GERALD MINTER v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 3, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-002153-MR
GERALD MINTER
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 96-CR-00087
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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EMBERTON, HUDDLESTON, and JOHNSON, Judges.
JOHNSON, JUDGE: Gerald Norman Minter (Minter) appeals from a final
judgment and sentence of imprisonment entered on July 22, 1996, in
the McCracken Circuit Court that sentenced Minter to ten years in
prison for trafficking in a controlled substance in the first
degree (cocaine) in violation of Kentucky Revised Statutes (KRS)
218A.1404 and ten years in prison in lieu of the trafficking
sentence for being a persistent felony offender in the first degree
(PFO I) pursuant to KRS 532.080.
Minter argues that the trial
court erred in denying his motion for a directed verdict because
there was insufficient evidence to warrant a conviction.
affirm.
We
Minter was indicted on March 5, 1996, for allegedly
selling crack cocaine to an undercover narcotics officer on the
night of June 30, 1995.
A jury trial was held on June 11, 1996.
Deputy Carey Batts (Deputy Batts) of the Ballard County Sheriff's
Department and a member of Western Area Narcotics Team (WANT)
testified that he and an informant set up a cocaine purchase at the
Lincoln Court housing project in Paducah. The informant had spoken
to Minter and had arranged for Deputy Batts to purchase crack
cocaine from him.
Deputy Batts and the informant arrived at the
housing project at 10:23 p.m.
Both Deputy Batts and the informant
wore transmitters that were monitored by other officers in nearby
vehicles.1
Deputy Batts testified that Minter asked him what he
wanted and he responded that he wanted “one of the twenty-dollar
pieces of crack cocaine.”
Deputy Batts testified that he gave
Minter a marked twenty-dollar bill, and that Minter then left.
Deputy Batts stated that in approximately five minutes Minter
returned and gave him a piece of crack cocaine in a small piece of
blue plastic.
Deputy Batts stated that he asked Minter if the
cocaine was real and Minter suggested that Deputy Batts could take
a little piece off to test if he was not convinced it was cocaine.
Deputy Batts testified that he told Minter that he believed that it
was cocaine.
Deputy Batts and the informant returned to one of the
undercover vehicles.
The cocaine was placed in custody, and later
tested by the Kentucky State Police Lab. Those tests revealed that
the substance was cocaine.
1
The audio tape of the transaction was played to the jury.
Some parts could be understood and some could not.
-2-
During the drug buy, Deputy Batts apparently did not
discover the name of the black male who sold him the cocaine.
Officer Bruce Douglas (Officer Douglas) of the Paducah Police
Department, also working with the drug task force, testified that
he returned to Lincoln Court that evening to photograph Minter and
several other black males in that area.
Officer Douglas testified
that he identified himself to Minter as a police officer, that he
told
Minter
consented.
he
wanted
to
take
his
picture,
and
that
Minter
The next day Officer Douglas placed these photographs
in a twelve photograph line-up and Deputy Batts identified Minter
from the line-up. Minter was not indicted until nine months later.
Captain Bill Gordon (Captain Gordon) of the Paducah
Police Department, who served as commander of the enforcement
officer personnel assigned to the WANT task force, also testified.
He testified that after Minter was arrested, he and Officer Douglas
interviewed Minter.
Captain Gordon testified that Minter denied
selling the cocaine but admitted that the police took his picture.
Minter maintained during that interview that he was at work on the
night of June 30, 1995. Captain Gordon testified that a subsequent
investigation of Minter's employer's records revealed he was not at
work on either June 30 or July 1, 1995.2
When asked about the
nine-month delay in arresting Minter, Captain Gordon explained that
it is a common practice among drug enforcement officers to work the
informants and undercover officers as long as possible and then do
2
A payroll manager from Minter's place of employment brought
Minter's timecard to court and testified that the card had no time
stamped on those dates.
-3-
a "small roundup" several months later and that this was done in
Minter's case.
Minter did not present any evidence in his defense.
Following the denial of Minter's motions for a directed verdict
based on insufficiency of the evidence, the case went to the jury
and Minter was convicted.
This appeal followed.
We address Minter's argument that the trial court erred
in denying his motions for a directed verdict.
"The standard for
appellate review of a denial of a motion for directed verdict based
on insufficient evidence is that if under the evidence as a whole,
it would not be clearly unreasonable for a jury to find the
defendant guilty, he is not entitled to a directed verdict of
acquittal."
Yarnell v. Commonwealth, Ky., 833 S.W.2d 834, 836
(1992), citing Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991).
[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements
of the crime beyond a reasonable doubt. . . .
This familiar standard gives full play to the
responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Commonwealth of Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781,
2789,
61
L.Ed.2d
560,
573
(1979)
(emphasis
original).
Jackson went on to state that a reviewing court "faced with a
record of historical facts that supports conflicting inferences
must presume--even if it does not affirmatively appear in the
record--that the trier of fact resolved any such conflicts in favor
of the prosecution, and must defer to that resolution."
U.S. at 326.
Id., 443
A claim of insufficient evidence must be evaluated in
-4-
light of all the evidence introduced at trial, including any
evidence the defense presented.
KRS 218A.1404(1) provides:
"No person shall traffic in
any controlled substance except as authorized by law."
Under the
definitional section of Chapter 218A, Section .010(3) states that
a "'controlled substance' means a drug, substance, or immediate
precursor in Schedules I through V . . . ." and pursuant to KRS
218A.070(d), crack cocaine is a Schedule II controlled substance.
Furthermore, Section .010(24) defines traffic as "to manufacture,
distribute, dispense, sell, transfer, or possess . . . a controlled
substance."
While Deputy Batts testified that Minter sold crack
cocaine to him, Minter claims that Deputy Batts did not properly
identify him.
He argues that he was unknown to Deputy Batts at the
time of the alleged transaction, that the buy took place late at
night and lasted only a few minutes, and that the photo lineup was
prepared by Officer Douglas to “bolster [Deputy Batts'] identification of Minter.”
We believe that these arguments go to the weight
and credibility given to the evidence rather than the sufficiency
of the evidence.
"[T]he weight of evidence and the credibility of
the witnesses are functions peculiarly within the province of the
jury, and the jury's determination will not be disturbed."
Partin
v. Commonwealth, Ky., 918 S.W.2d 219, 221 (1996), citing Jillson v.
Commonwealth, Ky., 461 S.W.2d 542, 544 (1970).
The jury heard the
evidence concerning the identification of Minter and, within its
sound judgment, it decided what weight to assign that evidence and
what credibility to give to the witnesses.
-5-
Taken in the light most
favorable
to
the
prosecution,
there
was
sufficient
evidence
presented by the Commonwealth for a reasonable jury to conclude
that the Commonwealth met its burden of proving each of the
elements of the crime.
Minter also argues that the nine-month delay between the
incident and the indictment and arrest is crucial. However, Minter
failed to explain how this argument impacts the insufficiency of
the evidence argument.
At any rate, this delay was explained by
police officers at trial and was just another factor to be weighed
by the jury.
Viewing the evidence introduced at Minter's trial as a
whole, we hold that a reasonable jury could find Minter guilty of
trafficking in a controlled substance (cocaine) in the first
degree.
We affirm the judgment of the McCracken Circuit Court.
ALL CONCUR.
BRIEF
FOR
APPELLANT:
BRIEF FOR APPELLEE:
Hon. Kim Brooks
Covington, KY
Hon. A. B. Chandler, III
Attorney General
Hon. Michael L. Harned
Assistant Attorney General
Frankfort KY
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