DAVID NICHOLS V. COMMONWEALTH OF KENTUCKY
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED : NOVEMBER 1, 2007
NOT TO BE PUBLISHED
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2006-SC-000104-MR
DAVID NICHOLS
APPELLANT
ON APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM H . MONARCH, JUDGE
NO. 05-CR-000077
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, David Nichols, was convicted by a Grayson Circuit Court jury of
manufacturing methamphetamine enhanced by possession of a firearm and
possession of anhydrous ammonia in an unapproved container with the intent to
manufacture . For these crimes, Appellant was sentenced to fifty years
imprisonment . He now appeals to this Court as a matter of right. Ky. Const.
ยง110(2)(b) .
Appellant asserts two main arguments on appeal : 1) that the trial court
erred by not granting him a directed verdict of acquittal and 2) that the admission
of evidence showing Appellant's prior bad acts was error because it was overly
prejudicial and not probative of the charges. For the reasons set forth herein, we
affirm Appellant's convictions .
On or about April 30, 2005, police officers with the Grayson County
Sheriff's Department executed a search warrant on property owned by Appellant .
The search warrant was issued after Deputy Sheriff Matt Darst smelled ether, a
substance commonly associated with manufacturing methamphetamine, while
driving past Appellant's property. The police had also previously received
numerous anonymous tips regarding Appellant's potential methamphetamine
manufacturing operation .
During the search, officers seized multiple items including a jar of
hydrochloric acid, a punched starter fluid can, a gas mask, acetone, valves,
funnels, plastic tubing, drain opener, salt, blister packages of pseudoephedrine,
and various automobile solvents . A large unapproved tank of anhydrous
ammonia was also found and destroyed by the police . Appellant's trailer where
most of the items were found smelled strongly of ether. At trial Deputy Darst
testified that all of the items found in the search could be used to manufacture
methamphetamine . Further, a burn pile, which Deputy Darst testified was
commonly used by methamphetamine manufacturers to dispose of chemicals
and other byproducts, was located on the property .
At trial, Appellant testified that the items found in his house were used to
repair automobiles and make a special type of chrome polish that he would sell
to truck drivers . Appellant also presented several witnesses who testified that
there was no heavy smell of ether in his trailer. Additionally, Appellant cites to
the fact that no actual ephedrine or methamphetamine was found during the
search .
l . The denial of the directed verdict motion was appropriate
At the close of the Commonwealth's case and again at the end of all of the
evidence, Appellant moved for a directed verdict of acquittal on the charges
against him . Appellant argued that the Commonwealth failed to prove that he
intended to manufacture methamphetamine . See KRS 218A.1432(1) ("A person
is guilty of manufacturing methamphetamine when he knowingly and unlawfully:
(a) manufactures methamphetamine; or (b) possesses the chemicals or
equipment for the manufacture of methamphetamine with the intent to
manufacture methamphetamine .")' Appellant further argued that he could not be
guilty of possessing anhydrous ammonia in an unapproved container with intent
to manufacture methamphetamine because he did not know the tank was on his
property and that he never intended to manufacture methamphetamine . See
KRS 250 .991(2) ("Any person who knowingly possesses anhydrous ammonia in
a container other than an approved container in violation of KRS 250 .489 . . .
with the intent to manufacture methamphetamine in violation of KRS 218A.1432,
[is guilty of a] Class B felony for the first offense and a Class A felony for each
subsequent offense."). Appellant ultimately argued that the items found in the
search were common household materials and that without finding any trace of a
controlled substance the court could not infer that he intended to manufacture
methamphetamine .
A trial court's decision regarding a directed verdict motion is reviewed
under the standard articulated in Commonwealth v. Benham, 816 S.W.2d 186
(Ky. 1991):
' From the jury instructions used it appears that the pre-June 2005 version
of KRS 218A.1432 was used in this case .
3
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 .
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. at 187 (citations omitted) .
Using this standard, the trial court properly denied the motion for directed
verdict. Intent to manufacture methamphetamine can be inferred from the
circumstances surrounding the search and a jury has wide latitude in inferring
intent from the evidence . Anastasi v. Commonwealth , 754 S.W.2d 860, 862 (Ky.
