HOMER WAYNE BURD V. COMMONWEALTH OF KENTUCKY

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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: OCTOBER 25, 2012 NOT TO BE PUBLISHED ,inprrtur Gurf (-f--firnfuritv 2011-SC-000531-MR APPELLANT HOMER WAYNE BURD V. ON APPEAL FROM ALLEN CIRCUIT COURT HONORABLE JANET CROCKER, JUDGE NO. 10-CR-00091 COMMONWEALTH OF KENTUCKY APPELLEE MEMORANDUM OPINION OF THE COURT AFFIRMING An Allen Circuit Court jury found Appellant, Homer Wayne Burd, guilty of manufacturing methamphetamine, first-degree possession of a controlled substance, possession of drug paraphernalia, and of being a first-degree persistent felony offender (PFO). For these crimes, Appellant was sentenced to thirty years in prison. He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court erroneously (1) denied his motion to suppress and (2) failed to instruct the jury on a lesser included offense. For the reasons that follow, we affirm. I. BACKGROUND On June 18, 2010, Detective Mike Wimpee of the Kentucky State Police Drug Task Force received information from an informant that Appellant was manufacturing methamphetamine at his residence. The next day, Detective Wimpee contacted the Office of Probation and Parole which informed him that Appellant had an outstanding arrest warrant for violating his parole. Detective Wimpee requested and received a copy of that warrant. Later that day, Detective Wimpee and three additional officers went to Appellant's home to execute the arrest warrant. Two officers went to the front door while Detective Wimpee and another detective, Charlie Drummond, went around the house to the backyard to guard against a possible escape through the backdoor. On their way to the backyard, Detective Drummond told Detective Wimpee that he smelled what he believed to be camping fuel. Next to the garage, the Detectives saw a camping fuel can and an acetone can two items commonly used in the manufacture of methamphetamine sitting on top of a garbage can. The detectives continued to the backyard where Detective Wimpee positioned himself behind a fifty-five gallon trash barrel. From his position, Detective Wimpee noticed marijuana plants growing in flower pots an estimated distance of twenty feet to his left. After nobody answered the front door, Detective Wimpee left the scene to obtain a search warrant; however, because they believed Appellant was still inside, the other three officers remained positioned outside of Appellant's home.' About an hour later, Detective Wimpee returned with the Sheriff and a K9 unit to execute the search warrant. After again knocking and announcing 1 After receiving the informant's tip, the officers performed a "drive by" of Appellant's home the day before executing the arrest warrant to confirm that Appellant still lived at that address, and to ascertain if anyone else might live there. During the "drive by," the officers saw Appellant and his wife outside the house, as well as two cars in the driveway and another car in front of the house. When they returned the following day to execute the arrest warrant, all of the cars were still there. Thus, although nobody answered the door when the officers knocked and announced their presence, they had reason to believe that Appellant was inside the house. 2 their presence with no response, the Sheriff forced open the door to find Appellant, his wife, and another individual inside. Detective Wimpee immediately detected the smell of chemicals and asked Appellant if there was anything dangerous or harmful in the residence. Appellant led him to the kitchen where there was a glass jar which he told Detective Wimpee he had used to cook meth. Thereafter, Appellant led the detectives to a bedroom closet where there were two tote bags. In the bags, the detectives found several items associated with manufacturing methamphetamine, including a bottle filled with lighter fluid, glass jars, and coffee filters. The fact that the bags contained a portable meth lab does not appear to be in dispute; however, Appellant testified that the bags were not his and that he did not know their contents. Elsewhere in the bedroom, Detective Wimpee discovered crystal methamphetamine (in its manufactured state). Ultimately, Appellant was found guilty of manufacturing methamphetamine, first-degree possession of a controlled substance, possession of drug paraphernalia, and of being a first-degree PFO. He received a thirty-year prison sentence. Additional facts will be provided where helpful to our analysis. II. ANALYSIS Appellant sets forth two arguments on appeal, alleging that the trial court erred to his substantial prejudice when it: (1) denied his motion to suppress the evidence seized pursuant to the search warrant and (2) failed to 3 give a jury instruction on the lesser included offense of unlawful possession of a methamphetamine precursor. A. Motion to Suppress Appellant first argues that the trial court erroneously denied his motion to suppress the evidence seized from his home pursuant to the search warrant. Specifically, he contends that the warrant's supporting affidavit contained: (1) information obtained in violation of his reasonable expectation of privacy and (2) false or misleading statements. The Fourth Amendment to the United States Constitution provides, in pertinent part, that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." See