Opinion
NO. 2011-CA-001145-MR
03-08-2013
RICHARD CARPENTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven Buck Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Joshua D. Farley Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 10-CR-00194
OPINION
AFFIRMING
BEFORE: COMBS, KELLER AND LAMBERT, JUDGES. KELLER, JUDGE: Richard Carpenter (Carpenter) appeals from a judgment of the Rowan Circuit Court convicting him of complicity to trafficking in a controlled substance in the second degree and of being a persistent felony offender in the second degree. For the following reasons, we affirm.
FACTS
On October 7, 2010, a Rowan County Grand Jury indicted Carpenter for trafficking in a controlled substance in the second degree and of being a persistent felony offender in the second degree. On February 1, 2011, the indictment was amended to include complicity to trafficking in a controlled substance in the second degree. A trial was subsequently held on April 26, 2011.
At trial, Detective David Mirus (Detective Mirus) of the Rowan County Sheriff's Office testified that on July 9, 2010, he asked a confidential informant, Anthony Scott Clevenger (Clevenger) to conduct a controlled purchase of illegal drugs from Carpenter. Detective Mirus had used Clevenger as a confidential informant in the past and had found him to be reliable. Clevenger was paid for his work as a cooperating witness and was not cooperating with the police because he had been charged with a crime.
Detective Mirus further testified that on July 9, 2010, he picked up Clevenger and drove him to the campus of Morehead State University where he searched Clevenger, gave him money to purchase the drugs from Carpenter, and equipped him with a video recording device. Detective Mirus then drove Clevenger to a location close to Carpenter's residence. Clevenger went to Carpenter's residence and shortly thereafter returned to Detective Mirus's vehicle with twenty tablets of hydrocodone. The tablets were in a cellophane wrapper. Detective Mirus searched Clevenger again and removed the recording equipment from him.
Consistent with Detective Mirus's testimony, Clevenger testified that he met with Detective Mirus on July 9, 2010, and Detective Mirus searched him, equipped him with a video recording device, and gave him $200 to purchase illegal drugs from Carpenter. Clevenger testified that he went to Carpenter's residence, Carpenter invited him inside, and he asked Carpenter if he had any pills. Carpenter told Clevenger that he did not have any, but that his wife, Evelena, did. Carpenter then told him the type of pills he could get and how much they would cost. Carpenter then led him to a trailer on the property where Evelena sold Clevenger twenty Lortabs for $100. Clevenger asked for something to put the pills in, and Carpenter gave him a cellophane wrapper.
The video recording of what took place on July 9, 2010, was played for the jury at trial. The video began with Detective Mirus giving Clevenger $200 to purchase illegal drugs from Carpenter. Detective Mirus then dropped Clevenger off close to Carpenter's residence. When Clevenger arrived at Carpenter's residence, Clevenger asked Carpenter if he had "any of them things." Carpenter responded, "She's got some fives." Clevenger asked how much they were and Carpenter told him, "Got to go five . . . she won't go less." When Clevenger asked what type of pills they were, Carpenter stated, "Lortabs." Clevenger then told Carpenter to, "get her in here," and Carpenter responded by stating, "No . . . you can talk to her."
Carpenter then led Clevenger into another room, and Clevenger began talking to Evelena. Clevenger, Carpenter, and Evelena then walked behind the house to a small trailer. Clevenger agreed to purchase twenty pills for $100. When Clevenger asked for something to hold the pills in, Carpenter gave him a cellophane wrapper. Evelena and Clevenger then exchanged the pills and money, and Clevenger left and returned to Detective Mirus's vehicle.
At trial, Evelena testified that she sold the Lortabs to Clevenger and that she pled guilty to second-degree trafficking in a controlled substance as a result of that transaction.
The Commonwealth rested its case, and Carpenter moved for a directed verdict. The trial court denied Carpenter's motion. Carpenter immediately rested his case and renewed his directed verdict motion. Again, the trial court denied his motion.
The jury found Carpenter guilty of complicity to trafficking in a controlled substance in the second degree and of being a persistent felony offender in the second degree. Consistent with the jury's recommendation, the trial court entered a final judgment on May 20, 2011, sentencing Carpenter to five years' imprisonment. This appeal followed.
STANDARD OF REVIEW
On appeal, Carpenter argues that the trial court erred when it denied his motion for a directed verdict of acquittal. As stated in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991):
[T]he 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 reserving to 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." Id. (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983)). Thus, "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 187-88.
ANALYSIS
The relevant part of the statute criminalizing complicity, Kentucky Revised Statute (KRS) 502.020(1), reads:
A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning or committing the offense[.]
KRS 218.1413 provides in relevant part:
(1) A person is guilty of trafficking in a controlled substance in the second degree when:
(a) He or she knowingly and unlawfully traffics in:
. . . .
2. Twenty (20) or more dosage units of a controlled substance classified in Schedule III[.]
In this case, adequate evidence was presented for a jury to find Carpenter guilty of complicity to trafficking in a controlled substance in the second degree. First, we note that it is undisputed that Evelena sold Clevenger the pills and pled guilty to second-degree trafficking in a controlled substance. At trial, Clevenger testified that Carpenter told him that he did not have any pills to sell but that Evelena had Lortabs. Clevenger also testified that Carpenter told him how much Evelena would sell him the pills for and that Carpenter took him into another room so that he could speak with Evelena about the pills. Additionally, Clevenger testified that Carpenter led him to the trailer behind the house where Clevenger and Evelena completed the transaction. We note that Clevenger's testimony is consistent with what is reflected in the video recording played at trial. Furthermore, we note that it is undisputed that Carpenter gave Clevenger a cellophane wrapper to hold the pills he had purchased.
Based on the evidence as a whole, a reasonable juror could believe that Carpenter intended to promote or facilitate the commission of the offense and find him guilty of complicity to trafficking in a controlled substance in the second degree. Therefore, the trial court did not err in denying Carpenter's motion for a directed verdict.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Rowan Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Steven Buck
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky