Opinion
NO. 2018-CA-001816-MR
02-21-2020
BRYON PHILLIP MCCOWAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Robert C. Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN E. REYNOLDS, JUDGE
ACTION NO. 17-CR-01404 OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES. MAZE, JUDGE: Byron Phillip McCowan appeals from a judgment of conviction by the Fayette Circuit Court following a conditional guilty plea. He argues that his conviction for first-degree possession of a controlled substance was barred by KRS 218A.133, which prohibits prosecution of certain possession offenses where the evidence is obtained as a result of a drug overdose and the need for medical attention. In this case, however, the drugs were recovered from McCowan after he had completed treatment for his drug overdose. Thus, the statutory immunity from prosecution does not apply. While the drug paraphernalia charge would have been subject to dismissal, that charge was later dismissed as part of McCowan's guilty plea. Hence, we affirm the judgment of conviction.
The Appellant's name appears to be misspelled in the notice of appeal. We adopt the spelling used throughout the record.
Kentucky Revised Statutes.
The relevant facts of this action are not in dispute except where noted. On December 13, 2017, a Fayette County grand jury returned an indictment charging McCowan with one count each of first-degree promoting contraband, possession of drug paraphernalia, resisting arrest, operating a motor vehicle under the influence (first offense), operating on a suspended operator's license, and being a persistent felony offender in the first degree (PFO I). The first five charges arose from an incident that occurred on October 30, 2017. Lexington Police responded to a single vehicle crash on East New Circle Road. Upon arriving, the officers found McCowan behind the wheel of an automobile. He was under the influence of narcotics and appeared to be experiencing a drug overdose.
The police report states that McCowan "used defensive resistance and intentionally prevented officers from making the arrest." Following the arrest, the officers found a crack pipe in McCowan's right hand. The officers also determined that McCowan's license was suspended.
Thereafter, the officers transported McCowan to a hospital where he was treated for the drug overdose. McCowan states that the hospital administered Narcan to reverse an opioid overdose, but that fact is not documented in the record. Upon his release, the police transported McCowan to the Fayette County Detention Center. While being booked into the facility, ten dosage units of heroin were found in McCowan's sock.
Following his indictment, McCowan moved to dismiss the charges of possession of drug paraphernalia and promoting contraband. He argued that the charges were barred by operation of KRS 218A.133 because the evidence was obtained during the course of his treatment for a drug overdose. After considering the Commonwealth's response, the trial court denied the motion to dismiss.
McCowan also argued that the charge of promoting contraband should be dismissed because he was not given access to an "amnesty box" prior to booking, in violation of the Detention Center's policies. The trial court denied the motion to dismiss on this ground and McCowan does not raise it in this appeal. --------
Subsequently, McCowan entered a conditional guilty plea, reserving his right to appeal the denial of the motion to dismiss. In exchange for his guilty plea, the Commonwealth agreed to amend the charge of promoting contraband to first-degree possession of a controlled substance, and to dismiss the charges of possession of drug paraphernalia, resisting arrest, and being a PFO I. The Commonwealth recommended a sentence totaling three years' imprisonment, plus a fine of $200 and court costs of $165. McCowan now appeals to this Court.
The sole issue on appeal concerns the application of KRS 218A.133, which provides as follows:
(1) As used in this section:
(a) "Drug overdose" means an acute condition of physical illness, coma, mania, hysteria, seizure, cardiac arrest, cessation of breathing, or death which reasonably appears to be the result of consumption or use of a controlled substance, or another substance with which a controlled substance was combined, and that a layperson would reasonably believe requires medical assistance; and
(b) "Good faith" does not include seeking medical assistance during the course of the execution of an arrest warrant, or search warrant, or a lawful search.
(2) A person shall not be charged with or prosecuted for a criminal offense prohibiting the possession of a controlled substance or the possession of drug paraphernalia if:
(a) In good faith, medical assistance with a drug overdose is sought from a public safety answering point, emergency medical services, a law enforcement officer, or a health practitioner because the person:
1. Requests emergency medical assistance for himself or herself or another person;
2. Acts in concert with another person who requests emergency medical assistance; or
3. Appears to be in need of emergency medical assistance and is the individual for whom the request was made;
(b) The person remains with, or is, the individual who appears to be experiencing a drug overdose until the requested assistance is provided; and
(c) The evidence for the charge or prosecution is obtained as a result of the drug overdose and the need for medical assistance.
. . . .
(4) When contact information is available for the person who requested emergency medical assistance, it shall be reported to the local health department. Health department personnel shall make contact with the person who requested emergency medical assistance in order to offer referrals regarding substance abuse treatment, if appropriate.
(5) A law enforcement officer who makes an arrest in contravention of this section shall not be criminally or civilly liable for false arrest or false imprisonment if the arrest was based on probable cause.
In the matter below, the Commonwealth argued that the trial court lacked the authority to dismiss the charges prior to trial. As a general rule, a trial court is without authority to dismiss an indictment which is valid on its face. Commonwealth v. Isham, 98 S.W.3d 59, 62 (Ky. 2003). "[T]he authority to dismiss a criminal complaint before trial may only be exercised by the Commonwealth, and the trial court may only dismiss via a directed verdict following a trial." Id. But in this case, KRS 218A.133 expressly prohibits a person from being "charged with or prosecuted for" possession of a controlled substance or possession of drug paraphernalia where the evidence "for the charge or prosecution is obtained as a result of [a] drug overdose and the need for medical assistance." The statute does not merely establish a defense to such charges but confers immunity from prosecution provided that the prerequisites for application of the statute are met.
On appeal, the Commonwealth (through the Attorney General's office) concedes that KRS 218A.133 gives the trial court the authority to dismiss the charges. Nevertheless, the Commonwealth argues that the statute does not apply to the charge of promoting contraband. We agree.
On its face, the offense of promoting contraband is a crime other than possession of a controlled substance. See Commonwealth v. Kenley, 516 S.W.3d 362, 365 (Ky. App. 2017). Furthermore, the police officers did not discover the heroin units on McCowan while he was being treated for his drug overdose, but only later, when he was being booked into the Detention Center. Therefore, we agree with the Commonwealth that the amended possession charge still falls outside of the scope of KRS 218A.133.
The Commonwealth also concedes that KRS 218A.133 barred McCowan's prosecution for possession of drug paraphernalia based on the crack pipe found during his drug overdose. However, we also agree with the Commonwealth that this issue is moot because that charge was dismissed as part of McCowan's guilty plea. Therefore, we conclude that the trial court's failure to dismiss that charge was harmless error.
Accordingly, we affirm the judgment of conviction by the Fayette Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Robert C. Yang
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky