JERMAIN HARRIS v. COMMONWEALTH OF KENTUCKY
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RENDERED: November 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001397-MR
JERMAIN HARRIS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 97-CR-000272
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, JOHNSON AND McANULTY, JUDGES.
JOHNSON, JUDGE: Jermain Harris has appealed from the judgment of
conviction entered by the Fayette Circuit Court on May 27, 1998,
that convicted him of trafficking in a controlled substance in
the first degree1 (cocaine) and possession of drug
paraphernalia.2
Having concluded that there was sufficient
evidence to support the conviction, we affirm.
On February 19, 1997, a Fayette Circuit Court Grand
Jury indicted Harris for (1) trafficking in a controlled
substance in the first degree (cocaine); (2) trafficking in
1
Kentucky Revised Statutes (KRS) 218A.1412.
2
KRS 218A.500.
marijuana under eight ounces;3 (3) possession of marijuana;4 and
(4) possession of drug paraphernalia.
These charges arose out of
an incident that occurred shortly before midnight on December 2,
1996.
Officer Jeff Jacobs of the Lexington-Fayette Urban County
Police Department went to an apartment complex in response to a
dispatch call regarding a noise complaint.
As Officer Jacobs
approached the third floor apartment, he heard a television and
people laughing and talking loudly and smelled the odor of
marijuana.
Since the officer believed his knocking on the door
might result in the apartment’s occupants destroying evidence of
drugs, he waited outside the apartment.
When the officer heard
the elevator opening, he hid behind a wall and watched a woman
approach the apartment and enter.
Officer Jacobs walked behind
the woman as she entered the apartment so he could look inside.
In plain view, Officer Jacobs saw Harris and two other
individuals sitting on a sofa and smoking marijuana.
He also
noticed a bag of marijuana sitting on a coffee table.
Having
observed Harris and the others in the process of committing a
crime, Officer Jacobs entered the apartment, called for
assistance and arrested Harris and two other individuals.
When Harris was searched, Officer Jacobs found $797 in
cash and a pager in his front left pants pocket.
Officer Jacobs
also noticed that Harris had been sitting on the couch on a black
Nike jacket.
When the jacket was searched, Officer Jacobs found
28.5 grams of marijuana and 15.6 grams of crack cocaine.
3
KRS 218A.1421(2).
4
KRS 218A.1422.
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At the jury trial on April 27, 1998, Harris was convicted of
trafficking in a controlled substance in the first degree
(cocaine) and possession of drug paraphernalia.
The possession
of marijuana charge was dismissed on the Commonwealth’s motion
and Harris was acquitted of trafficking in marijuana.
Instead of
allowing the jury to set the penalty, Harris accepted the
Commonwealth’s offer of a five-year prison sentence, which the
trial court imposed on May 27, 1998.
This appeal followed.
Harris claims on appeal that the Commonwealth failed to
produce sufficient evidence to support the trafficking conviction
and that the trial court erred as a matter of law in denying his
motion for a directed verdict of acquittal.
Our standard of
review is well-settled.
On a motion for directed verdict of
acquittal, the trial judge must draw all fair
and reasonable inferences from the evidence
in favor of the Commonwealth. Commonwealth
v. Benham, Ky., 816 S.W.2d 186 (1991); Trowel
v. Commonwealth, Ky., 550 S.W.2d 530 (1977).
If the evidence is sufficient to induce a
reasonable juror to believe beyond a
reasonable doubt that a defendant is guilty,
a directed verdict should not be given.
Benham, supra.5
We must determine ‘whether, after viewing the
evidence in the light most favorable to the
prosecution, any rational trier of fact could
have found the essential elements of the
crime beyond a reasonable doubt.’ Jackson v.
Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d
560, 99 S.Ct. 2781 (1970) (emphasis in
original). Circumstantial evidence alone, if
‘substantial and competent,’ may support a
verdict and need not ‘remove every reasonable
hypothesis except that of guilt.’ United
States v. Stone, 748 F.2d 361, 363 (6th Cir.
