JAMES RANCHER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 11, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001977-MR
JAMES RANCHER
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 00-CR-00034-001
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and KNOPF, Judges.
COMBS, JUDGE:
James Rancher appeals the August 21, 2001,
judgment of the Whitley Circuit Court convicting him of firstdegree possession of a controlled substance (cocaine) and
sentencing him to serve five years in prison.
He argues that the
trial court erred in failing to direct a verdict of acquittal and
in its instructions to the jury.
After a review of the evidence
and the applicable law, we disagree with his contention that he
was entitled to a directed verdict.
However, we agree that the
jury was erroneously instructed on the concept of complicity.
Thus, we vacate and remand for a new trial.
Rancher’s conviction was based on events of the evening
and early morning hours of April 14 and 15, 2001.
At around
midnight on April 14, Officer Kenneth Nighbert of the
Williamsburg Police Department stopped a vehicle on Interstate-75
after observing it weave from side to side on the roadway and
swerve into the emergency lane.
As he approached the vehicle,
Officer Nighbert noticed that the three occupants in the car were
“very fidgety” and that both Rancher (who was sitting in the back
seat
alone) and Clarence Valentine (who was sitting directly in
front of Rancher in the passenger’s seat) were drinking beer.
When asked for her identification, the driver gave Officer
Nighbert an operator’s license issued to “Tina Partin.”
officer returned to his vehicle.
The
His check of the license
revealed that Partin had several prior traffic arrests; however,
he learned from the license plate that the vehicle was registered
to Fay Miller of Flat Lick, Kentucky.
Officer Nighbert asked the driver to exit the car.
Field sobriety tests indicated that she was not under the
influence of alcohol.
Because her appearance did not match the
picture on the driver’s license and because she was unfamiliar
with Partin’s prior criminal history, the officer suspected that
she had not been truthful about her identity.
During his
conversation with the driver, Officer Nighbert noticed that
Valentine and Rancher were “moving around quite a bit in the
car.”
He then asked for and obtained permission from the driver
to search the vehicle.
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Officer Wayne Bird arrived on the scene, and the
officers instructed the two male passengers to get out of the
car.
They found a bag containing $10,000 worth of cocaine inside
the front console and a loaded handgun -- a 9 millimeter Luger -under the front passenger seat.
placed under arrest.
All three individuals were
At the police station, the officers learned
the driver’s true name, Danielle Bavol, and that she resided at
the same address as the owner of the vehicle.
A search of
Valentine uncovered three pocket knives, keys, and $5,210 in
cash.
Officers found no weapons, drugs, or money on Rancher.
The vehicle was impounded, and the police conducted an
inventory search.
They found a pair of pants stuffed directly
under the rear seat where Rancher had been sitting; inside the
pockets of the pants were two plastic bags containing small
amounts of cocaine.
Bavol, Valentine, and Rancher denied any
knowledge that drugs were in the vehicle.
They were subsequently
indicted on charges of trafficking in cocaine and were tried
together in July, 2001.
Rancher was the only defendant who testified at trial.
He stated that he did not know Valentine or Bavol very well.
He
said he ran into them at a grocery store after work on the
evening in question; he had approached Valentine about a job.
He
testified (apparently with some embarrassment) that his sole
motive for spending the entire evening riding in the car with his
co-defendants was the opportunity to consume the free beer that
they offered him.
He denied having any knowledge that drugs or
weapons were in the vehicle.
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The trial court denied Rancher’s motions for directed
verdict and instructed the jury on trafficking in a controlled
substance and possession of a controlled substance.
Neither
instruction allowed the jury to find Rancher guilty under an
accomplice theory.
However, the trial court gave a separate
instruction which defined complicity.
The jury found all three
defendants guilty of possession of cocaine and recommended that
each serve five years in prison.
Rancher accordingly.
The trial court sentenced
He has brought this appeal.
Rancher argues that the trial court erred to his
substantial prejudice by refusing to direct a verdict of
acquittal.
He contends that the evidence failed to establish
that he ever actually possessed — or had any control over — the
cocaine found in Bavol’s automobile.
He claims that the
circumstantial evidence supposedly linking him to the drugs is
far from what is necessary to support a conviction for possession
of cocaine.
Rancher’s counsel argues that when the evidence is
considered in the light most favorable to the Commonwealth, it
actually “tends to support” his client’s innocence:
Danielle Bavol was the one who gave false
identification, Clarence Valentine was the
one who was found to have a large amount of
money on his person, the car did not belong
to [Rancher], and most telling, James Rancher
was the only [one] of the three who took the
stand to prove his innocence. He had no
prior record and he was a 50 year old man at
the time of the incident.
In making the argument that he was entitled to a
directed verdict, Rancher relies on the principle that evidence
of one’s mere presence at the scene of a crime is not sufficient
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to support a conviction.
346 (1973).
Marcum v. Commonwealth, Ky., 496 S.W.2d
He also cites those cases in which the
owner/operator of a vehicle is deemed to be in constructive
possession of contraband, precedent which arguably precludes him
from also being found in possession of the drugs.
See, Paul v.
Commonwealth, Ky.App., 765 S.W.2d 24 (1988), and Leavell v.
Commonwealth, Ky., 737 S.W.2d 695 (1987).
We believe that the trial court did not err in denying
Rancher’s motions for a directed verdict.
Possession of
contraband may be proven by constructive possession; that is,
having control over, or the right to control, the contraband.
Rupard v. Commonwealth, Ky., 475 S.W.2d 473, 475 (1971).
Constructive possession may also be proven by circumstantial
evidence and can be implied where the contraband was found in a
place immediately and exclusively accessible to the defendant.
