Christopher Kane v. Commonwealth of Kentucky

llVlPOR`I'ANT NOT|CE NOT TO BE PUBL|SHED OP|N|ON TH|S OP|N|ON lS D‘ES|GNATED-”NOT TO BE PUBL|SHED.” PURSUANT TO THE RULES OF ClVlL PROCEDURE * PROMULGATED BY THE SUPREME COURT, CR 76.`28(4)(€), - TH|'S OP|N|'ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE ClTED OR USED AS BlNDlNG PRECEDENT lN ANY OTHER CASE lN ANY'COURT OF TH|S STATE; HOWEVER, ' UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS, n RENDERED AFTER JANUARY 1, 2003, MAY BE ClTED FOR CONS|DERAT|ON BY THE COURT lF THER,E lS NO PUBL|SHED OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE lSSUE BEFORE THE CO'URT. OP-lNlONS ClTED FOR CONS|DERAT|ON BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED DEC|S|ON lN THE FlLED DOCUMENT AND A COPY OF THE ' ENT|RE DEC|S|ON SHALL BE TENDERED ALONG WlTH THE .' DOCUMENT TOl THE COURT AND ALL PART|ES TO THE ACT|ON. ‘ ' MODIFIED: MARCH 23, 2017 RENDERED: OCTOBER 20, 2016 - ©ATE§]?BM zw'» Mv»w' D° cHRIsToPHER KANE ' '- ‘ APPELLANT f v oN APPEAL FRoM FLEMING cIRcUIT coURT v. - ' HoNoRABLE sTocKToN B. WooD, JUDGE No. 15-cR-00028 COMMONWEALTH OF KENTUCKY » APPELLEE MEMORANDUM OPINION OF THE COURT AFFIRMING bn April 27, 2015, police officers lawfully searched the home of - . Appellant, Christopher Joseph Kane, and discovered drugs and materials used in the manufactuan of methamphetamine » Several other individuals and _ Appellant’s young child Were also present at the scene. Investigating officers testified that the house Was in a pitiful state of disrepair and reeked-of animal urine and feces. As a result of the search; Appellant Was indicted by a Fleming County grand jury ona host of charges. Appellant Was jointly tried With his confederate, James Flora. _ A Fleming County 'Circuit Court jury conyicted Appellant of manufacturing methamphetamine and possession of marijuana and recommended a total sentence of twenty years’ imprisonment, which was imposed by the trial court. Appellant now appeals his judgment and sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky'Constitution. 'Three- issues are raised and addressed as follows. Allge_dly_ Inadmissible Evidence For his first argument,{Appellant complains that the trial court ` erroneously admitted photographs of two discarded l2-liter plastic bottles into evidence Admissible evidence must be relevant, probative, and not unduly prejudicial Bezl v. commonwealth 875 s.W.2d 882, 889-91 (Ky. 1994)._ see also KRE 401; 402; and 403. This issue is preserved by the defense’s motion in limine We review for the trial court’s decision for an abuse of discretion. The Commonwealth explained that the bottles were discovered w immediately behind Appellant’s residence and were consistent with the “shake and bake”- method of manufacturing methamphetamine and argued that the bottles were part of the totality of the evidence demonstrating intent to manufacture Appellant argues that the unknown white substance contained _ in the bottles was too speculative to be considered by the jury.\ Contraryw to Appellant’s argument, this evidence is highly relevant and probative of Appellant’s intent to manufacture methamphetamine See Pate v. Commonwealtll, 243 S.W4.3d 327_, 333 (Ky. 2007). In denying Appellant’s 'motion in limine, the trial court specifically noted that the bottles were part of the crime scene and that an officer Would testify that the police left the bottles there, did_not test them, and did not know what was inside of them.` [2] ./ `Investigating Deputy Sherriff, Garret Ingram, testified that the bottles were consistent With the “shake and ,bake” style of a methamphetamine “cook.”, He further explained that he did not field test them or send them to a lab for testing. Deputy Ingram could not say what Was inside the bottles. ' Accordingly, this evidence was relevant, probative, and not unduly prejudicial to Appellant, Thus, the trial court did not abuse its discretion in admitting this evidence Directed_ Verdict - Appellant next alleges that the trial court erred in denying his motion for vi ` a directed verdict on the manufacturing methamphetamine charge We will _ reverse the trial court’s denial of a motion for directed verdict “if under the ' evidence as a whole, it would be clearly unreasonable for a jury to find guilt[j]” commonwealth o. Benhom, 816 s.w.2d 186, 187 (Ky. 1991) (eiting Commonwedlth v. 