KEVIN A. WEATHERS v. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 20, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001695-MR
KEVIN A. WEATHERS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES KELLER, JUDGE
ACTION NO. 98-CR-00491
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Kevin A. Weathers (Weathers) appeals from a
final judgment of conviction and sentence of imprisonment, based
on a jury verdict in the Fayette Circuit Court entered July 1,
1998, finding him guilty of Count One: first-degree trafficking
in a controlled substance and a motion to waive sentencing by
jury and guilty plea to Count Two: persistent felony offender
second degree (PFO II), sentencing him to ten years in a
correctional facility.
We affirm.
On March 26, 1998, Detective James Ensminger
(Ensminger) and Detective Lynne Thompson (Thompson) participated
in an undercover surveillance operation in the area of Third and
Race Streets in Lexington.
When they arrived at their
destination, they parked the surveillance van next to a vacant
Toyota Tercel.
A short time later, Weathers approached the
Toyota, opened the door and sat down with his feet hanging
outside the car.
Ensminger observed Weathers pulling a plastic
bag from the door handle, the contents of which appeared to be
“rocks” of crack cocaine.
Ensminger observed Weathers placing
the “rocks” into the hands of an unknown male who approached the
vehicle.
Ensminger did not see any money transferred between the
two men, and the unknown male left the area and was not arrested.
Ensminger did not arrest the unknown male because an immediate
arrest would have “blown their cover.”
Ensminger then observed Weathers replace the plastic
bag in the door.
Weathers grabbed a second bag, briefly examined
it and then replaced it in the door as well.
walked away.
Weathers then
In a continuing effort to maintain secrecy of the
surveillance van, Ensminger called in uniformed police officers
to arrest Weathers.
The uniform officers arrived, detained
Weathers and secured the Toyota.
Ensminger and Thompson drove to
a nearby fire station and Ensminger doubled back to the scene.
Although Weathers denied both ownership and knowledge of the
Toyota, he was later linked to the Toyota independent of
Esminger’s observations.
A search of Weathers revealed the keys
to the Toyota, a digital pager and $429.00 in cash.
The bulk of
the cash was $20 bills: nineteen $20's, four $10's, one $5 and
four $1's.
The plastic bags were observed in plain view and
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confiscated.
The plastic bags contained white powder, later
confirmed through laboratory tests as cocaine.
No items of drug
paraphernalia were found.
On May 5,1998, Weathers was indicted by a Fayette
County Jury for Trafficking in a Controlled Substance in the
First Degree and Persistent Felony Offender in the Second
Degree.1
Weathers was tried before a jury on June 8,1998.
At
trial the Commonwealth presented eight witnesses, but the bulk of
its cased rested upon the testimony of Ensminger.
In addition to
recounting the events of March 26, 1998, Ensminger testified
that, in reference to the large amount of $20's found on
Weathers, the standard selling price for crack is in increments
of $20.
Further, he concluded that, based upon his observation
of the hand to hand transfer and Weather’s possession of a beeper
and large amounts of cash, Weathers was trafficking in cocaine.
The trial court instructed the jury that Weathers could be found
guilty of Trafficking by either transfer of a controlled
substance, or, in the alternative, possession with the intent to
sell.
Weathers objection to this instruction was overruled.
The
jury returned a guilty verdict plea to PFO II in exchange for a
total sentence of ten years.
This appeal followed.
Weathers argues on appeal that the trial court erred by
denying his motion for a directed verdict.
He argues that he
could not have been found guilty of Trafficking in a Controlled
Substance because: 1) the Commonwealth could not prove the
1
Weathers had previously been convicted of a felony in the
state of Georgia.
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“transfer” of a controlled substance because the “rocks” were not
recovered by the police officers, and 2) the Commonwealth did not
charge him with “possession with intent to sell” in the
indictment.
However, ultimately, Weathers argues that he was
denied a unanimous verdict by virtue of the alternative jury
instruction.
We disagree.
The Kentucky Supreme Court articulated the standard for
determining when a directed verdict is warranted in Commonwealth
v. Benham, Ky., 816 S.W.2d 186, 187 (1991).
In Benham, the
Supreme Court held that:
On a motion for directed verdict, the trial
court must draw all 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 purposes 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 the
credibility and weight to be given to such
testimony.
On appellate review, the test of a directed
verdict is, if under the evidence as a whole,
it would be clearly unreasonable for a jury
to find guilt, only then the defendant is
entitled to a directed verdict of acquittal.
Id. at 187.
We believe the Commonwealth presented sufficient
evidence to warrant a guilty verdict and, thus, a directed
verdict was not warranted.
