PATRICK SIZEMORE V. COMMONWEALTH OF KENTUCKYAnnotate this Case
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RENDERED : JANUARY 27, 2011
NOT TO BE PUBLISHED
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ON APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE JOHN KNOX MILLS, JUDGE
NO . 09-CR-00118
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
Patrick Wayne Sizemore appeals as a matter of right from a circuit court
judgment convicting him of manufacturing methamphetamine, second offense,
and sentencing him to fifty years' imprisonment. Because the trial court
refused to grant Sizemore's request for jury instructions on lesser included
offenses, which were supported by the evidence, we reverse and remand for
further proceedings consistent with this opinion.
All other issues raised by Sizemore in this appeal are rendered moot by
our reversal for failure to give jury instructions on the lesser included offenses .
For the purpose of guiding any future proceedings on remand, we further note
that the Commonwealth correctly concedes that this case must be remanded
for re-sentencing because palpable error occurred during the sentencing phase
of trial when the Commonwealth's witness offered erroneous testimony
indicating that Sizemore would be eligible for parole after serving twenty
percent of his sentence . In fact, Sizemore would be required to serve eighty-five
percent of his sentence if convicted of the Class A felony offense of
manufacturing methamphetamine, second offense.'
I . FACTS.
Sizemore was charged with manufacturing methamphetamine, second
offense . At trial, a state trooper testified to finding Sizemore asleep at home
and finding various components of methamphetamine manufacture, 2 as well as
coffee filters with powder in them, when the trooper entered Sizemore's home
with a search warrant to investigate indications of methamphetamine
manufacture . And a detective, who arrived to help clean up the suspected
methamphetamine laboratory, testified to finding what he believed to be the
Kentucky Revised Statutes ( KRS) 439 .3401 () 1 (b) (defining a violent offender- as
including someone who has been convicted of a Class A felony) ; KRS 439 .3401(3)
("A violent offender who has been convicted of a capital offense or Class A felony
with a sentence of a term of years or Class B felony who is a violent offender shall
not be released on probation or parole until he has served at least eighty-five
percent (85%) of the sentence imposed." See also KRS 218A .1432(2) ("Manufacture
of methamphetamine is . . . a Class A felony for a second or subsequent offense.") .
So, even though the facts underlying Sizemore's methamphetamine offense do not
involve what is typically thought of as violence, he is, nonetheless, statutorily
required by virtue of his conviction for a Class A felony to be designated as a
violent offender who must serve eighty-five percent of his sentence before becoming
eligible for parole .
The trooper testified to finding a small jar of a clear liquid in Sizemore's home,
which he believed to be the source of an ether-like odor . He also testified to finding
in the home rock salt, Claritin, batteries with the outside covering removed, and a
bag of ammonium nitrate .
"remnants" of a methamphetamine lab along with ajar of suspected ether, 3 as
well as the "finished product," methamphetamine or suspected methamphetamine, in coffee filters .4
In his defense, Sizemore presented the testimony of his brother and
sister that they lived within sight of his residence and did not see him at home
the entire weekend before the trooper apprehended Sizemore at his home very
late Sunday night or very early Monday morning . And his brother and sister
testified to seeing Sizemore's roommate at his residence that weekend and to
seeing several other people coming and going from the residence that
weekend . 5
Sizemore also testified in his own defense that he had been out of town
all weekend visiting his son and his estranged wife . According to Sizemore, he
returned home on Sunday evening sometime around 7 or 8 p.m.6 He testified
that he did not smell or see anything suspicious when he arrived home, 'and he
For safety reasons, the detective added a compound to the jar of suspected ether to
neutralize any ether; and the clear liquid found in the jar was never tested to
confirm it was ether.
The parties have not drawn our attention to any testimony indicating whether or
not the powdered substance found in the coffee filters was subjected to chemical
testing to confirm that the powder was indeed methamphetamine . Sizemore has
not argued that the powder was not methamphetamine.
We presume that neither the roommate nor any visitors present at Sizemore's
home that weekend testified because neither party cites to any testimony in the
record from the roommate or visitors. And we shall not scour the record in a
possibly vain attempt to locate such testimony.
Sizemore had sought to present testimony of his estranged wife, as well. When she
was not present on the day of trial, he sought a continuance, which was denied.
Because we reverse on other grounds, we do not reach the issue of whether the
trial court properly denied the continuance .
immediately went to sleep. He denied having any knowledge of the presence of
a methamphetamine lab or methamphetamine in his home.