Burnett v. Commonwealth, Ky., 31 S.W.3d 878 (2000).
Like
Rancher, the defendant in Burnett was a lone, back-seat
passenger, charged with trafficking in drugs found near his seat
after a traffic stop.
In addressing Burnett’s argument that he
was entitled to a directed verdict, the Court reasoned as
follows:
We agree that Leavell, supra,
establishes the principle that proof that a
defendant has possession and control of a
vehicle is evidence to support a conviction
for constructive possession of contraband
found within the vehicle. However, we do not
believe that either Leavell or Paul
establishes the principle that proof that
someone other than a passenger-defendant had
possession or control of a vehicle in which
contraband is found, precludes a finding that
the passenger-defendant was in constructive
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possession of the contraband. Rather, we
believe that ownership and control of the
vehicle is only one factor to consider in
these types of cases.
To prove constructive possession, the
Commonwealth must present evidence which
establishes that the contraband was subject
to the defendant’s dominion and control. The
proof offered by the Commonwealth in this
case to show that Burnett was in constructive
possession of the cocaine was: (1) that the
cocaine was found in an area in the car next
to where Burnett had previously been sitting,
i.e., in an area within his immediate
control; and (2) that the owner of the car
disavowed possession of the drugs and claimed
that they belonged to Burnett. While not
overwhelming, the evidence was sufficient to
create an issue of fact for the jury.
Id. at 880-81,(citations omitted).
While the circumstantial evidence in Burnett was
somewhat stronger than in this case, we believe that the evidence
of Rancher’s proximity to the contraband, coupled with the
evidence of his suspicious behavior, was sufficient to warrant
submission of the matter to the jury.
As in Burnett, the cocaine
in the pants was found directly under Rancher’s seat.
Officer
Nighbert testified that Rancher was “fidgety” and nervous -- a
condition that he testified was rare for an occupant (other than
the driver) of an automobile stopped by police.
Certainly,
Rancher’s credibility as a witness was a matter particularly for
the jury and not for this court.
Thus, it was not unreasonable
for the jury to find Rancher guilty of possession of cocaine.
See, Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).
Next, Rancher alleges error in the trial court’s
instruction Number 3, given over his objection, which contained
the following definition of complicity:
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Complicity--Means that a person is guilty of
an offense committed by another person when,
while acting knowingly with regard to the
result of another’s conduct, he solicits,
commands, or engages in a conspiracy with
such other person to engage in that conduct,
or aids, counsels, or attempts to aid such
person in planning or committing such
conduct.
Clearly, the only circumstances requiring a definition for
complicity is where “the jury is instructed to find the defendant
guilty if ‘he, alone or in complicity with another,’ committed
the offense.”
1 Cooper Kentucky Instructions to Juries
(Criminal) § 10.01.
As stated earlier, the jury never had any
opportunity to find Rancher guilty as an accomplice.
At best,
the trial court’s instruction was gratuitous surplusage that had
no relevant bearing on Rancher’s ultimate fate.
Rancher’s objection to this instruction has several
facets.
He argues that he was not indicted for complicity and
that there was no evidence that he engaged in any behavior
sufficient to find him guilty as an accomplice; that the
instruction fails to include any facts to guide the jury in its
application but merely defines an abstract legal concept -- a
practice denounced in Daugherty v. Commonwealth, Ky., 572 S.W.2d
861 (1978); and that the confusion engendered by the instruction
resulted in a denial of his right to a unanimous verdict.
Commonwealth maintains that:
[w]hile the evidence presented at the trial
clearly would have supported an instruction
on complicity to trafficking, this issue was
made moot by the jury’s determination that
[Rancher] was guilty of the higher offense of
actual possession.
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The
This argument has no relevance since the offense of
possession is a lesser included offense as to the crime of
trafficking — not a greater offense.
The Commonwealth cites no
evidence in the record from which the jury could possibly infer
that Rancher intended to conspire with, aid, or counsel Valentine
or Bavol either in the offense of trafficking in or in possession
of cocaine.
Having reviewed the entire trial transcript, we
agree with the appellant that there is no evidence warranting the
incorporation of the definition of complicity within the jury’s
instructions.
We cannot agree with the Commonwealth’s argument that
any error in this regard is merely harmless:
Again, the most important fact in this case
with regard to this issue, is that [Rancher]
was not found guilty of complicity, but was
instead found guilty by the jury of
possession of a controlled substance under
instruction no 2. . . . The jury was given
the choice of convicting [Rancher] under
count one, trafficking; count two,
possession; or count three, complicity. . . .
[Rancher] was not convicted pursuant to the
instruction he now complains of, complicity,
but was rather convicted of possession of a
controlled substance.
As Rancher points out, these statements are not
accurate.
The jury was not given any meaningful opportunity to
find him guilty of complicity under instruction number 3; that
instruction was definitional only.
Rancher had not been indicted
under this theory -- nor did the Commonwealth prosecute him under
such a theory.
The trial court’s decision to include a
definition of complicity had no bearing on the reality of the
crime with which he was charged and arguably served as a
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distraction for the jury that may have impaired its ability to
evaluate properly the elements of his alleged offense.
We agree with Rancher that it is impossible to discern
how the jury utilized the instruction — if at all. We cannot
assume that he was not prejudiced by the erroneous instruction.
Accordingly, the judgment of the Whitley Circuit Court
is vacated, and the matter is remanded for a new trial consistent
with this opinion.
KNOPF, JUDGE, CONCURS.
DYCHE, JUDGE, DISSENTS.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
Linda Roberts Horsman
Frankfort, Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Tami Allen Stetler
Frankfort, Kentucky
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