Opinion
2023-CA-0463-MR
08-09-2024
ISAIAH D. JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Julia K. Pearson Frankfort, Kentucky. BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky.
NOT TO BE PUBLISHED
APPEAL FROM HENDERSON CIRCUIT COURT ACTION NOS. 21-CR-00143 AND 23-CR-00109, HONORABLE KAREN LYNN WILSON, JUDGE.
BRIEFS FOR APPELLANT: Julia K. Pearson Frankfort, Kentucky.
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky.
BEFORE: EASTON, ECKERLE, AND LAMBERT, JUDGES.
OPINION
ECKERLE, JUDGE:
A Henderson County jury convicted Appellant, Isaiah D. Johnson ("Johnson"), of numerous criminal offenses and of being a Persistent Felony Offender, in the First Degree (PFO I). On appeal, Johnson argues that there was insufficient evidence to sustain his convictions for drug trafficking, as well as for being a persistent felon. After careful review, we affirm Johnson's conviction for marijuana trafficking, but reverse and vacate his convictions for Xanax trafficking and PFO I. We remand for retrial on the lesser included PFO charge.
I. Factual and Procedural Background
On January 31, 2021, Officer Robert Gipson ("Gipson"), of the Henderson City Police Department ("HCPD"), was dispatched to a local market to "serve papers" on Johnson. As he approached the market, Gipson viewed Johnson standing outside, but once Johnson saw the police cruiser, he fled. Gipson chased Johnson through several alleyways before exiting his vehicle to pursue Johnson on foot. During the pursuit, Gipson saw Johnson jettison a backpack. Eventually, Johnson exhausted his flight and laid down on the ground. At that point, Officer Joseph Whitledge ("Whitledge"), also of HCPD, arrived on the scene. He placed Johnson under arrest and stayed with him while Gipson retraced the route of the foot pursuit to locate the backpack. Upon locating the backpack and unzipping it, Gipson immediately noticed the smell of marijuana. He noted that the backpack contained four baggies of marijuana that were contained within a larger bag, as well as 12 cellular telephones, a digital scale, a computer tablet, and several marijuana "vapes" or "vape pens."
Johnson did not elaborate on exactly what "papers" he intended to serve on Johnson.
Johnson was not ultimately charged for the "vape pens."
Meanwhile, Whitledge searched Johnson's person and discovered an empty gun holster around his waist and a tactical weapon light for a firearm. He also found a silver container with a white crystalline substance that would later be confirmed to constitute methamphetamine. Whitledge also located another marijuana "vape pen," a small quantity of marijuana, and another digital scale on Johnson's person. Officer Daniel Pennaman, also of HCPD, located the gun that had been discarded by Johnson during the foot pursuit. Finally, law enforcement saw a black zip-up pouch lying on the ground next to where Johnson had been lying after giving up the chase. The pouch contained several small baggies with pills inside.
A jury ultimately convicted Johnson of the following charges and recommended the following sentences: Trafficking in Marijuana (less than eight ounces) (firearm enhancement) - Three Years; Possession of a Controlled Substance, First Degree (Methamphetamine) - One Year; Trafficking in a Controlled Substance, Third Degree (Xanax) - Two Years; Possession of a Handgun by a Convicted Felon (by a severed proceeding) - Seven Years; Possession of Drug Paraphernalia - 12 months; and Fleeing or Evading Police in the Second Degree - 12 Months. At the sentencing phase, the jury recommended that these sentences run consecutively for a total of 13 years. The jury then found Johnson guilty of the severed charge of PFO I and the jury recommended a sentence of a total of 13 years to be served concurrently. The Trial Court issued a judgment in accord with this recommendation. This appeal followed.
The one-year sentence for Possession of a Controlled Substance, First Degree (Methamphetamine), which was not enhanced by the PFO I conviction. See Kentucky Revised Statute ("KRS") 532.080(8). The misdemeanor sentences were unaffected.
