ANTONIO SIMPSON V. COMMONWEALTH OF KENTUCKY
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RENDERED:
March 11, 2005; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000641-MR
ANTONIO SIMPSON
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
INDICTMENT NO. 03-CR-00543
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON AND TACKETT, JUDGES; HUDDLESTON, SENIOR JUDGE.1
MINTON, JUDGE:
On June 27, 2003, Antonio Simpson was arrested
by the Covington police and charged with first-degree
trafficking in less than eight ounces of marijuana, a
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and KRS 21.580.
misdemeanor.2
Because he was driving at the time of his arrest,
the police impounded Simpson’s car and secured a search warrant.
The search of the car uncovered seven bags of marijuana and
three sets of digital scales.
Based on this evidence, Simpson
was indicted for trafficking in marijuana over five pounds.3
He
filed a motion to dismiss the indictment on grounds of double
jeopardy because by the time of his indictment, he had already
disposed of the misdemeanor with a guilty plea in district
court.
After the circuit court denied the motion, Simpson
entered a conditional guilty plea, reserving an appeal from the
denial of his motion to dismiss.
We hold that double jeopardy
did not prevent the later trafficking charge; thus, we affirm
the circuit court’s order denying dismissal.
On the date of Simpson’s arrest, the Covington Police
Department received reliable information that Jeremie Johnson
was trafficking in marijuana.
The police arranged for a
confidential informant to conduct a transaction with Johnson.
Johnson arrived at the point of purchase in a car driven by
Simpson.
Before Johnson got out of the car, police saw Simpson
hand Johnson a freezer bag that appeared to contain marijuana.
Johnson placed the freezer bag into another bag and left the
vehicle.
At that point, the officers approached Johnson, who
2
Violation of Kentucky Revised Statutes (KRS) 218A.1421(2)(a) is a
Class A misdemeanor.
3
Violation of KRS 218A.1421(4) is a Class C felony.
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fled on foot.
He was later caught with approximately 425 grams
of marijuana.
Meanwhile, Officer Bill Conrad removed Simpson from
his car and conducted a patdown search.
Officer Conrad found
two bags of marijuana, a cell phone, and $740 in cash on
Simpson’s person.
Simpson was arrested and initially charged
with misdemeanor trafficking in eight ounces or less of
marijuana.
In a plea bargain in district court, the charge was
amended to possession of marijuana,4 to which Simpson pled
guilty.
After Simpson’s arrest on the misdemeanor, the
Covington Police Department impounded his car and transported it
to the evidence garage.
A search warrant was obtained; and on
July 30, 2003, a search was conducted.
The search revealed
sufficient evidence for the police to believe that Simpson was
trafficking in marijuana.
The Kenton County grand jury indicted
Simpson for trafficking in five pounds or more of marijuana.
Simpson filed a motion to dismiss the indictment
against him, arguing that to try him on the trafficking charges
would put him “in jeopardy twice in violation of [his]
constitutional rights . . . based upon [his] plea of guilty on
August 12, 2003[,] to the amended charge of possession of
marijuana arising out of the same incident for which [he] stands
4
KRS 218A.1422, a Class A misdemeanor.
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[i]ndicted.”
The Kenton Circuit Court denied his motion; on the
same day, Simpson entered a conditional plea of guilty to a
lesser trafficking charge,5 reserving the right to appeal from
the denial of his motion to dismiss.
This appeal follows.
On appeal, Simpson makes the same argument that he
made in circuit court.
Specifically, he claims that the
misdemeanor charge of possession and the felony charge of
trafficking both arose out of the events that occurred on
June 27, 2003; since possession is a lesser included offense of
trafficking, Simpson claims it was error for him to be charged
with both offenses.
Simpson alleges that his constitutional
guarantee against double jeopardy was violated.
We disagree.
Both the Fifth Amendment to the United States
Constitution and Section 13 of the Kentucky Constitution secure
an individual’s protection against double jeopardy.