also Ky. Const. § 10 (stating, in pertinent part, "no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation"). I. Appellant's reasonable expectation of privacy was not violated. Appellant's first allegation of error with respect to the motion to suppress is that the information contained in the search warrant's supporting affidavit was obtained in violation of his reasonable expectation of privacy. Specifically, he contends that the Coleman fuel, acetone, and marijuana plants were discovered pursuant to an illegal search of the curtilage of his home, and then used to obtain the warrant. Because whether one enjoys a reasonable 4 expectation of privacy is a question of law, we review de novo. See United States v. Siau, 281 F.App'x 949, 951 n.2 (11th Cir. 2008) (per curiam). In Oliver v. United States, the U.S. Supreme Court recognized that "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." 466 U.S. 170, 178 (1984). "Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private." Id. at 180 (citations omitted). In McCloud v. Commonwealth, the Court of Appeals addressed a virtually identical issue as the one before us. 279 S.W.3d 162 (Ky. App. 2007). In that case, two Sheriff's deputies were dispatched to serve an arrest warrant upon the defendant. Id. at 164. One of the deputies went to the front door of the residence, and the other "walked to the rear of the residence to secure the back door." Id. The defendant answered the front door and was arrested. Id. "However, while covering the rear of the trailer, [the other deputy] observed several items customarily used in the manufacturing of methamphetamine." Id. Based upon the items viewed at the residence and other information within the deputies' knowledge, they obtained a search warrant and discovered a significant amount of contraband inside the residence. Id. The defendant was convicted and appealed, arguing that the deputy who covered the back door "improperly invaded the curtilage of her private 5 residence." Id. at 166. And because the items discovered during the allegedly illegal search of her home's curtilage were used to establish probable cause to obtain the search warrant, she argued that the evidence must be suppressed. Id. The Court of Appeals disagreed, stating: An arrest warrant authorizes a limited invasion of the arrestee's privacy interest in order to execute the warrant. 6A C.J.S. Arrest § 56 (2004). A valid arrest warrant also permits the police to enter the home of the arrestee to serve the warrant. 2 It is uncontroverted that [the deputy] was participating in the execution of a lawful arrest warrant at the time he approached the rear of [the defendant's] trailer. He proceeded to the rear of the trailer in order to secure the rear door of the trailer to aid in effectuating the arrest. As a valid arrest warrant authorizes a limited invasion of the arrestee's privacy interest and, more specifically, authorizes ( entry into the arrestee's home, we conclude that a valid arrest warrant also authorizes the police to enter that part of the curtilage of a private residence necessary to secure the rear door of the residence. 6A C.J.S. Arrest § 55 (2004). Accordingly, we hold that [the deputy] properly proceeded to the rear door of [the defendant's] trailer in execution of the arrest warrant. Id. at 166-67. We believe that this is a correct statement of the law. Thus, because law enforcement officers are authorized to secure the backdoor by accessing the backyard, any illegal activity (or reliable evidence thereof) taking place in plain view of the backyard may be identified in an affidavit in support of a search warrant without violating the suspect's reasonable expectation of privacy. As the U.S. Supreme Court noted in California v. Ciraolo: Justice Harlan made it crystal clear [in his Katz v. United States, 389 U.S. 347 (1967) concurrence] that he was resting on the reality 2 This limited invasion into the arrestee's home is only justified when the police possess a reasonable belief that the arrestee is within the home. 6A C.J.S. Arrest § 56 (2004). 6 that one who enters a telephone booth is entitled to assume that his conversation is not being intercepted. This does not translate readily into a rule of constitutional dimensions that one who grows illicit drugs in his backyard is 'entitled to assume' his unlawful conduct will not be observed by a passing aircraft or by a power company repair mechanic on a pole overlooking the yard. 476 U.S. 207, 214 (1986). To this observation we add that one who grows illicit drugs in his backyard is entitled to assume that his unlawful conduct will be observed by law enforcement officers securing a backdoor escape route while executing an arrest warrant. Because this is the precise situation in which the I detectives witnessed the fuel, acetone, and marijuana, we hold that Appellant's privacy interests were not violated. Accordingly, Appellant was not entitled to suppression of the evidence these grounds. 