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RENDERED: AUGUST 24, 2017
NOT TO BE PUBLISHED

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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 Marshall appeals the resulting judgment as a matter of right.1

He 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 causing

 

1 Ky. Const. § 110(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 law 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 horne 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 lab. 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

wearing 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 of law.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. lt is within the province of the

 

2 Epps v. Commonwealth, 295 S.W.3d 807, 809 (Ky. 2009) (citations omitted).
3 Id.

4 Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992) (citing Coolridge v.
New Hampshire, 403 U.S. 443, (1971)).

trial court to weigh the credibility of witnesses.5 And the trial court here
correctly concluded under the law that Marshall’s oral consent was sufficient to
waive the search-warrant requirement6 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 acquittal.”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

 

5 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).

7 Pollini v. Commonwealth, 172 S.W.3d 418, 429 (citing Commonwealth v.
Benham, 816 S.W.2d 186, 187 (Ky. 1991)).

8 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
methamphetamine . . .”

As the Commonwealth responds, Marshall Was the only person in the
mobile horne 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 specialized 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 Di.)con 1). Commonwealth, 263
S.W.3d 583 (Ky. 2008).

We addressed the double-jeopardy implications of potentially duplicitous
jury instructions for manufacturing methamphetamine and possession of
methamphetamine in Beaty v. Commonwealth10 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 of manufacturing.”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 1). Graham, 275 F.3d 490, 519-20 (6th Cir.
2001)].

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
methamphetamine14 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 methamphetamine16

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

 

13 KRS 218A.500(2).
14 KRS 218A.1432(1)(a).

15 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).

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(1)(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

 

17 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”).

18 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 of methamphetamine 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, va 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.

III. 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