II. Standard of Review
Johnson preserved all issues he raised on appeal through his motions before the Trial Court for directed verdicts the close of the Commonwealth's casein-chief and again in the penalty phase of the trial, after the Commonwealth presented its proof regarding the PFO I enhancement. "When the denial of a properly preserved directed verdict motion is challenged on appeal, the standard of review is . . . whether, viewing the evidence in the light most favorable to the Commonwealth, any rational juror could have found all the elements of the crime." Quisenberry v. Commonwealth, 336 S.W.3d 19, 35 (Ky. 2011) (citation omitted). "[A]ppellate relief may not be granted unless a clear error at trial affected the appellant's substantial rights and resulted in manifest injustice." Id. (citations omitted).
III. Analysis
A. Trafficking in Marijuana
Johnson argues that there was insufficient evidence to convict him of the charge of Trafficking in Marijuana (less than eight ounces) (firearm enhancement). He first argues that the substance found in individual baggies in the backpack was never tested by laboratory analysis to confirm it was marijuana, and that even if it was marijuana, there was insufficient evidence of his trafficking in it. We disagree.
Ideally, the Commonwealth would have had the substance tested in a laboratory. However, we note that Hayley Oliver from the Kentucky State Police Forensic Laboratory ("Oliver") testified that, if the amount of suspected marijuana submitted to the laboratory is under eight ounces, as here, the government will not test it if it is submitted with another item that, through laboratory testing, results in a felony charge. In this case, the other item submitted that resulted in a felony charge was the white crystalline substance that Oliver determined to be methamphetamine. And Whitledge testified that the amount of marijuana in the backpack was 3.905 ounces, well below the eight-ounce threshold described by Oliver.
Johnson's argument that chemical testing is necessary to prove that the substance was marijuana has been rejected numerous times, by Kentucky and Federal Courts. "[L]ay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identity of the substance[.]" Jones v. Commonwealth, 331 S.W.3d 249, 253 (Ky. 2011) (citation omitted). In the case at bar, Gipson testified that he recognized the smell of marijuana immediately when he opened the backpack; and he based his recognition of the odor on his experience and training in working as an officer for HCPD since 2011. He also testified that the substance was "green" and "leafy," and he recognized it as marijuana through his training and experience. Similarly, Whitledge testified that he was trained to identify marijuana in the police academy and through his 13 years as a police officer.
At trial, Johnson argued that, because the substance was never tested, it could have been hemp, which is legal in Kentucky, and similar in appearance to marijuana. He did not, however, have the courage of his conviction and test the substance on his own. We note that "[c]riminal defendants have free and open access to independent chemical testing of the evidence in drug cases. It is highly unlikely that a person will be wrongfully convicted of trafficking in a controlled substance as opposed to dealing in a simulated drug." Jones, 331 S.W.3d at 255.
Similarly, Johnson argues there was insufficient evidence to prove trafficking. We again disagree. Gipson and Whitledge testified that, based on their experience and training, the marijuana in the backpack was not for personal use, but rather, for sale. Kentucky Courts have frequently allowed law enforcement officials to testify as to whether they believe substances are intended for personal use or for sale by a defendant based upon their experience, training, and background. See, e.g., McGuire v. Commonwealth, 595 S.W.3d 90 (Ky. 2019); Sargent v. Commonwealth, 813 S.W.2d 801 (Ky. 1991); and Kroth v. Commonwealth, 737 S.W.2d 680 (Ky. 1987). In the case at bar, both officers testified that the following facts were indicative of trafficking rather than personal use based on their experience and training: (1) the marijuana was divided up into four small baggies contained in a larger bag; (2) there was a digital scale in the backpack with the marijuana; (3) there was a second digital scale on Johnson's person; and (4) there were 12 cellular telephones in the backpack with the marijuana.
Viewing the evidence of Trafficking in Marijuana (less than eight ounces) in the light most favorable to the Commonwealth, a rational juror could have found all the elements of the crime against Johnson. We therefore discern no error.
B. Trafficking in a Controlled Substance, Third Degree (Xanax)
Johnson also contends the Commonwealth failed to prove the pills found in the black pouch were Xanax. We agree.
At trial, Whitledge testified that the black pouch contained a small baggie with two pills and another baggie with four pills. Based upon his training and experience, he believed that the two pills were Adderall and the four were Xanax. Officer Jeremy Ebelhar, who maintains the evidence and property room at HCPD ("Ebelhar"), testified that he had received a baggie with three generic Adderall, another with two generic Xanax, and a third with four generic Xanax. Ebelhar further testified that the pills were labeled as such based solely upon Whitledge's identification.
