KRS CHAPTER 218A -CONTROLLED SUBSTANCES – PAGE 1

 

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KRS CHAPTER 218A – CONTROLLED SUBSTANCES – Page 1

KRS 218A.010  thru KRS 218A.1455

Drug Schedules – Controlled Substances – Possession – Trafficking –

Forfeited Property – Drug Paraphernalia –  Penalties

KRS 218A.020 Cabinet for Health and Family Services to administer chapter — Office of Drug Control Policy may request scheduling of substances similar to synthetic drugs  June 25, 2013

KRS 218A.120 Criteria for classification under Schedule V

KRS 218A.135 Pretrial release of defendant charged with offense for which conviction may result in presumptive probation  

KRS 218A.140 Prohibited acts relating to controlled substances — Penalties 

KRS 218A.1401 Selling controlled substances other than synthetic drugs or salvia to minor — Penalties 

KRS 218A.1402 Criminal conspiracy to commit offense in KRS Chapter 218A — Penalties.

KRS 218A.1404 Prohibited activities relating to controlled substances — Penalties 

KRS 218A.141 Additional penalties for trafficking in controlled substance other than salvia or marijuana  

KRS 218A.1411 Trafficking in controlled substance in or near school — Exception for misdemeanor salvia offenses — Penalty 

KRS 218A.1412 Trafficking in controlled substance in first degree — Penalties  

KRS 218A.1413 Trafficking in controlled substance in second degree — Penalties 

KRS 218A.1414 Trafficking in controlled substance in third degree — Penalties  

KRS 218A.1415 Possession of controlled substance in first degree — Penalties 

 

Updated 10/09/2013 (2013)

 
 
 

KRS 218A.005 Legislative findings and declarations.

The General Assembly hereby finds, determines, and declares that:

(1) The regulation of controlled substances in this Commonwealth is important and necessary for the preservation of public safety and public health; and

(2) Successful, community-based treatment can be used as an effective tool in the effort to reduce criminal risk factors. Therapeutic intervention and ongoing individualized treatment plans prepared through the use of meaningful and validated, research-based assessment tools and professional evaluations offer a potential alternative to incarceration in appropriate circumstances and shall be used accordingly.

Effective: June 8, 2011  History: Created 2011 Ky. Acts ch. 2, sec. 4, effective June 8, 2011.

ANNOTATION FOR THIS STATUTE:   

Jones v. Commonwealth (Ky. App., 2012)  2011-CA-001298-MR   December 21, 2012

Billy Jones appeals from the denial of his motion to enter into the deferred prosecution program set forth in (KRS) 218A.14151. He argues that the trial court erred in holding that it had no authority to consider whether the prosecution’s reasons for denying deferred prosecution were substantial and compelling. The Commonwealth argues that the granting of deferred prosecution is solely within the province of the prosecution and the trial court cannot substitute its judgment for that of the prosecution. We agree with the argument of the Commonwealth and affirm.

NICKELL, JUDGE, CONCURRING: The General Assembly has indicated its legislative purpose in enacting KRS 218A was to regulate controlled substances for the purpose of preserving public safety and public health. KRS 218A.005(1). In so doing, the legislature determined community-based treatment provided an effective tool in reducing criminal risk factors and offered a potential alternative to incarceration in appropriate circumstances. KRS 218A.005(2).  

[U] Council v. Commonwealth (Ky. App., 2012) 2011-CA-001613-MROctober 26, 2012

THOMPSON, JUDGE, DISSENTING: I respectfully dissent from the majority opinion on the issue of whether Council’s original sentence, imposed after the trial judge became involved in the plea bargaining process and offered an alternative sentence, was proper. I believe such a sentence violated Council’s rights because he was not offered an opportunity to withdraw his plea. I write to urge that Kentucky adopt an absolute prohibition against judicial involvement in plea bargains. Additionally, I find the decision to revoke Council’s probation without making the required findings of KRS 439.3106 to be in error.

 Although Council’s probation was revoked on August 5, 2011, after the effective date of KRS 439.3106, the trial court did not make any findings that Council’s failure to abide by the conditions of his probation constituted a significant risk to his prior victims or the community at large or that he could not be appropriately managed in the community as required by KRS 439.3106(1) before revocation and incarceration can be imposed. There is no evidence before this Court that this drug addict defendant who was charged with possession of a pipe with residue, and violated his probation by using drugs again, was a significant risk to the community or could not be appropriately managed in the community.

In the absence of such findings, trial courts are directed to impose alternative sanctions "appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for, and availability of, interventions which may assist the offender to remain compliant and crime-free in the community." KRS 439.3106(2). Even though HB 463 emphasizes that treatment is an appropriate way to reduce recidivism, no attempt was made to follow KRS 439.3106(2) and the spirit of HB 463 to determine whether Council could be rehabilitated through community-based drug treatment. See KRS 218A.005, KRS 196.286. The trial court instead focused on punishing Council’s violation by sending him to serve his ten-year sentence, the maximum for two class D felonies.

In light of KRS 439.3106, I urge the Kentucky Supreme Court to not allow trial courts to impose a "hammer clause" when placing defendants on probation and then allowing these courts full discretion to revoke probation and impose the statutory maximum for any violation. If we do not focus on rehabilitating drug addicts and instead send them to serve lengthy sentences, we nullify the efforts of these reforms.         For the forgoing reasons I would reverse.

 

[U] Andrews v. Commonwealth (Ky. App., 2012) 2011-CA-001360-MR   November 30, 2012

The General Assembly’s adoption of new purpose statutes indicate that the primary objective of sentencing and purpose of the Department of Corrections is to "maintain public safety and hold offenders accountable, while reducing recidivism and criminal behavior and improving outcomes for those offenders who are sentenced." KRS 532.007;  KRS 196.003. A particular emphasis is placed on using treatment to rehabilitate offenders and decrease overall costs. The General Assembly found that "successful, community-based treatment can be used as an effective tool in the effort to reduce criminal risk factors . . . [and appropriate treatment plans] offer a potential alternative to incarceration in appropriate circumstances and shall be used accordingly." KRS 218A.005. The General Assembly encouraged the use of treatment over incarceration to generate savings while reducing criminal risk factors. KRS 196.286. However, it restrained the discretion of trial courts to revoke probation. KRS 439.3106.

 

KRS 218A.010 Definitions for chapter.

(1) "Administer" means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by:

(a) A practitioner or by his or her authorized agent under his or her immediate supervision and pursuant to his or her order; or

(b) The patient or research subject at the direction and in the presence of the practitioner;

(2) "Anabolic steroid" means any drug or hormonal substance chemically and pharmacologically related to testosterone that promotes muscle growth and includes those substances listed in KRS 218A.090(5) but does not include estrogens, progestins, and anticosteroids;

(3) "Cabinet" means the Cabinet for Health and Family Services;

(4) "Child" means any person under the age of majority as specified in KRS 2.015;

(5) "Cocaine" means a substance containing any quantity of cocaine, its salts, optical and geometric isomers, and salts of isomers;

(6) "Controlled substance" means methamphetamine, or a drug, substance, or immediate precursor in Schedules I through V and includes a controlled substance analogue;

(7)

(a) "Controlled substance analogue," except as provided in paragraph (b) of this subsection, means a substance:

1. The chemical structure of which is substantially similar to the structure of a controlled substance in Schedule I or II; and

2. Which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in Schedule I or II; or

3. With respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in Schedule I or II.

(b) Such term does not include:

1. Any substance for which there is an approved new drug application;

2. With respect to a particular person, any substance if an exemption is in effect for investigational use for that person pursuant to federal law to the extent conduct with respect to such substance is pursuant to such exemption; or

