WOLFENBARGER (DANNY L.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 25, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002288-MR
DANNY L. WOLFENBARGER
v.
APPELLANT
APPEAL FROM FLEMING CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 08-CR-00038
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; CLAYTON AND WINE, JUDGES.
WINE, JUDGE: Danny L. Wolfenbarger brings this appeal from a December 4,
2008, judgment of the Fleming Circuit Court following a jury verdict finding him
guilty of manufacturing methamphetamine or complicity to manufacture
methamphetamine, and first-degree possession of a controlled substance. We
affirm in part, reverse in part, and remand to the trial court.
On March 3, 2008, police officers visited Wolfenbarger’s residence to
investigate a report that Billy Ritchie was manufacturing methamphetamine at the
residence. When police officers informed Wolfenbarger of the purpose for their
visit, Wolfenbarger consented to a search of his mobile home. The search
produced several items utilized in the manufacture of methamphetamine. The
items were stored under a sink in a non-operational bathroom and included the
following: two bottles of drain cleaner, two 2-liter plastic bottles, one bottle of
liquid fire, coffee filters, rubber gloves, zip-lock bags, vice grips, metal pliers,
meat tenderizing hammer, iodized salt, prescription bottle with no label containing
pseudoephedrine residue, and two blue plastic funnels containing
methamphetamine residue.
Wolfenbarger was indicted by the Fleming County Grand Jury for the
offenses of manufacturing methamphetamine and first-degree possession of a
controlled substance. Following a jury trial, Wolfenbarger was convicted of
manufacturing methamphetamine (Kentucky Revised Statute (“KRS”)
218A.1432), or complicity to manufacture methamphetamine (“KRS 502.020”),
and first-degree possession of a controlled substance (“KRS 218A.1415”). The
trial court sentenced Wolfenbarger to a total of ten years’ imprisonment. This
appeal followed.
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Wolfenbarger contends that his conviction for manufacturing
methamphetamine and possession of methamphetamine violates the Double
Jeopardy Clause of the Fifth Amendment of the United States Constitution, Section
13 of the Kentucky Constitution, and KRS 505.020.1 Wolfenbarger specifically
argues that the controlled substance/methamphetamine he was convicted of
possessing was the same methamphetamine used to support the manufacturing
conviction; i.e., the methamphetamine residue found on the two blue plastic
funnels. Wolfenbarger believes use of the same controlled substance
(methamphetamine) to support both convictions is constitutionally prohibited as it
violates double jeopardy.
It is well established that double jeopardy is violated when an
individual is convicted of possessing the same methamphetamine that also supports
the charge of manufacturing methamphetamine. Beaty v. Com., 125 S.W.3d 196
(Ky. 2003). Thus, the same methamphetamine must support the charge of
manufacturing methamphetamine and possession of a controlled substance
(methamphetamine) to offend double jeopardy.
In this case, Wolfenbarger was not convicted of manufacturing
methamphetamine because he actually manufactured methamphetamine under
KRS 218A.1432(1)(a); rather, Wolfenbarger was convicted of manufacturing
1
As the double jeopardy issue was not preserved for appellate review, we will review it
pursuant to the precepts of Sherley v. Commonwealth, 558 S.W.2d 615, 618 (Ky. 1977),
overruled on other grounds by Dixon v. Commonwealth, 263 S.W.3d 583 (Ky. 2008). In
Sherley, the Court held that “failure to preserve this issue for appellate review should not result
in permitting a double jeopardy conviction to stand.” Id. at 618.
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methamphetamine based upon his possession of two or more chemicals or items
used to manufacture methamphetamine with intent to manufacture under KRS
218A.1432(1)(b). KRS 218A.1432 provides:
(1) A person is guilty of manufacturing
methamphetamine when he knowingly and unlawfully:
(a) Manufactures methamphetamine; or
(b) With intent to manufacture methamphetamine
possesses two (2) or more chemicals or two (2) or
more items of equipment for the manufacture of
methamphetamine.