Jones, supra, is again instructive. In that case, Jones argued that there was insufficient evidence to prove that the pills at issue were alprazolam (a generic form of Xanax) because they were not chemically tested. Our highest Court disagreed due to the circumstantial evidence presented by the Commonwealth. To wit:
[a reliable, confidential informant] goes to Appellant's home on two separate occasions and - to everyone's understanding - buys alprazolam. In the first transaction, the informant paid for both alprazolam and marijuana. In the second transaction, he paid for both alprazolam and clonazepam. Obviously, both the seller and the buyer thought the drugs were, in fact, alprazolam. In addition, two chemists working with the Kentucky State Police Crime Lab confirmed the clonazepam and marijuana through chemical testing. The confirmation by chemical testing of two of the alleged illicit drugs lends support to the likelihood that the other was authentic. We have a witness highly experienced in dealing with drugs. The transactions involving the alprazolam were carried out with stealth and undercover operation. Both Appellant and the informant called the pills by the name of the illegal narcotic.
In addition to the Dolan factors, the alprazolam pills were visually identified. Two fully-qualified chemists who have each conducted thousands of examinations of substances like those at issue here
related that, based upon the shape, color, and markings, the drug visually appeared to be alprazolam. This was confirmed through a review on Identidex, a database only accessible to law enforcement agencies. Because of the lab's established protocol, the alprazolam was not chemically tested. The lab protocol authorized the use of the database as a means of identification of pills. As one federal court has noted, the trade dress of a pill is akin to looking at a human face.
It has been pointed out before that trade dress is a legal shorthand term for all the features that make it up. It is not color alone. It is not size and shape alone. It is not finish alone. It is all the features taken together.Jones, 331 S.W.3d at 254-55.
See United States v. Dolan, 544 F.2d 1219, 1221-22 (4th Cir. 1976).
The instant action, however, is distinguishable from the facts in Jones. First, there were no transactions between Johnson and a third party or confidential informant that offered evidence as to the identity of the pills. Whitledge testified the pills were Xanax based on his training and experience, but he did not expound upon the training he had. He is not a chemist and does not work in a laboratory. He did not point to any features of the pills (e.g., size, shape, color, markings) that enabled him to identify them as Xanax. He failed to differentiate them from the other pills that he identified as Adderall. He is not offering factual testimony on this issue, but rather, opinion testimony, and he must give the reasons behind and supportive of his opinion. Finally, law enforcement did not send the pills to the Kentucky State Police Forensic Laboratory for testing. Unlike with the marijuana, Oliver did not testify that the laboratory would not have tested the pills had they been submitted. Because the pills were never at the laboratory, Oliver was not asked about use of the Identidex database as described in Jones. Law enforcement was also not questioned about possible use of Identidex by HCPD. Finally, Whitledge and Ebelhar testified differently about the number of alleged Xanax and Adderall pills.
In summary, the Commonwealth failed to put forth sufficient evidence, circumstantial or otherwise, to support the identification of certain pills as Xanax. The Trial Court erred when it failed to grant Johnson's motion for a directed verdict on that charge. For that reason, we vacate Johnson's conviction for Trafficking in a Controlled Substance, Third Degree (Xanax).
C. Persistent Felony Offender, First Degree
Johnson's final argument is that the Commonwealth failed to provide sufficient evidence to support his PFO I conviction. We agree.
"A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies[.]" KRS 532.080(3). However, [f]or the purpose of determining whether a person has two (2) or more previous felony convictions, two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one (1) conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned.
Natalie O'Daniel, from the Office of Henderson County Probation and Parole ("O'Daniel"), was the Commonwealth's only witness for the PFO portion of the trial. O'Daniel provided certified copies of judgments of two prior felony convictions for Johnson.
The first conviction was in Henderson County Circuit Court Case No. 16-CR-0029, for the felony offenses of Burglary in the Third Degree and Theft by Unlawful Taking (Controlled Substance), which occurred on October 24, 2015. Johnson entered a guilty plea on April 11, 2016; and the final sentencing order was entered on June 29, 2016.
