methamphetamine lab.

      In contrast to the facts as later found by the trial court concerning the

circumstances surrounding the search of the mobile home, Marshall asserts

that he opened the door before the officers knocked and that he was already

                                         2
wear:ing shoes when he answered the door. Most importantly for our

discussion, he denies that he consented to a search of the mobile home.


                                    II. ANALYSIS.
A. The Trial Court Properly Denied Marshall's Motion to Suppress.
      We must conduct a twofold analysis when reviewing a trial court's

decision on a motion to suppress. First, we must survey the factual findings

made by the trial court; if those factual findings are supported by substantial

evidence, then those findings are conclusive.2 Next, we conduct a de novo

review on the trial court's ruling on matters oflaw.3

      Marshall filed a motion to suppress the evidence recovered during the

search of the mobile home, and the trial court held a suppression hearing.

Neither party disputes that the search was a warrantless search. And while

government actors generally need a warrant to conduct a search of a residence

like this mobile home, there are exceptions. Notably, the facts before us

demonstrate the exception allowed for consent to the search.4

      The trial court heard testimony from both the arresting officer and

Marshall. The trial court heard the conflicting testimony and found the

arresting officer's version more credible than Marshall's version, concluding

that Marshall himself consented to the search. It is within the province of the




      2   Epps v. Commonwealth, 295 S.W.3d 807, 809 (Ky. 2009) (citations omitted).
      3   Id.
     • Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992) (citing Coolridge v.
New Hampshire, 403 U.S. 443, (1971)).

                                           3
trial court to weigh the credibility of witnesses. s And the trial court here

correctly concluded under the law that Marshall's oral consent was sufficient to

waive the search-warrant requirement.6 Having found that valid consent was

given to search, the trial court properly applied the law and denied Marshall's

suppression motion.

B. The Trial Court Properly Denied Marshall's Directed Verdict Motion.
      When deciding a directed-verdict motion, the trial court must take as

true all evidence favoring the Commonwealth and determine whether the

evidence is sufficient to induce a reasonable jury to believe beyond a

reasonable doubt that the defendant is guilty.7 In Commonwealth v. Benham,

we stated, "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 acquittaJ."8 In

applying this standard, we reject Marshall's argument that he was improperly

denied a directed verdict.

      The crux of Marshall's argument on this issue is summarized in his brief,

which reads, " ... the trailer belonged to Johnny Marshall's brother who lived out

· of town and many people came and went from the trailer. Even if he knew

someone was manufacturing methamphetamine at the trailer, it does not mean



      s   See General Tire and Rubber Company v. Rule, 479 S.W.2d 629 (Ky. 972).
      6   See Payton v. Commonwealth, 327 S.W.3d 468, 476 (Ky. 2010).
     1 Pollini v. Commonwealth, 172 S.W.3d 418, 429 (citing Commonwealth v.
Benham, 816 S.W.2d 186, 187 (Ky. 1991)).
      s   Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).

                                           4
he was manufacturing methamphetamine. It is pure suspicion or conjecture

that Johnny Marshall knew or assisted in the manufacturing of

               . .... "
meth amp h etam1ne

      As the Commonwealth responds, Marshall was the only person in the

mobile home on the night the officers arrived, and he was arrested there where

a working meth lab was found, components for manufacturing meth were

located about the home, and meth residue was present. When the arresting

officers spotted the meth lab, it was in a "rolling and bubbling state," and

required a specialize9, meth lab unit to come to the scene for dismantling.

      The argument advanced by Marshall that he should have been entitled to

a directed verdict has no merit because there was ample evidence upon which

a reasonable juror might rely to convict Marshall of the charge. So denial of the

directed verdict motion was proper.

C. Two Convictions Violated Marshall's Right to be Free from Double
Jeopardy.
      This alleged error is unpreserved, but we will review the asserted double-

jeopardy violations under Sherley v. Commonwealth.9 Marshall asserts that his

convictions for manufacturing methamphetamine, possession of a controlled

substance, and possession of drug paraphernalia violated his rights under the

Double Jeopardy Clause of the Fifth Amendment of the United States

Constitution and Section 13 of the Kentucky Constitution. We agree.


       9 Sherley v Commonwealth, 558 S.W.2d 615, 618 (Ky. 1977) ("failure to preserve
this issue for appellate review should not result in permitting a double jeopardy
conviction to stand."), overruled on other grounds by Dixon v. Commonwealth, 263
S.W.3d 583 (Ky. 2008).

                                          5
      We addressed the double-jeopardy implications of potentially duplicitous

jury instructions for manufacturing methamphetamine and possession of

methamphetamine in Beaty v. Commonwealth 10 In Beaty, the defendant was

manufacturing methamphetamine in the trunk of his car. 11 The jury convicted

him of both manufacturing methamphetamine and possession of a controlled

substance, methamphetamine, but it was impossible to determine from the

trial record which methamphetamine he was guilty of possessing. While

exploring the alleged double-jeopardy implications of these convictions the

Court said, "[the defendant] was properly convicted of both possessing

methamphetamine and manufacturing methamphetamine per KRS 505.020(1)

if the methamphetamine that he was convicted of possessing was not the same

methamphetamine that he was convicted ofmanufacturing."12

      So in Beaty, the Court suggested jury instructions that would ·avoid a

double-jeopardy error when the trial court instructs the jury that it may convict

the defendant of both manufacturing methamphetamine and possession of a

controlled substance. In that instance, we recommended an additional

instruction to guide the jury in determining if facts exist to distinguish between

these charges. The Beaty instruction for first-degree possession charge reads

as follows:



      10 Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003), abrogated on other
grounds by Geary v. Commonwealth, 490 S.W.3d 354 (Ky. 2016).
          11   Id. at 212.
          12   Id. at 213 (citing United States v. Graham, 275 F.3d 490, 519-20 (6th Cir.
2001)).

                                                 6
            You will find the Defendant guilty of first-degree possession for a
            controlled substance 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 about [Insert Date] he had in his
                      possession a quantity of methamphetamine.
            AND
                   B. That he knew the substance so possessed by him was
                      methamphetamine.
            AND
                   C. If you have found the Defendant guilty of manufacturing
                      methamphetamine under [Another Instruction], that the
                      substance so possessed by him was not a product of the
                      same manufacturing process for which you have found
                      him guilty under that Instruction.

The distinguishing provision in part C of the Beaty instruction is designed to

guard against potential double-jeopardy error.

      The jury instructions in the present case do not employ the Beaty

instruction. Rather, the trial court gave general jury instructions for

manufacturing methamphetamine and possession of a controlled substance,

which erroneously failed to require the jury to make a factual finding that

would differentiate between the methamphetamine that was the product of the

defendant's manufacturing and any methamphetamine that the defendant

possessed. Without requiring this factual distinction to be made, like the

flawed jury instructions in Beaty, the instructions for manufacturing and

possession in the present case resulted in convictions that violate Marshall's

right to be free of double jeopardy.

      We next turn to Marshall's assertion that his conviction for

manufacturing methamphetamine and his conviction for possession of drug-

paraphernalia under KRS 218A.500(2) violated his right to be free from double

                                         7
jeopardy. In doing so we are mindful of Beaty and follow its logic in our

analysis.

      KRS 218A.500(2) provides that it is "unlawful for any person to use, or to

possess with the intent to use, drug paraphernalia for the purpose of ...

manufacturing ... a controlled substance in violation of this chapter."13 Similar

to the possession-of-a-controlled-substance conviction, the jury instructions in

the present case failed to require the jury to determine whether the

paraphernalia charge stemming from possession of the coffee filters is

subsumed within the conviction of manufacturing methamphetamine.

      One may be convicted for manufacturing methamphetamine under two

distinct theories. The first theory is that the defendant actually manufactured

methamphetamine.1 4 Conviction under this theory requires that the defendant

manufacture some quantity of methamphetamine, though it does not have to

be in usable form. 15 The second theory for conviction requires a defendant to

possess two or more chemicals or two or more items of equipment with the

intent to manufacture methamphetamine.16

      The facts in today's case provide us with the opportunity to review

Marshall's paraphernalia conviction while applying the logic of Beaty. The jury

instructions with regard to the paraphernalia charge instructed the jury to find


      1a   KRS 218A.500(2).
      14   KRS 218A.1432(1)(a).
    1s See Shemwell v. Commonwealth, 294 S.W.3d 430 (Ky. 2009); Robinson v.
Commonwealth, 181 S.W.3d 30 (Ky. 2005).
      16   KRS 218A.1432(1)(b).

                                        8
Marshall guilty if he possessed coffee filters and if he knew the filters would be

used to manufacture methamphetamine. It is this instruction, paired with the

instruction for manufacturing methamphetamine that compels consulting

Beaty for guidance.

      The briefs indicate that the Commonwealth pursued a theory of the case

under KRS 218A.1432(1)(a), that Marshall had actually manufactured

methamphetamine. In Marshall's case, the coffee filters mentioned in the jury

instructions contained the only evidence of methamphetamine in the form of

residue present in the filters-key evidence in proving guilt under a theory that

Marshall had manufactured methamphetamine. While the intent of the

Commonwealth may have been to separate the methamphetamine residue

found on the coffee filter from the coffee filter itself-using the residue as a

means for a conviction for actual manufacturing and the coffee filter as

paraphernalia-it is impossible to discern this from the jury instruction given. It

is important to note that the only filters discussed in the briefs are the ones

that the Commonwealth argues had already been used in the manufacturing

process, making it unlikely they would be used again in the future, possibly

eliminating the circumstance where the used filter would be reused to

manufacture a controlled substance as required by the paraphernalia charge.

      This is not to say one can never be convicted of manufacturing

methamphetamine under KRS 218A.1432(1)(a), while also being convicted for

possession of drug paraphernalia under KRS 218A.500(2). KRS

218A.1432(1)(a) contemplates one actually manufacturing methamphetamine,

                                          9
while the drug paraphernalia charge contemplates a future use of the

paraphernalia. For instance, one may have actually manufactured

methamphetamine but also may have paraphernalia, such as a device used for

consumption of a controlled substance.