3. Any substance to the extent not intended for human consumption before the exemption described in subparagraph 2. of this paragraph takes effect with respect to that substance;

(8) "Counterfeit substance" means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of manufacturer, distributor, or dispenser other than the person who in fact manufactured, distributed, or dispensed the substance;

(9) "Dispense" means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling, or compounding necessary to prepare the substance for that delivery;

(10) "Dispenser" means a person who lawfully dispenses a Schedule II, III, IV, or V controlled substance to or for the use of an ultimate user;

(11) "Distribute" means to deliver other than by administering or dispensing a controlled substance;

(12) "Dosage unit" means a single pill, capsule, ampule, liquid, or other form of administration available as a single unit;

(13) "Drug" means:

(a) Substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them;

(b) Substances intended for use in the diagnosis, care, mitigation, treatment, or prevention of disease in man or animals;

(c) Substances (other than food) intended to affect the structure or any function of the body of man or animals; and

(d) Substances intended for use as a component of any article specified in this subsection. It does not include devices or their components, parts, or accessories;

(14) "Good faith prior examination," as used in KRS Chapter 218A and for criminal prosecution only, means an in-person medical examination of the patient conducted by the prescribing practitioner or other health-care professional routinely relied upon in the ordinary course of his or her practice, at which time the patient is physically examined and a medical history of the patient is obtained. "In-person" includes telehealth examinations. This subsection shall not be applicable to hospice providers licensed pursuant to KRS Chapter 216B;

(15) "Hazardous chemical substance" includes any chemical substance used or intended for use in the illegal manufacture of a controlled substance as defined in this section or the illegal manufacture of methamphetamine as defined in KRS 218A.1431, which:

(a) Poses an explosion hazard;

(b) Poses a fire hazard; or

(c) Is poisonous or injurious if handled, swallowed, or inhaled;

(16) "Heroin" means a substance containing any quantity of heroin, or any of its salts, isomers, or salts of isomers;

(17) "Immediate precursor" means a substance which is the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance or methamphetamine, the control of which is necessary to prevent, curtail, or limit manufacture;(18) "Intent to manufacture" means any evidence which demonstrates a person’s conscious objective to manufacture a controlled substance or methamphetamine. Such evidence includes but is not limited to statements and a chemical substance’s usage, quantity, manner of storage, or proximity to other chemical substances or equipment used to manufacture a controlled substance or methamphetamine;

(19) "Isomer" means the optical isomer, except as used in KRS 218A.050(3) and 218A.070(1)(d). As used in KRS 218A.050(3), the term "isomer" means the optical, positional, or geometric isomer. As used in KRS 218A.070(1)(d), the term "isomer" means the optical or geometric isomer;

(20) "Manufacture," except as provided in KRS 218A.1431, means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container except that this term does not include activities:

(a) By a practitioner as an incident to his or her administering or dispensing of a controlled substance in the course of his or her professional practice;

(b) By a practitioner, or by his or her authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale; or

(c) By a pharmacist as an incident to his or her dispensing of a controlled substance in the course of his or her professional practice;

(21) "Marijuana" means all parts of the plant Cannabis sp., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin or any compound, mixture, or preparation which contains any quantity of these substances. The term "marijuana" does not include industrial hemp as defined in KRS 260.850;

(22) "Medical history," as used in KRS Chapter 218A and for criminal prosecution only, means an accounting of a patient’s medical background, including but not limited to prior medical conditions, prescriptions, and family background;

(23) "Medical order," as used in KRS Chapter 218A and for criminal prosecution only, means a lawful order of a specifically identified practitioner for a specifically identified patient for the patient’s health-care needs. "Medical order" may or may not include a prescription drug order;

(24) "Medical record," as used in KRS Chapter 218A and for criminal prosecution only, means a record, other than for financial or billing purposes, relating to a patient, kept by a practitioner as a result of the practitioner-patient relationship;

(25) "Methamphetamine" means any substance that contains any quantity of methamphetamine, or any of its salts, isomers, or salts of isomers;

(26) "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(a) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate;

(b) Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in paragraph (a) of this subsection, but not including the isoquinoline alkaloids of opium;

(c) Opium poppy and poppy straw;

(d) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

(e) Cocaine, its salts, optical and geometric isomers, and salts of isomers;

(f) Ecgonine, its derivatives, their salts, isomers, and salts of isomers; and

(g) Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in paragraphs (a) to (f) of this subsection;

(27) "Opiate" means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under KRS 218A.030, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms;

(28) "Opium poppy" means the plant of the species papaver somniferum L., except its seeds;

(29) "Person" means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity;

(30) "Physical injury" has the same meaning it has in KRS 500.080;

(31) "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing;

(32) "Pharmacist" means a natural person licensed by this state to engage in the practice of the profession of pharmacy;

(33) "Practitioner" means a physician, dentist, podiatrist, veterinarian, scientific investigator, optometrist as authorized in KRS 320.240, advanced practice registered nurse as authorized under KRS 314.011, or other person licensed, registered, or otherwise permitted by state or federal law to acquire, distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state. "Practitioner" also includes a physician, dentist, podiatrist, veterinarian, or advanced practice registered nurse authorized under KRS 314.011 who is a resident of and actively practicing in a state other than Kentucky and who is licensed and has prescriptive authority for controlled substances under the professional licensing laws of another state, unless the person’s Kentucky license has been revoked, suspended, restricted, or probated, in which case the terms of the Kentucky license shall prevail;

(34) "Practitioner-patient relationship," as used in KRS Chapter 218A and forcriminal   prosecution only, means a medical relationship that exists between a patient and a practitioner or the practitioner’s designee, after the practitioner or his or her designee has conducted at least one (1) good faith prior examination;

(35) "Prescription" means a written, electronic, or oral order for a drug or medicine, or combination or mixture of drugs or medicines, or proprietary preparation, signed or given or authorized by a medical, dental, chiropody, veterinarian, optometric practitioner, or advanced practice registered nurse, and intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals;

(36) "Prescription blank," with reference to a controlled substance, means a document that meets the requirements of KRS 218A.204 and 217.216;

(37) "Presumptive probation" means a sentence of probation not to exceed the maximum term specified for the offense, subject to conditions otherwise authorized by law, that is presumed to be the appropriate sentence for certain offenses designated in this chapter, notwithstanding contrary provisions of KRS Chapter 533. That presumption shall only be overcome by a finding on the record by the sentencing court of substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety;

(38) "Production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance;

(39) "Recovery program" means an evidence-based, nonclinical service that assists individuals and families working toward sustained recovery from substance use and other criminal risk factors. This can be done through an array of support programs and services that are delivered through residential and nonresidential means;

(40) "Salvia" means Salvia divinorum or Salvinorin A and includes all parts of the plant presently classified botanically as Salvia divinorum, whether growing or not, the seeds thereof, any extract from any part of that plant, and every compound, manufacture, derivative, mixture, or preparation of that plant, its seeds, or its extracts, including salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation of that plant, its seeds, or extracts. The term shall not include any other species in the genus salvia;

(41) "Second or subsequent offense" means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his or her conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense. For the purposes of this section, a conviction voided under KRS 218A.275 or 218A.276 shall not constitute a conviction under this chapter;

(42) "Sell" means to dispose of a controlled substance to another person for consideration or in furtherance of commercial distribution;(43) "Serious physical injury" has the same meaning it has in KRS 500.080;

