                                                   RENDERED : JUNE 25, 2009
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                              2007-SC-000218-MR


 BRENT CANTRELL



                  ON APPEAL FROM JOHNSON CIRCUIT COURT
 V                HONORABLE JOHN DAVID PRESTON, JUDGE
                              NO . 06-CR-00019



COMMONWEALTH OF KENTUCKY                                              APPELLEE


             OPINION OF THE COURT BY JUSTICE CUNNINGHAM

                                  AFFIRMING

                                I. Introduction

       On the morning of January 27, 2006, the Johnson County Sheriff's

Department received a tip that a methamphetamine lab was in operation in a

trailer located on property owned by Brent Cantrell's father. Three members of

the Johnson County Sheriffs Department proceeded to the location in three

separate cruisers .

      When Deputy Tom Wyatt drove up to the trailer, he noticed Brent

Cantrell and Shawna Dalton climbing out an open window and running away.

Although it was late in January, Cantrell was wearing only a t-shirt, jeans, and

shoes . Dalton was wearing a t-shirt and jeans, but no shoes . Deputy Barry

Mayes also observed Cantrell and Dalton climbing out the window and running
away. Officer Mayes ordered the pair to stop and they were apprehended. The

officers detected the odor of ammonia on both Cantrell and Dalton .

       Cantrell gave the officers permission to search the trailer. A strong

caustic odor permeated the air around the residence . Upon entry, the officers

encountered a foggy haze and more of the strong caustic odor which had been

detected outside . In fact, one of the officers began coughing so much because

of the fumes that he had to be treated at a local hospital . Inside the trailer, the

officers discovered all the chemicals and equipment necessary for the

manufacturing of methamphetamine . An individual by the name of Dale Wells

was found passed out on a bunk in a back bedroom. A video surveillance

system was also discovered inside the trailer, with the camera focused on the

driveway leading up to the residence.

      Deputy Boyce Williams collected and photographed evidence from the

trailer. Among the evidence collected were cans of butane fuel, a butane torch,

ph strips, tubing, kitty litter, a coffee pot, coffee filters, a funnel, a beaker, a

mason jar, and hollowed-out light bulbs . Two hollowed-out light bulbs

containing residue and three bottles were sent to the Kentucky State Police

Laboratory for testing. Lab results showed that these items contained

methamphetamine.

      Cantrell was convicted in the Johnson Circuit Court of. complicity to

manufacture methamphetamine; 1 complicity to possession of a controlled




    Kentucky Revised Statute (KRS) 218A.1432, KRS 502 .020
 substance in the first degree (methamphetamine) ;2 complicity to

use/possession of drug paraphernalia; 3 and being a second-degree persistent

felony offender .4 As a result of his conviction for being a persistent felony

offender, Cantrell's 20-year sentence for manufacturing methamphetamine was

enhanced to 50 years, and his 5-year sentence for possession of a controlled

substance was enhanced to 10 years . Cantrell received a 12-month sentence

on the drug paraphernalia charge . In accordance with the jury's

recommendation, Cantrell was sentenced to a total of fifty (50) years in prison .

                                    11. Discussion

      Appealing to this Court as a matter of right, 5 Cantrell raises numerous

issues . His first three arguments deal with the sufficiency of evidence as to the

counts of manufacturing methamphetamine, possession of a controlled

substance, and possession of drug paraphernalia. Next, Cantrell claims the

trial court erred in denying his motion for a directed verdict as to the persistent

felony offender count. Cantrell also argues the trial court erred in allowing the

Commonwealth to introduce evidence of his girlfriend's drug use . Further,

Cantrell argues the court abused its discretion when it failed to grant a

continuance on the second day of trial . Finally, he argues the court committed

reversible error when it overruled his objection to a portion of the




    KRS 218A .1415, KRS 502 .020
    KRS 218A.500, KRS 502 .020
    KRS 532.080
    Kentucky Constitution § 110(2)(b) .
Commonwealth's closing argument during the penalty phase . Each argument

will be addressed in turn .

            A. Sufficient evidence existed to convict Cantrell of manufacturing
               methamphetamine, possession of a controlled substance, and
               possession of drug paraphernalia .

        Cantrell argues there was insufficient evidence to convict him of

manufacturing methamphetamine, possession of a controlled substance, and

possession of drug paraphernalia . At trial, Cantrell did not contest the

existence of the methamphetamine lab in the trailer, methamphetamine on the

scene, or the recovery of drug paraphernalia from the trailer, but rather

claimed that his estranged wife, Mary, was the owner of everything in the

trailer .

        A person is guilty of manufacturing methamphetamine when he

knowingly and unlawfully manufactures methamphetamine or with intent to

manufacture methamphetamine possesses two (2) or more chemicals or two (2)

or more items of equipment for the manufacture of methamphetamine . See

KRS 218A.1432(1) .

        A person is guilty of possession of a controlled substance in the first

degree when he knowingly and unlawfully possesses a controlled substance

that contains any quantity of methamphetamine . See KRS 218A. 1415(l) .

       A person is guilty of possession of drug paraphernalia when he is found

in possession of any

                equipment, products and materials of any       kind which
                are used, intended for use, or designed        for use in
                planting, propagating, cultivating, growing,   harvesting,
                manufacturing, compounding, converting,         producing,
           processing, preparing, testing, analyzing, packaging,
           repackaging, storing, containing, concealing, injecting,
           ingesting, inhaling, or otherwise introducing into the
           human body a controlled substance in violation of this
           chapter .
 See KRS 218A
         .
         .500(1)

       The Commonwealth introduced evidence of numerous items recovered

from the trailer. This included two hollowed-out light bulbs containing residue

and three bottles containing sediment or residue. Lab tests conducted on the

residue or sediment in each of these five items confirmed the presence of

methamphetamine. Further, officers testified that, from their experience, light

bulbs converted in this fashion are used for ingesting methamphetamine.

       Unable to challenge the above evidence, Cantrell relies instead on his

claim that the Commonwealth failed to connect him to the trailer. Therefore,

the question before us is whether the Commonwealth introduced any evidence

establishing Cantrell's connection to the trailer.

      The Commonwealth introduced evidence that Cantrell was climbing out a

window of the trailer and attempting to flee when officers arrived on the scene.

See Rodriguez v. Commonwealth , wherein this Court recognized that "proof of

flight to elude capture or to prevent discovery is admissible because `flight is

always some evidence of a sense of guilt.' 107 S .W .3d 215, 218-19 (Ky. 2003)

(citations omitted) . Officers also noted how Cantrell and Dalton were

unseasonably dressed when they were apprehended . In addition, officers

testified that there was the presence of a strong odor of ammonia on the

clothes of both Cantrell and Dalton . Cantrell led the officers to believe the

trailer was his home . The written consent form Cantrell signed allowing

                                         5
 officers to search the trailer clearly indicated Cantrell was giving them consent

 to search "the home of Brent Cantrell ." Cantrell's black truck was parked in

 front of the residence. Finally, we note that after the charges were brought,

 Cantrell presented the trial court with a motion to suppress evidence seized

 from "his home" in violation of his constitutional rights. Before leaving this

issue, we also note that Cantrell was indicted on each of these three offenses as

having acted in complicity with Shawna Dalton and Dale Wells . As this Court

has held: "Complicity liability requires (1) proof of commission of an offense by

another person and (2) proof of the defendant's participation in commission of

that offense." Parks v. Commonwealth , 192 S.W.3d 318, 327 (Ky. 2006)

(citation omitted) . When the evidence presented is taken as true and viewed in

a light most favorable to the Commonwealth, we cannot say it was clearly

unreasonable for the jury to find guilt. Thus, we conclude sufficient evidence

existed to convict Cantrell on each of the three offenses, and we reject his claim

that the trial court erred in denying his motion for a directed verdict as to each

of the three counts .

      B. The trial court did not err in denying Cantrell's motion for a
         directed verdict on the count charging him with being a
         persistent felony offender in the second degree.

      Cantrell argues the Commonwealth failed to establish all the elements of

the count charging him with being a persistent felony offender in the second

degree . In particular, Cantrell points out that the Commonwealth failed to

introduce any evidence as to his age at the time the prior felony was

committed. As with any count of an indictment, the Commonwealth has the

burden of proving every element beyond a reasonable doubt. See Adams v.
                                        6
 Commonwealth, 551 S .W .2d 561, 564 (Ky. 1977) ; KRS 500 .070 . In order to

 establish the count for being a persistent felony offender in the second degree,

 the Commonwealth must show Cantrell was over the age of eighteen (18) years

 at the time the first offense was committed, and that he was more than twenty-

one (21) years of age when he was convicted of the current offenses. See KRS

532 .080(2) .

       In this case, the Commonwealth relied on the testimony of Cantrell's

father in order to establish his date of birth. During T.C. Cantrell's testimony,

he indicated Brent Cantrell was born in 1976. Since Cantrell was convicted of

the present charges in 2007, the evidence is clear that he was at least 29 years

of age at the time of the conviction . Likewise, we find no error in the evidence

relied on by the Commonwealth for allowing the jury to infer Cantrell was over

eighteen (18) years of age when he committed the first offense . During the

penalty phase, the Commonwealth introduced Cantrell's prior conviction. No

further evidence was introduced during the PFO phase of the trial . The

Commonwealth points out that, based on the prior conviction and the

testimony of Cantrell's father, the jury had evidence that: (1) Cantrell was born

in 1976 ; (2) his prior offense was for possession of a controlled substance ; (3)

the indictment was returned in 2003 (when Cantrell was 26 or 27 years old) ;

and (4) at the time Cantrell received a one-year sentence after pleading guilty in

2004 (when he was 27 or 28 years old), he had been in custody for 124 days.

      Based on this evidence, the Commonwealth argues the jury could infer

Cantrell's first offense occurred when he was well past the age of eighteen (18)
years. We agree . See Kendricks v. Commonwealth , 557 S.W.2d 417, 419-20

 (Ky. 1977) ("[I]f he had been 18 at the time he committed the first offense, it is

unlikely that any court would wait six years to try a person charged with a

criminal offense." [jury inferring defendant was over eighteen (18) years of age

at the time of his conviction since he pled guilty when he was twenty-four (24)

years of age)) . "An inference is the act performed by the jury of inferring or

reaching a conclusion from facts or premises in a logical manner so as to reach

a conclusion ." Martin v. Commonwealth, 13 S .W.3d 232, 235 (Ky. 1999) . This

Court, in Martin, went on to say:

             A reasonable inference is one in accordance with
             reason or sound thinking and within the bounds of
             common sense without regard to extremes or excess.
             It is a process of reasoning by which a proposition is
             deduced as a logical consequence from other facts
             already proven . Guesswork, on the other hand, is the
             process of making a judgment without adequate
             information, or to conjecture, or to speculate .


      Finding the evidence before the jury sufficient to support the jury's

inference that Cantrell was more then twenty-one (21) years old at the time he

was convicted of the present charges, and that Cantrell was more then eighteen

(18) years old when he committed the first offense, we find no error in the trial

court's denial of Cantrell's motion for a directed verdict as to the persistent

felony offender in the second degree count.

      C.   The trial court did not commit reversible error when it
           allowed the Commonwealth to cross-examine Cantrell's
           girlfriend concerning her prior drug use .
       In order to establish his claim that he no longer lived in the trailer on his

 father's property, Cantrell presented testimony from his girlfriend, Melissa

 Stapleton. During Stapleton's direct examination, she appeared confused and

 offered inconsistent testimony. Initially, Stapleton indicated Cantrell had not

 stayed with her the on night of January 26th .     She later claimed Cantrell had

 stayed that night, and that he had left for work on the morning of the 27th. On

cross-examination, the Commonwealth explored the reason for Stapleton's

inability to recall or relate what had occurred on the night of January 26th and

the morning of January 27th. The Commonwealth got Stapleton to admit that

she "sometimes" had difficulties recollecting ; that in the past she had a

methamphetamine problem; and that her prior drug use "probably has not

helped [her ability to recollect what had occurred] ." Cantrell now claims that

allowing this evidence through cross-examination amounts to reversible error.

This alleged error was not preserved at trial. Therefore, we must look at it

under the palpable error standard .

       Given the totality of the evidence presented by both sides, we find no

error in allowing the Commonwealth to explore an explanation for Stapleton's

confused and inconsistent testimony, and certainly any error which may have

occurred was not palpable. This issue was addressed by the Seventh Circuit

Court of Appeals in United States v. Molica , 185 F.3d 780 (7th Cir. 1999) . In

that case, the court stated : "Evidence of a witness' prior drug use may be

admitted insofar as it relates to his possible inability to recollect and relate ."

Id. at 788 (citation omitted) . Considering the admissibility of such evidence
 under Kentucky Rule of Evidence (KRE) 608, Robert G. Lawson concludes

 evidence of prior drug use "is admissible to cast doubt on [the witness']

 capacity to perceive" as well as the witness' "ability to remember or relate[ .]"

 Kentucky Evidence Law Handbook, § 4 .30(1) (4th ed. 2003) . We, therefore,

affirm on this issue .

       D.   If the trial court erred in denying a continuance to allow
            Cantrell time to arrive on the second day of trial, we conclude
            such error was harmless beyond a reasonable doubt.

       Cantrell argues the trial court abused its discretion and committed

reversible error when it denied his motion for a continuance . At the start of the

second day of trial, Cantrell's attorney informed the court that Cantrell was

experiencing problems with his vehicle and would be late arriving at the

courthouse . The court, after Cantrell's counsel was unable to provide further

details, denied the motion for a continuance and allowed the Commonwealth to

continue with its case . The Commonwealth then called one of the three officers

who initially arrived on the scene . A couple of minutes after the officer's

testimony began, Cantrell entered the courtroom . Cantrell now contends the

court violated both his right to due process and his right to confront witnesses

against him.

      The Kentucky Rules of Criminal Procedure state that a defendant shall

be present at every critical stage of the trial. See RCr 8.28. In determining

whether a stage is critical, "[t]he appropriate question is whether there has

been any interference with the defendant's opportunity for effective cross-

examination." See Kentucky v. Stinger, 482 U .S . 730, 744 n.17 (1987) . The


                                         10
U.S. Supreme Court has indicated that not all constitutional errors

automatically call for a reversal. See Chapman v. California , 386 U .S . 18, 23

(1967) . The Court recognized that "before a federal constitutional error can be

held harmless, the court must be able to declare a belief that it was harmless

beyond a reasonable doubt." Id. at 24 .

      Cantrell's absence occurred at the commencement of the second day of

trial . He arrived within a couple of minutes of the start of the officer's

testimony. Cantrell does not contest the Commonwealth's assertion that

during that time the officer testified as to his current and past employment, the

fact that he was involved in the investigation, and a description of what he

encountered when he initially arrived at the trailer . Nor has Cantrell made any

attempt to demonstrate how he was prejudiced by his absence of only a couple

of minutes. In light of these circumstances, we conclude the error was

harmless beyond a reasonable doubt.

      E. The trial court did not err in allowing the Commonwealth,
         over Cantrell's objection, to make a deterrence argument
         during closing arguments of the penalty phase .

      Cantrell notes that the Commonwealth, over his objection, was allowed to

make a "send a message" argument during closing. Cantrell contends this

argument was improper and highly prejudicial in the penalty phase . The

Commonwealth stated:

            This    is    the    first   case  on   manufacturing
            methamphetamine ever heard in Johnson County.
            You have seen commercials, you have seen the
            advertisements, you know . . . [interrupted by
            Cantrell's objection] . . . you know what meth does to
            communities . You have seen those that are dead,
              those that are dying. Now is the time for you to speak
              with one voice and tell people like Mr. Cantrell, who is
              bringing poison into our community, we don't want
              you . We don't want you near us . I am going to ask
              that you go out and bring back a maximum sentence
              in this matter . . . .

