ROBERT CURTIS CAHILL, III v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 16, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-001192-MR
ROBERT CURTIS CAHILL, III
APPELLANT
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE WILLIAM LEWIS SHADOAN, JUDGE
ACTION NO. 03-CR-00065
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND VANMETER, JUDGES.
KNOPF, JUDGE:
Robert Cahill, III, appeals from a judgment of
the Fulton Circuit Court, entered May 13, 2004, convicting him
of tampering with anhydrous ammonia with intent to manufacture
methamphetamine by complicity; 1 and third-degree criminal
1
KRS 250.4892, 250.991, 502.020.
trespass by complicity. 2
He was sentenced to sixteen years in
prison and a $250.00 fine, respectively.
He contends that the
trial court erred by denying his motion for a directed verdict
with respect to his alleged intent to promote the manufacture of
methamphetamine, by misinstructing the jury, and by failing to
separate one of the Commonwealth’s witnesses.
Because we agree
that the jury instructions were fatally flawed, we reverse in
part and remand.
During the late afternoon or evening of August 16,
2003, Cahill; his girlfriend, Mary Collins; and his friend,
Kenneth Gourley, drove in Collins’s car from Cahill’s Dyersburg,
Tennessee, home into Fulton County, Kentucky.
There, according
to Collins, they “stumbled upon” the premises of Speed Ag
Services, LLC, an agricultural supply business located on Middle
Road near the intersection of Kentucky highway 239.
Having seen
Speed Ag’s storage tanks of anhydrous ammonia, the trio
proceeded to Wal Mart, where one of the men (Collins did not
know which) obtained a black rubber hose.
drove them back to Speed Ag.
the hose.
After dark, Cahill
The men then exited the car with
Collins remained behind and claimed that she did not
see what they did.
Not long thereafter, however, a Fulton County
detention-center officer who informally patrolled Speed Ag’s
2
KRS 511.080, 502.020.
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premises during off hours noticed Collins’s car and came to
investigate.
He found the car backed between two of the rows of
anhydrous ammonia tanks and saw Collins apparently asleep in the
front passenger seat.
He radioed for assistance and was soon
joined by officers from the Fulton County Sheriff’s Department.
One of the officers roused Collins, who admitted that her
companions, Cahill and Gourley, had apparently run into the
adjacent corn field when the first officer approached.
The
officers found a portion of the black hose crudely coupled to
one of the anhydrous ammonia tanks by means of duct tape and a
soda bottle.
They called to Cahill and Gourley, but not until
they threatened to “loose the dogs” did Cahill emerge from the
cornfield and submit to arrest.
According to one of the
arresting officers, deputy sheriff Zickefoose, Cahill admitted
that they were there to steal “anhydrous,” but claimed that they
had never done it before.
Gourley was apprehended a few hours
later at a residence about a mile-and-a-half away where he had
asked to use the phone.
His disheveled appearance and unlikely
story about car trouble made the owner suspicious enough to call
a neighbor, who apparently called the police.
The next morning,
one of the officers searched the cornfield and found a
container, like a restaurant’s soft drink dispenser, that still
held a small amount of liquid with a strong smell of ammonia.
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This container matched a lid the officers had found the night
before near the tampered-with tank.
Cahill and Gourley were charged with having violated
KRS 250.4892 which makes it unlawful for any person “to tamper
with equipment, containers, or facilities used for the storage,
handling, transporting, or application of anhydrous ammonia.”
Under KRS 250.991, violation of KRS 250.4892 is a Class D
felony, “unless it is proven that the person violated KRS
250.4892 with the intent to manufacture methamphetamine . . . in
which case it is a Class B felony for the first offense and a
Class A felony for each subsequent offense.”
The Commonwealth
alleged that Cahill and Gourley had the aggravating intent to
manufacture methamphetamine, and, apparently because the
Commonwealth did not know which of the two had attached the hose
to the anhydrous ammonia tank, it alleged that both of them had
violated KRS 250.4892 by complicity; i.e., that “with the
intention of promoting or facilitating the commission of the
offense,” both had “aid[ed], counsel[ed], or attempt[ed] to aid
[the other] in planning or committing the offense.” 3
tried together in February 2004.
They were
As noted above, the jury found
both of them guilty of the aggravated tampering charge and of
third-degree criminal trespass.
3
Cahill was sentenced in accord
KRS 502.020.
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with the jury’s recommendation to sixteen years in prison. 4
He
contends on appeal that the Commonwealth failed to prove that
either he or Gourley intended to manufacture methamphetamine and
thus that he was entitled to a directed verdict of acquittal on
the aggravated charge.
We disagree.