Succinctly stated, the possession of methamphetamine charge against
Wolfenbarger was supported by the methamphetamine found on the two blue
plastic funnels. On the other hand, the manufacturing methamphetamine charge
was supported by the other items used to manufacture methamphetamine seized
from Wolfenbarger’s residence. As such, Wolfenbarger’s conviction for
manufacturing methamphetamine and possession of methamphetamine did not
violate the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, Section 13 of the Kentucky Constitution, or KRS 505.020.
Wolfenbarger next contends that the trial court erred by refusing to
instruct the jury on the lesser included offense of criminal facilitation.
Specifically, Wolfenbarger asserts he was entitled to a jury instruction for
facilitation because the evidence presented at trial was sufficient to support a
finding of guilt upon the charge of facilitation to manufacture methamphetamine.
KRS 502.020(1) defines complicity as follows:
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(1) A person is guilty of an offense committed by another
person when, with the intention of promoting or
facilitating the commission of the offense, he:
(a) Solicits, commands, or engages in a conspiracy with
such other person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in
planning or committing the offense; or
(c) Having a legal duty to prevent the commission of the
offense, fails to make a proper effort to do so.
KRS 506.080(1) defines criminal facilitation as follows:
A person is guilty of criminal facilitation when, acting
with knowledge that another person is committing or
intends to commit a crime, he engages in conduct which
knowingly provides such person with means or
opportunity for the commission of the crime and which in
fact aids such person to commit the crime.
Because the definitions of complicity2 and facilitation3 are
comparable, our Courts have previously analyzed how the two interrelate. In
Thompkins v. Commonwealth, 54 S.W.3d 147 (Ky. 2001), the Supreme Court
noted the difference between the two statutes is dependent upon the defendant’s
state of mind.
Under either statute, the defendant acts with knowledge
that the principal actor is committing or intends to
commit a crime. Under the complicity statute, the
defendant must intend that the crime be committed;
under the facilitation statute, the defendant acts without
such intent. Facilitation only requires provision of the
means or opportunity to commit a crime, while
2
KRS 502.020(1).
3
KRS 506.080(1).
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complicity requires solicitation, conspiracy, or some
form of assistance. Facilitation reflects the mental state
of one who is “wholly indifferent” to the actual
completion of the crime.
Id. at 150 (internal citations omitted).
In Dixon v. Commonwealth, 263 S.W.3d 583, 586 (Ky. 2008), the
Kentucky Supreme Court held:
When confronted with a situation in which a defendant
requests an instruction on facilitation, a trial court must
consider that “[a]n instruction on facilitation as a lesserincluded offense of complicity ‘is appropriate if and only
if on the given evidence a reasonable juror could
entertain reasonable doubt of the defendant’s guilt of the
greater charge, but beyond a reasonable doubt that the
defendant is guilty of the lesser offense.’” We reject any
notion that a facilitation instruction must always
accompany a complicity instruction. Rather, a lesserincluded instruction, such as facilitation, may be given
“only when supported by the evidence.” And since
facilitation and complicity require different mental states,
an instruction on facilitation is necessary only if the
evidence supports the existence of both mental states.
(Internal citations omitted.) See also Commonwealth v. Day, 983 S.W.2d 505, 509
n.2 (Ky. 1999) (“Generally, criminal facilitation is a lesser included offense when
the defendant is charged with being an accomplice to an offense, not the principal
offender.”).
The distinction between the complicity and facilitation statutes
therefore rests on the state of mind of the defendant. Webb v. Commonwealth, 904
S.W.2d 226, 228 (Ky. 1995). In Webb, the Supreme Court held that it was error
not to instruct on criminal facilitation when the defendant had testified at trial to
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giving his girlfriend a ride in his car knowing that she was in the process of a drug
transaction, but that he did not intend for her to commit the crime. Id. at 229.