      As noted above, the second theory used to sustain a conviction for

manufacturing methamphetamine is KRS 218A.1432(l)(b), which provides that

one is guilty of manufacturing methamphetamine if one possesses two or more

chemicals or two or more items of equipment with the intent to manufacture

methamphetamine. Coffee filters are commonly used as equipment in the

production of methamphetamine.17

       If Marshall had been convicted of manufacturing methamphetamine

under the theory of possessing two or more pieces of equipment with the intent

to manufacture methamphetamine, then the drug paraphernalia conviction for

the coffee filter would not be appropriate. That is because coffee filters are

commonly used in the production of methamphetamine and are most

commonly considered equipment. 18 Both the paraphernalia charge and the

manufacturing charge under the above theory require the same elements under

the present facts, that the individual possess the coffee filters with the intent to

manufacture a controlled substance, in this case, methamphetamine.



      11 Sevier v. Commonwealth, 434 S.W.3d 443 (Ky. 2014) ("Meth oil consists of
meth flakes suspended in liquid, which is poured through a coffee filter in order to
capture meth flakes, which are the end product of manufacturing
methamphetamine. ").
      1a   Id.

                                          10
            To avoid the issue we are facing today, an instruction similar to the one

     given in Beaty should be given. A distinguishing provision requiring the jury to

     declare that the coffee filters in question were separate from those which would

     have led to Marshall's conviction for ·manufacturing methamphetamine.

     Unfortunately for the Commonwealth, without a similarly worded

     distinguishing jury instruction for the paraphernalia conviction, we find

     ourselves in a similar situation as the possession of a controlled substance

     conviction.

            Following our above logic, Marshall's conviction for possession of

     paraphernalia must also be reversed. The decision to reverse the· lesser of the

     two convictions is not only consistent with our decision in Beaty, but also our

     decision in Clark v. Commonwealth, where we stated that "maintaining the

     more severe convictions and vacating the lesser offense" is the general rule
                          )
     used when a single criminal episode gives rise to multiple convictions.19

     D. Marshall Was Not Denied a Unanimous Verdict.
            Marshall's last allegation of error is unpreserved. Marshall asserts that

     he was denied his right to a unanimous jury verdict on the conviction for the

     manufacturing ofmethamphetamine under KRS 218A.1432(1).

            Marshall asserts that his verdict was not unanimous because the jury

     was allowed to convict him for manufacturing methamphetamine without



         19 Clark v. Commonwealth, 267 S.W.3d 668, 678 (Ky. 2008); See Kiper v .
.-   Commonwealth, 399 S.W.3d 736 (Ky. 2012); Lloyd v. Commonwealth, 324 S.W.3d 384,
     391 n. 26 (Ky. 2010) ("[t]he remedy for these types of double jeopardy violations is to
     vacate the conviction of the lesser offense.")

                                                11
specificity as to which theory of manufacturing he was guilty of. In Wells v.

Commonwealth we stated, "a verdict cannot be successfully attacked upon the

ground that the jurors could have believed either of the two theories of the case

where both interpretations are supported by the evidence and the proof of

either beyond a reasonable doubt constitutes the same offence."20

      In Marshall's case, he could have been convicted of manufacturing

methamphetamine under the theory of actually manufacturing

methamphetamine or possession of two or more pieces of equipment or

chemicals with the intent to manufacture methamphetamine.21

      As discussed in length above, the theory that he manufactured

methamphetamine is supported by the fact that he was found in a trailer, with

an active methamphetamine lab, and coffee filters containing meth residue.

      The evidence also supported a conviction for manufacturing

methamphetamine under the second theory. The second theory for conviction

requires that Marshall possessed two items of equipment or chemicals with the

intent to manufacture methamphetamine. During the search conducted by the

authorities, in addition to discovering the coffee filters, the police found: a

bottle of liquid fire or lye, scissors, a lithium battery, used tinfoil, a twelve-inch

piece of tubing, a snorting straw, gel pills of Alka Seltzer, a bottle top, and an

empty bottle of starter fluid. These items are sufficient for a jury to find

Marshall guilty of manufacturing methamphetamine under the theory of


      20   Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978).
      21   KRS 218A.1432(1).

                                          12
possessing two or more chemicals or two or more items of equipment with the

intent to manufacture methamphetamine.

      Accordingly, Marshall's conviction for manufacturing methamphetamine

under the trial court's instruction satisfies our rule set forth in Wells.

                                 Ill.   , CONCLUSION

      For the foregoing reasons, the trial court is affirmed in part and reversed

in. part. Further, we remand the case back to the trial court for resentencing in
 .
accordance with our holding.

      All sitting. All concur.




COUNSEL FOR APPELLANT:

Roy Alyette Durham II
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Leilani K.M. Martin
Assistant Attorney General




                                          13