1988) . Our current statutory scheme defines intent to manufacture
methamphetamine as:
any evidence which demonstrates a person's conscious objective to
manufacture a controlled substance or methamphetamine. Such
evidence includes but is not limited to statements and a chemical
substance's usage, quantity, manner of storage, or proximity to
other chemical substances or equipment used to manufacture a
controlled substance or methamphetamine.
.
KRS 218A .010(15) . In fact, we have previously held that a person maybe
convicted of manufacturing methamphetamine if he is in possession of several of
the materials necessary to manufacture methamphetamine in suspicious or
unnatural quantities . See Matheney v. Commonwealth , 191 S.W.3d 599, 604
(Ky. 2006) (construing the language of the pre-June 2005 version of KRS
218A .1432(1)(b) to allow for a conviction when a person has the requisite
scienter and two or more of the materials necessary to make methamphetamine) .
In this matter, the jury found that Appellant was in possession of all of the
requisite materials necessary to manufacture methamphetamine. The evidence
also indicates that these materials were in relatively close proximity to each
other, being found either in Appellant's trailer or on land surrounding the trailer .
In light of these facts, it certainly would not be unreasonable for a juror to find
Appellant had intent to manufacture methamphetamine . See KRS 218A.010(15) .
Further, while Appellant claims to have no knowledge of the anhydrous ammonia
in the unapproved container, it would not have been unreasonable for a juror to
believe Appellant had knowledge or at least constructive possession . The trial
court's denial of the motion for directed verdict of acquittal was therefore proper .
II. The admission of evidence regarding Appellant's prior bad act involving
methamphetamine was not error
During trial, the Commonwealth attempted to introduce evidence showing
that Appellant previously pled guilty to unlawful distribution of a
methamphetamine precursor in the first degree in Hardin County. The guilty plea
stemmed from Appellant's purchase of a large quantity of Sudafed for another
individual to use in the manufacturing of methamphetamine on or about
November 2, 2003 . The Commonwealth hoped to introduce evidence of this
guilty plea to show Appellant's intent to manufacture methamphetamine . The
trial judge ultimately decided to allow evidence of the actual purchase of the
Sudafed but disallow any mention of the guilty plea because at the time Appellant
was appealing that case to this Court . The trial judge made this decision
because he believed that the Commonwealth could establish through Appellant's
prior actions that his presence at the trailer was for the purpose of manufacturing
methamphetamine . The trial judge believed this was important because he felt
Appellant's only real defense to these charges was claiming that he was not at
the trailer for the purpose of manufacturing methamphetamine.
Appellant now argues that the admission of this evidence was error
because it is irrelevant and overly prejudicial . Appellant further argues that the
evidence does not reflect a similar crime, has no connection to the crime alleged,
and is too remote from this matter to be admissible . See O'Brvanv
.
Commonwealth , 634 S.W.2d 153,156-157 (Ky. 1982) . Admission of this
evidence is governed by KRE 404(b) which states that "evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity therewith ." However, such evidence may be
admissible: "1) [i]f offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident ; or 2) if so inextricably intertwined with other evidence essential to the
case that separation of the two (2) could not be accomplished without serious
adverse effect on the offering party ." Id .
Here the evidence regarding Appellant's assistance of a
methamphetamine manufacturer was admissible to prove his motive, intent, and
plan to personally manufacture methamphetamine . See Hayes v.
Commonwealth , 175 S.W.3d 574, 588 (Ky. 2005). Appellant's prior act shows
that Appellant has been involved with the methamphetamine trade and that he is
familiar with the manufacturing process . The evidence also helps establish
Appellant's motive by refuting his claim that the seized materials were being used
to create chrome polish . The previous crime is similar enough to the present
alleged act to support an inference of intent to manufacture methamphetamine .
Additionally, the fact that the prior act occurred several years ago did not make it
too remote to be relevant at trial. See United States v. Rush; 240 F.3d 729, 731
(8th Cir. 2001) (holding that a drug conviction from 1987 was not too remote to
be relevant). Thus, there is no error here .
For the reasons set forth herein, the judgment and sentence of the
Grayson Circuit Court is affirmed .
All sitting . All concur .
COUNSEL FOR APPELLANT
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE
Gregory D . Stumbo
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
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