Sizemore requested that the trial court instruct the jury on -the lesser
included offenses of possession of a controlled substance and unlawful
possession of a methamphetamine precursor. The trial court stated on the
record that it was denying the requested instruction on unlawful possession of
a methamphetamine precursor on the basis that there was no evidence to
support a finding of knowing possession of such a precursor with intent to use
it to manufacture methamphetamine because of Sizemore's testimony that "it
wasn't even there ." (Presumably "it" refers to methamphetamine or its
precursors or perhaps to a suspected methamphetamine laboratory) . The
parties do not direct our attention to any portion of the record in which the
trial court articulated its reasoning for denying the requested instruction on
possession of a controlled substance. Possibly, the trial court may have
similarly reasoned that because Sizemore denied any knowledge of
methamphetamine or a methamphetamine lab in his residence, there was no
evidence to support a finding of knowing possession of methamphetamine .
The jury found Sizemore guilty of manufacturing methamphetamine,
second offense. And it recommended that Sizemore be sentenced to fifty-years'
imprisonment. The trial court entered judgment upon the jury's verdict and
imposed the fifty-year sentence recommended by the jury.
Trial Court Erred in Refusing to Give Instructions
on Lesser Included Offenses .
Sizemore's request on the record for instructions on the lesser included
offenses of possession of a controlled substance and unlawful possession of a
methamphetamine precursor, as well as his tendered instructions on these
lesser included offenses, preserved this issue for our review .? And we conclude
that under the facts of this case and the governing law, the trial court erred in
denying Sizemore's request to instruct the jury on these lesser included
Essentially, the evidence indicated that items used to manufacture
methamphetamine and the "finished product," actual or suspected
methamphetamine, in coffee filters were found in Sizemore's home; but
Sizemore testified to being totally unaware of any of these items and to having
been out of his home during most of the preceding weekend . Given this
evidence, the jury could have reasonably found that Sizemore was guilty of a
lesser included possession offense (of a controlled substance or a
methamphetamine precursor) but not guilty of the charged manufacturing
methamphetamine offense if the jury believed that Sizemore knowingly
Kentucky Rules of Criminal Procedure (RCr) 9.54(2) ("No party may assign as error
the giving or the failure to give an instruction unless the party's position has been
fairly and adequately presented to the trial judge by an offered instruction or by
motion, or unless the party makes objection before the court instructs the jury,
stating specifically the matter, to which the party objects and the ground or
grounds of the objection.").
possessed the finished product or a chemical precursor but did not believe that
he knowingly possessed two or more chemicals or equipment for
manufacturing methamphetamine. In light of an apparent lack of evidence
that Sizemore was actually seen "cooking" meth or preparing all of the
ingredients to do so, it is perhaps as likely that he might have committed a
lesser included possession offense as that he actually committed the greater
offense of manufacturing methamphetamine . So under our precedent,
Sizemore was entitled to the instructions on these lesser included offenses.
Our precedent provides: "An instruction on a lesser included offense is
appropriate only when the state of the evidence is such that a juror might
entertain reasonable doubt as to the defendant's guilt of the greater offense,
and yet believe beyond reasonable doubt that the defendant is guilty of the
lesser offense ."8 Our precedent also provides : "In a criminal case, it is the
duty of the trial judge to prepare and give instructions on the whole law of the
case, and this rule requires instructions applicable to every state of the case
deducible or supported to any extent by the testimony" 9 and that "[a]n
instruction on a lesser included offense may be authorized even if inconsistent
with the defendant's theory of the case, e.g., if it is supported by the
Commonwealth's evidence ."la
Billings v. Commonwealth, 843 S.W.2d 890, 894 (Ky. 1992) . See also Fredline v.
Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007) (trial court required to instruct
jury on affirmative defenses and lesser included offenses reasonably deducible from
the evidence, including evidence that could support an inference of a defense) .
Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999), citing, e.g., RCr 9 .54(1) .
Williams v. Commonwealth, 208 S.W.3d 881, 883 (Ky. 2006) .
Possibly, the jury could have found Sizemore guilty of a lesser included
possession offense but not the greater offense of manufacturing
methamphetamine given the evidence that methamphetamine and items
associated with its manufacture were found in his home but that he denied
having been present in his home during the time methamphetamine was,
apparently, produced there. Despite the fact that Sizemore testified to having
no knowledge of methamphetamine or a methamphetamine lab in his
residence, the jury was not compelled completely to accept or reject his
testimony." For example, the jury could have rejected Sizemore's testimony
that he was not aware of the presence of methamphetamine when he arrived
home and found beyond a reasonable doubt that Sizemore knowingly
possessed the finished product (methamphetamine) but accepted his testimony
that he did not knowingly possess items for producing methamphetamine and
did not intend to manufacture methamphetamine . So the jury could have
found him guilty of possession of methamphetamine12 but not guilty of
manufacturing methamphetamine .
