Opinion
NO. 2014-CA-001938-MR
04-22-2016
IKIA ANDERSON CLAYBORNE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gene Lewter Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 13-CR-01360 OPINION
AFFIRMING
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BEFORE: COMBS, KRAMER AND STUMBO, JUDGES. COMBS, JUDGE: Following a jury trial, Ikia Anderson Clayborne was found guilty of trafficking in marijuana, a Class D felony; he received a sentence of three-years' imprisonment, probated. On appeal, Clayborne contends that the trial court erred by failing to grant a directed verdict. In the alternative, he argues: that he was entitled to an instruction on criminal attempt; that he was denied a fair trial by the improper admission of evidence; and that the trial court erred by failing to sentence him in accordance with the jury's recommendation. After our review, we affirm both the conviction and the sentence.
On November 5, 2013, Clayborne was arrested at 509 Georgetown Street in Lexington. In December, he was indicted on one count of trafficking in five (5) or more pounds of marijuana, a Class C felony. After the marijuana was weighed at the Kentucky State Police Laboratory, the indictment was amended to the charge of trafficking in eight (8) or more ounces but less than five (5) pounds of marijuana (a Class D felony).
Clayborne went to trial in September 2014. We shall summarize the evidence as it pertains to his allegations of error.
Kyle Erhardt, a federal agent with the U.S. Postal Inspection Service, discovered a suspicious package while he was inspecting packages at a United States Post Office in Lexington. The package was addressed to "S. Claiborne" at 509 Georgetown Street, and its postage label reflected an unusually large cost. It did not have a valid return address -- indicating that it had been shipped by a "false sender." It had also been mailed from California, a state designated as a known source for narcotics trafficking. Agent Erhardt placed the package amid several others that he did not suspect contained narcotics and called for the packages to be inspected by a canine. The sniffer dog's behavior indicated that the suspicious package did indeed contain contraband.
Agent Erhardt secured a search warrant to open and inspect the contents of the package. He discovered a large amount of marijuana divided into individual plastic containers. When weighed preliminarily by the Lexington Division of Police, the contents of the package weighed five (5) pounds.
Subsequently, Agent Erhardt, along with detectives from the Lexington Division of Police, Parcel Interdiction Team, arranged to make a "controlled delivery" of the package. At 3:15 on November 5, 2013, Erhardt, posing as a mail carrier, approached the residence at 509 Georgetown Street with the package in his hands. He was immediately met by a neighbor, Mr. Benjamin Brown. Brown indicated to Agent Erhardt that he intended to claim the package. At the same time, Agent Erhardt was approached by Isaac Clayborne. Isaac Clayborne said that the residence at 509 Georgetown Street belonged to him, and he took the package from Erhardt's hands. When Agent Erhardt identified himself to the two men and told them that the package contained marijuana, Isaac Clayborne placed the package on the ground.
After the Parcel Interdiction Team arrived, the two men were read their Miranda warnings. They indicated that they understood their rights, and both were cooperative. Each stated that the package was meant to be delivered to Ikia Clayborne, Isaac Clayborne's son. They explained that Ikia had asked each of them -- separately -- to accept a package that was to be delivered to the house that afternoon. In Erhardt's presence, Isaac Clayborne contacted Ikia by telephone and asked that he come to 509 Georgetown Street.
Agent Erhardt testified that when Ikia Clayborne arrived at the residence, he indicated immediately that the package was meant for him. Ikia explained that the package had been shipped by a friend of a friend and that he believed it contained shoes and some clothing. Ikia Clayborne stated that the arrangement was complicated and that he had agreed to have the package mailed to 509 Georgetown Street where he would retrieve it. Ikia Clayborne consented to a search of his vehicle where police found what was later identified as a quantity of "high-grade" marijuana.
Benjamin Brown testified that earlier that day, Ikia Clayborne had offered to pay him if he would claim the package from the mail carrier. Brown indicated that Ikia had given him a cell phone and asked him to notify Ikia when the package was delivered.
Isaac Clayborne testified that he owned the property at 509 Georgetown Street and that the residence was vacant. He indicated that he was working to restore the house and that he and Ikia had lived there previously. Isaac explained that Ikia had asked him earlier in the day whether Isaac had seen a package that was to be delivered to the residence. Isaac admitted that when he learned of the contents of the package, he indicated to the detectives that it must be the package that Ikia had been expecting.
Ikia Clayborne testified that he resided at another location but had agreed to have a package sent to him at 509 Georgetown Street as a favor to a friend. He stated that he believed the package contained shoes and clothing. He admitted that he had stopped by the residence to claim the package earlier in the day but that it had not yet been delivered. He testified that he had asked both Brown and his father to be on the look-out for a package to be delivered to the address by the postal service. He told them that the package was meant for him.
The jury was convinced that the package belonged to Ikia Clayborne and that Ikia Clayborne knew that the package contained marijuana. The jury found him guilty of trafficking in violation of the provisions of KRS 218A.1421. It recommended a sentence of one (1) year and four (4) months of imprisonment. The court sentenced Ikia to a term of two (2) years in prison, probated for a period of (3) years. This appeal followed.
Kentucky Revised Statutes.
Clayborne first contends that the trial court erred by failing to grant his motion for a directed verdict because there was insufficient evidence to show that he was ever in possession of the package of marijuana. We disagree.
Upon a motion for directed verdict, the trial court must draw "all fair and reasonable inferences from the evidence in favor of the Commonwealth." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). Upon review, an appellate court asks whether, given the evidence as a whole, it was clearly unreasonable for a jury to have found the defendant guilty. Id.
In order to establish a case of trafficking in marijuana by possession, the Commonwealth must prove that the substance was knowingly possessed by the defendant. KRS 218A.1421 provides in relevant part as follows:
(1). A person is guilty of trafficking in marijuana when he knowingly and unlawfully traffics in marijuana.
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(5). The unlawful possession by any person of eight (8) or more ounces of marijuana shall be prima facie evidence that the person possessed the marijuana with the intent to sell or transfer it.A defendant may be convicted for possession where he had only constructive possession of the contraband. The Commonwealth does not have to show that the defendant had exclusive possession of the contraband. Pate v. Commonwealth, 134 S.W.3d 593 (Ky. 2004). Constructive possession exists where the Commonwealth establishes that the contraband was subject to the defendant's dominion and control. Burnett v. Commonwealth, 31 S.W.3d 878 (Ky. 2000). Constructive possession depends upon the totality of the circumstances and is a question for the jury. Pate, supra.
The Commonwealth contends that the disputed package was within Clayborne's dominion and control when it was delivered, and several factors support that position. Ikia Clayborne had an association with the property where the package was delivered; he directed that the package be mailed to that address; he recruited others to alert him to the package's delivery; he arranged for the package to be claimed on his behalf; the package was, in fact, claimed on his behalf; he made incriminating statements concerning his intent to control the package; marijuana was discovered in his vehicle. Taking the evidence as a whole, we are persuaded that there was more than sufficient circumstantial evidence to support submission of the trafficking charge to the jury. Clayborne's argument to the contrary is without merit, and a directed verdict was not warranted.
Next, Clayborne contends that the trial court erred by failing to instruct the jury on the charge of criminal attempt to traffic in marijuana. We disagree.
The provisions of RCr 9.45 impose a duty on the trial court "to instruct the jury on the whole law of the case; that is, 'this rule requires instructions applicable to every state of the case deducible from or supported to any extent by the testimony.'" Hudson v. Commonwealth, 385 S.W.3d 411, 416 (Ky. 2012) (quoting Thomas v. Commonwealth, 170 S.W.3d 343, 349 (Ky. 2005)). "However, the trial court has no duty to instruct on a theory not supported by the evidence." Hudson, 385 S.W.3d at 416 (citing Payne v. Commonwealth, 656 S.W.2d 719, 721 (Ky. 1983)).
Kentucky Rules of Criminal Procedure. --------
A defendant is not entitled to an instruction with respect to criminal attempt to commit a crime where the crime has been completed. Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001). All the evidence indicates that Ikia Claybourne had taken constructive possession of the package when it was claimed both by Isaac Claybourne and by Benjamin Brown on his behalf. The crime was accomplished at that point. There was no evidence of attempt at all. Consequently, there was no basis for an attempt instruction; the trial court did not err by declining to provide one.
Clayborne next argues that the trial court erred by permitting Danny Page, a narcotics detective with Lexington Division of Police, to testify that the marijuana found in his vehicle was consistent with the "high-grade" marijuana found in the mailed package. We disagree.
Detective Page qualified as an expert because he had worked as a narcotics detective for twelve (12) years and had specialized training in investigating marijuana cases. He had attended the Drug Enforcement Basic Narcotics enforcement school and had worked a street-level narcotics beat. He had worked approximately twenty (20) controlled deliveries such as the one undertaken in this investigation. Page testified that in his opinion, the marijuana seized from Clayborne's vehicle was "basically consistent" with the marijuana found in the delivered package. He described it as "high-grade" marijuana as distinguished from "homegrown" marijuana. Clayborne's counsel objected during the detective's testimony.
The ruling of a trial court as to the admissibility of testimony is reviewed under the standard of abuse of discretion. An abuse of discretion occurs when a "trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Evans v. Commonwealth, 116 S.W.3d 503, 509 (Ky. App. 2003) (citations omitted).
We are persuaded that the trial court was correct in admitting Detective Page's testimony concerning the physical similarities between the marijuana seized from Clayborne's vehicle and the marijuana discovered in the package. His qualifications as stated in his testimony served as an adequate basis for his opinion concerning the grade or type of marijuana recovered both from Clayborne's vehicle and the disputed package. The trial court did not abuse its discretion in admitting his testimony.
Finally, Clayborne contends that the trial court's decision to sentence him to a term of two-years' imprisonment, suspended for three years, was a palpable error. Once again, we disagree.
Following the penalty phase of his trial, the jury recommended that Clayborne be sentenced to serve one year and four months. At the sentencing hearing, the court offered to probate a sentence of two-years' imprisonment. During a recess, Clayborne consulted with his attorney. Ultimately, he agreed to the probated sentence.
On appeal, Clayborne asserts that the trial court had no authority to adjust the jury's recommended sentence upward and that, under the circumstances, the trial court essentially coerced his agreement to a longer sentence. He admits that the allegation of error is unpreserved.
The provisions of RCR 10.26 authorize an appellate court to grant relief based on an error that was insufficiently preserved during the trial court proceedings if it determines that a manifest injustice has resulted from the alleged error. In order to be considered manifestly unjust, a defect in the trial court proceedings must be found to be shocking or jurisprudentially intolerable. Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006).
A defendant is at liberty to waive jury sentencing. Commonwealth v. Collins, 933 S.W.2d 811 (Ky. 1996). We conclude that Clayborne essentially did just that by agreeing to the probated sentence offered by the trial court. There was no evidence of coercion when he agreed to the modified sentence. The sentencing proceedings and the ultimate sentence imposed revealed no evidence of being remotely shocking or jurisprudentially intolerable.
We affirm the judgment of the Fayette Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Gene Lewter
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky