SANDERS (TERRANCE D.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 9, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001203-MR
TERRANCE D. SANDERS
v.
APPELLANT
APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 07-CR-00034
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Terrance D. Sanders appeals from a judgment of the
Hickman Circuit Court convicting him of trafficking in a controlled substance
within 1000 yards of a school, firearm-enhanced possession of marijuana, and
firearm-enhanced possession of drug paraphernalia, as a result of which he was
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS0 21.580.
sentenced to 15 years’ imprisonment. Sanders argues that the trial court erred in
denying his motion for a directed verdict on the firearm-enhancement portion of
his drug charges because the Commonwealth failed to offer any evidence that the
firearm in question was operable and capable of firing a projectile. For the reasons
set forth below, we affirm.
On August 31, 2007, officers with the Hickman County Sheriff’s
Office, along with probation and parole officer Eric Meshew, executed an arrest
warrant at Sanders’ residence in Clinton, Kentucky. Caroline Crawell, Sanders’
girlfriend, signed a consent form allowing the officers to search the residence,
which was located within 1000 yards of Hickman County High School and
Hickman County Elementary School.
As the officers searched the residence, they found “a green, leafy
substance” later identified as marijuana on a kitchen counter. In a cabinet under
the counter, they found a “gallon bag” of a substance also later identified as
marijuana along with a set of scales. In the residence’s bedrooms, the officers also
found a marijuana roach and a set of digital scales, as well as a loaded .25 caliber
semi-automatic handgun, an extra clip of ammunition, and a box of ammunition.
On October 19, 2007, a Hickman County grand jury charged Sanders
in an indictment with trafficking in a controlled substance within 1000 yards of a
school, firearm-enhanced possession of marijuana, and firearm-enhanced
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possession of drug paraphernalia.2 Sanders entered a plea of “not guilty,” and the
case proceeded to trial before a Hickman County jury on February 26, 2008.
At trial, Hickman County Sheriff John Turner testified that the firearm
found at Sanders’ residence was loaded and that the extra clip found next to the
firearm was also loaded. He also testified that he had no reason to test fire the
firearm. Crawell testified that she owned the firearm and that she had brought it to
the residence on the day of the search for protection when she learned that Sanders
had been arrested and would not be home that night. Sanders’ counsel twice
moved for a directed verdict on the firearm-enhancement portion of the charges on
the grounds that the Commonwealth had failed to offer any proof that the handgun
found at the residence was operable and functioning. Both motions were
overruled, and the trial court stated that the issue was one for the jury. The jury
ultimately found Sanders guilty of all three charges – including the two firearmenhanced drug charges – and recommended that Sanders serve a sentence of 15
years’ imprisonment. On May 28, 2008, the trial court entered a judgment and
sentence in accordance with the jury’s verdict. This appeal followed.
Sanders’ sole contention on appeal is that the trial court erred in
denying his motion for a directed verdict on the firearm-enhancement portion of
his drug charges because the Commonwealth failed to offer any evidence that the
firearm in question was operable and capable of firing a projectile. The standards
2
Sanders was also charged with other offenses that were ultimately severed from this case and
are not part of this appeal.
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that trial courts must follow in considering motions for directed verdict are set
forth in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991):
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. For 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. “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 directed verdict of acquittal.” Id.
The opinion of the Supreme Court of Kentucky in Campbell v.
Commonwealth, 260 S.W.3d 792 (Ky. 2008), is dispositive of this appeal. In
Campbell, the appellant moved for a directed verdict on the firearm-enhancement
portion of his drug charges based on a lack of proof as to the firearm’s operability.
Id. at 802. Police had found a rusty or corroded sawed-off shotgun behind the
headboard of a bed in the appellant’s home while searching for evidence of
suspected methamphetamine manufacture. The gun was not subjected to any
testing before trial, and neither party presented proof as to whether the gun was
actually capable of firing. Id. The Supreme Court noted that the case squarely
presented the question of whether the Commonwealth has the burden of proving
the operability of a firearm in order to enhance sentences for drug offenses or
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whether the inoperability of the firearm is an affirmative defense that the defendant
has the burden of proving. Id. at 802-03.
The Supreme Court ultimately held that “operability of the firearm is
not an element of the firearm enhancement” and concluded that “the inoperability
of a firearm is an affirmative defense for which the defense has the burden of
proof.” Id. at 804. Accordingly, even a “total lack of proof” by the
Commonwealth as to the operability of the firearm in issue did not entitle the
defendant to a directed verdict. Id.
Pursuant to Campbell, then, it was not the Commonwealth’s burden in
this case to prove anything concerning the operability of the firearm found at
Sanders’ residence. A directed verdict of acquittal on this issue would have only
been proper if Sanders had proven that the firearm was incapable of “expel[ling] a
projectile by the action of an explosive.” KRS 237.060(2). Such proof was not
offered in this case. Therefore, since Sanders failed to meet his burden of proof,
the issue of firearm enhancement was properly put before the jury.
Because the evidence in this case was sufficient to withstand Sanders’
directed verdict motion, we find no reversible error in the trial court’s handling of
this matter. For the foregoing reasons, we affirm the decision of the Hickman
Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Brandon Pigg
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Michael J. Marsch
Assistant Attorney General
Frankfort, Kentucky
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