DAVID ROWLAND v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 9, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002134-MR
DAVID ROWLAND
APPELLANT
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
INDICTMENT NO. 03-CR-00126
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE AND HENRY, JUDGES.
HENRY, JUDGE:
David Rowland appeals from a judgment of the
Breckinridge Circuit Court sentencing him to 15 years’
imprisonment following his conviction on controlled substance
and drug paraphernalia possession charges.
Upon review, we
affirm.
On October 22, 2003, David was indicted by the
Breckinridge County Grand Jury on one count of manufacturing
methamphetamine, one count of first-degree trafficking in a
controlled substance, and one count of possession of drug
paraphernalia, with each count being enhanced by David’s
possession of a firearm.
He was also charged with being a
first-degree persistent felony offender.
The indictment stemmed from a bulletin received by the
city of Cloverport advising that a man named Gary Thompson was
“cooking” methamphetamine in Daviess and Hancock Counties and
was then traveling through other counties to sell it.
The
bulletin also advised that Thompson was believed to be armed and
dangerous and included a felony warrant from the Perry County
Sheriff’s Department in Cannelton, Indiana for his arrest.
Acting on this information, on August 30, 2003,
Officers Rob Vanderhoef and David Pace visited a local address
in Cloverport looking for Thompson and learned that he might be
at the home of Wesley and Carol Rowland.
The officers then
traveled to the Rowland property.
Upon arrival, the officers found and secured Thompson
and obtained verbal consent from Carol Rowland to search her
house and property.
They also called Bobby Jones, the actual
owner of the property, and requested permission to search the
outbuildings and curtilage of the property, to which he agreed.
During the search, the officers found both firearms
and various items associated with the manufacture of
methamphetamine in a garage and in a mobile home adjacent to the
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property.
Subsequent to the arrival of additional police
officers as backup, Trooper David Bailey from the Kentucky State
Police entered the house and found David Rowland sitting on a
bed in one of the bedrooms on the first floor.
According to
David, at the time he was visiting the Rowlands when he became
tired and decided to take a nap in his nephew’s bedroom.
Once
David was moved out of the bedroom and into the kitchen, Trooper
Bailey found various drug paraphernalia and what was later
confirmed to be methamphetamine under the mattress where he had
been sitting.
As a result, David was arrested and charged with
first-degree possession of a controlled substance, possession of
marijuana, and possession of drug paraphernalia.
In addition,
Wesley Rowland, Carol Rowland, Thompson, and another woman were
also arrested.
On September 16, 2003, the Breckinridge District Court
held a preliminary hearing on all of the defendants’ cases.
During the hearing, Officer Vanderhoef testified that there were
boxes of David’s clothes in the kitchen, indicating that he
lived there.
Officer Pace testified that David also confirmed
that bags by the back door of the house were his.
In addition,
the district judge noted that Wesley and Carol Rowland’s written
requests for the appointment of counsel stated that David lived
at their residence.
A similar request by David also represented
that he lived with Wesley and Carol.
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At the conclusion of the hearing, the district court
found that there was probable cause to indict David, and the
matter was referred to the grand jury.
indicted on October 22, 2003.
As noted above, he was
On the following day, David
appeared in open court with his counsel and entered a plea of
“not guilty” to the pending charges.
On May 11, 2004, a hearing was held relating to a
suppression motion filed by Carol Rowland.
During the hearing,
David’s counsel advised the trial court that a suppression
motion had not been filed on David’s behalf due to their
position that he was not living at the Rowland residence at the
time of his arrest and therefore did not have standing to do so.
At the conclusion of the hearing, the trial court found that
Carol had voluntarily consented to the search of her house and
garage, so the evidence found therein would accordingly not be
suppressed.
The court further found, however, that any evidence
found within the mobile home adjacent to the Rowland property
should be suppressed since the mobile home was being rented by
the Rowlands and therefore their permission was needed to engage
in a search there.
David’s case proceeded to trial on July 29, 2004, with
Wesley and Carol Rowland already having pled guilty to various
charges.
The Commonwealth’s first witness was Trooper Bailey,
who testified that when he arrived at the Rowland residence, he
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was told that officers had received consent to conduct a search.
Once he was inside the house, Bailey found David sitting on a
bed in a first-floor bedroom.
After David would not respond to
his questions or move from the bed, Bailey indicated that he
directed him to move into the kitchen.
Once David did so,
Bailey testified that he lifted the mattress where he had been
sitting and found what was later determined to be processed
methamphetamine and drug paraphernalia.
Bailey further
testified that, based on his training and experience, he
believed that David’s initial refusal to move from the bed was
an effort to try to conceal the discovered items.
Towards the
end of Bailey’s testimony, the Commonwealth introduced a photo
of the bedroom in question, as well as photos of the items found
under the mattress.
David offered no objection to the
introduction of these photos.
Carol Rowland was the next witness to testify on
behalf of the Commonwealth.
She indicated that, as of August
30, 2003, David had been living in her home for three to four
months and had his own bedroom next to the kitchen.
Carol
further testified that the methamphetamine and drug
paraphernalia found by the police did not belong to her or her
husband, and that David had a problem with methamphetamine
addiction.
She also admitted that other people had access to
the house and bedrooms and often stayed overnight.
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The third witness for the Commonwealth was Officer
Vanderhoef.
Vanderhoef testified that he was not surprised to
find David at the Rowland residence, as it was his understanding
that David had been living there since problems with his sister
caused him to move from her house.
Vanderhoef further testified
that there were two bedrooms on the first floor of the residence
– one where David was found and another that appeared to be
Wesley and Carol Rowland’s master bedroom.
Moreover, during
Vanderhoef’s testimony, the Commonwealth introduced additional
photos of things found at the Rowland residence, including
firearms, items used to manufacture methamphetamine, an envelope
containing foil (with residue), and a plastic tube (with
residue).
Again, David voiced no objection to the introduction
of these photos.
The Commonwealth’s final witness was Amelia Gordon of
the Kentucky State Police.
She testified as to the testing and
identification of the methamphetamine and drug paraphernalia
found under the mattress on which David had been sitting.
During Gordon’s testimony, the Commonwealth introduced into
evidence a box containing some of the items found under the
mattress.
Once again, David offered no objection.
At the end of the Commonwealth’s case, David moved –
for the first time – to suppress the items found in the Rowland
residence and to dismiss the case against him.
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He specifically
based his request on the trial court’s decision as to the
suppression motion filed earlier by Carol Rowland.
The trial
court denied this motion, as well as David’s subsequent motion
for a directed verdict.
David’s only witness was his sister, Janet Harper, who
testified that he had been living with her on August 30, 2003.
She also indicated that on that date David had been visiting the
Rowlands and had only been doing so for two or three weeks.
David’s renewed directed verdict motion following her testimony
was again denied.
Following closing arguments, the case was submitted to
the jury, which found David guilty of first-degree possession of
a controlled substance and possession of drug paraphernalia.
Following the penalty phase, the jury found that David was a
first-degree persistent felony offender and recommended an
enhanced sentence of 15 years on the controlled substance charge
and a sentence of 12 months on the drug paraphernalia charge.
On August 9, 2004, David moved for a new trial,
arguing that the “testimony concerning the methamphetamine found
inside the home at Hwy 992 in Cloverport Kentucky should not
have been allowed pursuant to this Court’s order entered May 14,
2004.”
In response, the Commonwealth argued that David never
filed a motion to suppress and failed to object to the
introduction of evidence at trial, thereby waiving the issue of
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suppression.
In addition, the Commonwealth set forth that it
“honored the Court’s ruling [in the Carol Rowland case] and did
not introduce any evidence against [David] that was found in a
mobile home adjacent to [David’s] residence.”
The trial court
ultimately denied the motion for a new trial in its August 20,
2004 order.
On September 9, 2004, the trial court entered a
judgment and sentence order, sentencing David in accordance with
the jury’s recommendations.
This appeal followed.
On appeal, David first argues that the trial court
erred in failing to grant his motion for a directed verdict of
acquittal.
Specifically, he argues that it was unreasonable for
the jury to find him guilty of possession of a controlled
substance and drug paraphernalia because the Commonwealth failed
to prove that he had either constructive or actual possession of
those items when they were seized at the Rowland residence.
The
Commonwealth, of course, disagrees with this position and also
contends that the issue is not properly preserved for review.
After examining the record, we agree that it is
arguably questionable as to whether the issue is properly before
us.
However, we ultimately conclude that the question is of
little practical consequence, as we believe that the evidence
was sufficient to convict David whether the issue is preserved
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or whether it is unpreserved and subject to review under the RCr1
10.26 “palpable error” standard.2
As a general rule, we are obligated to review
arguments pertaining to directed verdicts under the standard set
forth in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991): “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
Id. at 187.
directed verdict of acquittal.”
“On motion for
directed verdict, the trial court must draw all fair 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.”
Id.
“A motion for a directed verdict of acquittal should only
be made (or granted) when the defendant is entitled to a
complete acquittal i.e., when, looking at the evidence as a
whole, it would be clearly unreasonable for a jury to find the
defendant guilty, under any possible theory, of any of the
crimes charged in the indictment or of any lesser included
1
Kentucky Rules of Criminal Procedure.
2
RCr 10.26 provides: “A palpable error which affects the substantial rights
of a party may be considered by the court on motion for a new trial or by an
appellate court on appeal, even though insufficiently raised or preserved for
review, and appropriate relief may be granted upon a determination that
manifest injustice has resulted from the error.”
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offenses.”
1978).
Campbell v. Commonwealth, 564 S.W.2d 528, 530 (Ky.
Essentially, a defendant is entitled to a directed
verdict only if the Commonwealth produces no more than a “mere
scintilla” of evidence of guilt.
Benham, 816 S.W.2d at 187-88.
We finally note that, “[f]or the purpose 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.”
Id.
at 187.
