llVlPOR`I'ANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

TH|S OP|N|ON lS D‘ES|GNATED-”NOT TO BE PUBL|SHED.”
PURSUANT TO THE RULES OF ClVlL PROCEDURE *
PROMULGATED BY THE SUPREME COURT, CR 76.`28(4)(€), -
TH|'S OP|N|'ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE
ClTED OR USED AS BlNDlNG PRECEDENT lN ANY OTHER
CASE lN ANY'COURT OF TH|S STATE; HOWEVER, '
UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS,

n RENDERED AFTER JANUARY 1, 2003, MAY BE ClTED FOR
CONS|DERAT|ON BY THE COURT lF THER,E lS NO PUBL|SHED
OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE lSSUE
BEFORE THE CO'URT. OP-lNlONS ClTED FOR CONS|DERAT|ON
BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED
DEC|S|ON lN THE FlLED DOCUMENT AND A COPY OF THE

' ENT|RE DEC|S|ON SHALL BE TENDERED ALONG WlTH THE

.' DOCUMENT TOl THE COURT AND ALL PART|ES TO THE
ACT|ON. ‘ '

MODIFIED: MARCH 23, 2017
RENDERED: OCTOBER 20, 2016

 

- ©ATE§]?BM zw'» Mv»w' D°
cHRIsToPHER KANE ' '- ‘ APPELLANT

f

v 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

bn April 27, 2015, police officers lawfully searched the home of
- . Appellant, Christopher Joseph Kane, and discovered drugs and materials used
in the manufactuan 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 ona host of charges. Appellant Was jointly tried With his
confederate, James Flora. _ A Fleming County 'Circuit Court jury conyicted

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.
Allge_dly_ Inadmissible Evidence

For his first argument,{Appellant complains that the trial court
` erroneously admitted photographs of two discarded l2-liter plastic bottles into
evidence Admissible evidence must be relevant, probative, and not unduly
prejudicial Bezl 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 w
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.\

Contraryw to Appellant’s argument, this evidence is highly relevant and
probative of Appellant’s intent to manufacture methamphetamine See Pate v.
Commonwealtll, 243 S.W4.3d 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.`

2

./

`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
vi ` 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[j]”
commonwealth o. Benhom, 816 s.w.2d 186, 187 (Ky. 1991) (eiting
Commonwedlth v. 'S,awhill, 660 S_.W.2d 3 (Ky. 1983) (emphasis added)). Our
review is fconfined to the proof at trial and the statutory elements of the alleged
offense Lawton v. Comnionweulth 354 S.W._3d 565, 575 (Ky. 201 1). 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;l 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
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; 43) one empty and one unopened package of lithium
batteries;.4) a partially opened can of Cole_man 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 y
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 g
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 he'r back. The jury was clearly

4 .

.unconvincecl. In any event, the Commonwealth presented more than enough
evidence here to justify an instruction to the jury on manufacturing
` methamphetamine Thus, the trial court did not abuse its discretion in
denying Appellant’s directed verdict motion.
Wanton Endaggerment

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 Altho_ugh 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._ Confmontoealth, 410 S.W.3d4597, 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. Compare Thorpe v. f
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

5

holding,' thel court stated that “Thorpe was essentially on trial for her
housekeeping and caregiving skills. 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.
j 4 _ ' Conclusion
For the foregoing reasons, we hereby affirm the judgment of the Fleming

Circuit 'Court. n k f

l All sittingi Minton, C.J.; Cunningham, Hughes, Kel_ler, Venters, and

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

‘ coUNsEL FoR APPELLANT:l

` Molly_ Mattingly b
Assistant Public Advocate
COUNSEL FOR APPELLEE:

Andy` Beshear
Attorney General of Kentucky _

James Coleman Shackelford
Assistant Attorney General '

10 e~

 

Supreme Than of Benfuckg

2015-SC-000695-MR
CHRISTOPHER KANE 1 APPELLANT

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

COMMONWEALTH OF KENTUCKY - ' ' ` APPELLEE

ORDER' DENYING PETITION FOR REHEARING

AND MODIFYING OPINION

(

The lF’etition for Rehearing,- filed by the Appellant, of the Opinion of the b
Court, rendered October 20, 2016, is DENIED, and the Opinion of this Court is
modified by substitution of ` the attached Opinion in lieu of the original Opinion.
Said modification does not affect the holding of the.original Opinion of the v
Court., ` l

The Court modifies said 0pinion by omitting the following sentence from
the last paragraph on page 5: “Appellant has also failed to indicate any undue
prejudice.”

All sitting. All concur.

ENTERED: Maroh 23, 2017.

CHI

