MICHAEL EUGENE WIX v. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 12, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001670-MR
MICHAEL EUGENE WIX
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 1998-CR-00032
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, AND KNOPF, JUDGES.
KNOPF, JUDGE:
A jury found Michael Eugene Wix guilty of
promoting contraband in the first degree, as prohibited by KRS
520.050, and further determined that he should be sentenced as a
first-degree persistent felony offender, pursuant to KRS 532.080.
Wix appeals from the July 1, 1998, judgment of the Daviess
Circuit Court ratifying that verdict and sentencing him
accordingly to ten (10) years in prison.
Wix contends that the
trial court erred during both the guilt and sentencing phases of
his trial by not granting his motions for directed verdicts.
are persuaded, however, that the Commonwealth’s evidence, as
We
viewed both before and after Wix’s defenses, justified the
court’s denial of those motions.
In January 1998, Wix resided at the Harold N. Taylor
Restricted Custody Facility in Daviess County, Kentucky, where he
was serving concurrent sentences for theft and possession of a
controlled substance.
Beginning at approximately 8:30 p.m.
January 5, 1998, Deputy Kenneth Vanover conducted a search of
Wix’s sleeping area.
The inmates at the Restricted Custody
Facility are not confined to cells.
They live in dorm complexes,
which include small cubicles for each inmate.
Each cubicle
contains a bed and a clothes cupboard and is separated from
neighboring cubicles and the hallway by low partitions.
Deputy
Vanover first had to waken Wix, who, upon being roused, put on a
pair of pants that he had left draped across the partition
between his cubicle and the next.
When Wix had dressed, Deputy
Vanover began his search by “patting Wix down.”
In the front
pocket of the pants Wix had just put on, Deputy Vanover found a
plastic bag containing what proved to be a small amount (1.2
grams) of marijuana.
He also discovered, in Wix’s clothes
cupboard, a packet of cigarette rolling papers.
On the basis of
these discoveries, Wix was indicted for promoting contraband.
At
trial he conceded that the small bag of marijuana had been in the
pocket of his pants, but he denied having put it there or having
known about it.
He explained that he possessed rolling papers
because he rolled his own tobacco cigarettes, those being less
expensive than the factory-rolled kind, and he asserted, although
without providing much detail, that another inmate in the dorm
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may have borne a sufficient grudge against him following a
confrontation over an attempted theft to plant the incriminating
evidence.
At the end of the Commonwealth’s case, Wix moved for a
directed verdict.
He maintained that the Commonwealth had failed
to prove that he had “knowingly” possessed the marijuana.
Anyone
could have put it in his pants’ pocket, he insisted, given the
inmates’ freedom of movement throughout the dorm and the fact
that he had left his pants lying out.
The court ruled, however,
that while these considerations raised some doubt concerning
Wix’s guilt, the Commonwealth had introduced sufficient evidence
to justify submitting the question to the jury.
We agree.
As the parties both note, it is now a well established
rule in Kentucky that the denial of a motion for a directed
verdict is to be affirmed on appeal unless the appellate court
determines that, considering the Commonwealth’s competent
evidence in the light most favorable to the Commonwealth, a
guilty verdict was patently unreasonable.
Commonwealth v.
Benham, Ky., 816 S.W.2d 186 (1991); Commonwealth v. Sawhill, Ky.,
660 S.W.2d 3 (1983).
The verdict here survives this review.
KRS 520.050, the statute Wix was accused of having
violated, provides as follows:
(1) A person is guilty of promoting
contraband in the first degree when:
(a) He knowingly introduces dangerous
contraband into a detention facility or a
penitentiary; or
(b) Being a person confined in a detention
facility or a penitentiary, he knowingly
makes, obtains, or possesses dangerous
contraband.
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(2) Promoting contraband in the first degree
is a Class D felony.
Wix does not dispute that the Harold N. Taylor Restricted Custody
Facility is a detention facility.
Marijuana, furthermore, in any
amount, is dangerous contraband under this statute.
Commonwealth, Ky. App., 769 S.W.2d 73 (1989).
Koonce v.