Although here Wolfenbarger did not testify as to his state of mind at the time of the
crime, the circumstantial evidence which was sufficient to support a finding by the
jury that the defendant was guilty of being a complicitor to the manufacturing of
methamphetamine (which would include a finding that Wolfenbarger intended for
the crime to be committed) could also support a finding of facilitation. Under the
facts of this case, it is plausible the jury could have either found that there was
sufficient evidence that the defendant intended the manufacture of
methamphetamine since the evidence confiscated from Wolfenbarger’s home was
easily accessible by the defendant, or that Wolfenbarger may have supplied the
chemicals, utensils, or even a safe location, with no intention of personally
manufacturing the methamphetamine, rather merely assisting another, thus
justifying an instruction for the offense of facilitation.
Wolfenbarger’s next contention is that reversible error occurred by the
introduction of statements made by Billy Ritchie and Lonnie Ritchie through the
testimony of Officer Anderson and Officer Kinder, respectively. Wolfenbarger
contends the testimony of Officer Anderson and Officer Kinder was hearsay which
was admitted in violation of the Confrontation Clause of the Sixth Amendment to
the United States Constitution and §11 of the Kentucky Constitution.
Wolfenbarger specifically objects to testimony by Officer Anderson that Billy
Ritchie admitted to Anderson that he had “cooked” methamphetamine several
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times at Wolfenbarger’s residence and to the testimony of Officer Kinder that Billy
Ritchie’s mother told Kinder that Billy was manufacturing methamphetamine at
Wolfenbarger’s residence.
Every criminal defendant possesses a constitutional right to crossexamine witnesses at trial. See Davenport v. Com., 177 S.W.3d 763 (Ky. 2005). A
violation of the constitutional right to confront witnesses has been held subject to
the harmless error enunciated analysis in Chapman v. California, 386 U.S. 18, 87
S.Ct. 824, A.L.R.3d 1065, 17 L.Ed.2d 705 (1967). See Gill v. Com., 7 S.W.3d 365
(Ky. 1999); Taylor v. Com., 175 S.W.3d 68 (Ky. 2005). Before a “constitutional
error can be held harmless, the [reviewing] court must be able to declare a belief
that it was harmless beyond a reasonable doubt.” Gill, 7 S.W.3d at 368, citing
Chapman, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). To ascertain
whether admission of such evidence was harmless beyond a reasonable doubt, the
reviewing court must determine whether exclusion of such evidence would have
affected the outcome. Taylor, 175 S.W.3d 68.
The controlling cases of Davis v. Washington, 547 U.S. 813, 126 S.Ct.
2266, 165 L.Ed.2d 224 (2006); Heard v. Commonwealth, 217 S.W.3d 240 (Ky.
2007); and Rankins v. Commonwealth, 237 S.W.3d 128 (Ky. 2007), delineate the
difference between testimonial and non-testimonial statements. While nontestimonial statements do not violate the Confrontation Clause, testimonial
statements do. Davis sets out the distinction as follows:
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Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution.
Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d
224 (2006).
There is no doubt that Billy Ritchie’s statements to Officer Anderson
were testimonial. Anderson testified on rebuttal that Ritchie admitted he cooked
methamphetamine several times at Wolfenbarger’s residence. Ritchie was
questioned in an effort to facilitate a criminal prosecution. Wolfenbarger was
subsequently indicted, prosecuted, and ultimately convicted as a complicitor to the
charge of manufacturing methamphetamine. But for Ritchie’s statement, the jury
would have been required to speculate whether methamphetamine was being
manufactured in Wolfenbarger’s residence.4
As for the testimony of Officer Kinder regarding Lonnie Ritchie’s
statement this court must review the admission of the evidence for palpable error
which allows relief if manifest injustice occurred, as this issue was not preserved
for appeal. Kentucky Rules of Criminal Procedure (“RCr”) 10.26 and Kentucky
Rules of Evidence (“KRE”) 103(e). “To discover manifest injustice, a reviewing
court must plumb the depths of the proceeding . . . to determine whether the defect
4
Although various items and chemicals used to manufacture methamphetamine were found, no
lay witness testified they ever saw methamphetamine.
