Opinion
NO. 2012-CA-000805-MR
07-03-2014
BUCK ELKINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS AND ORAL ARGUMENTS FOR APPELLANT: Linda Roberts Horsman Assistant Public Advocate Frankfort, Kentucky BRIEF AND ORAL ARGUMENTS FOR APPELLEE: Jack Conway Attorney General Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE JOHN KNOX MILLS, JUDGE
ACTION NO. 11-CR-00130
OPINION
AFFIRMING
BEFORE: CAPERTON, MAZE AND THOMPSON, JUDGES. MAZE, JUDGE: On March 18, 2011, a Laurel County grand jury returned an indictment charging the Appellant, Buck Elkins, Jr., with one count of manufacturing methamphetamine, first offense. Following a jury trial in March of 2012, Elkins was convicted of the offense and received a sentence of ten years' imprisonment. Elkins now appeals, arguing that he was entitled to a directed verdict because the Commonwealth did not meet its burden of proving that the items found were used in the manufacture of methamphetamine. Finding no error, we affirm.
The charge in this case arose from the search of an apartment occupied by Elkins and Amy Mosley and leased to Elkins's father, Silas Elkins. On March 7, 2011, London Police Officers Brian Lawson and Mike Moore were called to the apartment of Tonya Monholland, who lived in the same apartment building as Elkins. Monholland reported an unusual odor in her apartment. After searching the apartment, Officer Lawson stated that the smell appeared to be coming from the air vent. Both officers testified that they recognized the odor as consistent with that of a methamphetamine lab. Upon investigating around the building, the officers determined that the odor was coming from Elkins's apartment.
On February 20, 2014, the Supreme Court of Kentucky affirmed Mosley's conviction in an unpublished opinion arising from the same facts. See 2014 WL 702188, 2012 SC 000216 (Ky. 2014).
The officers knocked on the door, but received no response. They then contacted the apartment manager, Renee Fox, who brought a key to the apartment and opened the door for the officers. Upon opening the door, the two officers and Fox stated that they smelled an "overpowering" chemical smell. The officers entered the apartment and found Elkins and his girlfriend, Amy Mosley, in the shower. After allowing the two to dress, the officers removed them from the apartment.
The officers then contacted Silas Elkins, the leaseholder, who gave them permission to search the apartment. In the bathroom, the officers found a large amount of clear liquid on the floor, speckled with particulate. They also found several empty plastic soda bottles in the trash. Under the sink, they found a roll of aluminum foil and a bottle of peroxide with a tube coming out of an altered lid. They also found a grooming kit which contained a couple of intact lithium batteries and some wire snips. The officers noticed additional particulate matter splashed on the toilet and in the shower. In a bedroom used by Elkins, they found a bag of road salt, a bottle of drain cleaner and bottle top with a tube coming out of it.
Laurel County Public Safety Director Albert Hale was called to the scene to assist with the clean-up of a suspected methamphetamine lab. Hale testified that the smell most commonly associated with meth labs is produced by either ammonia or ether. But while a number of witnesses reported a strong ammonia smell, Hale admitted that no ether or anhydrous ammonia was found. He further testified that the items found and the smell detected in the apartment were consistent with the "One Step" or "Shake and Bake" method of manufacturing methamphetamine. However, no completed methamphetamine was found at the scene.
In addition, Hale testified that none of the items found in the apartment tested positive for pseudoephedrine. Furthermore, there was no evidence that either Elkins or Mosley had ever purchased pseudoephedrine, and no pseudoephedrine packaging was found in the apartment. On the other hand, he also testified that the particulate matter found in the bathroom was consistent with "pill dough," which consists of the remaining inactive ingredients after the pseudoephedrine has been removed. Finally, Hale did not state whether the peroxide is used in any of the known methods of manufacturing methamphetamine.
Elkins argues that the trial court should have directed a verdict in his favor because the Commonwealth failed to present sufficient evidence to establish that the items found in the apartment were intended to be used in the manufacture of methamphetamine. When presented with a motion for a directed verdict, a court must consider the evidence as a whole, presume the Commonwealth's proof is true, draw all reasonable inferences in favor of the Commonwealth, and leave questions of weight and credibility to the jury. Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky. 1991). The trial court is authorized to grant a directed verdict if the Commonwealth has produced no more than a mere scintilla of evidence; if the evidence is more than a scintilla and it would be reasonable for the jury to return a verdict of guilty based on it, then the motion should be denied. Id. On appellate review, the standard is slightly more deferential; the trial court should be reversed only if "it would be clearly unreasonable for a jury to find guilt." Id. (emphasis added).