(44) "Synthetic cannabinoids or piperazines" means any chemical compound which is not approved by the United States Food and Drug Administration or, if approved, which is not dispensed or possessed in accordance with state and federal law, that contains Benzylpiperazine (BZP); Trifluoromethylphenylpiperazine (TFMPP); 1,1-Dimethylheptyl-11-hydroxytetrahydrocannabinol (HU-210); 1-Butyl-3-(1-naphthoyl)indole; 1-Pentyl-3-(1-naphthoyl)indole; dexanabinol (HU-211); or any compound in the following structural classes:

(a) Naphthoylindoles: Any compound containing a 3-(1-naphthoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are not limited to JWH-015, JWH-018, JWH-019, JWH-073, JWH-081, JWH-122, JWH-200, and AM-2201;

(b) Phenylacetylindoles: Any compound containing a 3-phenylacetylindole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent. Examples of this structural class include but are not limited to JWH-167, JWH-250, JWH-251, and RCS-8;

(c) Benzoylindoles: Any compound containing a 3-(benzoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent. Examples of this structural class include but are not limited to AM-630, AM-2233, AM-694, Pravadoline (WIN 48,098), and RCS-4;

(d) Cyclohexylphenols: Any compound containing a 2-(3- hydroxycyclohexyl) phenol structure with substitution at the 5-position of the phenolic ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not substituted in the cyclohexyl ring to any extent. Examples of this structural class include but are not limited to CP 47,497 and its C8 homologue (cannabicyclohexanol);

(e) Naphthylmethylindoles: Any compound containing a 1H-indol-3-yl-(1-naphthyl)methane structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are notlimited to JWH-175, JWH-184, and JWH-185;

(f) Naphthoylpyrroles: Any compound containing a 3-(1-naphthoyl)pyrrole structure with substitution at the nitrogen atom of the pyrrole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the pyrrole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are not limited to JWH-030, JWH-145, JWH-146, JWH-307, and JWH-368;

(g) Naphthylmethylindenes: Any compound containing a 1-(1- naphthylmethyl) indene structure with substitution at the 3-position of the indene ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indene ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are not limited to JWH-176;

(h) Tetramethylcyclopropanoylindoles: Any compound containing a  3-(1-tetramethylcyclopropoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not further substituted in the tetramethylcyclopropyl ring to any extent. Examples of this structural class include but are not limited to UR-144 and XLR-11;

(i) Adamantoylindoles: Any compound containing a 3-(1-adamantoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the adamantyl ring system to any extent. Examples of this structural class include but are not limited to AB-001 and AM-1248; or

(j) Any other synthetic cannabinoid or piperazine which is not approved by the United States Food and Drug Administration or, if approved, which is not dispensed or possessed in accordance with state and federal law;

(45) "Synthetic cathinones" means any chemical compound which is not approved by the United States Food and Drug Administration or, if approved, which is not dispensed or possessed in accordance with state and federal law (not including bupropion or compounds listed under a different schedule) structurally derived from 2-aminopropan-1-one by substitution at the 1-position with either phenyl, naphthyl, or thiophene ring systems, whether or not the compound is further modified in one (1) or more of the following ways:

(a) By substitution in the ring system to any extent with alkyl, alkylenedioxy, alkoxy, haloalkyl, hydroxyl, or halide substituents, whether or not further substituted in the ring system by one (1) or more other univalent substituents. Examples of this class include but are not limited to 3,4-Methylenedioxycathinone (bk-MDA);

(b) By substitution at the 3-position with an acyclic alkyl substituent.Examples of this class include but are not limited to 2-methylamino-1-phenylbutan-1-one (buphedrone);

(c) By substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl, or methoxybenzyl groups, or by inclusion of the 2-amino nitrogen atom in a cyclic structure. Examples of this class include but are not limited to Dimethylcathinone, Ethcathinone, and -Pyrrolidinopropiophenone (-PPP); or

(d) Any other synthetic cathinone which is not approved by the United States Food and Drug Administration or, if approved, is not dispensed or possessed in accordance with state or federal law;

(46) "Synthetic drugs" means any synthetic cannabinoids or piperazines or any synthetic cathinones;

(47) "Telehealth" has the same meaning it has in KRS 311.550;

(48) "Tetrahydrocannabinols" means synthetic equivalents of the substances contained in the plant, or in the resinous extractives of the plant Cannabis, sp. or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following:

(a) Delta 1 cis or trans tetrahydrocannabinol, and their optical isomers;

(b) Delta 6 cis or trans tetrahydrocannabinol, and their optical isomers; and

(c) Delta 3, 4 cis or trans tetrahydrocannabinol, and its optical isomers;

(49) "Traffic," except as provided in KRS 218A.1431, means to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance;

(50) "Transfer" means to dispose of a controlled substance to another person without consideration and not in furtherance of commercial distribution; and

(51) "Ultimate user" means a person who lawfully possesses a controlled substance for his or her own use or for the use of a member of his or her household or for administering to an animal owned by him or her or by a member of his or her household.

Effective: June 25, 2013   History: Amended 2013 Ky. Acts ch. 26, sec. 1, effective March 19, 2013; and ch. 134, sec. 15, effective June 25, 2013. — Amended 2012 Ky. Acts ch. 108, sec. 3, effective April 11, 2012. — Amended 2011 Ky. Acts ch.b2, sec.b5, effective June 8, 2011; and ch.b45, sec.b15, effective March 16, 2011. — Amended 2010 Ky. Acts ch.b85, sec.b42, effective July 15, 2010; ch.b149, sec.b4, effective April 13, 2010; and ch.b160, sec.b4, effective April 26, 2010. — Amended 2009 Ky. Acts ch.b12, sec.b48, effective June 25, 2009. — Amended 2007 Ky. Acts ch.b124, sec.b1, effective June 26, 2007. — Amended 2006 Ky. Acts ch.b5, sec.b4, effective July 12, 2006. — Amended 2005 Ky. Acts ch.b150, sec.b7, effective  June 20, 2005; and ch.b99, sec.b527, effective June 20, 2005 —  Amended 2003  Ky. Acts ch.b51, sec.b3, effective June 24, 2003. — Amended 1998 Ky. Acts ch.b301, sec.b12, effective July 15, 1998; and ch.b606, sec.b62, effective July 15, 1998. — Amended 1996 Ky. Acts ch.b376, sec.b3, effective July 15, 1996. — Amended 1994 Ky. Acts ch.b412, sec.b2, effective July 15, 1994.  Amended

1992 Ky. Acts ch.b441, sec.b1, effective July 14, 1992. — Amended 1974 Ky. Acts  Legislative Research Commission Note (6/25/2013). This statute was amended by 2013 Ky. Acts chs. 26 and 134, which do not appear to be in conflict and have been codified together.Legislative Research Commission Note (4/11/2012). Under the authority of KRS 7.136(1), the Reviser of Statutes has altered the format of the text in subsection (48) of this statute during codification. The words in the text were not changed.

ANNOTATION FOR THIS STATUTE:

Jones v. Commonwealth (Ky. App., 2012)  2011-CA-001298-MR  December 21, 2012

NICKELL, JUDGE, CONCURRING: The General Assembly has indicated its legislative purpose in enacting KRS 218A was to regulate controlled substances for the purpose of preserving public safety and public health. …

… Deferred prosecution was identified, under KRS 218A.1415(2)(c), as the preferred alternative to incarceration for a first offense, while presumptive probation was mandated under KRS 218A.1415(2)(d) for all other first or second offenders who were denied deferred prosecution "unless a court determines the defendant is not eligible for presumptive probation as defined in KRS 218A.010."

The legislature did not provide a definition of "deferred prosecution" under KRS 218A.010, but chose to express its meaning in a separate statute, KRS 218A.14151.

