BILLY RAY DEHART v. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 9, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-002100-MR
BILLY RAY DEHART
v.
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE, III, JUDGE
ACTION NO. 04-CR-00348
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; WINE, JUDGE; PAISLEY,1 SENIOR JUDGE.
WINE, JUDGE: Billy Ray Dehart2 appeals a judgment following a jury trial in the Perry
Circuit Court convicting him of cultivating marijuana. He primarily argues that the trial
court improperly reversed a pre-trial ruling during trial and allowed introduction of
1
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice pursuant to
Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
2
The record in this case reveals a discrepancy regarding the spelling of appellant’s last name. While
some pleadings use “DeHart,” others use “Dehart.” However, the documents containing appellant’s
signature show he signs his name “Dehart” and that spelling will be used in this Opinion.
packaged marijuana found in a wooden box on Dehart’s four-wheeler at the time of his
arrest. He further claims that he was entitled to a directed verdict due to the insufficiency
of the evidence and to a new trial based upon persistent errors in the conduct of the trial.
We agree in part and reverse the trial court based on the following reasons.
On August 29, 2003, acting on a reliable tip that marijuana was growing on
the property, police officers from multiple agencies drove to Bee Hive, Kentucky. Upon
arriving, they came upon at least one parked vehicle in the roadway and several
individuals standing around. Lt. Napier witnessed Tim Halcomb leaning into the vehicle
and holding out what appeared to be a plastic baggie containing marijuana. Halcomb and
the others ran when the officers approached. Detective Hurt chased and caught up to
Halcomb in a chicken coop located a few feet from the road.
Detective Smoot witnessed Dehart sitting on his four-wheeler on the road
next to the chicken coop. As the officers approached, Dehart immediately slammed the
lid to a wooden box that was attached to the front of his four-wheeler. Detective Smoot
searched the box and found several pills as well as four rolled-up sandwich baggies, each
containing several grams of marijuana.
Three to five feet behind the chicken coop, the officers observed eight
maturing, tended marijuana plants growing in a cultivated patch. The officers also noted
a wide path that ran behind the coop through a creek and leading to Dehart’s double-wide
trailer. Detective Hurt obtained permission from Dehart to search his residence but no
evidence was seized there.
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At the scene, Dehart denied knowing who owned the chicken coop. But at
trial, he presented two witnesses who testified that a homeless man named Carter Couch
lived in the chicken coop in the summer of 2003. Bobby and Sandra Mize owned the
property where the chicken coop is located and they lived about three hundred feet away.
Bobby testified at trial that he gave Dehart permission to build the chicken coop and that
Dehart and friends had built onto the structure many times.
Initially, Dehart was indicted for possession of a controlled substance in the
first degree, possession of a controlled substance in the third degree, and possession of
marijuana as a result of marijuana and pills seized from the wooden box on his fourwheeler. These charges were contained in Indictment 04-CR-0200. Dehart pled guilty to
those charges and was sentenced on April 7, 2005. Although a copy of this indictment
was not provided by either party, it is referred to several times in pleadings filed with the
trial court for Indictment 04-CR-0348. On or about November 18, 2004, Dehart was
indicted by the Perry Circuit Court Grand Jury and charged with cultivating marijuana
(over 5 plants) and persistent felony offender in the first degree (PFO I) under Indictment
04-CR-00348.
On April 21, 2005, the Commonwealth filed notice pursuant to KRE 404(c)
of its intention to introduce evidence of the circumstances surrounding the charges in
Indictment 04-CR-0200.
The charges of cultivating marijuana over five plants and PFO I were set
for a status hearing on June 13, 2005, at which time Dehart’s counsel moved to preclude
evidence of prior bad acts. The trial court asked what controlled substances were found
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in the box. Defense counsel responded that there were some pills found in a cookie tin in
the box, but neither defense counsel nor the Assistant Commonwealth’s Attorney
mentioned the four baggies of marijuana. The trial court ruled that the contents of the
box were more prejudicial than probative as to the charge in the indictment of cultivating
marijuana and held that any reference to the officer’s search of the box on Dehart’s fourwheeler would not be admissible. However, in his oral opinion, the trial judge advised if
the events were intertwined he would allow the introduction of the evidence.
The following day at trial, the Commonwealth presented evidence without
mentioning the pills or marijuana found in Dehart’s possession per the trial court’s ruling.
The appellant made the appropriate motion for a directed verdict after the
Commonwealth had closed its case. When the defense began to question its first witness,
Detective Hurt, both counsel approached for a bench conference. At that point, the trial
court advised it was not aware that four baggies of marijuana were also seized along with
pills from the box in Dehart’s possession on August 29, 2003. While it is difficult to
understand why either the appellant, his counsel, the Commonwealth’s Attorney, or the
court did not remember the plea and sentencing on these charges which arose out of the
same events which gave rise to the matters tried on June 14, 2005, apparently none did.
The trial court then reversed its prior ruling and allowed the marijuana
evidence to be admitted under KRE 404(b) as relevant to show Dehart’s plan to grow the
marijuana and then sell it. The trial court allowed the Commonwealth to disclose the
evidence on cross-examination following defense counsel’s examination of Detective
Hurt.