2. The affidavit did not contain any false or misleading statements. Next, Appellant argues that Detective Wimpee's affidavit in support of the search warrant contained false or misleading information. Specifically, he contends that the marijuana plants were unidentifiable from Detective Wimpee's vantage point behind the trash barrel. Thus, the marijuana was not "in plain view" as the affidavit asserts, rendering it false or misleading. In Franks v. Delaware, the United States Supreme Court noted: "[W]hen the Fourth Amendment demands a factual showing sufficient to comprise 'probable cause,' the obvious assumption is that there will be a truthful showing." This does not mean "truthful" in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be "truthful" in the sense that the information put forth is believed or appropriately accepted by the affiant as true. 7 438 U.S. 154, 164-65 (1978) (quoting United States v. Halsey, 257 F. Supp. 1002, 1005 (S.D.N.Y. 1966)). Additionally, "[i]f an informant's tip is the source of information, the affidavit must recite 'some of the underlying circumstances from which the informant concluded' that relevant evidence might be discovered, and 'some of the underlying circumstances from which the officer concluded that the informant . . . was 'credible' or his information 'reliable."' Id. at 165 (quoting Aguilar v. Texas, 378 U.S. 108, 114 (1964)). When an affidavit supporting a search warrant is challenged, it is presumptively valid. Id. at 171. The challenger must allege deliberate falsehood or reckless disregard for the truth, "and those allegations must be accompanied by an offer of proof." Id. If the challenger establishes this by a preponderance of the evidence, "and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Id. at 156. This is the function of the suppression hearing. Because Appellant's allegation involves a question of fact, we engage in a two-prong appellate review. First, we determine whether the trial court's findings of fact are supported by substantial evidence. Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010) (citing RCr 9.78). Second, we must determine "whether the trial judge correctly determined that the issuing judge did or did not have a 'substantial basis for . . . conclud[ing]' that probable cause existed." Id. (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983); see also Beemer v. Commonwealth, 665 S.W.2d 912, 915 (Ky. 1984). However, "[i]n doing so, all reviewing courts must give great deference to the warrant-issuing judge's decision." Pride, 302 S.W.3d at 49 (citing Gates, 462 U.S. at 236). In its Opinion and Order denying Appellant's motion to suppress, the trial court entered the following relevant finding of fact: Detective Wimpee testified that he proceeded into the back yard to secure any rear exits of the home and observed growing marijuana plants at the edge of the mowed portion of the yard. At the suppression hearing, Officer Wimpee testified that he walked to the back yard and positioned himself behind the fifty-five gallon trash barrel. Once positioned there, he surveyed the backyard to ensure his safety. Directly to his left, an estimated twenty feet away, he spotted two or three marijuana plants in flower pots on the edge of the mowed area of the backyard. Importantly, he testified that he did not have to leave his position behind the trash barrel to identify the marijuana plants. Finally, based upon his training and experience, he was "one-hundred percent" sure that they were marijuana plants. Detective Drummond corroborated this testimony, although he admitted that he was positioned too far away from the plants to be certain it was marijuana. Although the defense investigator's testimony indicated that the marijuana plants were unidentifiable from Detective Wimpee's position behind the trash barrel, the trial court was justified in denying the defense's motion to suppress. To begin with, it was the defense's burden to establish deliberate falsehood or reckless disregard for the truth by a preponderance of the evidence. Franks, 438 U.S. at 171. We cannot say that the trial court erred in 9 conclUding that Appellant did not satisfy that standard. And in any event, the court's finding that Detective Wimpee observed the plants while securing the backdoor is supported by substantial evidence. Thus, we now turn to "whether the trial judge correctly determined that the issuing judge [had] a 'substantial basis for . . . conclud[ing]' that probable cause existed." Pride, 302 S.W.3d at 49 (quoting Gates, 462 U.S. at 236). Detective Wimpee's affidavit in support of the search warrant included: (1) that he had received information from an informant that Appellant was manufacturing meth at his residence; (2) that he (Detective Wimpee) observed two or three growing marijuana plants in plain view; and (3) that Detective Drummond observed acetone and camping fuel cans items commonly used in the manufacture of meth on top of a trash can near the garage door. Based on this information, the warrant-issuing trial commissioner had a substantial basis for concluding that probable cause existed to issue a search warrant. We therefore hold that the trial court correctly denied Appellant's motion to suppress. B. Jury Instruction Appellant next argues that the trial court erred to his substantial prejudice when it failed to instruct the jury on the lesser included offense of unlawful possession of a methamphetamine precursor ("unlawful possession"). Although this issue is unpreserved, we invoke our authority to review for palpable error. RCr 10.26. Under the palpable error standard, an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the 10 substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." Id. "[W]hat a palpable error analysis 'boils down to' is whether the reviewing court believes there is a 'substantial possibility' that the result in the case would have been different without the error." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (citations omitted). "It shall be the duty of the court to instruct the jury in writing on the law of the case . . . ." RCr 9.54(1). The trial judge is obligated to "prepare and give instructions on the whole law of the case, and [RCr 9.54(1)] requires instructions applicable to every state of the case deducible or supported to any extent by the testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citations omitted). "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." Billings v. Commonwealth, 843 S.W.2d 890, 894 (Ky. 1992) (citations omitted). The manufacturing methamphetamine statute provides, in relevant part: A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully: a. Manufactures methamphetamine; or b. With intent to manufacture methamphetamine possesses two (2) or more chemicals or two (2) or more items of equipment for the manufacture of methamphetamine. 11 KRS 218A.1632(1) (emphasis added). The instruction on the manufacturing charge actually required the jury to find more than the statute requires to be proven. It required the jury to find that Appellant had "two or more of the chemicals and two or more of the items of equipment for its manufacture . . . ." (Emphasis added.) However, Appellant does not allege prejudice, in this error. 3 The unlawful possession statute provides: 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 substance. KRS 218A.1437(1). Accordingly, in order for an instruction on unlawful possession to have been appropriate there must have been evidence that Appellant possessed "ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers." At trial Detective Drummond testified that a plastic jar of salt was seized from Appellant's home and later destroyed. 4 When Detective Wimpee was asked about the salt on cross-examination, he could not describe it with any detail. It does not appear that the salt was ever tested to determine if it was the salts or salts of isomers of ephedrine, pseudoephedrine, or phenylpropanolamine. Thus, the jury heard evidence that a jar of salt was 3 Indeed, we believe this error could only have helped Appellant. 4 The detectives testified that they are trained by the Drug Task Force to treat evidence seized from a suspected meth lab as contaminated and to destroy it. 12 seized from Appellant's home, but whether that salt was of the type described in the unlawful possession statute remains undetermined. Based upon this evidence, we find that RCr 9.54(1) required an instruction on unlawful possession because it was supported to some extent by the testimony. As previously noted, RCr 9.54(1) requires instructions "applicable to every state of the case deducible or supported to any extent by the testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (emphasis added) (citations omitted). The jury could have believed that Appellant possessed methamphetamine precursors in the form of the salts contemplated in KRS 218A.1437(1) with the intent to manufacture methamphetamine in the future. Although it is unknown whether the jar contained salts, isomers, or salts of isomers of ephedrine, pseudoephedrine, or phenylpropanolamine, the jury could fairly have so inferred. The trial court therefore erred in failing to instruct the jury on unlawful possession. We cannot conclude, however, that the trial court's failure rises to the level of palpable error. To begin with, we note there is no authority from this Court "to indicate that a trial court's failure to instruct on a lesserincluded offense is palpable error, when no objection is made, or instruction offered." 5 Jackson v. Commonwealth, No. 2008-SC-000063-MR, 2009 WL 5 We acknowledge that several of our cases have stated that "there is no authority in Kentucky to indicate that a trial court's failure to instruct on a lesserincluded offense is palpable error . . . ." Jackson v. Commonwealth, No. 2008-SC000063-MR, 2009 WL 3526660, at *3 (Ky. Oct. 29, 2009) (emphasis added); see also Goins v. Commonwealth, No. 2006-SC-000193-MR, 2007 WL 541939, at *2 (Ky. Feb. 22, 2007); Clifford v. Commonwealth, 7 S.W.3d 371, 376 (Ky.1999). This statement, however, is no longer accurate. 13 3526660, at *3 (Ky. Oct. 29, 2009) (citing Clifford v. Commonwealth, 7 S.W.3d 371, 376 (Ky. 2000)). In fact, we have been asked on at least twelve previous occasions to find palpable error in a trial court's failure to instruct on a lesser included offense, and we have yet to conclude that the error resulted in manifest injustice. 