Reilly v. Commonwealth (Ky. App., 2013)   April 19, 2013

If a defendant does not enter the deferred prosecution program, KRS 218A.1415(2)(d) provides that "he or she shall be subject to a period of presumptive probation, unless a court determines the defendant is not eligible for presumptive probation as defined in KRS 218A.010." KRS 218A.010(37) addresses presumptive probation and provides:  

"Presumptive probation" means a sentence of probation not to exceed the maximum term specified for the offense, subject to conditions otherwise authorized by law, that is presumed to be the appropriate sentence for certain offenses designated in this chapter, notwithstanding contrary provisions of KRS Chapter 533. That presumption shall only be overcome by a finding on the record by the sentencing court of substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.

Medcalf v. Commonwealth (Ky. App., 2013) 2011-CA-001621-MR  March 8, 2013

The provisions of KRS 218A.010(18) indicate that "intent to manufacture" can be shown by "any evidence which demonstrates a person’s conscious objective to manufacture a controlled substance or methamphetamine." The statute specifically provides that such evidence can include but is not limited to evidence of "a chemical substance’s usage."  

[U] Asberry v. Commonwealth (Ky. App., 2013)   2011-CA-001623-MR    April 5, 2013

Asberry eventually entered a guilty plea and sought probation. KRS 218A.1415(2)(d) states that if one does not enter into the deferred prosecution program for his first or second offense of possession of a controlled substance, "he or she shall be subject to a period of presumptive probation, unless a court determines the defendant is not eligible for presumptive probation as defined in KRS 218A.010. " KRS 218A.010(37) states that the presumption of probation "shall only be overcome by a finding on  the record by the sentencing court of substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety."

Greer v. Commonwealth (Ky. App., 2013)    May 17, 2013

At issue, KRS 218A.010(49) defines trafficking as "Traffic, except as provided in KRS 218A.1431, meaning to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance."  

At issue, KRS 218A.010(49) defines trafficking as "Traffic, except as provided in KRS 218A.1431, meaning to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance."

The Commonwealth argues that said definition encompasses any attempt to traffic. Based on Slaughter v. Commonwealth, 45 S.W.3d 873 (Ky. App. 2000), we must disagree.  In Slaughter, the defendant’s conviction and sentence for attempted trafficking in a controlled substance, second-offense (KRS 218A.1412), was upheld by this Court. Greer’s conviction for trafficking in the first degree stems from the same statute, KRS 218A.1412. However, Greer’s argument is unavailing. Greer had possession of an amount of cocaine that squarely brought him within the statute, more specifically he possessed an amount of cocaine from which the jury could infer that he intended to traffic; that is the crime. This is not a case where he was not found to possess cocaine but took substantially all those steps necessary to organize a drug transaction, thus, an attempt to commit a trafficking crime. Accordingly, we must conclude that Greer was not entitled to an attempt-to-traffic instruction; accordingly, we find no reversible error.

 
Commonwealth of Ky. v. ADKINS (Ky., 2011)

CUNNINGHAM, JUSTICE, CONCURRING: I concur with the majority; however, I write separately to address the trial court’s assertion that the last paragraph of the instruction was "an adequate avenue for arguing his innocent possession defense." It does not. Had it been, I might have been persuaded that it was harmless error.

        The last paragraph of the instruction requires that Appellant possess the illegal drug "with the intent to sell, distribute, or dispense it to another person." (emphasis added). There is no problem with criminal liability as to selling. Nor is there a difficulty with dispensing being illegal since it is defined as delivery to an "ultimate user." KRS 218A.010(8). However, distribute means "to deliver other than by administering or dispensing." KRS 218A.010(10). This would include giving it to the law enforcement officer, which would be exempt of criminal liability under KRS 218A.220.

        Therefore, on the face of the instructions themselves, Appellant could have been convicted of something which was not illegal—that is, distribution. This made the giving of the exemption instruction absolutely critical. Therefore, it was not harmless, nor was there an "adequate avenue for arguing his innocent possession defense."

Jackson v. Commonwealth Of Ky. (Ky., 2010)

Appellant waived his right to a jury trial and a bench trial followed. After the presentation of evidence, Appellant was found guilty of first-degree trafficking in a controlled substance, possession of drug paraphernalia, and possession of marijuana. The Commonwealth then introduced evidence showing Appellant had been previously convicted in the McCracken District Court of trafficking in marijuana. The trial court found this evidence sufficient to support the enhancement of the trafficking charge to a second offense, as defined by KRS 218A.010(35). The trial court also found Appellant guilty of being a second-degree persistent felony offender. Appellant was sentenced to twenty-five years in prison, as enhanced by the PFO conviction. He now appeals the final judgment entered as a matter of right. Ky. Const. § 110(2)(b).

Lastly, Appellant argues that the trial court impermissibly found his conviction of trafficking in a controlled substance (cocaine) to be a second offense by virtue of his prior misdemeanor conviction of trafficking in a controlled substance (marijuana). Appellant suggests that we reject the reasoning of Commonwealth v. Churchwell, 938 S.W.2d 586 (Ky.App. 1996), and hold that the underlying prior drug trafficking offense must be a felony conviction in order for it to enhance a future conviction as a "second or subsequent offense" under KRS 218A.1412(2).

KRS 218A.010(35) defines a "second or subsequent offense" in pertinent part as follows:

"Second or subsequent offense" means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense. For the purposes of this section, a conviction voided under KRS 218A.275 or 218A.276 shall not constitute a conviction under this chapter[.]

In Churchwell, the Court of Appeals stated the following:

KRS 218A. 1421(2)(b) permits a felony conviction on a marijuana trafficking charge if it is a "second or subsequent offense." Despite [Appellant’s] argument to the contrary the language of [KRS 218A.010(35)], which defines a "second or subsequent offense" as being one which occurs after any prior conviction under KRS Chapter 218 or any other state or federal law, clearly does not require the underlying prior drug trafficking conviction to be a conviction for trafficking in marijuana in order for it to be relied upon to enhance a subsequent conviction pursuant to KRS 218A.1421(2).

The same holds true for a conviction under KRS 218A. 1412(2) for first-degree trafficking in a controlled substance. By its terms, KRS 218A.010(35) does not require that the underlying prior drug trafficking offense be a felony conviction in order for it to enhance a future conviction as a "second or subsequent offense." All that section requires is some conviction under Chapter 218 or any other state or federal law, a requirement Appellant’s prior misdemeanor conviction clearly satisfies. Appellant’s reasoning would require this Court to add additional language to the statute. This we will not do. See Commonwealth v. Reynolds, 136 S.W.3d 442, 445 (Ky. 2004) ("We should not add or subtract from the statute, nor should we interpret the statute to provide an absurd result."). Accordingly, we find no error by the trial court.

        The judgment of the McCracken Circuit Court is hereby affirmed.

 
Farmer v. Com., 309 SW 3d 266 (Ky. App., 2010)

Discretionary Review Denied by Supreme Court May 12, 2010.

Citing no authority, Farmer claims the transfer in this case should not constitute a "transfer" under KRS 218A.010(40) because he was merely doing a favor for his friend by holding the drugs and then transferring the drugs back to his friend upon request. However, there is no basis in our law for such a claim. "Transfer" is defined broadly by KRS 218A.010(41) as follows: "to dispose of a controlled substance to another person without consideration and not in furtherance of commercialdistribution." Farmer’s transfer clearly falls within these parameters.