Thus, the
Commonwealth conclusively established that Wix possessed
dangerous contraband within a detention facility.
The only
doubtful element of the offense was whether Wix’s possession was
knowing.
That state of mind, or mens rea, is defined in KRS
501.020(2):
A person acts knowingly with respect to
conduct or to a circumstance described by a
statute defining an offense when he is aware
that his conduct is of that nature or that
the circumstance exists.
Was Wix aware of the marijuana in his pants pocket?
In
insisting that the Commonwealth failed to prove that he was, Wix
correctly notes that there was only circumstantial evidence of
his state of mind.
A defendant’s mental state, however, may be
proved by such means.
Chumbler v. Commonwealth, Ky., 905 S.W.2d
488 (1995); Williams v. Wilson, Ky., 972 S.W.2d 260 (1998)
(dissenting opinion by Justice Cooper).
The question, as noted
above, is whether no jury could reasonably conclude from the
Commonwealth’s evidence, circumstantial as it was, that Wix knew
he had marijuana in his pocket.
an inference was unreasonable.
We are not persuaded that such
In the vast majority of
instances, after all, whatever is in one’s pocket one put there
oneself.
Indeed, possession or control of the area or container
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where a controlled substance is found permits an inference of
possession of the controlled substance.
Ky., 975 S.W.2d 925 (1996).
Houston v. Commonwealth,
Exclusive possession or control of
the area or container permits an inference of knowing possession
of the contraband.
United States v. Lazcano-Villalobos, 175 F.3d
838 (10th Cir. 1999).
While “Exclusive possession” is not a
precise concept, here no one but Wix had a right to or was
accustomed to access to his pants.
The trial court did not err,
therefore, by deciding that Wix’s possession of the pants was
sufficiently exclusive to permit the jury to infer his knowledge
of the marijuana from its presence therein.
Nor did the trial court err by again denying Wix’s
directed-verdict motion following the presentation of his
defense.
Rarely will a defense be so compelling as to overcome,
as a matter of law, a prima facie case by the Commonwealth.
West
v. Commonwealth, Ky., 780 S.W.2d 600 (1989); Holbrook v.
Commonwealth, Ky. App., 925 S.W.2d 191 (1995).
This would seem
to be especially true where the defendant relies, not on an
affirmative defense, but, as did Wix, on discrediting the
prosecution.
Although his testimony denying knowledge of the
marijuana, if believed, might have warranted an acquittal, it was
not so conclusive that the trial court erred by subjecting it to
jury deliberation.
(1972);
Rayburn v. Commonwealth, Ky., 476 S.W.2d 187
Owsley v. Commonwealth, Ky. App., 743 S.W.2d 408
(1987).
Recognizing that this might be our response to his
appeal concerning the denial of his directed-verdict motions, Wix
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further contends that the jury verdict itself should be reviewed
under a different standard.
This Court may and should overrule
the jury, we are told, if its verdict was against the manifest
weight of the evidence, and we should make this determination
without deference to the Commonwealth.
Ordinarily, of course, the fact finder, the jury in
this case, is given exclusive discretion to weigh the evidence
and to judge the credibility of witnesses.
Benham and Sawhill,
supra; Partin v. Commonwealth, Ky., 918 S.W.2d 219 (1996).
Wix
insists, however, that there is an exception to this rule whereby
an appellate court is authorized to “re-weigh” the evidence so as
to prevent a “serious miscarriage of justice.”
He relies for
this proposition upon Tibbs v. Florida1, a death penalty case,
wherein the United States Supreme Court upheld the Florida
Supreme Court’s determination that its reversal of a conviction
for murder and rape on weight-of-the-evidence grounds, as opposed
to insufficiency grounds, did not create a double-jeopardy bar to
a new trial.
We need not address the question Wix raises concerning
the scope of our authority to review a jury’s fact finding, for
even if we may, in exceptional circumstances, overrule a verdict
for which sufficient evidence was introduced,2 we are not
persuaded that this case would warrant such exceptional relief.
1
457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982).