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in the proceeding was shocking or jurisprudentially intolerable.” Martin v.
Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
Lonnie Ritchie’s statement to Officer Kinder was a statement made to
a police officer regarding criminal activity. Based on this statement to Officer
Kinder the police went to Wolfenbarger’s residence and did the search of his
residence which resulted in finding the evidence used against Wolfenbarger.
“[H]earsay is no less hearsay because a police officer supplies the evidence.”
There is not an investigative hearsay exception to the hearsay rule. Sanborn v.
Commonwealth, 754 S.W.2d 534, 541 (Ky. 1988). The Court in Sanborn
explained this type of hearsay as follows:
Its relevancy does not turn on whether the information
asserted tends to prove or disprove an issue in controversy,
but on whether the action taken by the police officer in
response to the information that was furnished is an issue in
controversy. The information from other persons in the
possession of a police officer at the time he makes an arrest
is irrelevant to any issue of guilt or innocence in the trial of a
criminal case. Such information may become relevant in a
criminal case if the legality of the arrest is at issue.
Id. at 541. Here there is no issue as to the legality of the arrest of Wolfenbarger,
and there was no limiting instruction given to the jury indicating that the evidence
was not to be used for the truth of the matter asserted. As such, the jury was free to
take this evidence for the truth of the matter and infer that Lonnie Ritchie’s son
was cooking methamphetamine at Wolfenbarger’s home. The only evidence in
this case that indicates methamphetamine was actually being manufactured on
Wolfenbarger’s premises were the statements of Billy and Lonnie Ritchie.
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Without this evidence the jury would have been required to speculate whether
methamphetamine was manufactured at Wolfenbarger’s residence and what role, if
any, the defendant actually had in this process. By allowing this evidence, the jury
was allowed to hear from the person who actually cooked the methamphetamine
and his mother without the defendant being allowed to cross examine and expose
any possible prejudice these individuals may have had against the defendant. The
jury was allowed to take these statements at face value. Therefore, Lonnie
Ritchie’s statement were not harmless beyond a reasonable doubt and did result in
a manifest injustice to Wolfenbarger.
For the foregoing reasons, the judgment of the Fleming Circuit Court
is affirmed in part and reversed in part, and is remanded to the trial court for
proceedings consistent with this opinion.
CLAYTON, JUDGE, CONCURS.
TAYLOR, CHIEF JUDGE, CONCURS IN PART, DISSENTS IN PART,
AND FILES SEPARATE OPINION.
TAYLOR, CHIEF JUDGE, CONCURRING IN PART AND DISSENTING
IN PART. I concur with the majority opinion with the exception that I do not
believe the trial court committed reversible error by failing to tender a jury
instruction upon the offense of criminal facilitation to commit manufacturing
methamphetamine or by admitting the hearsay testimony of Officers Anderson and
Kinder.
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As concerns the jury instruction upon facilitation, it is well-established that a
jury instruction upon a lesser-included offense is only appropriate where it is
supported by the evidence. Sanborn v. Com., 754 S.W.2d 534 (Ky. 1988). The
distinction between criminal facilitation and intentional complicity has been
eruditely explained as follows:
Knowing assistance or encouragement constitutes the
offense of criminal facilitation. The offense is committed
when the defendant both knows of another's intent to
commit a crime and knows that his own conduct is
providing the other person with the means or opportunity
to commit the crime. Unlike intentional complicity
where the accomplice has some personal interest in the
successful commission of an offense, a criminal
facilitator assists a criminal venture toward which he is
indifferent. . . . (Footnotes omitted.)
10 Leslie W. Abramson, Kentucky Practice Substantive Criminal Law § 3:6 (20092010). Succinctly stated, “[f]acilitation reflects the mental state of one who is
‘wholly indifferent’ to the actual completion of the crime.” Perdue v. Com., 916
S.W.2d 148, 160 (Ky. 1995); see also, Thompkins v. Com., 54 S.W.3d 147 (Ky.