       We take this opportunity to review and clarify this Court's position

regarding closing arguments by the Commonwealth at the penalty phase,

commonly referred to as "send a message ."

        "The true purpose of punishing one for a violation of the laws against

crime is not for the benefit of the person injuried, but to protect the public and

with the view of preventing further crime." Weber v. Commonwealth, 303 Ky.

56, 67, 196   S.W .2d   465, 471 (1946) .     Our U.S . Supreme Court has recognized

deterrence as one of four factors to be considered in imposing a sentence.

Kennedy v. Louisiana,             U.S .      , 128 S . Ct.   2641, 2649 (2008) .   See also

Williams v . People of State of     N.Y. , 337 U.S . 241 (1949) ;    Taggart v. State,   9,57

So .2d 981 (Miss .   2007) ;   State v. Thornton , 800 A.2d 1016 (R.I . 2002) ;

Commonwealth v. McIntyre ,         767    N.E.2d 578 (Mass . 2002); State v. Gertsch , 49

P.3d 392 (Idaho 2002) ; and State v. Abraham, 566 P.2d               267   (Alaska 1977) .6

       The sentencing guidelines set down for federal courts list factors to be

considered in imposing a sentence. These factors include the need for the

sentence imposed to "promote respect for the law" and "afford adequate

deterrence to criminal conduct." 18 U.S .C .A . § 3553(2)(A)(B) .


 6 Appellant relies extensively in his brief on the case of United States v. Solivan , 937
  F.2d 1146 (6th Cir. 1991) . This decision, as well as all other federal cases, offers
  little assistance in our determination . Juries in federal courts decide guilt or
  innocence only, and the penalty is solely set by judges .

                                               12
           Other states have considered and allowed these types of "send a

 message" statements to be heard by the jury . See King v. State ,                 784   So . 2d   884

 (Miss . 2001) ; State v. Fletcher,       555 S .E.2d 534 (N.C .      2001) ; Walker v . State ,

 327 S .E.2d    475 (Ga .   1985) ;    State v. Richards,     896   P.2d 357 (Idaho App. 1995) ;

 People v. Lego , 507 N .E .2d        800 (111. 1987) ;   State v. Giorgi,   397 A.2d 898 (R.I.

 1979) .

       Even before "truth in sentencing" legislation, which bifurcated

Kentucky's criminal prosecutions of felonies, this Court has never adopted a

"blanket condemnation of prosecutorial comment relating to deterrence."

Wallen v. Commonwealth, 657 S .W.2d 232, 234                    (Ky. 1983) .   Prior to the

enactment of KRS       532 .080       in July of 1986, the jury considered guilt or

innocence, as well as the penalty, in one deliberation . We look back over

almost a century of cases where comment on the deterrent effect of a sentence

has been held proper. These include pre-1986 cases where guilt and penalty

were decided by the jury during the same deliberation . See Damron v.

Commonwealth , 687 S .W.2d 138, 140 (Ky. 1985) (approving an argument by

the Commonwealth asking the jury to severely punish the defendant in order to

send a message to the jails and prisons as to the consequences of escape,

thereby deterring future escapes), Caise v. Commonwealth, 610 S .W.2d 605,

607 (Ky. 1980) (did not constitute error for prosecutor to comment during

closing argument about what person can look forward to by committing

robbery in Fayette County) ; Carter v. Commonwealth , 278 Ky. 14, 128 S.W.2d

214, 218 (1939) (reversal not required because of statements of county


                                                  13
attorney, in closing argument in murder prosecution, to effect that if jury

acquitted defendant it would be useless to try anyone for any crime in county,

that defendant's good reputation had no bearing on case, and that jury could

not release defendant without paying more attention to mob law than to the

law and evidence); Wallen, 657 S .W .2d at 234 (remark of prosecutor in closing

argument that one way to stop useless killings was for everyone to do their jobs

and see that defendant paid penalty for what he had done was within bounds

of propriety as prosecutorial comment related to deterrence) ; Sarver v.

Commonwealth , 425 S .W.2d 565, 566 (Ky. 1968) (It was within the scope of

proper argument and did not require admonition to jury for prosecutor to state

in closing argument: "As you sleep there is little to protect your property except

the law which is the jury and these good officers whose only interest is in

protecting your property. They have done their part. It is now up to you.") ;

Shepherd v. Commonwealth , 236 Ky. 290, 33 S.W .2d 4, 6 (1930) (In homicide

prosecution, prosecutor's argument to "convict this man and Butler County will

go off the head lines" was held neither improper nor prejudicial.) ; Williams v .

Commonwealth , 153 Ky. 710, 156 S .W. 372, 375 (1913) (While accused's guilt

or innocence must be determined from the facts of the case, and he cannot be

affected by the prevalence of crime, it is within the limits of legitimate

argument to insist upon the jury doing its duty for the purpose of preventing

bloodshed and crime .) . These cases illustrate that so long as the jury is well

aware that it is sentencing the particular defendant before it - with his or her

good points and bad - on the crime for which he or she has been convicted,


                                         14
 there is no prejudice in the prosecutor commenting on the deterrent effect of

 that sentence.

       In Young v. Commonwealth , 25 S .W.3d 66 (Ky. 2000), a post "truth in

 sentencing law" case very similar to this one, we held defendant suffered no

"manifest injustice" as the result of prosecution's sentencing phase closing

argument during which he asked the jury to send a message to the

methamphetamine dealers in 1Vluhlenberg County. We noted that the

prosecutor's statements were "responsive to defense counsel's contention that

the jury should recommend the minimum sentence," and that the "full text of

the Commonwealth's sentencing phase closing argument clarified the `send a

message to drug dealers' rhetoric and made it clear that the Commonwealth

wanted the jury to know that [defendant's] methamphetamine manufacturing

placed him in the drug trafficking stream of commerce." Id. at 75 . While

Young deals with palpable error, rather than preserved error, it is essentially

illogical, at the sentencing phase, to say that the prosecutor cannot encourage

the jury to impose a sentence that speaks to deterrence, as well as punishes

the specific crime before it. Deterrence is clearly not intended for that

defendant alone, but rather his sentence sends the message to all others so

inclined that their crimes will be punished, and that a jury made up of local

citizens will not tolerate such offenses. This is a significant part of the benefit

of public trials . We continue, however, to disapprove of this argument at the

guilt stage. And even at the penalty phase, the "send a message" argument

shall be channeled down the narrow avenue of deterrence . Any effort by the


                                         15
 prosecutor in his closing argument to shame jurors or attempt to put

community pressure on jurors' decisions is strictly prohibited . Prosecutors

may not argue that a lighter sentence will "send a message" to the community

which will hold the jurors accountable or in a bad light . The penalty argument

in this case directed at the potential meth pushers in Johnson County was not

error.

         F.   The trial court did not err in allowing introduction of
              misdemeanor convictions in same proceeding as PF4 phase.

         KRS 532 .055 provides for bifurcated criminal trials for felony trials . It

specifically states that the penalty and persistent felony determination shall be

combined into the same procedure . KRS 532.055(3) . There was nothing

improper in this case for the jury to hear evidence of the felonies before

imposing the punishment for the misdemeanor. "[T]he same evidence that is

pertinent toward fixing the penalty is also pertinent for consideration in the

enhancement of sentence . . . ." Commonwealth v. Reneer, 734 S.W.2d 794,

798 (Ky. 1987) . The case cited by Appellant, Commonwealth v. Philpott, 75

S .W.3d 209 (Ky. 2002), is not controlling. That case prohibited the setting of

penalty on a lesser included misdemeanor during the deliberation on guilt or

innocence. Id. at 213. The unpreserved claim of error here is without merit.

         For all of the foregoing reasons, we affirm the judgment of the Johnson

Circuit Court.

     All sitting. All concur.
COUNSEL FOR APPELLANT:

Shannon Renee Dupree
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601


COUNSEL FOR APPELLEE :

Jack Conway
Attorney General

Jeffrey Allan Cross
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