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While Dehart objected to the introduction of testimony relating to the
baggies of marijuana found in his possession, he did not claim at the time that he was
prejudiced because the trial court allowed the Commonwealth to introduce the evidence
on cross-examination after it had closed its case. However, this issue was preserved for
appellate review. While the appellant’s counsel agreed to a limiting admonition to
include that no party would suggest the four baggies were for sale, introduction of this
evidence through the appellant’s first witness, during cross-examination by the
prosecutor, was devastating. Even if not adequately preserved, this Court may consider
palpable error under RCr 10.26 where a manifest injustice results from the error. For
these reasons, the matter should be remanded for a new trial.
Dehart continues to object to the introduction of the evidence as not
meeting any of the exceptions under KRE 404(b) and KRE 403. He argues that his
possession of marijuana was not relevant nor did it qualify under any of the exceptions of
KRE 404(b), and even if it did, the evidence’s prejudicial effect outweighed its probative
value. He points out that he was not charged with trafficking and that there was no
evidence to show that he had knowledge of how to process marijuana. Dehart also argues
that the Commonwealth did not present evidence of where Dehart obtained the marijuana
found in his possession or even if the marijuana was owned by him. And he further
argues that his possession of marijuana was not similar in kind or close in time
warranting its entry into evidence. See Howard v. Commonwealth, 787 S.W.2d 264
(Ky.App. 1989). We find these arguments unconvincing.
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At the time Dehart was arrested, he was found in possession of marijuana.
Dehart’s possession of the four baggies of marijuana packaged for sale would be relevant
to show his motive, intent, and plan to sell marijuana. See United States v. Shoffner, 71
F.3d 1429, 1432 (8th Cir. 1995).
Furthermore, Dehart was found next to the coop that he built, which was
adjacent to a path leading straight to his residence and to the patch where the marijuana
plants were growing. Although his mere presence in an area near the marijuana patch
does not make it more likely that he was involved in growing the marijuana, the fact that
he was found in that location in possession of packaged marijuana would support an
inference that Dehart was cultivating the marijuana. Consequently, the probative value of
the testimony would outweigh the risk of unfair prejudice if the appellant had not relied
on the court’s earlier ruling. Therefore, we conclude that the trial court did abuse its
broad discretion in admitting the testimony in what even the trial court described as a
circumstantial case. Because the trial judge stated he did not believe anyone intentionally
misled him, the appellant should not be penalized by the court’s revised ruling.
Dehart also raises a claim that because the jury asked the judge to define
reasonable doubt, the jury somehow did not follow the law when it rendered its verdict.
RCr 9.56(2) specifically prohibits the trial court from attempting to define “reasonable
doubt.” Likewise, the rule also prohibits counsel from attempting to define reasonable
doubt at any point in the trial. Commonwealth v. Callahan, 675 S.W.2d 391, 393 (Ky.
1984). Thus, the trial court properly declined to answer the question. The mere fact that
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the jury asked the question is insufficient to support a finding that the jury was unsure
whether they could convict Dehart based on the evidence.
It is not necessary to address the appellant’s argument he was entitled to a
directed verdict of acquittal at the close of the Commonwealth’s case or the close of all
the evidence in light of this Court’s finding the appellant was unfairly prejudiced by the
introduction of the possession of marijuana.
Because this matter shall be remanded for a new trial, this Court is
compelled to address the various objections and motions made for a mistrial as a result of
the mode of questioning and conduct of the Commonwealth’s Attorney who prosecuted
this case. The trial judge exercised a great deal of restraint in dealing with the conduct of
both counsel for the prosecution and defendant. Repeatedly the court admonished the
parties to direct objections to the court, to not direct comments to each other and to not
interrupt the court during its rulings. The trial court appropriately addressed the lack of
preparation and familiarity with the facts of the case shown by both counsel. Of
particular concern was the demeanor of the prosecutor who repeatedly made additional
comments about witnesses’ testimony, and on at least one occasion, laughed at a
witness’s answer. The court properly admonished him at that time. While never
acceptable, such conduct in a circumstantial case is more likely to deny a defendant the
right to a fair trial.
Accordingly, the judgment of conviction by the Perry Circuit Court is
reversed and this matter is remanded for a new trial.
PAISLEY, SENIOR JUDGE, CONCURS.
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COMBS, CHIEF JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
COMBS, CHIEF JUDGE, DISSENTING: I respectfully dissent from the
majority opinion on the issue upon which it based its reversal – namely, the decision of
the court to reverse its own pre-trial ruling as to the admissibility of the four baggies of
marijuana into evidence. The court plainly warned that it might re-visit its pre-trial ruling
if developments at trial warranted such a decision. They did, and so did the court.
The majority opinion carefully recites that the court had a sound
evidentiary basis for admitting the evidence and acknowledges that its probative value
properly outweighed its prejudicial impact. That opinion finds error based solely on the
appellant's reliance on the earlier ruling to exclude. That reliance was, however, illusory
since the court clearly announced the tentative nature of its initial ruling by noting orally
that it might re-visit and reconsider this issue. There was no real prejudice to the
appellant. I can find no error whatsoever – much less reversible error. Consequently, I
would affirm.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Angela Johnson
Assistant Public Advocate
Frankfort, KY
Gregory D. Stumbo
Attorney General of Kentucky
James Havey
Assistant Attorney General
Frankfort, KY
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