 
Graham v. Commonwealth, No. 2009-CA-000071-MR (Ky. App. 2/19/2010) (Ky. App., 2010)

Under Kentucky Rules of Criminal Procedure (RCr) 6.16, the circuit court may permit an indictment to be amended at any time before verdict and if the defendant’s substantial rights are not prejudiced. Graham believes he suffered prejudice by the amendment of the indictment. He maintains that the Commonwealth erroneously utilized a 1973 conviction for "illegal sale of narcotics" as the basis for the amended charge of subsequent offender under the offense of trafficking in a controlled substance or the lesser included offense of possession of a controlled substance. Graham argues that the 1973 conviction is "too remote in time" and provided "no nexus" to the current charge. By using the 1973 convictions, Graham maintains his right to a fair trial and right to due process was violated, thus resulting in prejudice.

 A second or subsequent offense is defined in Kentucky Revised Statutes (KRS) 218A.010(35):

"Second or subsequent offense" means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense. For the purposes of this section, a conviction voided under KRS 218A.275 or 218A.276 shall not constitute a conviction under this chapter[.]

KRS 218A.010(35) clearly provides that a prior offense may be considered if it was committed "at any time" before the present charged offense. There is plainly no time limit imposed upon prior offenses under KRS 218A.010(35). Moreover, Graham does not challenge the constitutionality of KRS 218A.010(35). Therefore, this Court views KRS 218A.010(35) as dispositive. As such, the circuit court did not err by granting the Commonwealth’s motion to amend the indictment.

 
Farmer v. Commonwealth, No. 2008-CA-001339-MR (Ky. App. 9/4/2009) (Ky. App., 2009)

   Appellant, Jerry Farmer, was convicted by a Perry County jury of second-degree trafficking in a controlled substance (hydrocodone). For this crime, Farmer was sentenced to one and one-half years’ imprisonment. He now appeals to this Court, setting forth several errors which he claims entitle him to a new trial. Finding no reversible error, we affirm the jury’s verdict.

    Citing no authority, Farmer claims the transfer in this case should not constitute a "transfer" under KRS 218A.010(40) because he was merely doing a favor for his friend by holding the drugs and then transferring the drugs back to his friend upon request. However, there is no basis in our law for such a claim. "Transfer" is defined broadly by KRS 218A.010(41) as follows: "to dispose of a controlled substance to another person without consideration and not in furtherance of commercial distribution[.]" Farmer’s transfer clearly falls within these parameters.

        Moreover, in Day, supra, the Kentucky Supreme Court rejected a similar argument where the defendant claimed that he was not guilty of trafficking in a controlled substance because he merely transferred the drugs as an "intermediary" for a friend without any expectation of consideration or remuneration. 983 S.W.2d. at 507-08, n.1. In affirming the denial of an instruction on the lesser included offense of possession, the Supreme Court explained, "[a]ny possession which may have occurred prior to the transfer may have been a separate uncharged offense, but was not a fact necessary to prove the charged offense." Id. at 509.

        By claiming that he did not own the pills but rather he was merely holding them as an agent for the true owner, Farmer’s defense attempted to negate both the possession and transfer elements of the trafficking offense. See Pate v. Commonwealth, 134 S.W.3d 593, 598 (Ky. 2004) (discussing the elements of possession). In other words, if Farmer never possessed the pills in the first place because he was merely an agent for Robinson, he could not have transferred something he did not possess. In light of this defense that Farmer never possessed the pills, an instruction on mere possession was not warranted even under Farmer’s theory of the case. Accordingly, the trial court did not err in refusing to submit this instruction to the jury.

 Making a misplaced citation to Commonwealth v. Rodefer, 189 S.W.3d 550 (Ky. 2006), Farmer contends the definition of "traffic" as it is set forth in KRS 218A.010(40) does not include the act of "transferring" controlled substances. Such a contention is supported by neither case law nor the plain language of the applicable statute.

        In Commonwealth v. Rodefer, the Kentucky Supreme Court discussed the two-pronged definition of "traffic" as it is currently set forth in KRS 218A.010(40). Id. at 552-53. Under the first prong, a person can "traffic" if he or she directly manufactures, distributes, dispenses, sells or transfers contraband. Id.. Under the second prong, a person can also "traffic" if he merely possesses contraband, but only if that person does so with the intent to manufacture, distribute, dispense or sell the contraband. Id.

        In addressing facts falling under the second prong definition of "traffic," the Rodefer Court held that since the term "transfer" was notably absent from this second prong definition, merely possessing contraband with the intent to transfer it was not sufficient to meet the definition of "traffic" under KRS 218A.010(40). Id. at 553. This case is clearly distinguishable from Rodefer, supra, since Farmer admitted to directly transferring the pills to Robinson. Accordingly, Farmer’s conduct fell under the first prong definition of "traffic," not the second prong.

        The instruction submitted to the jury in this case followed exactly the model instruction for Second-Degree Trafficking in a Controlled Substance set forth in Cooper’s Jury Instructions, § 9.13B (5th ed. 2006). Since the direct transfer of controlled substances is included with the meaning of "traffic" as it is set forth in KRS 218A.010(40), there was no error in the jury instructions submitted by the trial court.

3. At the time Commonwealth v. Rodefer was issued, the applicable definition of "traffic" was set forth in KRS 218A.010(34). Subsequently, this definition was moved to subsection (40) of the chapter. See 2007 Kentucky Laws Ch. 124 (SB 88).

Tooley v. Commonwealth, No. 2009-SC-000044-MR (Ky. 11/25/2009) (Ky., 2009)

   Appellant argues that these instructions are erroneous because they fail to give the complete statutory definition for the term "dispense." KRS 218A. 010(8). Appellant concedes that there was sufficient evidence to believe he possessed drugs with the intent to sell, but maintains that there was no evidence he possessed the drugs with the intent to dispense or distribute them, pursuant to the statutory definitions. KRS 218A.010(8) and (10). This issue is not preserved, but Appellant nevertheless requests review pursuant to RCr 10.26.

     While we believe that the instruction as given was improper, we do not agree with Appellant that the error was palpable. See Commonwealth v. Rodefer, 189 S.W.3d 550 (Ky. 2006). The most logical inference from the evidence is that the jury based its verdict on either the theory of possession with intent to sell or possession with intent to distribute, as ample evidence was introduced to support both. Here, as in Rodefer, Appellant’s defense throughout trial was that he was an addict who possessed the drugs simply for personal use. Appellant possessed a large amount of drugs, most of which were contained in two different pill bottles. Evidence showed that Appellant had two rocks of crack cocaine that were separately wrapped. Additionally, Appellant had approximately $1,032 in various denominations in his pockets. No evidence was introduced at trial to support the theory that Appellant possessed drugs with the intent to "dispense" as defined under KRS 218A.010(8). Thus, no reasonable juror could have convicted Appellant of anything but possession with intent to sell or possession with intent to distribute. These facts show that the inclusion of an improper jury instruction did not create a "substantial possibility that the result would have been any different." Abernathy v. Commonwealth, 439 S.W.2d 949, 952 (Ky. 1969) (overruled in part by Blake v. Commonwealth, 646 S.W.2d 718 (Ky. 1983)). Therefore, the error in the jury instructions did not "seriously affect the fairness, integrity or public reputation of judicial proceedings." Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997). As such, the error in the instructions was not palpable.

 

Evans v. Commonwealth, No. 2007-CA-002190-MR (Ky. App. 6/26/2009) (Ky. App., 2009)

       Evans argues that his case is distinguishable from Hayes in that Tiffany’s evidence was not admissible under KRE 404(b). We disagree.

        KRE 404(b)(1) allows evidence of other crimes for the limited purpose of showing "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]" Evans was being tried for trafficking in a controlled substance within one thousand yards of a school in violation of KRS 218A.1411. Trafficking is defined by statute as "to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance[.]" KRS 218A.010(40). Tiffany’s evidence was clearly admissible for several of the purposes contemplated by KRE 404(b)(1), and specifically to prove intent.