1984). Moreover, the granting of a motion to
5
Dishman v. Commonwealth, Ky., 906 S.W.2d 335, 340 (1995).
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acquit ‘will be confined to cases where the
prosecution’s failure is clear.’ Burks v.
United States, 437 U.S. 1, 17, 57 L. Ed. 2d
1, 98 S. Ct. 2141 (1978) (footnote omitted).6
Harris claims that the circumstantial evidence relied
upon by the Commonwealth to convict him of trafficking in cocaine
was insufficient to support the conviction because it was based
on “an inference upon an inference.”
Harris relies upon
Pengleton v. Commonwealth,7 where the former Court of Appeals in
reversing a conviction for larceny stated:
Further, in arriving at the verdict the
jury necessarily indulged an inference from
the actions of the appellant that she was in
possession of the stolen property and then
indulged an inference from the inferred
possession that she was guilty of the theft.
This was unwarranted. The jury may not in
determining the facts base an inference upon
and inference. When an inference is based on
a fact, that fact must be clearly established
and if the existence of such a fact depends
upon a prior inference no subsequent
inferences can legitimately be based upon it
[citations omitted].
Unfortunately, in its five-page brief, the Commonwealth
fails to address Pengleton or Harris’ “inference upon inference”
argument.
The Commonwealth merely cites Benham, supra, and
Commonwealth v. Sawhill,8 in support of the well-known rule
concerning appellate review of a trial court’s denial of a motion
for directed verdict and Matherly v. Commonwealth,9 for the rule
“that it is within the peculiar province of the jury to determine
6
United States v. Keeton, 101 F.3d 48, 52 (6th Cir. 1996).
7
294 Ky. 484, 486, 172 S.W. 52, 53 (1943).
8
Ky., 660 S.W.2d 3 (1983).
9
Ky., 436 S.W.2d 793, 794 (1968).
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the credibility of witnesses and the weight to be given the
testimony and physical evidence.”
Our research has revealed that Pengleton has been cited
by another court only once, that being Rupard v. Commonwealth,10
a drug trafficking case, where Pengleton was distinguished on the
facts.11
Since the case sub judice also involves drug
trafficking, we believe it will be helpful to quote heavily from
Rupard to demonstrate how it is distinguishable from Pengleton.
Daniel Rupard and Dieter Sierp were
found guilty of possessing marijuana for
the purpose of sale or disposal to another.
. . .
Information was received by the law
enforcement officials in Clark County
relating to possible violation of the
Narcotic Drug Act (KRS Chapter 218) at an
abandoned house located in a remote section
of Clark County on a farm owned by
Siegal Todd. On the morning of July 27,
1970, a detective of the Kentucky State
Police and the Clark County Sheriff entered
the house and found marijuana spread out on
the floor on sheets in two of the rooms.
This marijuana was in the process of being
dried. In another room the officers saw four
bags of marijuana which had been stripped
from its stems and placed in plastic bags.
Nearby on a stairway the officers observed a
set of postage scales suitable for weighing
light articles such as packages of marijuana.
After the officers had left during the
middle of the day, they returned to the scene
at about 5 p.m. to conduct a surveillance.
About 8:30 p.m. they observed the defendants
driving toward the house along the somewhat
isolated gravel roadway. When the defendants
10
Ky., 475 S.W.2d 473 (1971).
11
See also W. E. Shipley, Annotation, Modern Status of the
Rules Against Basing an Inference Upon an Inference or a
Presumption Upon a Presumption, 5 A.L.R. 3d 100 (1966).
-5-
saw the officers' car, they sought cover
behind some bushes. One of the officers
watched the two defendants approach the house
and go upon the side porch as if to enter the
house. The officer was unable to see whether
either of the men actually entered the house,
inasmuch as his line of vision was obstructed
by reason of the physical contour of the
area.
. . .
The officers went to the parked car of
the defendants and awaited their arrival,
which occurred approximately twenty minutes
after the defendants were seen to go upon the
porch of the house.
As soon as the defendants entered their
car, the officers approached them and
arrested them. In plain view on the ledge
above the dashboard was a plastic bag
containing marijuana. (It was not one of the
bags which the officers had seen earlier at
the house.)