6 RCr 10.26. In the Court of Appeals' case of Fritts v. Commonwealth, the appellant was convicted of theft by unlawful taking over $300. No. 2009-CA-001015-MR, 2010 WL 4025887, at *1 (Ky. App. Oct. 15, 2010). He argued on appeal that the trial court should have instructed the jury on theft by unlawful taking under $300, although he "neither objected before the trial court nor preserved this error for appellate review." Id. at *2. The Court of Appeals agreed, and found the trial court's failure to instruct the jury on the lesser included offense constituted palpable error. Id. at *3. Because only two witnesses had testified as to the value of the stolen item-one who thought it cost more than $300, and one who thought it cost less than $300-the Court of Appeals concluded that "[u]pon the whole, a reasonable juror could certainly find that the value of the [stolen item] was under $300." Id. Thus, although the Court of Appeals has held that a trial court's failure to give an instruction on a lesser included offense resulted in palpable error, this Court has yet to do so. 6 In eight of these cases, we concluded that the error did not rise to the level of palpable error. See Hartley v. Commonwealth, No. 2009-SC-000640, 2011 WL 2112393, at *5 (Ky. May 19, 2011); Goetz v. Commonwealth, No. 2004-SC-001002-MR, 2007 WL 3225437, at *9 (Ky. Nov. 1, 2007); Goins, 2007 WL 541939, at *2; Fairley v. Commonwealth, No. 2005-SC-0138-TG, 2006 WL 2707453, at *4 (Ky. Sept. 21, 2006); Daugherty v. Commonwealth, No. 2004-SC-000198-MR, 2005 WL 1412450, at *3 (Ky. June 16, 2005); Grimes v. Commonwealth, No. 2003-SC-1062-MR; 2005 WL 1185609 at, *2 (Ky. May 19, 2005); Lawson v. Commonwealth, 53 S.W.3d 534, 548-49 (Ky. 2001); and Clifford, 7 S.W.3d at 376-77. In two of these cases this Court declined to address the unpreserved argument. See Caldwell v. Commonwealth, 133 S.W.3d 445, 451 (Ky. 2004); Plotnick v. Commonwealth, No. 2001-SC-1014-MR, 2003 WL 21357602, at *2 (Ky. June 12, 2003). In Mullins v. Commonwealth, we concluded that the Appellant had waived his right to the argument on appeal because he "specifically asked that no lesser included instruction be given and asserted multiple times that the evidence did not support" the lesser included offense. 350 S.W.3d 434, 439 (Ky. 2011). Finally, in Jackson v. Commonwealth we only addressed the error as it was likely to recur on remand. No. 2008-SC-000063-MR, 2009 WL 3526660, at *3-4 (Ky. Oct. 29, 2009). Thus, although we found that the trial court erred in failing to instruct the jury on the lesser included offense, we had no occasion to determine whether it resulted in a manifest injustice. Id. 14 Second, we cannot conclude that even if the instruction had been tendered that "there is a 'substantial possibility' that the result in the case would have been different." Brewer, 206 S.W.3d at 349. Put differently, we cannot conclude that the error resulted in a "manifest injustice." RCr 10.26. The jury was presented with overwhelming testimonial evidence from Detectives Drummond and Wimpee, and substantial photographic evidence of the items seized from Appellant's home. For example, Detective Drummond presented photographs to the jury that were taken at Appellant's home the day the search warrant was executed. These pictures depict several items commonly used in the manufacture of methamphetamine. Detective Drummond described what each of the photographs depicted and how each item is used in the manufacture of meth. One of the photographs captures all of the items contained in the two portable meth lab tote bags spread out on Appellant's front lawn. Other photographs depict tanks that are often used in the manufacture of methamphetamine. Detective Drummond testified that these tanks had been altered in a manner consistent with manufacturing meth. Detective Drummond also read from a list of the evidence that had been seized from Appellant's home but destroyed as "contaminated material" collected from a suspected methamphetamine lab. 7 Among the items on the evidence list were: (1) five one-quart glass jars, (2) a plastic two-liter bottle, (3) a plastic jar of ammonium nitrate, (4) a plastic funnel, (5) a plastic jar of lye, (6) coffee filters, and (7) a two-quart can of Kingsford lighter fluid. 7 See supra note 4. 15 Detective Wimpee also explained to the jury how each of the photographed items is used to manufacture methamphetamine, and testified that the only missing components required for the manufacture of meth were "Sudafed" and rubber tubing. However, Detective Wimpee also testified that his investigation revealed that Appellant's "entire family had been buying Sudafed in both Kentucky and Tennessee." 8 Thus, although there is a possibility that the jury could have found Appellant guilty of unlawful possession, given the volume and strength of the testimonial and photographic evidence probative of the manufacture of methamphetamine, we cannot say the possibility was "substantial." See Brewer, 206 S.W.3d at 349. We therefore hold that the trial court did not commit palpable error in failing to instruct the jury on Unlawful Possession of a Methamphetamine Precursor. III. CONCLUSION In conclusion, the trial court (1) correctly denied Appellant's motion to suppress and (2) did not commit palpable error in failing to instruct the jury on Unlawful Possession of a Methamphetamine Precursor. Accordingly, we affirm the trial court's judgment. Minton, C.J.; Abramson, Cunningham, Noble, Scott, and Venters, JJ., concur. Schroder, J., not sitting. 8 Detective Wimpee testified that, because it is used in the manufacture of methamphetamine, logs are now kept on the purchase and sale of Sudafed, making it possible to track who is purchasing the drug and in what amounts. 16 COUNSEL FOR APPELLANT: Steven Jared Buck Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601 COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Office of Attorney General Office of Criminal Appeals 1024 Capital Center Drive Frankfort, KY 40601-8204 17

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