        The Commonwealth’s prosecution of Evans proceeded under the theory that he possessed marijuana with the intent to sell it. Evidence which tended to support his guilt was the quantity of marijuana possessed and the fact that Evans also had scales, plastic sandwich bags and multiple packs of rolling papers. During its case in chief, the Commonwealth did not introduce any evidence that Evans had actually engaged in any specific transactions to sell marijuana.

        Evans’ defense strategy was to admit to the lesser offense of marijuana possession, but dispute the evidence that he intended to sell any of his marijuana.

 For the foregoing reasons, the judgment of the Bell Circuit Court is affirmed.

 

Collett v. Commonwealth, No. 2008-SC-000309-MR (Ky. 6/25/2009) (Ky., 2009)

       Appellant next argues that the Commonwealth failed to present sufficient evidence to find him guilty of second-degree trafficking in a controlled substance. As such, Appellant argues that the trial court committed reversible error by denying his motion for a directed verdict of acquittal. We disagree.

        KRS 218.1413(1)(a) provides in relevant part, "[a] person is guilty of trafficking in a controlled substance in the second-degree when . . . [h]e knowingly and unlawfully traffics in … a controlled substance classified in Schedule III." KRS 218A.010(40) defines "trafficking" as, "to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance."

        In this matter, adequate evidence was presented for a jury to find Appellant guilty of second-degree trafficking in a controlled substance. The evidence presented indicated that Posey called Appellant in order to obtain pain pills, that Appellant agreed to take her to someone who had prescription pain pills and that once there, Appellant received two pills from the supplier. Further, on the videotape of the transaction, Posey can clearly be heard telling Appellant, "twenty, give me two", before the supplier approached Appellant’s vehicle. Appellant can also be heard on the videotape telling Posey that the pills she received are what "everybody gets." Finally, Posey testified that when they returned to Appellant’s house, he gave her the pills and a plastic baggie in return for twenty dollars.

        We find that under these circumstances and the evidence as a whole, a reasonable juror could find that Appellant distributed, dispensed, sold, or transferred a controlled substance to Posey in violation of KRS 218A. 1413(1)(a). Therefore, the trial judge did not err in denying Appellant’s motion for a directed verdict on the second-degree trafficking charge.

 
Matheney v. Com., 191 S.W.3d 599 (Ky., 2006)

 Dissenting opinion by Justice COOPER

   2005 Ky. Acts, ch. 150, § 9. Thus, the present version of the statute now reads exactly the same as the majority opinion’s interpretation of the previous version. However, the majority opinion fails to mention that the 2005 General Assembly also enacted a new section of KRS 218A.010 that reads:

        (14) "Intent to manufacture" means any evidence which demonstrates a person’s conscious objective to manufacture a controlled substance or methamphetamine. Such evidence includes but is not limited to statements, a chemical substance’s usage, quantity, manner of storage, or proximity to other chemical substances or equipment used to manufacture a controlled substance or methamphetamine.

        2005 Ky. Acts, ch. 150, § 7(14) (emphasis added).

        It is unnecessary to decide now whether the heightened evidentiary requirement for proof of intent to manufacture in new KRS 218A.010(14) overcomes the facial constitutional vagueness of the amended version of KRS 218A.1432(1)(b). Appellant was arrested and convicted under the previous statutory scheme which did not include the heightened evidentiary standard for proof of intent. Yet, the majority opinion today construes the previous version of KRS 218A.1432(1)(b) as having the same meaning as the amended version without the possible saving provision in KRS 218A.010(14). Obviously, the General Assembly has recognized the constitutional infirmity of the amended version of KRS 218A.1432(1)(b), standing alone, and hopes that the enactment of new KRS 218A.010(14) will provide the cure. The fact that the General Assembly did not enact a statute similar to KRS 218A.010(14) when it originally enacted KRS 218A.1432(1)(b) in 1998 indicates a different legislative intent then than now. Unfortunately, unlike the General Assembly, the majority of this Court, in addition to ignoring the doctrine of stare decisis, has failed to recognize that the 2005 version of KRS 218A.1432(1)(b), standing alone, is void for vagueness and has thereby interpreted the preexisting statutory scheme so as to render it unconstitutional.

        Accordingly, I dissent.

 
Com. v. Rodefer, 189 S.W.3d 550 (Ky., 2006)

Rodefer correctly asserts that the above instruction allowed the jury to convict him of trafficking in the first degree if the jury found that he possessed cocaine with the intent to transfer to another. KRS 218A.1412(1) provides that a person is guilty of trafficking in a controlled substance in the first degree when he knowingly and unlawfully traffics in a controlled substance. "Traffic" is defined in KRS 218A.010(34) as "to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance." (Emphasis added.) Noticeably absent from this statutory definition is the "possessed with intent to transfer" language in the trial court’s instruction.

        The Commonwealth contends that the words "transfer" and "distribute" are interchangeable. "Transfer" is defined in KRS 218A.010(35) as "to dispose of a controlled substance to another person without consideration and not in furtherance of commercial distribution." Just as "transfer" is defined, so, too, are "manufacture," "distribute," "dispense," and "sell." KRS 218A.010(16), (10), (8), (31). If the General Assembly had deemed the word "transfer" to be interchangeable with "distribute," it likely would not have gone to such lengths to differentiate between those words by providing separate definitions.

 Although we agree with the Court of Appeals that the instruction given in this case was improper, we disagree with its conclusion that it constituted palpable error. A palpable error is one which affects the substantial rights of a party and which has resulted in manifest injustice. RCr 10.26. "[T]he error must seriously affect the fairness, integrity or public reputation of judicial proceedings." Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997). Here, Rodefer was arrested and found to be in possession of an abnormally large amount of cash and illegal drugs. In his brief to this Court, Rodefer argues that the drugs were strictly for personal use, but the jury obviously disbelieved his testimony. Rodefer further admitted that the cocaine was his, and that he "shared" the cocaine with one of his two accomplices on the night of the crime. Thus, his own testimony would have supported a conviction of trafficking under the "transfer" alternative of KRS 218A.010(34), though not under the "possession with intent to [traffic]" alternative. In view of Appellant’s own testimony that he, in fact, committed the offense of which he was convicted, albeit by an alternative method, we conclude that the faulty instruction did not result in manifest injustice, much less seriously affect the fairness, integrity, or public reputation of judicial proceedings.

        Accordingly, we reverse the decision of the Court of Appeals, and reinstate the final judgment of the Fayette Circuit Court.

 
Winn v. Commonwealth, No. 2007-CA-000681-MR (Ky. App. 2/29/2008) (Ky. App., 2008)

    Winn argues that he was denied a unanimous verdict because the jury instructions included theories of the case that were unsupported by the evidence. More specifically, he contends that the use of the words "dispense" and "ultimate user," as defined in KRS 218A.010, imply that the cocaine was lawfully possessed, which is a legal impossibility.

        First, Winn admits that this issue was not preserved for appeal. Therefore, under RCr 10.26, we will only review the complaint for palpable error, meaning:

        one which affects the substantial rights of a party and relief may be granted…only upon a determination that a manifest injustice has resulted from the error. This means, upon consideration of the whole case, the reviewing court must conclude that a substantial possibility exists that the result would have been different in order to grant relief.

        See Partin v. Commonwealth, 918 S.W.2d 219,224 (Ky. 1996)(emphasis added)(citing Jackson v. Commonwealth, 717 S.W.2d 511 (Ky.App. 1986)).

