TED WILLIS APPEALED HONORABLE HENRY M . GRIFFIN, JUDGE V. COMMONWEALTH OF KENTUCKY
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THIS OPINION IS DESIGNA TED "NOT TO BE
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RENDERED : JUNE 16, 2005
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'SuprMt (90urf of
2004-SC-0032-MR
TED WILLIS
V.
APPELLANT
APPEALED FROM DAVIESS CIRCUIT COURT
HONORABLE HENRY M . GRIFFIN, JUDGE
02-CR-00291-002
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Ted Willis, was convicted by a Daviess Circuit Court jury of
manufacturing methamphetamine, possession of anhydrous ammonia in an unapproved
container, and of being a subsequent offender of the offense of manufacturing
methamphetamine . He appeals to this Court as a matter of right from a sentence of
sixty-nine years' imprisonment.
On the morning of June 8, 2002, Daviess County Deputy Sergeant Richard Coy,
while driving on patrol with his window down, smelled a strong odor of ether coming
from a house on Highway 81 . Because of the odor, he suspected that a
methamphetamine lab was located in the house . He called for assistance, and was
joined by Fireman Scotty Smith and Deputy Ken Taul. They knocked on the door to
investigate the matter .
The owner of the house, Sam Bickett, came to the door and allowed the officers
to enter. Bickett's behavior became erratic as he attempted to harm himself with a
knife. The officers subdued Bickett. At one point, Fireman Smith noticed a man flee the
scene .
Due to the presence of a strong ether odor and methamphetamine manufacturing
equipment, the officers evacuated Bickett and his family. The officers searched the
area surrounding the house, which included several outbuildings . As Deputy Coy
approached a barn in a pasture behind the house, he noticed a liquid propane cylinder
in the pasture and found Appellant lying on his back about fifteen to twenty feet from the
cylinder . The cylinder contained ammonia. Deputy Coy took Appellant into custody and
waited for the arrival of Daviess County detectives .
The detectives collected methamphetamine, methamphetamine manufacturing
equipment and methamphetamine ingredients from both the house and Appellant's car,
which was parked near the house . The house contained all of the equipment and
ingredients, save lithium, necessary to manufacture methamphetamine . Although no
lithium was recovered, shredded battery cases were found indicating that lithium had
already been extracted and used in the manufacturing process .
Appellant told the chief investigator that he had given a person named Jason a
ride to Bickett's house shortly before the officers arrived . He stated that he dropped
Jason off at the house, went inside, and observed Jason and Bickett "cooking"
methamphetamine . Appellant claimed that the methamphetamine manufacturing
equipment and ingredients found in his car belonged to Jason ; however, he offered no
explanation as to why he had been lying in the grass behind the house near the liquid
propane cylinder . The officers did not find a person named Jason on the premises .
I.
Appellant argues that the trial court erred in failing to grant his motion for directed
verdict. Appellant claims that the items found in his car were only some of the
chemicals and some of the equipment that could have been used to make
methamphetamine . The rest of the items constituting the methamphetamine lab were
scattered throughout Bickett's house, yard, and pasture . Under KRS 218A.1432, as it
was written at the time of Appellant's conviction, an individual is guilty of manufacturing
methamphetamine if he either manufactures methamphetamine (KRS 218A.1432(a)), or
possesses the chemicals or equipment for the manufacture of methamphetamine with
the intent to manufacture (KRS 218A. 1432(b)) . Appellant claims that the
Commonwealth did not demonstrate that he participated in the manufacturing of
methamphetamine, or that he had dominion and control over the equipment and
ingredients found in Bickett's home .
"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 ." Commonwealth v . Benham , 816 S .W .2d 186,
187 (Ky. 1991) . The evidence presented at trial was sufficient for a jury to reasonably
infer that Appellant either did in fact manufacture methamphetamine, or was in
possession of all of the methamphetamine equipment and ingredients with an intent to
manufacture . See Young v. Commonwealth , 25 S.W.3d 66, 70 (Ky. 2000)(directed
verdict is not warranted where jury can reasonably infer that defendant possessed the
items necessary to manufacture methamphetamine with an intent to use them); see
also Varble v. Commonwealth , 125 S .W.3d 246, 254 (Ky. 2004). Appellant was found
hiding in proximity to the methamphetamine lab in the house and admits that he had
been in the house while the methamphetamine was being "cooked ." The
Commonwealth presented evidence suggesting that Appellant had been on the
premises all night, and was not simply an innocent bystander who was dropping off a
friend as he claimed . Coupled with the fact that methamphetamine equipment,
ingredients, and the finished methamphetamine product were found in Appellant's car,
there was certainly enough evidence for the trial court to overrule Appellant's motion for
directed verdict. The trial court was correct in making the inferences from the evidence
favorable to the Commonwealth .
II .
Appellant claims that he was denied a unanimous verdict because the verdict
form submitted to the jury combined several theories of the offense, and it is impossible
to determine under which theory the jurors based their conviction .
Appellant did not preserve this issue for review, and it will only be reviewed for
possible palpable error. RCr 10.26 . There is no error because, as discussed above, the
evidence was sufficient to support a conviction based on either the theory that Appellant
manufactured methamphetamine, or that he possessed all the necessary
methamphetamine manufacturing equipment or ingredients with intent to manufacture .
Where multiple theories of guilt are included in jury instructions, juror unanimity is not
violated where the evidence would support a conviction under both theories . Wells v.
Commonwealth , 561 S .W.2d 85, 97 (Ky. 1978) ; See also 1 Cooper, Kentucky
Instructions to Juries (Criminal), ยง 1 .56, at 55 (4 th ed . 1999) .
The judgment and sentence of the Daviess Circuit Court are affirmed .
All concur.
COUNSEL FOR APPELLANT
Lisa Bridges Clare
Department of Public Advocacy
100 Fair Oaks Lane
3rd Floor
Frankfort, KY 40601
COUNSEL FOR APPELLEE
Gregory D . Stumbo
Attorney General
Matthew D . Nelson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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