The second conviction was in Union County Circuit Case No. 16-CR-0004, for the felony offenses of Burglary in the Third Degree, Theft by Unlawful Taking (Firearm), and Theft by Unlawful Taking (Over $500), which occurred on December 7, 2015. Johnson entered a guilty plea on July 11, 2016, and a final sentencing order was entered on the same date. The Union County conviction was ordered to run consecutively to the Henderson County conviction.
On cross-examination, defense counsel asked O'Daniel if the sentences were served as one uninterrupted term, and she replied that she did not know. Johnson moved for a directed verdict, stating that the sentences were served consecutively as one uninterrupted term as ordered in the certified judgments, and the Commonwealth failed to offer any evidence to prove otherwise. The Trial Court denied the motion.
The legislature enacted KRS 532.080(4), known as the "concurrent sentence break," to give shorter sentences to those who were newer to the prison system, as follows:
[It] is designed to strengthen the Commonwealth's attempts at rehabilitation of convicted persons. Greater penalties are sanctioned for those persons who, after serving a prison term for a conviction, demonstrate the futility of their rehabilitation by committing other crimes after their release. The concurrent sentence break is provided only to those who may have committed more than one crime but received their sentences for these crimes prior to serving any time in prison.Williams v. Commonwealth, 639 S.W.2d 788, 790 (Ky. App. 1982) (emphasis added). In other words, KRS 532.080(4) "does not apply to individuals who commit a felonious act, receive a sentence, and then subsequently commit another felonious act and receive another sentence." Blades v. Commonwealth, 339 S.W.3d 450, 456 (Ky. 2011).
The Commonwealth argues that Johnson did not serve one uninterrupted term because he received shock probation for the Henderson County Case in August 2016, but did not receive shock probation for the Union County Case until December 2016. This fact is immaterial. The record is clear that Johnson committed the felony in Union County prior to being convicted and receiving his sentence for the Henderson County felony. Whether one prior sentence ultimately resulted in incarceration and the other resulted in probation is not relevant to the inquiry. Rather, the focus is upon whether a defendant, such as Johnson here, committed both offenses before being convicted and sentenced regarding either. The timing of the crimes and sentencings are critical, not the types or terms of the sentencings themselves. We therefore agree with Johnson that the Commonwealth failed to present sufficient evidence to support a PFO I conviction.
The Commonwealth has the burden of proof as to every element of the PFO status beyond a reasonable doubt. Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky. 1999). It was not Johnson's burden to prove that he served one uninterrupted sentence on the two prior felonies needed to avoid a PFO I conviction, as the Commonwealth argues.
Nevertheless, KRS 505.020(2) provides that "[a] defendant may be convicted of an offense that is included in any offense with which he is formally charged." Although the indictment charged Johnson with PFO I, it was sufficient to charge and or try Johnson alternatively with the lesser included offense of being a Persistent Felony Offender, in the Second Degree ("PFO II"). Johnson argues to this Court that he had only one prior felony conviction for the purpose of a PFO charge; therefore, he implicitly concedes that he is eligible for PFO II, if proven beyond a reasonable doubt by the Commonwealth. After a PFO I conviction is set aside, double jeopardy does not bar retrial of this severed portion of the trial with jury instructions as to the elements necessary to find guilt for PFO II and then potentially enhance the sentences on the other convictions. See White v.
Even though we are reversing Johnson's conviction for Trafficking in a Controlled Substance, Third Degree (Xanax), his other felony convictions in this matter remain unchanged, and all except Possession of a Controlled Substance, First Degree (Methamphetamine) are subject to PFO enhancement on remand should the Commonwealth prove PFO II beyond a reasonable doubt. Of course, the misdemeanor charges are not subject to retrial.
Commonwealth, 770 S.W.2d 222 (Ky. 1989); Gill v. Commonwealth, 648 S.W.2d 846 (Ky. 1983). Accordingly, we reverse and vacate Johnson's status as PFO I and remand for a new guilt and penalty phase trial limited to determining whether Johnson qualifies a PFO II and whether and to what extent the now 11-year sentences on the other convictions (without the additional, consecutive two-year sentence on Trafficking in a Controlled Substance, Third Degree (Xanax), which we have reversed and vacated) should be enhanced.
ALL CONCUR.