Opinion
NO. 2011-CA-001052-MR
02-01-2013
RONALD EDWARD SAMMONS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Roy A. Durham Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE GEORGE DAVIS, JUDGE
ACTION NO. 09-CR-00518
OPINION
AFFIRMING
BEFORE: DIXON, MAZE, AND NICKELL, JUDGES. DIXON, JUDGE: Ronald Edward Sammons appeals from a judgment of the Boyd Circuit Court entered upon a jury verdict and sentencing him to five years' imprisonment. Finding no error, we affirm.
In the late afternoon of October 3, 2009, Deputy Brian Knipp of the Boyd County Sheriff's Department investigated a report of an unconscious man sitting in a parked car at the Wal-Mart in Cannonsburg, Kentucky. Knipp observed Appellant slumped in the driver's seat, and he tapped on the window several times to get Appellant's attention. Appellant woke up and stepped out of the vehicle at Knipp's request. Appellant appeared intoxicated, with glassy eyes and slurred speech. Although Appellant lived in Carter County, he advised Knipp that he was staying at the local Knights Inn to visit a female friend. Deputy John Daniels arrived at the scene, and Appellant stated that he was at Wal-Mart to return two pairs of blue jeans for his son. Appellant denied being under the influence and consented to a search of the vehicle. Daniels located a Wal-Mart bag in the passenger's seat of the vehicle. The bag contained two pairs of jeans, and inside one of the pockets were two prescription bottles in Appellant's name. The prescriptions were for 180 oxycodone and 90 alprazolam (Xanax), and both prescriptions had been filled the previous day at a pharmacy in Columbus, Ohio. Daniels observed that several pills were missing from the bottles. Appellant opined that a woman had stolen the pills from him at the Knights Inn; however, he stated he did not report the alleged theft to the police. Appellant was arrested for trafficking in a controlled substance. A search of his pockets revealed a straw and clamp with powder residue, $851.00 in cash, and a receipt and appointment card from Primary Healthcare of Williamsburg, Ohio.
A jury trial was held on May 9, 2011. The jury found Appellant guilty of trafficking in a controlled substance first-degree (oxycodone), trafficking in a controlled substance third-degree (alprazolam), possession of drug paraphernalia, and public intoxication. The trial court subsequently sentenced Appellant to five years' imprisonment pursuant to the jury's recommendation. This appeal followed, wherein Appellant argues he was entitled to a directed verdict on the trafficking charges.
In Banks v. Commonwealth, 313 S.W.3d 567 (Ky. 2010), the Kentucky Supreme Court succinctly explained the directed verdict procedure as follows:
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 reserve for 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. There must be evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.Id. at 570 (internal citations, quotation marks, and brackets omitted).
Appellant argues that he was entitled to a directed verdict because the Commonwealth failed to produce evidence of substance to support the trafficking charges. Appellant asserts there was no reliable evidence to support an inference that he had sold or intended to sell the pills.
Appellant focuses on evidence favorable to the defense, such as his statement to Deputy Daniels that the pills were missing because they were stolen by a woman the night before he was arrested. Appellant also points out that his bank statement was introduced by stipulation, and it indicated he had withdrawn several hundred dollars in cash in the days prior to his arrest.
Since Appellant challenges the sufficiency of the Commonwealth's proof, we reiterate that, in ruling on a motion for directed verdict, the trial court was required to consider the evidence in the light most favorable to the Commonwealth. Id. It was undisputed that Appellant was unconscious in his car in the Wal-Mart parking lot when Deputy Knipp approached him. Although Appellant lived in neighboring Carter County, he was visiting a woman at the Knights Inn in Boyd County. The Commonwealth's evidence established that Appellant had visited a doctor's office in Wheelersburg, Ohio, and that he paid the clinic $220.00 in cash. Appellant had prescriptions from two different doctors, Dr. McClure (180 oxycodone pills) and Dr. Kovacs (90 alprazolam pills). Appellant filled both prescriptions on October 2, 2009, in Columbus, Ohio. One day later, Deputy Daniels found the prescription bottles in Appellant's vehicle with 76 oxycodone missing and 44 alprazolam missing. If Appellant had been taking the pills according to the prescribed dosage, only 12 oxycodone and 6 alprazolam should have been missing. The evidence also showed that Appellant had $851.00 in cash, along with drug paraphernalia used to ingest crushed pills.
When considered with all of the evidence, the quantity of drugs in a defendant's possession may support an inference of intent to traffic. Dawson v. Commonwealth, 756 S.W.2d 935, 936 (Ky. 1988). Drawing all fair and reasonable inferences in favor of the Commonwealth, the trial court properly concluded that the evidence was sufficient for a reasonable juror to believe Appellant was guilty of trafficking beyond a reasonable doubt. Based on the totality of the evidence, Appellant's convictions were not clearly unreasonable; accordingly, the trial court did not err by denying Appellant's motion for a directed verdict.
For the reasons stated herein, we affirm the judgment of the Boyd Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Roy A. Durham
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky