JAMES WHEELER III V. COMMONWEALTH OF KENTUCKY
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RENDERED:
April 10, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-2952-MR
JAMES WHEELER III
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES E. KELLER, JUDGE
ACTION NO. 96-CR-0766
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
BUCKINGHAM, COMBS and GARDNER, Judges.
GARDNER, JUDGE:
James Wheeler (Wheeler) brings this direct appeal
of the final judgment and sentence entered by the Fayette Circuit
Court on October 22, 1996, sentencing him to ten years in prison on
the felony charges of trafficking in a controlled substance in the
first degree, Kentucky Revised Statute (KRS) 218A.1412, and being
a persistent felony offender in the first degree (PFO I), following
a jury verdict. After reviewing the record and the applicable law,
we affirm.
On June 18, 1996, Danny Farris (Farris) was driving a
truck in the Bluegrass-Aspendale section of Lexington in connection
with his employment.
On two or three occasions, a young black male
approached Farris while he was stopped on the side of the street.
Farris noticed that the young man was holding a small plastic
baggie containing what appeared to be cocaine. The young man asked
Farris if he wanted something, and then informed Farris that he had
it if Farris needed it. Farris later spotted Sergeant Mark Simmons
(Simmons), a Lexington Police Officer, patrolling the area. Farris
told Simmons that a light-skinned black male, who was wearing long,
white
baggy
shorts
and
a
tee
attempted to sell him cocaine.
shirt,
had
approached
him
and
Farris also mentioned that the
suspect appeared to have recently had a haircut because hair
clippings were visible on the tee shirt.
After speaking with Farris, Simmons returned to the
police station to obtain assistance in searching for the suspect.
Lieutenant Steven Stanley (Stanley) returned with Simmons to the
area. Officer Ed Hart (Hart), who was already in the area, also
aided in the search.
a
person
fitting
While riding in the police car, Stanley saw
the
description
recognized the suspect as Wheeler.
of
because
he
started
walking
suspect.
Simmons
The two officers exited their
police vehicle and approached Wheeler.
them
the
in
Wheeler apparently noticed
the
opposite
direction.
Subsequently, Wheeler started running around a building.
and Stanley chased him.
Simmons
They split up to go around the building;
Stanley followed Wheeler and Simmons circled around the other side.
Stanley watched Wheeler disappear into a grove of bushes near the
back of the housing building.
Once Simmons arrived from the other
side of the building, the officers located Wheeler and arrested
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him. They searched Wheeler and the area immediately around him but
found no drugs.
As they widened the search, Simmons observed a
plastic baggie on a back porch a few feet from the bushes.
The top
portion of the plastic baggie was still untwisting and it contained
numerous small white objects later identified as crack cocaine. In
the meantime, Hart had arrived at the scene, and he secured the
plastic baggie with its contents for evidence.
On
August
12,
1996,
the
Fayette
County
Grand
Jury
indicted Wheeler on one felony count of first-degree trafficking in
a controlled substance (cocaine) and one count of being a firstdegree persistent felony offender.
23, 1996.
offense.
Wheeler was tried on September
The jury returned a guilty verdict on the trafficking
Wheeler waived jury sentencing and pleaded guilty to the
PFO I count. The Commonwealth recommended a sentence of five years
for trafficking in a controlled substance enhanced to ten years
under the PFO I offense.
On October 22, 1996, the trial court
entered a final judgment sentencing Wheeler to serve a total of ten
years in prison on the two offenses.
This appeal followed.
Wheeler contends the trial court erred by denying his
motions for a directed verdict at the close of the Commonwealth's
evidence and at the close of the defendant's case1.
1
Wheeler
We note that Wheeler presented evidence and testified
himself following denial of his motion for directed verdict at
the close of the Commonwealth's case. Consequently, he assumed
the risk that his evidence would fill in any deficiency in the
prosecution's case for purposes of a directed verdict motion, and
he forfeited any claim of error by the trial court's denial of
the initial motion for directed verdict. Cutrer v. Commonwealth,
Ky. App., 697 S.W.2d 156, 159 (1985); Heflin v. Commonwealth, Ky.
App., 689 S.W.2d 621, 622 (1985). Therefore, we will consider
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identifies three areas where he alleges there was insufficient
evidence to support the conviction:
(1) the identification of
Wheeler as the individual who approached Farris; (2) the connection
between Wheeler and the cocaine found on the porch; and (3) the
intent to traffick in cocaine, as opposed to mere possession.
In Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991),
the Kentucky Supreme Court reiterated the standard for handling a
motion for directed verdict.
It stated:
On motion for directed verdict, the trial court must draw all fair
and reasonable inferences from the evidence in favor of the
Commonwealth. If the evidence is sufficient to induce a reasonable
juror to believe beyond a reasonable doubt that the defendant is
guilty, a directed verdict should not be given. For the purpose of
ruling on the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserving to the jury questions
as to credibility and weight to be given to such testimony.
Id., at 187.
See also Commonwealth v. Sawhill, Ky., 660 S.W.2d 3
(1983). In addition, the standard for appellate review of a denial
of a motion for directed verdict based on insufficient evidence
dictates 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.
Benham, 816
S.W.2d at 187; Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 160
(1996) cert. denied, ___ U.S. ___, 117 S. Ct. 151, 136 L. Ed. 2d 96
(1996).