2001).
To support the facilitation instruction in this case, Wolfenbarger points to
evidence that he was inebriated and was unaware that methamphetamine was being
manufactured at his residence. However, the evidence at trial indicated that the
items used to manufacture methamphetamine were found under a sink in
Wolfenbarger’s residence. Thus, the items were stored in a location easily
accessible by Wolfenbarger. Moreover, when the items were seized by the police,
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Wolfenbarger was present at the residence, but Ritchie was not present. And, it is
untenable to believe that Wolfenbarger was in a state of persistent and profound
intoxication so as to be rendered totally unaware of such an activity as
manufacturing methamphetamine in a mobile home. Given the evidence in this
case, it is simply implausible that Wolfenbarger was “wholly indifferent to the
actual completion of the crime [manufacturing methamphetamine]” when the
methamphetamine was being manufactured at his own home. Thompkins v. Com.,
54 S.W.3d 147, 150 (Ky. 2001). With there being no evidentiary foundation to
support the facilitation instruction, the jury was required to decide the case on the
evidence presented, not imaginary scenarios. See id. Accordingly, I do not believe
the trial court erred by failing to instruct the jury upon facilitation.
As to the admission of the hearsay testimony of Officers Anderson and
Kinder, I believe any error was merely harmless. KRE 103. The evidence
presented at trial against Wolfenbarger was substantial. A review of that record
reveals that numerous items utilized to manufacture methamphetamine, including
two blue plastic funnels containing methamphetamine residue were stored under a
bathroom sink in Wolfenbarger’s residence. From this evidence alone, the jury
could reasonably find that Wolfenbarger “knowingly and unlawfully, with the
intent to manufacture methamphetamine possesses (2) two or more chemicals or
. . . items of equipment for the manufacture of methamphetamine” or complicity
thereto and that he knowingly and unlawfully possessed methamphetamine.
Indeed, it is unnecessary that there be direct evidence that Wolfenbarger
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manufactured methamphetamine; e.g., direct testimony by an individual that
witnessed Wolfenbarger manufacture methamphetamine. Circumstantial evidence
is sufficient. In this case, there was substantial circumstantial evidence that
Wolfenbarger manufactured or acted in complicity with another to manufacture
methamphetamine and that he possessed methamphetamine. Thus, the admission
of Officer Anderson and Officer Kinder’s testimony would not have affected the
outcome of the trial, and any error resulting therefrom was merely harmless.
Crane v. Com., 726 S.W.2d 302 (Ky. 1987). As such, I perceive no reversible
error.
Moreover, the majority concludes that admission of Officer Anderson’s and
Officer Kinder’s hearsay testimony constituted reversible error because there was
no other evidence that methamphetamine was manufactured at Wolfenbarger’s
residence and the jury was left to “speculate” whether such occurred at the
residence without such hearsay. However, this statement is incorrect. The
evidence recovered from the residence included actual methamphetamine residue
found on the blue plastic funnel. It is clear that this funnel harbored
methamphetamine residue and had been used to successfully manufacture same.
As the blue funnel along with other equipment and chemicals used to manufacture
methamphetamine were seized from Wolfenbarger’s residence, the jury could have
reasonably inferred from this evidence that methamphetamine was manufactured at
Wolfenbarger’s residence. As such, the admission of Officer Anderson’s and
Officer Kinder’s testimony concerning the manufacturing of methamphetamine at
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Wolfenbarger’s residence amounted to harmless error. It simply constituted
cumulative evidence demonstrating that methamphetamine was manufactured at
Wolfenbarger’s residence.
Accordingly, I would affirm Wolfenbarger’s judgment of conviction.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brandon Neil Jewell
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Michael J. Marsch
Assistant Attorney General
Frankfort, Kentucky
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