The offense of trafficking in cocaine in the first degree is
defined in KRS 218A.1412, which states in relevant part:
A person is guilty of trafficking in a
controlled substance in the first degree when
he knowingly and unlawfully traffics in: a
controlled substance....
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The term “traffic” is defined by KRS 218A.010(24) as follows:
“Traffic”
dispense,
intent to
or sell a
added).
means to manufacture, distribute,
sell transfer or possess with
manufacture, distribute, dispense,
controlled substance. (emphasis
Therefore, both the “transfer” of a controlled substance or the
possession of a controlled substance with the intent to sell are
sufficient to warrant a conviction for trafficking in a
controlled substance in the first degree.
Although circumstantial, the Commonwealth presented
sufficient evidence under its “transfer” theory of the case to
overcome a directed verdict.
In Kentucky, the offense of
trafficking in a controlled substance may be proven by
circumstantial evidence.
740 (1983).
Faught v. Commonwealth, Ky., 656 S.W.2d
Ensminger testified that he observed Weathers
transfer what appeared to be crack cocaine to an unknown male who
left the scene.
feet away.
He watched the transfer from no more than two
He further testified that Weathers possessed both a
digital pager and large amounts of cash.
This Court, in Jett v.
Commonwealth, Ky. App., 862 S.W.2d 908 (1993) (overruled on other
grounds by Weaver v. Commonwealth, Ky., 955 S.W.2d 722 (1997)),
held that evidence of phone pagers and large amounts of cash was
relevant circumstantial evidence of trafficking.
Finally,
Ensminger testified that the cash was mostly in $20
denominations, which coincides with the standard price for crack.
Based upon this evidence, viewed in a light most favorable to the
Commonwealth, a reasonable jury could have found that Weathers
was trafficking in cocaine.
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Weathers argues that the Commonwealth’s failure to
produce the “rocks” of crack cocaine at trial required a directed
verdict in his favor on the “transfer” theory of the case.
However, this argument must fail pursuant to our holding in
Howard v. Commonwealth, Ky. App., 787 S.W.2d 264 (1989).
In
Howard, we held that the marijuana that the defendant had
attempted to sell was not required to be produced at trial to
support his trafficking conviction.
The police, during a
surveillance operation, had observed Howard attempting to sel
marijuana to a buyer.
However, in order not to “blow their
cover” the police did not arrest Howard at that time.
As a
result, the Commonwealth could not produce the marijuana during
Howard’s visit.
The facts of the case sub judice are similar to Howard.
Ensminger observed Weathers transfer what appeared to be crack
cocaine to an unknown male.
However, in order not to jeopardize
the surveillance operation, Weathers and the unknown male were
not arrested at that time.
As a result, the Commonwealth could
not produce the crack cocaine during the trial.
However,
pursuant to our ruling in Howard, Weathers was not entitled to a
directed verdict based upon the Commonwealth’s inability to
produce the crack cocaine at trial.
There was sufficient
circumstantial evidence to justify sending the case to the jury.
Ultimately, Weathers argues that the alternative jury
instruction denied him a unanimous verdict.
The relevant portion
of the instruction states that the jury will find Weathers guilty
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under this instruction if it believes beyond a reasonable doubt
that:
That in this county on or about 26th
[sic] day of March, 1998, he transferred
a quantity of cocaine to another person
OR he had in his possession a quantity
of cocaine with the intent to sell it to
another person;....
A.
The law is clear that a jury verdict in a criminal case must be
unanimous.
KRS 29A.280(3).
However, the law is equally clear
that:
[A] verdict cannot be successfully attacked
upon the ground that the jurors could have
believed either of two theories of the case
where both interpretations are supported by
the evidence and the proof of either
constitutes the same offense.
Wells v. Commonwealth, Ky., 561 S.W.2d 85, 88 (1978).
See also,
Bedell v. Commonwealth, Ky., 870 S.W.2d 779 (1993); Davis v.
Commonwealth, Ky., 967 S.W.2d 574 (1998).
The Commonwealth produced sufficient evidence for a
reasonable jury to find Weathers guilty of trafficking in a
controlled substance either for transferring crack cocaine or
possession of cocaine with the intent to sell.
Either theory
supports a conviction for trafficking in a controlled substance
in the first degree pursuant to KRS 218A.1412 and KRS
218A.010(24).
Therefore, the trial court did not deny Weathers a
unanimous verdict by allowing the jury to consider guilt under
the alternative instruction.
For the foregoing reasons, the decision of the trial
court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Lexington, KY
A. B. Chandler, III
Attorney General
Carlton S. Shier, IV
Assistant Attorney General
Frankfort, KY
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