After reviewing the record in a light drawing all fair
and reasonable inferences from the evidence in favor of the
Commonwealth, we believe that the jury’s verdict finding David
guilty of possessing methamphetamine and drug paraphernalia is
amply supported by the evidence.
As the parties recognize in
their briefs, in Kentucky, possession may be either actual or
constructive, and it need not be exclusive.
See, e.g. Johnson
v. Commonwealth, 90 S.W.3d 39, 42 (Ky. 2002).
Constructive
possession, in particular, exists “when a person does not have
actual possession but instead knowingly has the power and
intention at a given time to exercise dominion and control of an
object, either directly or through others.”
Id.; see also
Hargrave v. Commonwealth, 724 S.W.2d 202, 203-04 (Ky. 1986).
Accordingly, “[t]o prove constructive possession, the
Commonwealth must present evidence which establishes that the
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contraband was subject to the defendant’s dominion and control.”
Pate v. Commonwealth, 134 S.W.3d 593, 598-99 (Ky. 2004).
As noted above, Trooper Bailey told the jury that he
found David sitting on a bed in the Rowland residence, and that
he initially failed to move or respond to his questions.
Bailey
then testified that he believed from his past experience that
David did not want to move from the bed because he was trying to
conceal something that was hidden underneath the mattress.
There was also considerable testimony supporting the argument
that the bedroom essentially “belonged” to David, and that he
had been living with the Rowlands and sleeping in the bed in
question for several months.3
Accordingly, we believe that the
evidence could support a reasonable inference by the jury that
the items underneath the mattress were under David’s dominion
and control, and that he was, in fact, trying to hide them from
police.
See Blades v. Commonwealth, 957 S.W.2d 246, 250 (Ky.
1997) (“It is well-settled that a jury may make reasonable
inferences from the evidence.”).
We therefore conclude that the
trial court did not err in refusing to grant David a directed
verdict of acquittal, as it was not clearly unreasonable for the
3
In reaching this conclusion, we recognize the testimony from David’s sister
that he had been living with her at the time of his arrest. However, where
conflicting testimony exists, issues of credibility and the weight to be
given any piece of evidence are matters strictly within the purview of the
jury. See Benham, 816 S.W.2d at 187; Commonwealth v. Smith, 5 S.W.3d 126, 129
(Ky. 1999).
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jury to find him guilty of possessing methamphetamine and drug
paraphernalia.
David’s second argument is that the trial court erred
in failing to suppress the items found under the mattress on
which he was sitting because he did not give consent for the
bedroom to be searched.
The Commonwealth argues in response
that this claim of error was waived when David failed to file a
motion to suppress at any point prior to trial, and when he
failed to object when this evidence was introduced during its
case-in-chief.
The issue of evidence suppression is governed by RCr
9.78, which provides:
If at any time before trial a defendant
moves to suppress, or during trial makes
timely objection to the admission of
evidence consisting of (a) a confession or
other incriminating statements alleged to
have been made by the defendant to police
authorities, (b) the fruits of a search, or
(c) witness identification, the trial court
shall conduct an evidentiary hearing outside
the presence of the jury and at the
conclusion thereof shall enter into the
record findings resolving the essential
issues of fact raised by the motion or
objection and necessary to support the
ruling. If supported by substantial evidence
the factual findings of the trial court
shall be conclusive.
By its plain language, the rule requires that a person seeking
to suppress the introduction of evidence do so either: (1)
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before trial, via a motion to suppress, or (2) during trial, via
a timely objection.
In this case, David did not file a motion to suppress
before trial.
Indeed, when asked at the beginning of Carol
Rowland’s suppression hearing whether David was joining in the
motion, his counsel advised the trial court that a suppression
motion had not been filed on his behalf due to their position
that he was not living at the Rowland residence at the time of
his arrest and therefore did not have standing to do so.
Consistent with this position, David offered no objection at
trial to the introduction into evidence of the items found under
the mattress or any photos of those items.
Following the close of the Commonwealth’s case, David
argued – for the first time – that the evidence found under the
mattress should be suppressed because he did not give his
consent to search the bedroom and, therefore, an unlawful search
and seizure occurred.
However, we agree with the Commonwealth
that, pursuant to the clear language of RCr 9.78, if David
wanted to request that those items be suppressed, he should have
done so before trial or in a timely objection during trial – not
after they were already introduced into evidence.
At that
point, it was simply too late and the issue was waived.
Cf.
Brown v. Commonwealth, 890 S.W.2d 286, 290 (Ky. 1994) (holding
that, even when a defendant files a motion to suppress, a
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failure to insist that the trial court rule on that motion
constitutes a waiver of the issue); Higdon v. Commonwealth, 473
S.W.2d 110, 111 (Ky. 1971) (holding that a defendant’s motion to
strike trial testimony that had already been admitted and not
objected to was “too late” and “correctly overruled”).
Consequently, we must reject David’s arguments in this respect.
Consequently, the judgment of the Breckinridge Circuit
Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Astrida L. Lemkins
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Jeffrey A. Cross
Frankfort, Kentucky
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