PARTIN (PHILLIP L.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 25, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000539-MR
PHILLIP L. PARTIN
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 06-CR-00234
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: FORMTEXT ACREE, DIXON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Phillip L. Partin brings this appeal from a February 26, 2007,
judgment and sentence of imprisonment upon a jury verdict finding him guilty of
possession of drug paraphernalia, second offense, and of being a persistent felony
offender in the second degree. We affirm.
Appellant was a backseat passenger in a motor vehicle stopped by
police upon suspicion that the driver was intoxicated. The other backseat
passenger was Lujayne Childers. After placing the driver of the vehicle under
arrest for driving under the influence, appellant and Childers were asked to step out
of the vehicle. Childers was then placed in the rear seat of a police cruiser. Upon
Childers exiting the cruiser, crack cocaine was visible in plain view in the rear seat
of the cruiser. Childers admitted to possession of the cocaine, and a search of her
person produced additional quantities. Thereafter, the police conducted a search of
appellant’s person. The police found a glass pipe wrapped in a paper towel hidden
in appellant’s pants. Appellant stated that the glass pipe was Childers’ and that she
placed the pipe in his pants to avoid police detection.
The Bell County Grand Jury indicted appellant upon first-degree
possession of a controlled substance, possession of drug paraphernalia (second
offense), and with being a first-degree persistent felony offender. Following a jury
trial, the jury returned a verdict of acquittal upon first-degree possession of a
controlled substance but returned a verdict of guilty upon possession of drug
paraphernalia. Appellant was also adjudged to be a second-degree persistent
felony offender. By judgment entered February 26, 2007, appellant was sentenced
to a total term of ten-years’ imprisonment. This appeal follows.
Appellant contends that the circuit court erred by denying his motion
for a directed verdict of acquittal upon the offense of possession of drug
paraphernalia. A directed verdict is proper if considering the whole evidence it
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would have been clearly unreasonable for the jury to have found defendant guilty.
Com. v. Benham, 816 S.W.2d 186 (Ky. 1991).
Kentucky Revised Statutes (KRS) 218A.500(2) criminalizes the
possession of drug paraphernalia and reads as follows:
It is unlawful for any person to use, or to possess with
intent to use, drug paraphernalia for the purpose of
planting, propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packing,
repacking, storing, containing, concealing, injecting,
ingesting, inhaling, or otherwise introducing into the
human body a controlled substance in violation of this
chapter.
Appellant believes that the evidence was insufficient to support the
jury’s finding of guilt upon possession of drug paraphernalia. Specifically, he
points to testimony by police that appellant and Childers were “fumbling around in
the backseat,” that appellant immediately explained that the pipe was Childers’,
and that Childers tried to dispose of other incriminating evidence. Moreover,
appellant essentially argues that the jury’s verdict of guilty upon possession of
drug paraphernalia and verdict of not guilty upon possession of a controlled
substance are inconsistent verdicts:
Following approximately 18 minutes of testimony and
proof by the Commonwealth, [appellant] was found
guilty of Possession of Drug Paraphernalia, but,
inexplicably, found not guilty of Possession of a
Controlled Substance in the First Degree. Essentially,
the jury found [appellant] guilty of possessing the crack
pipe, but not the crack cocaine contained therein. It only
stands to reason that if the proof was insufficient to
establish that [appellant] possessed the crack inside the
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pipe, it was insufficient to prove he possessed the pipe
itself.
At trial, the evidence was undisputed that the glass pipe was found
hidden in appellant’s pants. Considering the circumstances of this case, we believe
this undisputed evidence alone is sufficient to support the jury’s guilty verdict
upon possession of drug paraphernalia under KRS 218A.500(2). Simply stated, we
cannot say it was clearly unreasonable for a jury to have returned a guilty verdict.
Moreover, in this Commonwealth, jury verdicts need not be entirely consistent if
the evidence is sufficient to support each verdict. Com. v. Harrell, 3 S.W.3d 349
(Ky. 1999). As hereinbefore stated, the evidence supports the jury’s finding of
guilt upon possession of drug paraphernalia. In sum, we conclude that the circuit
court properly denied appellant’s motion for directed verdict of acquittal.
For the foregoing reasons, the judgment and sentence of the Bell
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Brandon Pigg
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General of
Kentucky
Frankfort, Kentucky
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