“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.” 5
A person is presumed to
intend the logical and probable consequences of his acts, so
that intent may be inferred from the act itself, the
circumstances surrounding it, and the person’s knowledge. 6
Here, as Cahill notes, the police did not find in
Collins’s car or on the persons of Cahill and Gourley any of the
other chemicals or equipment commonly used in the manufacture of
methamphetamine.
Without such evidence, Cahill argues, the jury
could not determine whether he and Gourley intended to use the
stolen anhydrous ammonia themselves or to trade or to sell it to
someone else.
4
Gourley was sentenced to ten years in prison. This Court
affirmed his conviction in an unpublished opinion, Gourley v.
Commonwealth, 2004-CA-001196-MR (July 29, 2005).
5
Beaty v. Commonwealth, 125 S.W.3d 196, 203 (Ky. 2003) (citing
Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991), internal
quotation marks omitted).
6
Harper v. Commonwealth, 43 S.W.3d 261 (Ky. 2001); Davis v.
Commonwealth, 967 S.W.2d 574 (Ky. 1998).
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Two of the testifying officers, however, had received
special training in methamphetamine interdiction, and both
testified that, while a black market for anhydrous ammonia
exists and while people sometimes trade anhydrous ammonia for
the finished product, it was far more common in their experience
for thieves to use stolen anhydrous ammonia in their own
manufacturing operation.
Collins testified, moreover, that she
was not sure whether Cahill and Gourley intended to “cook”
methamphetamine themselves or to supply some other manufacturer,
indicating that Cahill and Gourley had knowledge of the
manufacturing process.
This evidence was sufficient, we
believe, to permit a reasonable inference that Cahill and
Gourley tampered with Speed Ag’s anhydrous ammonia tank with the
intent to manufacture methamphetamine.
The trial court did not
err, therefore, by denying Cahill’s motion for a directed
verdict on the aggravated charge.
Cahill next contends that the trial court erred by
failing to include the element of intent in its guilt-bycomplicity jury instructions.
We agree.
The trial court’s instruction number two provided as
follows:
You will find the Defendant, Robert Curtis
Cahill, III, guilty of Complicity to
Tampering With Anhydrous Ammonia Equipment
with Intent to Manufacture Methamphetamine,
under this Instruction if, and only if, you
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believe from the evidence beyond a
reasonable doubt all of the following:
A. That in this county on or about the 16th
day of August, 2003 and before the finding
of the indictment herein, Kenneth Saber
Gourley knowingly tampered with anhydrous
ammonia equipment used for storage,
handling, transporting or application of
anhydrous ammonia;
B. That Kenneth Saber Gourley did so with
the intent to procure said anhydrous ammonia
to manufacture methamphetamine; AND
C. That the Defendant, Robert Curtis Cahill,
III aided and assisted Kenneth Saber Gourley
to tamper with anhydrous ammonia equipment
by providing means and/or opportunity to
tamper with anhydrous ammonia equipment.
As noted above, however, to be guilty by complicity
under KRS 502.020(1), it was not enough for Cahill merely to
have aided and assisted Gourley; he must have done so “with the
intention of promoting or facilitating the commission of the
offense.”
The trial court’s instruction therefore lacked a part
D, something like the following: That in aiding and assisting
Gourley, it was Cahill’s intention that Gourley tamper with the
anhydrous ammonia equipment for the purpose of manufacturing
methamphetamine. 7
Addressing a similarly deficient instruction
in Harper v. Commonwealth, 8 our Supreme Court ruled that intent
is an essential element of guilt by complicity under KRS
502.020(1) and held that “where intent is an essential element
7
Harper v. Commonwealth, 43 S.W.3d 261 (Ky. 2001) (citing
Justice Cooper’s specimen instruction in 1 Cooper, Kentucky
Instructions to Juries (Criminal) § 10.06 (Anderson 1999)).
8
supra.
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of the offense, failure to instruct on it is reversible error.” 9
We agree with Cahill, therefore, that the trial court’s failure
to instruct on the essential element of his intent entitles him
to a new trial. 10
This is so notwithstanding the fact, as the
Commonwealth points out, that Cahill did not object to the
instructions as given.
He did, however, tender instructions
that included an intent element and thus, arguably at least,
satisfied RCr 9.54, which provides that “[n]o party may assign
as error the giving or the failure to give an instruction unless
the party’s position has been fairly and adequately presented to
the trial judge by an offered instruction.”
In Harper,
moreover, not only had the appellant not objected to the
erroneous instructions, but they were “word-for-word identical
to the complicity instructions [she] tendered.” 11
the error was deemed reversible.
