DARRELL LAMONT DAMONS v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 23, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001525-MR
DARRELL LAMONT DAMONS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 1997-CR-000014
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EMBERTON, KNOPF, and KNOX, JUDGES.
KNOPF, JUDGE: Darrell Damons appeals from a June 11, 1997,
judgment of the Fayette Circuit Court convicting him of
possession of a controlled substance in the first degree
(cocaine) (KRS 218A.1415), a felony, and of other misdemeanor
drug and traffic-related offenses.
Damons admitted to being a
second-degree persistent felony offender (KRS 532.080), and his
one (1) year sentence for the possession offense was enhanced
accordingly to five (5) years in prison.
Damons contends on
appeal that the trial court erred by denying his motions for a
directed verdict of acquittal because the Commonwealth produced
insufficient evidence of his having possessed the cocaine
knowingly.
Being convinced to the contrary, we affirm the trial
court’s judgment.
Damons was arrested during the evening of October 30,
1996, on Versailles Road in Lexington, Kentucky, when Lieutenant
Qualls of the Fayette County Sheriff’s Department observed him
driving erratically, pulled him over, and determined that he was
likely under the influence of marijuana.
Qualls testified that
during his search of Damons’s vehicle incident to the arrest, he
discovered a small amount of what proved to be marijuana, a
digital scale suitable for weighing small quantities of drugs,
and a portable safe.
The safe was empty, but on the scale there
was a whitish residue which proved to be cocaine base, the so
called “crack” form of cocaine.
Qualls stated that he found the
scale beneath the moveable arm rest that divided the driver’s
seat from that of the front passenger.
He also testified that
upon initially approaching Damons’s vehicle he had detected what
he believed to be the odor of marijuana, but had also noticed the
strong scent of five (5) or six (6) air fresheners which were
arrayed on the car’s dashboard.
At the time of his arrest, Damons had recently broken
up with a girl friend of fairly long standing.
This woman
testified for the Commonwealth and stated that she had witnessed
Damons’s purchase of the car he was driving when arrested and
that she had seen him in possession of the digital scale.
Damons, who did not testify at trial, attempted to establish
through cross-examination of this witness that the scale belonged
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to this former girl friend and that it was she who either left or
placed it in his car.
Damons now argues that he was entitled to a directed
verdict on the possession charge because the evidence failed to
establish his knowledge of the cocaine.
In particular, he
contends that the evidence permits only an inference of his
possession of the scale, and therefore that it was improper for
the fact-finder to infer additionally from that possession that
he had been aware of the cocaine residue.
This Court reviews the
denial of a motion for a directed verdict by asking whether
“under the evidence as a whole, it would be clearly unreasonable
for a jury to find guilt . . .”
Commonwealth v. Benham, Ky., 816
S.W.2d 186, 187 (1991) (citation omitted).
KRS 218A.1415 provides in pertinent part that
(1) A person is guilty of possession of a
controlled substance in the first degree when
he knowingly and unlawfully possesses: a
controlled substance classified in Schedules
I or II which is a narcotic drug; . . .1
“Possession,” as contemplated by this statute, includes
“constructive possession,” which is possession inferred from
evidence that the cocaine was discovered in a place under the
dominion and control of the alleged possessor.
Clay v.
Commonwealth, Ky. App., 867 S.W.2d 200 (1993).
Furthermore, this
statute outlaws the possession of even trace amounts of cocaine,
provided that there is sufficient evidence to find that the
possession was “knowing.”
Commonwealth v. Shively, Ky., 814
1
Cocaine is classified as a Schedule II narcotic.
218A.070.
-3-
KRS
S.W.2d 572 (1991).
“Knowing” or “knowingly” is not defined
within KRS Chapter 218A, but in the penal code, at KRS
501.020(2), “knowingly” is defined as follows:
[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.
This definition is appropriately applied to Chapter
218A offenses as well as to penal code offenses (cf. Powell v.
Commonwealth, Ky. App., 843 S.W.2d 908 (1992) (applying the penal
code definition of “possession” to Chapter 218A).
We are
convinced, therefore, that it was not clearly unreasonable for a
jury to conclude that Damons’s possession of the cocaine was
“knowing” as so defined.
Damons is correct, of course, that the Commonwealth
must prove each element of the alleged offense beyond mere
speculation, Brian v. General Motors Corp., Ky., 461 S.W.2d 99
(1970).
One way this requirement has been expressed is through
disapproval of the fact-finder’s basing “an inference upon an
inference.”
Pengleton v. Commonwealth, 294 Ky. 484, 172 S.W.2d
52, 53 (1943).
We are not persuaded, however, that the evidence
here either necessitated or encouraged improper speculation.
First, not only would Damons’s ownership of the car and his
control of it at the time of his arrest allow a finding that he
constructively possessed the cocaine-imbued scale, but also there
was the testimony of Damons’s girl friend, which, if believed,
directly established Damons’s possession of the scale.
Thus,
even if a juror inferred Damons’s knowledge of the cocaine from
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his possession of the scale, that inference would not have been
impermissibly attenuated.
There was sufficient additional evidence, moreover, to
support a finding that Damons’s possession was knowing.
Damons’s
marijuana intoxication at the time of his arrest, his possession
of marijuana, and his apparent provisions for disguising the
smell of marijuana inside his car together imply more than a
casual involvement with illegal drugs.
This evidence strongly
suggests that the cocaine residue visible on Damons’s scale was
there with his knowledge.
The safe found in Damons’s car, too,
although innocent by itself, when considered in conjunction with
the other evidence of drug involvement, also contributes to the
impression that Damons knowingly possessed cocaine.
Because the evidence adequately supported a finding of
knowing cocaine possession, the Fayette Circuit Court did not err
by denying Damons’s motions for a directed verdict.
Accordingly,
that court’s June 11, 1997, judgment is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
A. B. Chandler III
Attorney General
Dana M. Todd
Assistant Attorney General
Frankfort, Kentucky
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