The Fifth
Amendment specifically states “that no person shall ‘be subject
for the same offence to be twice put in jeopardy of life or
limb.’”6
KRS 505.020 provides further protection against “unfair
5
Simpson pled guilty to trafficking in eight (8) or more ounces but
less than five (5) pounds of marijuana, in violation of
KRS 218A.1421(3), a Class D felony, for which Simpson was sentenced
to a maximum confinement of two years.
6
Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996), quoting US
Const. Amend. V.
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or oppressive prosecution” by prohibiting conviction for more
than one offense that is “included in the other.”7
In Blockburger v. United States,8 the United States
Supreme Court elucidated the test applicable to claims of double
jeopardy.
The Court held, “[t]he applicable rule is that, where
the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whether
each provision requires proof of an additional fact which the
other does not.”9
So long as each statute “requires proof of an
additional fact which the other does not,” then double jeopardy
does not occur.10
Although the Supreme Court later pronounced a separate
test for double jeopardy in the case of Grady v. Corbin,11 that
test was overruled by the Court’s decision in United States v.
Dixon.12
Relying on the decision in Dixon, the Kentucky Supreme
Court has held that in Kentucky, “double jeopardy issues arising
out of multiple prosecutions henceforth will be analyzed in
7
KRS 505.020(1)(a).
8
284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
9
Id. at 304.
10
Id.; see also, Burge, supra, at 809.
11
495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
12
509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).
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accordance with the principles set forth in Blockburger v.
United States and KRS 505.020.”13
With regard to the relationship between possession and
trafficking charges, “under our current statutes, possession of
a controlled substance is a lesser offense included within the
trafficking charge.”14
The Kentucky Supreme Court has also held
that it is “error to convict [an individual] of being an
accomplice to the possession with intent to sell and the sale of
marijuana, when the charges arose from the same incident.”15
Despite these holdings, there was no error under the
facts for Simpson to be charged with both misdemeanor possession
of marijuana and felony trafficking in marijuana.
Although
possession of marijuana is a lesser-included offense of
trafficking in marijuana, the charges in this case did not arise
from the same incident.
The facts of this case mirror the hypothetical
situation posed by the Kentucky Supreme Court in Beaty v.
Commonwealth.16
In Beaty, law enforcement officers pulled a
vehicle over because they had observed it weaving on the
highway.
Upon approaching the vehicle, the officers smelled “a
13
Burge, supra, at 811.
14
Jackson v. Commonwealth, 633 S.W.2d 61, 62 (Ky. 1982).
15
Mangrum v. Commonwealth, 674 S.W.2d 957, 958 (Ky. 1984).
16
125 S.W.3d 196 (Ky. 2003).
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strong odor of anhydrous ammonia.”17
After arresting the driver,
the officers conducted a search of the vehicle.
The search
revealed “substantial evidence of illegal drug activity,”
including “three small bags of marijuana, a bag of cocaine, a
set of scales, and other assorted drug paraphernalia.”18
A bag
in the back seat of the vehicle contained “a piece of burnt
aluminum foil bearing methamphetamine residue” and several
ingredients used in the manufacturing of methamphetamine; in the
trunk, the police officers found three propane tanks and a jar
containing methamphetamine residue.19
The driver was indicted on
numerous counts, including possession of a controlled substance
in violation of KRS 218A.1415 and manufacturing methamphetamine
in violation of KRS 218A.1432(1)(a).
He was later convicted on
both the possession and the manufacturing charges.20
On appeal, the driver argued that his convictions for
possession and manufacturing methamphetamine violated his
constitutional guarantee against double jeopardy.
Citing a
Colorado case, the Court agreed, stating that “possession of
methamphetamine [is] a lesser included offense of manufacturing
17
Id. at 201.
18
Id.
19
Id.
20
Id.