Similarly, it would have been possible under the evidence presented for
the jury to find that Sizemore was guilty of unlawful possession of a
Gillispie v. Commonwealth, 212 Ky. 472, 279 S.W. 671, 672 (1926) ("The jury was
not required to believe all or none of the testimony of the witnesses . In their
discretion they may believe any part or all of the testimony of any of the witnesses,
or may disbelieve all of it.") .
KRS 218A.1415(1) ("A person is guilty of possession of a controlled substance in
the first degree when he knowingly and unlawfully possesses: a controlled
substance that contains any quantity of methamphetamine, including its salts,
isomers, and salts of isomers . . . .") .
methamphetamine precursor but not guilty of manufacturing methamphetamine . Sizemore was charged with manufacturing methamphetamine by
knowingly possessing chemicals and/or equipment used in methamphetamine
manufacture with the intent to manufacture methamphetamine, and the trial
court instructed the jury to consider whether he knowingly possessed two or
more of the chemicals and/or equipment for methamphetamine manufacture
with the intent to manufacture methamphetamine . 13 Unlawful possession of a
methamphetamine precursor differs from this type of manufacturing
methamphetamine offense in that it requires knowing and unlawful possession
of a chemical precursor rather than two or more items used to manufacture
methamphetamine, but it similarly requires that the defendant have the intent
to manufacture methamphetamine . 14 Again, because the jury might believe
only part of Sizemore's testimony, it might believe that Sizemore knowingly and
unlawfully possessed a chemical precursor (such as a drug product containing
ephedrine) with intent to manufacture methamphetamine but did not
knowingly possess any other of the items used in methamphetamine
KRS 218A . 1432(l)(b) ("A person is guilty of manufacturing methamphetamine
when he knowingly and unlawfully : With intent to manufacture
methamphetamine possesses two (2) or more chemicals or two (2) or more items of
equipment for the manufacture of methamphetamine . ") Cf. KRS 218A.1432 1432(1)(a)
("A person is guilty of manufacturing methamphetamine when he knowingly and
unlawfully : Manufactures methamphetamine . . . .").
KRS 218A.1437(1) ("A person is guilty of unlawful possession of a
methamphetamine precursor when he or she knowingly and unlawfully possesses
a drug product or combination of drug products containing ephedrine,
pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of
isomers, with the intent to use the drug product or combination of drug products
as a precursor to manufacturing methamphetamine or other controlled
manufacture (such as the peeled batteries, suspected ether, etc .) which police
found in his home. Thus, the jury might reasonably find him guilty of unlawful
possession of a methamphetamine precursor but not guilty of manufacturing
Although the Commonwealth argues that the statute prohibiting
unlawful possession of a methamphetamine precursor, KRS 218A.1437, only
"applies to situations where the products have not been used in the
manufacturing process[,]" it cites no authority for this proposition .
Furthermore, despite its argument that the officers' testimony was that the
remains of a methamphetamine lab was discovered and that "[t]hey did not
testify that they discovered  components of a methamphetamine lab that had
not been used," the Commonwealth cites to nothing of record indicating that
every portion of all methamphetamine components found had been used in the
methamphetamine manufacturing process. And we agree with Sizemore that
"[t]he jury could conclude that Sizemore possessed [a] meth precursor but
was not responsible for the meth discovered at the scene."
We further reject the Commonwealth's argument "there was no evidence
to suggest [Sizemore] knew of this methamphetamine, and possessed it,
without being involved in the manufacturing process." As Sizemore points out,
given the testimony that a number of people were seen coming and going from
his residence that weekend, a reasonable jury could find that he did not
participate in or intend to engage in the methamphetamine manufacturing
process even if it rejected his testimony that he was unaware of the presence of
methamphetamine in his house . In any event, the type of manufacturing
methamphetamine offense he was charged with did not actually require that he
had been actively "involved" in manufacturing methamphetamine. It simply
required that he had possessed two or more of the chemicals or equipment for
methamphetamine manufacture with the intent of manufacturing
methamphetamine (with no specific statutory language explicitly requiring
immediate intent to manufacture, thus, implying that an intent to manufacture
at some point in the future would suffice) . 15
We conclude that the trial court erred in denying Sizemore's request for.
jury instructions on the lesser included offenses of possession of a controlled
substance and unlawful possession of a methamphetamine precursor .
III. CONCLUSION .
For the foregoing reasons, the judgment of the trial court is reversed; and
the case is remanded to the trial court for further proceedings consistent with
All sitting. All concur.
KRS 218A. 1432(1)(b) .
COUNSEL FOR APPELLANT:
Erin Hoffman Yang
Assistant Public Advocate
Department of Public Advocacy .
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Attorney General of Kentuc
Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capitol Center Drive
Frankfort, Kentucky 40601-8204