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Lane v. Commonwealth

Commonwealth of Kentucky Court of Appeals
May 13, 2016
NO. 2015-CA-000739-MR (Ky. Ct. App. May. 13, 2016)

Opinion

NO. 2015-CA-000739-MR

05-13-2016

GERALD WAYNE LANE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEFS FOR APPELLANT: Roy A. Durham Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 14-CR-00147 OPINION
AFFIRMING

** ** ** ** **

BEFORE: J. LAMBERT, TAYLOR, AND THOMPSON, JUDGES. J. LAMBERT, JUDGE: Gerald Wayne Lane appeals from a Montgomery Circuit Court judgment after a jury convicted him of trafficking in the first degree and being a persistent felony offender in the second degree. He argues that he was entitled to a directed verdict and that his rights under the Confrontation Clause of the Constitution of the United States and of the Commonwealth of Kentucky were violated when he was not allowed to cross-examine an anonymous informant.

Officers Perdue, Roberts, and Thornberry were approached in a parking lot in Mount Sterling by an anonymous woman at around 10:00 p.m., on the evening of March 12, 2014. She told the officers that there were two men in a black car acting suspiciously in the Kroger parking lot across the street. The officers went to the Kroger lot and pulled up behind a black Acura. They got out of their vehicles and approached the car. When Lane, who was sitting in the front passenger seat of the Acura, turned and saw Deputy Thornberry, he turned back around and reached under his seat. Thornberry pulled his weapon and ordered Lane to show his hands. Lane refused to comply and continued to reach beneath the seat. Officer Roberts removed Lane from the vehicle and patted him down for weapons. After Lane was removed from the car, Thornberry looked down and saw the edge of a cellophane wrapper peeking out from under Lane's seat. Thornberry also noticed a white plastic tube lying on the seat just vacated by Lane. The driver of the car denied knowledge of these items and consented to a search of his person and the vehicle. The search of his person uncovered nothing suspicious.

The cellophane wrapper and the plastic tube recovered from the car both contained blue pills. The wrapper contained fourteen pills, and the tube contained 22.5 pills. Officer Roberts placed Lane under arrest and searched him, finding $714.00 in cash. Lane was taken to the police department, where he denied knowing anything about the pills, although he also stated that he would not "tell on" anyone. He denied ownership of the cash, which he claimed he was holding for a family member.

Following his trial and conviction for first-degree trafficking and being a second-degree persistent felony offender, Lane received a total sentence of ten years. This appeal followed.

Lane argues that he was entitled to a directed verdict because there was insufficient evidence that he had actual or constructive possession of the pills recovered from the car.

"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." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). "The evidence presented by the prosecution must be more than a mere scintilla." Id. at 188.

Lane was convicted of first-degree trafficking under Kentucky Revised Statutes (KRS) 218A.1412. "'[P]ossession' for purposes of KRS Chapter 218A includes both actual and constructive possession. To prove constructive possession, the Commonwealth must present evidence which establishes that the contraband was subject to the defendant's dominion and control." Pate v. Commonwealth, 134 S.W.3d 593, 598-99 (Ky. 2004), as modified (July 23, 2004).

In Burnett v. Commonwealth, the Kentucky Supreme Court held that the following proof that Burnett was in constructive possession of cocaine was sufficient to overcome a motion for a directed verdict: "(1) that the cocaine was found in an area in the car next to where Burnett had previously been sitting, i.e., in an area within his immediate control; and (2) that the owner of the car disavowed possession of the drugs and claimed that they belonged to Burnett." 31 S.W.3d 878, 881 (Ky. 2000) overruled on other grounds by Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010).

Lane contends that the facts of his case are distinguishable because the driver and owner of the car never expressly stated that the pills belonged to Lane, only that he had no knowledge of anything that was in his vehicle. But the jury could infer from the driver's remarks that the pills did belong to Lane, or at least question whether it was credible that the drugs had been placed under and in the passenger seat by a third party without Lane's knowledge. "It is well established that the credibility of witnesses . . . is a matter for the jury." Jenkins v. Commonwealth, 308 S.W.3d 704, 711 (Ky. 2010).

Furthermore, Lane's behavior in reaching beneath his seat towards the cellophane wrapper, even after Deputy Thornberry ordered him to show his hands, is compelling evidence that he possessed the wrapper and its contents. Similarly, the location of the tube of pills in the crease between the back and bottom of the seat is evidence from which a jury could easily conclude that Lane was exercising dominion and control over the tube.