Nevertheless,
The same error here requires
the same result.
Having determined that Cahill is entitled to relief,
we shall comment on his other allegations of error only to the
9
Harper v. Commonwealth, 43 S.W.3d at 264.
10
Although the trial court’s instruction number five, the thirddegree trespassing instruction, also omitted the intent element,
Cahill has not sought relief on that ground. Our ruling,
therefore, does not affect his conviction for that crime.
11
Harper v. Commonwealth, 43 S.W.3d at 268 (Justice Cooper
concurring).
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extent that they bear on issues apt to arise at a new trial.
First, the trial court did not err by refusing to instruct the
jury on the lesser offenses of tampering and trespassing by
facilitation.
Under KRS 506.080(1) a person may be held guilty
of a crime by facilitation when,
acting with knowledge that another person is
committing or intends to commit a crime, he
engages in conduct which knowingly provides
such person with means or opportunity for
the commission of the crime and which in
fact aids such person to commit the crime.
Whereas complicity requires that the defendant intend that the
crime be committed, “[f]acilitation reflects the mental state of
one who is wholly indifferent to the actual completion of the
crime.” 12
An instruction on a lesser-included offense is
appropriate, of course, if, but only if, “on the given evidence
a reasonable juror could entertain a reasonable doubt of the
defendant’s guilt of the greater charge, but believe beyond a
reasonable doubt that the defendant is guilty of the lesser
offense.” 13
Here, the evidence that Cahill did not merely drive
the car but got out of it with Gourley near the anhydrous
ammonia tanks, that he exhibited a sense of wrongdoing by
12
Thompkins v. Commonwealth, 54 S.W.3d 147, 150 (Ky. 2001)
(citations and internal quotation marks omitted).
13
Thompkins v. Commonwealth, 54 S.W.3d at 151 (citation and
internal quotation marks omitted).
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fleeing into the cornfield, and that he admitted upon arrest
that “we” had come to steal anhydrous ammonia precluded a
finding that he was indifferent to the completion of the crime
and so likewise precluded a guilt-by-facilitation instruction.
The trial court did not err by providing a separate
verdict form for each principal offence and each lesser-included
offence.
Although apparently that practice is common, the court
may want to take some precaution against the sort of juror
confusion associated with it addressed by our Supreme Court in
McGinnis v. Wine. 14
We are not prepared to say that the trial court erred
by instructing the jury in Cahill’s case to consider his
complicity and in Gourley’s case to consider his complicity,
thus seeming to suggest that there was no principal actor.
We
would note, however, that our Supreme Court has approved a
combination instruction to address cases in which it is not
clear whether the defendant acted as a principal or an
accomplice. 15
Finally, we agree with Cahill that the court erred by
allowing deputy Zickefoose, one of the Commonwealth’s witnesses,
to remain in the courtroom as bailiff after the defendants had
14
959 S.W.2d 437 (Ky. 1998).
15
Caudill v. Commonwealth, 120 S.W.3d 635 (Ky. 2003); Halvorsen
v. Commonwealth, 730 S.W.2d 921 (Ky. 1986). See 1 Cooper,
Kentucky Instructions to Juries § 10.07 (Anderson 1999).
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invoked the witness-separation rule, KRE 615.
Aside from three
narrow exceptions, none of which applied to officer Zickefoose,
this rule is mandatory. 16
There are due-process implications,
moreover, to permitting the bailiff, an officer of the impartial
court, to serve or to appear to serve as an agent of the state. 17
Officer Zickefoose should have been excluded from the courtroom
along with the other witnesses.
In sum, although the Commonwealth presented sufficient
evidence to permit a finding that Cahill intended to manufacture
or to promote or facilitate the manufacture of methamphetamine,
the jury instructions erroneously omitted that element from the
findings the jury was required to make and permitted the jury to
convict him based solely on its conclusions regarding Gourley’s
intentions.
Our Supreme Court has held that the failure to
instruct on an essential element of the offense is reversible
error.
Accordingly, we reverse that portion of the May 13,
2004, judgment convicting Cahill of tampering with anhydrous
ammonia equipment with the intent to manufacture methamphetamine
and remand the matter to the Fulton Circuit Court for a new
trial.
ALL CONCUR.
16
Mills v. Commonwealth, 95 S.W.3d 838 (Ky. 2003).
17
Gonzales v. Beto, 405 U.S. 1052, 92 S.Ct. 1503, 31 L.Ed.2d 787
(1972); Agnew v. Leibach, 250 F.3d 1123 (7th Cir. 2001); Coots v.
State, 826 S.W.2d 955 (Tex.App. 1992).
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Emily Potter Holt
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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