'S,awhill, 660 S_.W.2d 3 (Ky. 1983) (emphasis added)). Our review is fconfined to the proof at trial and the statutory elements of the alleged offense Lawton v. Comnionweulth 354 S.W._3d 565, 575 (Ky. 201 1). The jury ‘ was instructed under KRS 218A.1432(1)(b) which states in pertinent part: (1) A person is guilty of manufacturing methamphetamine when he ' knowingly and unlawfully: (a) Manufactures methamphetamine;l 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 The list of relevant materials discovered at Appellant’s residence and in his nearby vehicle is extensive In addition to the 2-liter soft drink bottles containing an unknown substance previously discussed,_ here is a nonexhaustive description of the materials discovered ’at the crime Scene: 1) a package of Claritin D brand allergy medicine containing pseudoephedrine located on the bedside dresser; 2) 25 feet of medical gas tubing located on top of the Claritin D package; 43) one empty and one unopened package of lithium batteries;.4) a partially opened can of Cole_man brand camp fuel two or three feet away from Liquid 'Fire drain cleaner; 5) several empty cold packs that had been cut open and with the beads of ammonium nitrate missing; 6) an empty gallon jug of paint thinner in a barn about 20 to 30' yards from the house; and 7) a burned container which appeared to be a Coleman brand camp fuel ~ container located in a burn pit in Appellant’s yard. An investigating detective testified that these items could be used to y manufacture methamphetamine It is also noteworthy that Appellant’s disheveled home that was originally built in the mid-19th century was secured ` ' by a video surveillance system.' However, Appellant argues that his alleged legal possession of common household items located in several places throughout the living space is as g consistent With innocence as it is With guilt. Appellant testified at trial'that he used many of the items for allegedly legal purposes. For example, Appellant claimed that lithium batteries were for his child’s toys. Appellant’s wife also testified that she used the ice packs for he'r back. The jury was clearly 4 . .unconvincecl. In any event, the Commonwealth presented more than enough evidence here to justify an instruction to the jury on manufacturing ` methamphetamine Thus, the trial court did not abuse its discretion in denying Appellant’s directed verdict motion. Wanton Endaggerment Appellant also takes issue with evidence introduced by the ~ Commonwealth to support its claim that Appellant wantonly endangered his child, who Was_ present at the home where drugs, feces, and chemicals for manufacturing methamphetamine were discovered. However, the trial court subsequently granted Appellant’ s directed verdict motion on that charge Appellant nevertheless claims that he was unduly prejudiced by the Commonwealth’s presentation of irrelevant evidence concerning the dirtiness of his home Altho_ugh Appellant’s co-defendant objected to the introduction of this evidence during trial, Appellant’s trial counsel did not. Therefore, this issue is unpreserved and we will review for palpable error. RCr 10.26; and McCleery v._ Confmontoealth, 410 S.W.3d4597, 606 (Ky. 2013) (we will not ` reverse unless “it can be determined that manifest injustice, i.e, a repugnant and intolerable outcome, resulted from that error.”). We find the Appellant’s argument unpersuasive Evidence concerning ' the physical state of the crime scene is always.relevant. Compare Thorpe v. f Commonwealth 295 S.W.3d 458 (Ky. App. 2009). In Thorpe, the Court of Appeals reversed the appellant’s-conviction for fraudulently obtaining a ~ ` prescription for a controlled substance and remanded for a new trial In so [5] holding,' thel court stated that “Thorpe was essentially on trial for her housekeeping and caregiving skills. That evidence was clearly devastating to Thorpe, who received the maximum sentence while little actual evidence of the charge crime existed.” Id. at 463 . Unlike Thorpe, there was no error here,` and certainly no palpable error. j 4 _ ' Conclusion For the foregoing reasons, we hereby affirm the judgment of the Fleming Circuit 'Court. n k f l All sittingi Minton, C.J.; Cunningham, Hughes, Kel_ler, Venters, and Wright, JJ., concur. Noble, J., concurs in result only. ‘ coUNsEL FoR APPELLANT:l ` Molly_ Mattingly b Assistant Public Advocate COUNSEL FOR APPELLEE: Andy` Beshear Attorney General of Kentucky _ James Coleman Shackelford Assistant Attorney General ' 10 e~ Supreme Than of Benfuckg 2015-SC-000695-MR CHRISTOPHER KANE 1 APPELLANT ' ON APPEAL FROM FLEMING CIRCUIT COURT HONORABLE STOCKTON B. WOOD, JUDGE V. ` CASE NO. 15-CR-00028 . COMMONWEALTH OF KENTUCKY - ' ' ` APPELLEE ORDER' DENYING PETITION FOR REHEARING AND MODIFYING OPINION ( The lF’etition for Rehearing,- filed by the Appellant, of the Opinion of the b Court, rendered October 20, 2016, is DENIED, and the Opinion of this Court is modified by substitution of ` the attached Opinion in lieu of the original Opinion. Said modification does not affect the holding of the.original Opinion of the v Court., ` l The Court modifies said 0pinion by omitting the following sentence from the last paragraph on page 5: “Appellant has also failed to indicate any undue prejudice.” All sitting. All concur. ENTERED: Maroh 23, 2017. CHI