Moreover,
a
conviction
may
properly
be
based
on
circumstantial evidence when that evidence is of such character
that reasonable minds would be justified in concluding that the
defendant
was
guilty
beyond
a
reasonable
doubt.
Baker
v.
the entire trial evidence in reviewing the trial court's denial
of a directed verdict.
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Commonwealth, Ky., 860 S.W.2d 760 (1993); Bussell v. Commonwealth,
Ky., 882 S.W.2d 111, 114 (1994) cert. denied, 513 U.S. 1174, 115 S.
Ct. 1154, 130 L. Ed. 2d 1111 (1994)(circumstantial evidence is
sufficient to support a criminal conviction as long as the evidence
taken as a whole shows that it was not clearly unreasonable for the
jury to find guilt.)
Wheeler first challenges the evidence identifying him as
the person who approached Farris.
However, Farris positively
identified Wheeler at trial as the individual who approached him
two or three times offering to provide drugs.
Simmons testified
that after giving Wheeler the Miranda warning, Wheeler asked the
officer how they found him.
Simmons told Wheeler that he had
received information from a citizen that appellant had crack
cocaine. Simmons testified that Wheeler said, "The man in the repo
truck was the only one who" and then stopped talking.
employed
by
a
discount
rental
company
and
retrieving rental items for lack of payment.
his
Farris was
job
included
Finally, Wheeler
exactly fit the description of the suspect given to the police by
Farris, including the unusual fact that he had hair clippings on
his tee shirt from a recent haircut.
Wheeler stated at trial that
he had just had a haircut the day of the incident.
The direct
eyewitness and circumstantial evidence clearly pointed to Wheeler
as the individual who approached Farris.
Wheeler's second argument involves the connection between
him and the crack cocaine.
Wheeler asserts that the police
officers admitted not seeing him throw or drop the cocaine, that no
-5-
fingerprints were found on the plastic baggie and that Officer Hart
could not recall seeing the baggie untwisting.
The Commonwealth,
however, presented evidence that the plastic baggie was found only
a few feet from the bushes where Wheeler was hiding.
All of the
police officers and Wheeler himself testified that there was no
other person in the immediate vicinity when the cocaine was found.
The door and windows near the porch were closed.
Simmons and
Stanley stated the plastic baggie was still unfolding when they saw
it on the porch, indicating it had been placed there recently.
Simmons stated that it was very unusual to obtain fingerprints from
a plastic bag because of the nature of the surface.
Farris
testified that he saw Wheeler holding a plastic baggie with cocaine
as appellant approached him. There was sufficient evidence linking
Wheeler to the plastic baggie containing the cocaine retrieved by
the police.
Wheeler's final complaint concerns the sufficiency of the
evidence to prove trafficking, as opposed to possession of cocaine.
Wheeler points to the lack of money or a beeper found on his
person.
He contends the amount of the cocaine, 1.6 grams, is
consistent with possession for personal use. Simmons, who had five
years' experience in drug enforcement with over 100 drug arrests,
testified that the plastic baggie containing the rocks of crack
cocaine was consistent with the common method of packaging for
street drug sellers or dealers.
The officer indicated that the
plastic baggie contained numerous portions of crack cocaine, which
typically sold for $20 a piece, and the amount in the baggie
-6-
exceeded that consistent with personal use.
The testimony of
police with drug enforcement experience is admissible as expert
opinion on whether the appellant had drugs in his possession for
sale and not personal use.
Sargent v. Commonwealth, Ky., 813
S.W.2d 801, 802 (1991), (citing Kroth v. Commonwealth, Ky., 737
S.W.2d 680 (1987)). In addition, Farris testified that he believed
Wheeler was attempting to sell him cocaine when Wheeler told him he
had something if he needed it at the same time Farris observed
Wheeler
holding
cocaine.
the
plastic
baggie
containing
the
suspected
Wheeler's attempt to elude the police by fleeing also is
evidence of a sense of guilt.
See Chumbler v. Commonwealth, Ky.,
905 S.W.2d 488, 496 (1995); Bush v. Commonwealth, Ky. App., 726
S.W.2d 716, 717 (1987) (noting that flight and evading arrest are
evidence of consciousness of guilt).
In conclusion, the arguments raised by Wheeler generally
involve disputed factual issues rather than a lack or absence of
evidence.
The appellate court does not reevaluate the evidence or
substitute its judgment as to credibility of the witnesses for that
of the trial court or the jury.
880 S.W.2d 544, 545 (1994).
See Commonwealth v. Jones, Ky.,
The decision on whether to believe the
defendant's or prosecutions's story of the case is an issue for the
jury.
See Webb v. Commonwealth, Ky., 904 S.W.2d 226, 229 (1995).
Viewing the evidence as a whole and in the light most favorable to
the Commonwealth, we find that there was sufficient evidence for a
reasonable juror to believe that Wheeler was guilty of trafficking
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in cocaine.
Accordingly, the trial court did not err in denying
Wheeler's motions for directed verdict.
For the foregoing reasons, we affirm the judgment of the
Fayette Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Herbert T. West
Lexington, Kentucky
A. B. Chandler III
Attorney General
Michael Harned
Asst. Attorney General
Frankfort, Kentucky
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