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methamphetamine for purposes of double jeopardy.”21
And,
comparing this case to their earlier decision in Mangrum v.
Commonwealth, the Court held that “under the facts of this case,
[the defendant] could not also be convicted of a separate
offense for possessing the methamphetamine that he
manufactured.”22
But, despite their belief that the facts precluded a
conviction for both possession and manufacturing, the Court went
on to state that the threshold question “is whether the
manufacturing and possession convictions were predicated upon
the same underlying facts.
Without this factual unity, multiple
convictions are not proscribed.”23
The Court noted that
convictions for both possession and manufacturing
methamphetamine would have been justified in this case “if the
methamphetamine that he was convicted of possessing was not the
same methamphetamine that he was convicted of manufacturing.”24
The Court further stated:
[I]f the conviction of possession was
premised upon the methamphetamine found in
the jar in the trunk of the vehicle,
KRS 505.020(1)(a) would require that the
possession conviction be vacated. However,
if the conviction was premised upon the
21
Id. at 211.
22
Id. at 212
23
Id.
24
Id. at 213.
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methamphetamine residue found on the piece
of burnt aluminum foil in the duffel bag in
the back seat, the conviction would not
necessarily violate KRS 505.020(1)(a). This
residue would have been sufficient to
support a conviction under KRS 218A.1415(1),
and a reasonable jury could have believed
that this residue was not a product of the
manufacturing process occurring in the trunk
of the vehicle, e.g., the residue
represented methamphetamine purchased on the
street or manufactured elsewhere and used
personally by Appellant. With such a
finding, a reasonable jury could have
convicted Appellant of manufacturing
methamphetamine (based upon the
manufacturing process occurring in the trunk
of the vehicle) and possession of
methamphetamine (based upon the residue
found in the back seat) without violating
KRS 502.020(1)(a).25
The facts of the present case indicate that the
misdemeanor possession charge stemmed from the patdown search of
Simpson, while the felony trafficking charge arose following a
search of Simpson’s vehicle some three days later.
These facts
parallel the theoretical situation discussed by the Court in
Beaty.
We agree that had the police found only the marijuana in
Simpson’s car, convictions for both possession and trafficking
of that marijuana would have violated Simpson’s constitutional
guarantee against double jeopardy.
But because the possession
charge stemmed from the marijuana the police found during their
patdown of Simpson and the trafficking charge arose from the
significant amount of marijuana and the digital scales that the
25
Id. (Citation omitted).
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police found in the car after the vehicle was impounded and a
search warrant obtained, conviction on both charges was
constitutionally permissible.
A reasonable jury could have
found that the marijuana on Simpson’s person was for his own
personal use, while the significant amount of marijuana in the
car was for trafficking.
Thus, the separate charges for
possession and trafficking were permissible.
The difference in time between the patdown and the
search of the car bolsters our belief that Simpson’s charges did
not spring from the same incident.
Although the charge date for
both crimes was June 27, 2003, the date when the police pulled
Simpson over, the trafficking charges did not arise until
June 30, 2003, when the police discovered the marijuana in his
car.
Simpson seems to argue that the police erred by failing to
conduct a warrantless search at the time of his initial arrest,
stating:
[t]he Officers had the right to conduct a
warrantless search of the vehicle right then
and there under two separate exceptions to
the warrant requirement; namely, a search
incident to a lawful arrest and a search
based on probable cause (the marijuana seen
in plain view inside the vehicle) and
exigent circumstances. Instead, however,
the Officers chose to have the vehicle towed
to the Covington evidence garage to conduct
a search pursuant to a warrant on the
following business day, which was three days
later.
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We do not find fault with the officers’ actions in choosing to
secure the car and obtain a search warrant before conducting a
search of Simpson’s car.
For these reasons, the decision of the Kenton Circuit
Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Deanna L. Dennison
Covington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
David A. Smith
Assistant Attorney General
Frankfort, Kentucky
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