A directed-verdict motion is reviewed in light of the proof at trial and the statutory elements of the alleged offense. Lawton v. Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011). Elkins was charged with manufacturing methamphetamine under KRS 218A.1432, which sets out the elements of the offense as follows:
(1) 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.
Since no methamphetamine was found in the apartment, the Commonwealth proceeded against Elkins under KRS 218A.1432(1)(b). Elkins concedes that the police found at least two of the chemicals and two or more items of equipment used for the manufacture of methamphetamine. However, he argues that each of these items is legal and thus intent cannot be inferred without the presence of the necessary components for manufacturing methamphetamine. He particularly focuses on the absence of any physical evidence of ammonia, and he contends that the mere smell of ammonia detected by the officers and other witnesses was insufficient to show that it was present. Elkins also points out that no pseudoephedrine was found in the apartment, nor was there any direct evidence that it had been there. In the absence of proof of these necessary items, Elkins argues that the Commonwealth failed to meet its burden of proving an intent to manufacture methamphetamine under KRS 18A.1432(1)(b).
We disagree. KRS 18A.1432(1)(b) does not require proof of any particular chemicals or equipment; it only requires a possession of at least two of the chemicals or two of the items of equipment for the manufacture of methamphetamine. The absence of any physical evidence of ammonia or pseudoephedrine is not controlling where other chemicals or equipment are found.
The statute also requires a showing that the items were possessed with the intent to manufacture methamphetamine. However, intent to manufacture may be proven by circumstantial evidence. Chavies v. Commonwealth, 354 S.W.3d 103, 112 (Ky. 2011). At trial, the Commonwealth cited to Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003), as holding that smell alone was sufficient evidence of intent to warrant sending a charge of manufacturing methamphetamine to the jury. In Beaty, the defendant was pulled over while driving, and the arresting officer immediately detected a strong odor of ammonia in the car. Upon later search, a full methamphetamine laboratory was found in the back seat and trunk of the car. The defendant asserted that he had borrowed the car from a friend and was unaware of the contents of the back seat and trunk. The Supreme Court held that the defendant's knowledge of the methamphetamine laboratory could be inferred from the strong and unusual odor of ammonia in the car. Id. at 203.
We agree with Elkins that the facts of Beaty were considerably different than those in this case, since ammonia was actually found at the scene in Beaty but not in Elkins's apartment. However, we disagree with him that the relevant holding is not applicable to this case. Although no ammonia was actually found in Elkins's apartment, several witnesses, including experienced police officers, described the "overpowering" odor of ammonia in the apartment.
Moreover, the odor was strongest in the bathroom where the officers found Elkins and Mosley. As found in Beaty, the presence of such a strong odor of ammonia in a place where it would not normally be expected is sufficient to warrant an inference that Elkins was aware of it and of the activity associated with it. Furthermore, while no pseudoephedrine was found in the apartment, the officers identified the particulate matter in the bathroom as pill dough. So likewise, the presence of the particulate matter, when viewed in the light of the expert testimony, was sufficient to warrant an inference that some form of pseudoephedrine had been in the apartment.
We certainly agree with Elkins that the absence of any direct evidence of the presence of ammonia or pseudoephedrine may have been sufficient to cast doubt on these inferences. But under the circumstances, the strength of the Commonwealth's case without direct evidence of ammonia or pseudoephedrine simply went to the weight of the evidence, which is a matter for the jury to decide. We conclude that the presence of the ammonia smell, combined with other chemicals and equipment used in the manufacture of methamphetamine, was sufficient to warrant sending the charge to the jury. Therefore, the trial court properly denied Elkins's motion for a directed verdict.
Accordingly, the judgment of conviction by the Laurel Circuit Court is affirmed.
ALL CONCUR. BRIEFS AND ORAL ARGUMENTS
FOR APPELLANT:
Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky
BRIEF AND ORAL ARGUMENTS
FOR APPELLEE:
Jack Conway
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky