             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

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                                               RENDERED: OCTOBER 20, 2016
                                                     NOT TO BE PUBLISHED

               $uprrtur Court of rt.firttfuritv
                              2015-SC-000695-MR


CHRISTOPHER KANE                                                        APPELLANT


                   ON APPEAL FROM FLEMING CIRCUIT COURT
V.                  HONORABLE STOCKTON B. WOOD, JUDGE
                              NO. 15-CR-00028


COMMONWEALTH OF KENTUCKY                                                APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING


      On April 27, 2015, police officers lawfully searched the home of

Appellant, Christopher Joseph Kane, and discovered drugs and materials used

in the manufacturing of methamphetamine. Several other individuals and

Appellant's young child were also present at the scene. Investigating officers

testified that the house was in a pitiful state of disrepair and reeked of animal

urine and feces.

      As a result of the search, Appellant was indicted by a Fleming. County

grand jury on a host of charges. Appellant was jointly tried with his

confederate, James Flora. A Fleming County Circuit Court jury convicted

Appellant of manufacturing methamphetamine and possession of marijuana

and recommended a total sentence of twenty years' imprisonment, which was
imposed by the trial court. Appellant now appeals his judgment and sentence

as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution.

Three issues are raised and addressed as follows.

                        Allegedly Inadmissible Evidence

      For his first argument, Appellant complains that the trial court

erroneously admitted photographs of two discarded 2-liter plastic bottles into

evidence. Admissible evidence must be relevant, probative, and not unduly

prejudicial. Bell v. Commonwealth, 875 S.W.2d 882, 889-91 (Ky. 1994).          See

also KRE 401; 402; and 403. This issue is preserved by the defense's motion in

limine. We review for the trial court's decision for an abuse of discretion.

      The Commonwealth explained that the bottles were discovered

immediately behind Appellant's residence and were consistent with the "shake

and bake" method of manufacturing methamphetamine and argued that the

bottles were part of the totality of the evidence demonstrating intent to

manufacture. Appellant argues that the unknown white substance contained

in the bottles was too speculative to be considered by the jury.

      Contrary to Appellant's argument, this evidence is highly relevant and

probative of Appellant's intent to manufacture methamphetamine.        See Pate v.

Commonwealth, 243 S.W.3d 327, 333 (Ky. 2007). In denying Appellant's

motion in limine, the trial court specifically noted that the bottles were part of

the crime scene and that an officer would testify that the police left the bottles

there, did not test them, and did not know what was inside of them.

Investigating Deputy Sherriff, Garret Ingram, testified that the bottles were
consistent with the "shake and bake" style of a methamphetamine "cook." He

further explained that he did not field test them or send them to a lab for

testing. Deputy Ingram could not say what was inside the bottles.

Accordingly, this evidence was relevant, probative, and not unduly prejudicial

to Appellant. Thus, the trial court did not abuse its discretion in admitting this

evidence.

                                 Directed Verdict

      Appellant next alleges that the trial court erred in denying his motion for

a directed verdict on the manufacturing methamphetamine charge. We will

reverse the trial court's denial of a motion for directed verdict "if under the

evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]"

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing

Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) (emphasis added)). Our

review is confined to the proof at trial and the statutory elements of the alleged

offense. Lawton v. Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011). The jury

was instructed under KRS 218A.1432(1)(b) which states in pertinent part:

      (1) A person is guilty of manufacturing methamphetamine when he
        knowingly and unlawfully:

         (a) Manufactures methamphetamine; or

         (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.

The list of relevant materials discovered at Appellant's residence and in his

nearby vehicle is extensive. In addition to the 2-liter soft drink bottles

                                         3
containing an unknown substance previously discussed, here is a non-

exhaustive description of the materials discovered at the crime scene: 1) a

package of Claritin D brand allergy medicine containing pseudoephedrine

located on the bedside dresser; 2) 25 feet of medical gas tubing located on top

of the Claritin D package; 3) one empty and one unopened package of lithium

batteries; 4) a partially opened can of Coleman brand camp fuel two or three

feet away from Liquid Fire drain cleaner; 5) several empty cold packs that had

been cut open and with the beads of ammonium nitrate missing; 6) an empty

gallon jug of paint thinner in a barn about 20 to 30 yards from the house; and

7) a burned container which appeared to be a Coleman brand camp fuel

container located in a burn pit in Appellant's yard.

      An investigating detective testified that these items could be used to

manufacture methamphetamine. It is also noteworthy that Appellant's

disheveled home that was originally built in the mid-19th century was secured

by a video surveillance system.

      However, Appellant argues that his alleged legal possession of common

household items located in several places throughout the living space is as

consistent with innocence as it is with guilt. Appellant testified at trial that he

used many of the items for allegedly legal purposes. For example, Appellant

claimed that lithium batteries were for his child's toys. Appellant's wife also

testified that she used the ice packs for her back. The jury was clearly

unconvinced. In any event, the Commonwealth presented more than enough

evidence here to justify an instruction to the jury on manufacturing

                                         4
methamphetamine. Thus, the trial court did not abuse its discretion in

denying Appellant's directed verdict motion.

                             Wanton Endangerment

      Appellant also takes issue with evidence introduced by the

Commonwealth to support its claim that Appellant wantonly endangered his

child, who was present at the home where drugs, feces, and chemicals for

manufacturing methamphetamine were discovered. However, the trial court

subsequently granted Appellant's directed verdict motion on that charge.

Appellant nevertheless claims that he was unduly prejudiced by the

Commonwealth's presentation of irrelevant evidence concerning the dirtiness of

his home. Although Appellant's co-defendant objected to the introduction of

this evidence during trial, Appellant's trial counsel did not. Therefore, this

issue is unpreserved and we will review for palpable error. RCr 10.26; and

McCleery v. Commonwealth, 410 S.W.3d 597, 606 (Ky. 2013) (we will not

reverse unless "it can be determined that manifest injustice, i.e., a repugnant

and intolerable outcome, resulted from that error.").

      We find the Appellant's argument unpersuasive. Evidence concerning

the physical state of the crime scene is always relevant. Appellant has also

failed to indicate any undue prejudice. Compare Thorpe v. Commonwealth, 295

S.W.3d 458 (Ky. App. 2009). In Thorpe, the Court of Appeals reversed the

appellant's conviction for fraudulently obtaining a prescription for a controlled

substance and remanded for a new trial. In so holding, the court stated that

"Thorpe was essentially on trial for her housekeeping and caregiving skills.


                                        5
That evidence was clearly devastating to Thorpe, who received the maximum

sentence while little actual evidence of the charge crime existed." Id. at 463.

Unlike Thorpe, there was no error here, and certainly no palpable error.

                                   Conclusion

      For the foregoing reasons, we hereby affirm the judgment of the Fleming

Circuit Court.

      All sitting. Minton, C.J.; Cunningham, Hughes, Keller, Venters, and

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


COUNSEL FOR APPELLANT:

Molly Mattingly
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

James Coleman Shackelford
Assistant Attorney General




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