. . .
The officers then returned to the house with
the two defendants in custody and discovered
that there were then five bags of marijuana
rather than the four which they had seen
earlier. Additionally, they noted that the
scales had been moved from the position in
which they had been earlier. The officers
said that they did not observe anyone at or
near the premises during the day except the
defendants.
. . .
The circumstances presented in this
case support a rational inference that these
appellants had constructive possession and
probably actual possession of the marijuana
which was found in the abandoned farmhouse.
The owner of the house testified that he had
not authorized either of the appellants to
use the house. One of the officers saw the
appellants go upon the porch of the house as
if to enter; both of the officers saw the
appellants coming from the direction of the
house to their car and noted that one of them
appeared to be deeply affected as if under
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the influence of a narcotic drug. Marijuana
was found in their automobile in plain view.
When the officers returned to the house, they
discovered that another batch of marijuana
had been bagged and the scales had been moved
from the position where the officers had seen
them earlier. These circumstances suffice to
support the rational inference that these
appellants indeed had dominion and control
of the marijuana in the abandoned house;
hence, it was appropriate for the trial court
to admit the contraband material in
evidence.
. . .
It is not necessary to pile an inference upon
another inference in order to sustain the
conviction in this case. The appellants'
reliance upon Pengleton v. Commonwealth, 294
Ky. 484, 172 S.W.2d 52, is misplaced. In
Pengleton, Kate Pengleton's conviction of
stealing chickens was reversed. The evidence
showed that four hens owned by Herman Peters
disappeared on a Sunday afternoon. The next
day the hens were bought by a merchant who
said that Ralph Smith came to the store,
accompanied by Kate Pengleton and her
thirteen-year-old daughter, Marie. Smith was
carrying two of the hens and Marie had the
other two. Smith, who had been living with
Kate for a year or more although she was
married to someone else, testified that he
stole the chickens and that Kate had no part
in it. The only evidence to link Kate
with the theft was the fact that she walked
into the store with Smith and her small
daughter who had the hens in their hands.
The court noted that possession of stolen
property is sufficient to cast on the accused
the burden of explaining that fact and that
the jury may believe or disbelieve such
explanation. However, the court noted that
since Kate never had actual possession and
there was no circumstance from which it could
be deduced that she exercised any control or
dominion over the stolen property or that she
received any part of the proceeds of its
sale, it was impermissible for the jury to
indulge an inference from Kate's actions that
she was in the possession of the stolen
property and then indulge the additional
inference from the inferred possession that
she was guilty of the theft. That situation
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does not obtain in this case, as a review of
the facts already discussed indicates.12
Similarly, we do not believe that Harris’ conviction
required the jury to indulge an inference from Harris’ actions
that he was in possession of the crack cocaine and then indulge
the additional inference from the inferred possession that he was
guilty of trafficking.
Rather, we believe as in Rupard that
“[t]he circumstances presented in this case support a rational
inference that [Harris] had constructive possession and probably
actual possession” of the crack cocaine in his jacket.
The
temperature that night was around 30 degrees and two of the three
occupants of the apartment were sitting on a jacket.
The
evidence supported a finding that Harris was sitting on the black
Nike jacket where the crack cocaine was found.
It was reasonable
to infer that Harris possessed the cocaine in the jacket he was
sitting on.
The possession of the cocaine along with the $797 in
cash and the pager were sufficient evidence to support a
trafficking conviction.
Thus, we hold that Harris’ conviction for trafficking
in cocaine was based on evidence “sufficient to induce a
reasonable juror to believe beyond a reasonable doubt” that
Harris was guilty.
Accordingly, the judgment of the Fayette
Circuit Court is affirmed.
COMBS, JUDGE, CONCURS.
McANULTY, JUDGE, CONCURS IN RESULT ONLY.
12
Rupard, supra at 474-76.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, KY
A.B. Chandler, III
Attorney General
Anitria M. Franklin
Assistant Attorney General
Frankfort, KY
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