2
See Stone v. Commonwealth, Ky., 456 S.W.2d 43 (1970), and
Carmicle v. Commonwealth, Ky., 452 S.W.2d 378 (1970). In both
cases the evidence was found on appeal to have contradicted the
jury’s verdict.
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The circumstances of this case do not suggest that the jury’s
decision was influenced by clear error, passion, or prejudice.
Nor did Wix present such compelling evidence of someone else’s
having put the marijuana in his pocket as to make the jury’s
verdict difficult to understand.
A different jury may have
decided differently, but Wix was afforded a fair opportunity to
present his case to this jury, and, beyond assuring that
fairness, it is not the function of this Court to second guess
the outcome of the trial process.
Partin v. Commonwealth, supra.
Wix also maintains that he was entitled to a directed
verdict regarding his sentencing status following the penalty
phase of his trial.
To prove that Wix should be sentenced as a
first-degree persistent felony offender (PFO), the Commonwealth
presented properly authenticated records from Summer County,
Tennessee, and Simpson County, Kentucky.
Those records indicated
that a Michael E. (or Eugene) Wix had been convicted of three
felonies.
The felonies were committed after Wix, the appellant,
had turned eighteen, and he had committed the contraband offense
while under sentence, apparently, for at least one of them.
The
Commonwealth also presented testimony by a probation officer to
the effect that the records in question had come from the
defendant’s file and had long been supposed by the Commonwealth
to refer to the defendant.
On cross-examination, Wix established that these
records did not include the defendant’s social security number or
birth date.
He thereupon moved for a directed verdict on the
ground that the records and other proof did not sufficiently
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establish his identity as the person who had previously been
convicted.
The trial court denied the motion.
It ruled that the
conviction records bearing Wix’s name and the probation officer’s
testimony linking those records to Wix was sufficient evidence to
raise a jury question concerning Wix’s sentencing status.
We
agree.
Wix correctly notes that circumstantial evidence, at
least evidence requiring inferences less reliable than simple
arithmetic calculations, is not sufficient to establish the
fundamental elements of PFO status.
670 S.W.2d 851 (1984).
Hon v. Commonwealth, Ky.,
Because the court records introduced at
trial did not include his social security number or birth date,
Wix characterizes them as providing only circumstantial evidence
of his criminal record.
We disagree.
facie evidence of identity.
A name is direct prima
Jones v. Commonwealth, Ky., 457
S.W.2d 214 (1970); Braden v. Commonwealth, Ky. App., 600 S.W.2d
466 (1978).
The prior-conviction records bearing Wix’s name were
sufficient evidence of his criminal record to place the burden on
Wix of disproving that they applied to him.
He proffered no such
proof.
In sum, although we can sympathize with Wix, whose
criminal record has made him subject to a severe sanction for
what may seem a minor offense, we are not persuaded that he is
entitled to relief from either his conviction for promoting
dangerous contraband or his sentence of ten (10) years in prison.
The Commonwealth presented sufficient evidence to support both
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results, and the jury’s conclusions have not been shown to be
tainted by any errors, procedural or substantive.
For these reasons, we affirm the July 1, 1998, judgment
of Daviess Circuit Court.
COMBS, JUDGE, CONCURS.
HUDDLESTON, JUDGE, CONCURS SEPARATELY.
HUDDLESTON, JUDGE, CONCURRING.
While I concur in the
Court’s legally correct opinion, I write separately to express my
dismay at the excessive sentence meted out to the defendant for
such a minor offense.
The sentence is not only unfair to the
defendant, it is unfair to the people of this Commonwealth.
We have been told in numerous studies that it costs from
$30,000.00 to $50,000.00 per year to incarcerate an individual
convicted of a crime. Should the Commonwealth spend $300,000.00 to
half a million dollars to imprison a defendant for ten years for
possessing 1.2 grams (0.042 ounces) of marijuana?
I think not.
In my view, the Commonwealth seriously overcharged in
this case.
Unfortunately, there is nothing we can do to correct
this injustice.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul J. Neel Jr.
Appellate Public Advocate
Louisville, Kentucky
A.B. Chandler III
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
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