Lane further argues that the prosecution failed to prove he had constructive possession of ten or more dosages of a controlled substance as required to prove a charge of trafficking in the first degree. KRS 218A.1412(1)(c) provides that "[a] person is guilty of trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in: . . . Ten (10) or more dosage units of a controlled substance that is classified in Schedules I or II and is a narcotic drug, or a controlled substance analogue[.]"

The police sent the pills from the cellophane wrapper and the plastic tube together in one container to the lab for analysis. The forensic scientist noted that there were five different logoed types of pills in the container. They were all visually identical to various preparations of oxycodone. After his inspection, he concluded that there was no reason to believe that the tablets were counterfeit or anything other than what they purported to be. He separated the pills and tested one from the largest group of pills bearing the same logo, of which there were fourteen. The test confirmed the presence of oxycodone. Eight of the pills from that group of fourteen came from the cellophane bag and six of them came from the tube. Lane argues that because no reasonable jury could find that he possessed the pills in the plastic tube, the jury also could not find that he possessed ten of that type of pill. This argument is premised on the idea that he did not possess both the wrapper and the tube. Because we have already held that the evidence supported a finding that he did possess both containers, this argument is moot.

Next, Lane argues that the Commonwealth failed to prove that he trafficked in narcotics. "Traffic" was defined at the time by KRS 218A.010(49) to mean "to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance." Lane argues that the police officers never observed him actually engaging in a drug transaction that evening, never saw he or the driver make any movements in the car, and never saw a third person approach or leave the car. He also points out that the police did not check the Kroger security cameras for evidence of trafficking activity.

However, numerous pieces of evidence were offered to support the jury's finding that Lane possessed the pills with the intent to sell them. These include the fact that the pills were in unauthorized containers rather than in a proper prescription container, the large number of pills recovered, and the fact that they included five different logoed types of pills. As the Commonwealth has noted, it is unlikely that a pharmacist would fill a prescription for an individual using five different types of pills. The jury could infer from the totality of this evidence that Lane received the pills from various sources for eventual resale. Additionally, the jury could find that the $714.00 in small bills recovered from Lane's pocket constituted the proceeds of previous drug sales. The implausibility of Lane's explanation, that he was holding the cash for a family member, also supports the jury's finding that he engaged in drug trafficking.

Finally, Lane argues that his rights under the Confrontation Clause were violated when he was not allowed to cross-examine the informant who first alerted the police to the presence of the vehicle. Lane's attorney filed a motion in limine on the morning of trial, seeking to exclude any reference to the anonymous woman who reported a suspicious vehicle or drug activity in the Kroger parking lot. The trial court granted the motion, insofar as the officers were not permitted to mention "drug activity," but they were allowed to testify that the informant notified them of "suspicious activity."

The Commonwealth argues that the Confrontation Clause is not implicated because the evidence was not hearsay, as it was not offered for the truth of the matter asserted, but to provide context and to explain why the officers approached the vehicle in the first place.

The rule is that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information and the taking of that action is an issue in the case. . . . In such circumstances, hearsay may be admissible to prove why the police acted in a certain manner, but not to prove the facts given to the officer.
Chestnut v. Commonwealth, 250 S.W.3d 288, 294 (Ky. 2008).

We agree that the testimony was not hearsay and was offered primarily to explain why the police approached the vehicle, but also agree with Lane that there was no issue regarding why the officers approached the vehicle in the first place.

If, for the sake of argument only, we proceed on the assumption that the admission of the evidence was an abuse of discretion, we believe that the testimony was harmless beyond a reasonable doubt. Kentucky Rules of Criminal Procedure (RCr) 9.24 requires that we disregard harmless error:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the
proceeding that does not affect the substantial rights of the parties.

"Even constitutional errors can be harmless, though 'before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 22, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)." Whittle v. Commonwealth, 352 S.W.3d 898, 905-906 (Ky. 2011).

Even if Lane had been able to cross-examine and discredit the informant, we fail to see how the outcome of the trial would have been different. The evidence which incriminated Lane consisted of his own actions when the police approached the vehicle, the subsequent discovery of the large quantity of oxycodone tablets on and under his seat, and the recovery of a large amount of cash on his person.

Finding no error, we affirm the judgment and sentence of the Montgomery Circuit Court.

ALL CONCUR. BRIEFS FOR APPELLANT: Roy A. Durham
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky


Summaries of

Lane v. Commonwealth

Commonwealth of Kentucky Court of Appeals
May 13, 2016
NO. 2015-CA-000739-MR (Ky. Ct. App. May. 13, 2016)
Case details for

Lane v. Commonwealth

Case Details

Full title:GERALD WAYNE LANE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: May 13, 2016

Citations

NO. 2015-CA-000739-MR (Ky. Ct. App. May. 13, 2016)