        Winn suffered no manifest injustice. The jury instructions defined "traffic" as: "to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance." Although Winn would have us use the definition of "dispense" found in KRS 218A.010, the jury was not presented with this definition. Instead, the jury was given "dispense" in its common definition of "[t]o deal out in parts or portions; distribute." The American Heritage College Dictionary 400 (3rd ed. 1993). Therefore, there is no indication from the record that there was a substantial possibility that the result would have been different. Therefore, we find no palpable error and decline review pursuant to RCr 10.26.

        Accordingly, we affirm the judgment of the Fayette Circuit Court.

 
King v. Commonwealth, No. 2008-CA-001258-MR (Ky. App. 7/31/2009) (Ky. App., 2009)

    On appeal, King first argues that the trial court erred in denying her request for a facilitation instruction pursuant to KRS 506.080. She specifically contends that the evidence established that she was a facilitator of her mother’s drug sales, at most, because she served merely as a "go-between" who participated in the subject transactions because of her mother’s disability. King also notes that she did not actually profit from either of the sales and that she did not participate in the planning of either transaction. "It is within a trial court’s discretion to deny a requested instruction, and its decision will not be reversed absent an abuse of that discretion." Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005).

        King was charged with and convicted of two counts of violating KRS 218A.1412, which provides, in relevant part: "A person is guilty of trafficking in a controlled substance in the first degree when he knowingly and unlawfully traffics in: a controlled substance, that is classified in Schedules I or II which is a narcotic drug[.]" KRS 218A.1412(1). KRS 218A.010(40) defines "traffic" as follows: "`Traffic,’ except as provided in KRS 218A.1431, means to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance[.]"

  In this case, taking all the evidence into account, this Court believes it obvious that a jury could reasonably find King guilty beyond a reasonable doubt as to the trafficking charges. While King argues that she only intended to aid her mother, she still acted in a manner consistent with trafficking. Moreover, while King may not have been the person whom the informant used to set up the subject transactions, she was the person who accepted money, exchanged it for drugs, and brought the drugs to the informant — not once, but twice. The second transaction actually occurred without her mother being in any way present — she acted alone. Furthermore, even if one were to believe that King in no way benefited financially from the sale, she still could be guilty of trafficking for transferring the goods. Under the facts presented at trial by the Commonwealth, the jury was entitled to deliberate upon the trafficking charges and a directed verdict was inappropriate.

Nichols v. Commonwealth, No. 2006-SC-000104-MR (Ky. 11/1/2007) (Ky., 2007)

     KRS 218A.010(15). In fact, we have previously held that a person maybe convicted of manufacturing methamphetamine if he is in possession of several of the materials necessary to manufacture methamphetamine in suspicious or unnatural quantities. See Matheney v. Commonwealth, 191 S.W.3d 599, 604 (Ky. 2006) (construing the language of the pre-June 2005 version of KRS 218A.1432(1)(b) to allow for a conviction when a person has the requisite scienter and two or more of the materials necessary to make methamphetamine).

        In this matter, the jury found that Appellant was in possession of all of the requisite materials necessary to manufacture methamphetamine. The evidence also indicates that these materials were in relatively close proximity to each other, being found either in Appellant’s trailer or on land surrounding the trailer. In light of these facts, it certainly would not be unreasonable for a juror to find Appellant had intent to manufacture methamphetamine. See KRS 218A.010(15). Further, while Appellant claims to have no knowledge of the anhydrous ammonia in the unapproved container, it would not have been unreasonable for a juror to believe Appellant had knowledge or at least constructive possession. The trial court’s denial of the motion for directed verdict of acquittal was therefore proper.

 

Evans v. Commonwealth, No. 2006-SC-000494-MR (Ky. 1/24/2008) (Ky., 2008)

       Appellant also complains that the trial court erred in instructing on the definition of "dispense" by failing to utilize the entire statutory definition. He contends that KRS 218A.010(8) relates to the delivery of controlled substances in circumstances that involve an authorized practitioner and that street trafficking of controlled substances is not embraced in the concept of dispensing. If the claim Appellant makes here had been presented to the trial court, i.e., that the definition of "dispense" as found in the instructions does not accurately reflect the intent of KRS 218A.010(8), relief might have been available. In that circumstance, there would have been a possible conclusion that failure to properly define "dispense" led to the erroneous inclusion of dispensing in the instructions and therefore destroyed the unanimity requirement. But such is not the case. Appellant did not object to the instruction, and we are left to review his claim pursuant to the palpable error rule and that alone. We observe that the trial court used "dispense" when he should have used the term "distribute." This mistake did not "unduly impact" Appellant’s rights, certainly not to the level of palpable error.   

 McCormick v. Commonwealth, No. 2006-CA-000903-MR (Ky. App. 1/11/2008) (Ky. App., 2008)

  In addition to his Kotila argument, McCormick argues that manufacturing methamphetamine could not be used as the basis for a charge of engaging in organized crime. According to McCormick, KRS 218A.010(28) defines trafficking to include manufacturing except as provided in KRS 218A.1431. McCormick explains that KRS 218A.1431 defines "trafficking" as distributing, dispensing, selling, transferring methamphetamine or possession with intent to distribute, dispose or sell methamphetamine. Kentucky Revised Statute 218A.1431 specifically defines"trafficking" to exclude the manufacturing of methamphetamine. According to McCormick, the definition in KRS 218A.1431 of "trafficking" should have been used rather than KRS 218A.010(28)‘s definition to determine whether manufacturing methamphetamine could be used as the predicate for engaging in organized crime. McCormick argues that Woodall failed to advise him of this.

   In conclusion, because McCormick’s claims did not constitute ineffective assistance of counsel, the trial court did not act clearly erroneously when it determined that McCormick’s plea was voluntarily entered, nor did it abuse its discretion in denying his motion to withdraw his guilty plea. Thus, the trial court’s decision is affirmed.   

Commonwealth v. Harrelson, 2000 KY 42076 (KY, 2000)

     In this case, the district court impermissibly added new wording to the offense of the possession of marijuana because it indicated that it must now be proven that not only did the defendant possess marijuana but that he possessed marijuana which was capable of germination or producing plants which contained hallucinogenic properties of marijuana. Existing Kentucky law does not require that a sample of marijuana be produced at trial. Howard v. Commonwealth, Ky.App., 787 S.W.2d 264 (1990). Consequently, by remanding this question for trial, the defendant would be required to be tried under a statute which had been declared unconstitutional in part and to be tried under a statute with additional language supplied by the district court and not by the General Assembly. The judiciary lacks the authority to add new phrases to a statute to provide a new meaning necessary to render the statute constitutional. Musselman v. Commonwealth, Ky., 705 S.W.2d 476 (1986). The same is true when the judiciary attempts to declare a statute unconstitutional. Where a statute is intelligible on its face, the courts are not at liberty to supply words or insert something or make additions which amount, as sometimes stated, to providing for a casus omissus, or cure an omission. Cf. Taylor at 423.       The circuit court erred in affirming the decision of the district court which held that KRS 218A.010(12) was unconstitutional in part because the presumption of constitutionality which applies to every statute was ignored by the trial court and the circuit court. Harrelson did not overcome this presumption.      Originally, Harrelson challenged the constitutionality of the statute for vagueness and overbreadth. At the Court of Appeals, based on the facts developed in this case, Harrelson conceded that the statute is not vague as applied to him. He continues to argue that the statute is too broad and that it is so arbitrary as to be unconstitutional in violation of Section Two of the Kentucky Constitution.

       In 1992, the General Assembly amended KRS 218A.010( 12) so as to eliminate the following language from the definition of marijuana:  It does not include mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.      The remaining language of the statute provides a definition of marijuana in what is now §14, as follows:  "Marijuana" means all parts of the plant cannabis sp., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin or any compound, mixture, or preparation which contains any quantity of these substances.   

      The legislature was well within its authority to designate and define all parts of the plant cannabis sp. as a controlled substance.  It is obvious that the legislative intent was to eliminate the previous exemptions. The literal language of the statute is both plain and unambiguous and must be given effect as written. The words used in the statute are to be given their ordinary meaning. Lvnch v. Commonwealth, Ky., 902 S.W.2d 813 (1995), which cited Griffin v. City of Bowlina Green, Ky., 458 S.W.2d 456 (1970).     The 1992 amendment is a specific response to a serious and growing concern of the public and the legislature regarding illegal drug activities in Kentucky. The section was amended to assist law enforcement authorities in the investigation and prosecution of illegal drugs at all levels. It cannot be seriously contended that the elimination of illegal drug trade is not a beneficial or worthwhile goal of the law.  Harrelson complains that the action of the General Assembly in amending the statute does not have a reasonable basis.       

      It is uncontroverted that a statute is presumed to be constitutional unless it clearly offends the limitations and prohibitions of the Constitution. "The one who questions the validity of an act bears the burden to sustain such a contention." Stephens v. State Farm Mutual Auto Ins. Co., Ky., 894 S.W.2d 624 (1995).    

       The valid public interest in controlling marijuana is a public issue involving health, safety and criminal activity. Kentuckv Milk Marketina & Anti-monoDolv Comn. v. Kroaer Co., Ky., 691 S.W.2d 893 (1985) and Commonwealth v. Foley, Ky., 798 S.W.2d 947 (1990)state as follows:  Whatever is contrary to democratic ideals, customs, and maxims is arbitrary. Likewise, whatever is essentially unjust and unequal or exceeds the reasonable and legitimate interests of the people is arbitrary. No board or officer vested with governmental authority may exercise it arbitrarily. If the action taken rests upon reasons so unsubstantial, or the consequences are so unjust as to work a hardship, judicial power may be interposed to protect the rights of persons adversely affected.

      It cannot reasonably be argued that the inclusion of nonhallucinogenic plant parts in the definition of marijuana is in any way "essentially unjust and unequal," nor does it "exceed the reasonable and legitimate interests of the people."     

      Here, there is sufficient testimony from law enforcement that there would be serious difficulties for law enforcement in controlling marijuana trafficking if hemp were legalized. There is no evidence of any kind in the record that the commercial business interest of Harrelson has been compromised simply by the necessity of having to import hemp from other countries. Harrelson admitted under oath that he was not qualified to contradict the testimony of the police expert. This statute does not "clearly offend" the limitations and prohibitions of the Constitution as outlined in Steohens, supra.

      Reliance by Harrelson on his reference to great moral issues of the current times is unpersuasive. The alleged moral concerns expressed Commonwealth v. Wasson, Ky., 842 S.W.2d 487 (1992) and Commonwealth v. Campbell, 133 Ky. 50, 117 SW. 383 (1909) are not evident here in view of the fact that the statute applies to the health, safety and well-being of the citizens of Kentucky without reference to so-called "moral" issues.     

      We note with interest that the United States Court of Appeals for the First Circuit in New Hampshire HemD Council. Inc. v. Marshall, 2000 W.L. 60420(1st Cir.N.H.), decided on January 28, 2000, that industrial hemp plants were marijuana as defined by the federal drug statute. The principal argument in that case was that the plants produced for industrial products contain very little THC.  The federal appeals court concluded that the literal language of the federal law and enforcement concerns supported the application of the federal statute.    

III. Clearly Erroneous

     The circuit court erred in affirming the judgment of the district court because the district court made a clearly erroneous finding that the Commonwealth had failed to show a rational basis by the government for including hemp in the definition of marijuana.      Consequently, upon our review of the testimonial evidence presented in this case, we must conclude that the district court was clearly erroneous when it determined that there was no rational basis for the action of the General Assembly in including hemp in the definition of marijuana.

 

Commonwealth v. Hayward, 2001 KY 29 (KY, 2001)

The legal definition of "immediate precursor" is "a substance which is the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit manufacture." KRS 218A.010. Kentucky State Police Crime Laboratory forensic chemist William Bowers testified that extracting the principal compound pseudoephedrine from Sudafed tablets is the initial step in manufacturing methamphetamine. Bowers explained that the next step would be to put the pseudoephedrine into a solution with red phosphorous, iodine, and hydrochloric acid and cook the solution to form methamphetamine oil. The last step is to treat the methamphetamine oil with hydrochloric acid to make methamphetamine in powder form. Both pseudoephedrine and the requisite reagents required to synthesize methamphetamine (including red phosphorus, sulfuric acid, iodine and hydrochloric acid) were found in Appellee’s residence.

 

Avery v. Commonwealth of Kentucky (Ky. App., 2003)

 On appeal, Avery has one argument, that the trial court erred in not requiring the Commonwealth to disclose the identity of the confidential informant used by the police to secure the search warrant of Avery’s residence. Avery contends that under KRE 508(c)(2), there is an exception to the nondisclosure policy of KRE 508(a) that calls for a release of the confidential informant’s identity when "it appears that an informer may be able to give relevant testimony. . . ." Both Avery and the Commonwealth cite to Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), which held that:  [n]o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

        Kentucky followed this reasoning in Taylor v. Commonwealth, Ky., 987 S.W.2d 302, 304 (1998), after the adoption of KRE 508. By agreeing to base the charge on "possession" instead of "sales," the Commonwealth changed the status of the informant from a material witness to a mere tipster. In Hargrave v. Commonwealth, Ky., 724 S.W.2d 202, 203 (1986), our Supreme Court dealt with a trafficking case based on "possession", similar to the present case. In Hargrave, the informant witnessed the sale of drugs, but the charge was possession, not the sale. The Court denied the defense the identity of the informant because at the time of the search, the informant "was not present and the fact that the informant witnessed the possession of the drugs clearly is immaterial." Hargrave at 203. (emphasis original). The Hargrave Court went on to conclude that "[t]he fact that Appellant may or may not have been present does not bear upon the effect of this information." Id. at 204. Under the circumstances of this case, we believe the trial court did not err in failing to order disclosure of the informant’s identity. See Taylor, 987 S.W.2d 302.

 

Commonwealth v. Churchwell, 938 S.W.2d 586 (Ky. App., 1996) 

Moreover, KRS 218A.010(21) defines a "second or subsequent offense" in pertinent part as follows:

[T]hat for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense. (Emphasis added.)

        Appellee asserts that KRS 218A.1421(2)(b) applies only to prosecutions in which a defendant has previously been convicted of trafficking in marijuana. The Commonwealth, by contrast, asserts that the statute applies if a defendant has a record of any prior drug trafficking conviction pursuant to KRS Chapter 218A, or pursuant to some other state or federal law. Both parties cite to Woods v. Commonwealth, Ky., 793 S.W.2d 809 (1990), wherein the supreme court held that a drug trafficking conviction could not be enhanced by utilizing a prior conviction for possessing marijuana.

Sanders v. Com., 663 S.W.2d 216 (Ky. App., 1983)

 The appellants and the Commonwealth attempt to argue what the legislature did or did not intend by the original statutes and by the amendment. We find none of the arguments to be dispositive. KRS 218A.010(10), both before and after July 15, 1982, defined "narcotic drug" to mean, among other things, "coca leaves and any salt, derivative, or preparation of coca leaves …." KRS 218A.010(10)(d). The definition is identical to the language in KRS 218A.070.

 

Rodefer v. Commonwealth, No. 2003-CA-001059-MR (KY, 2004) 

 Pursuant to KRS 218A.1412(1), "[a] person is guilty of trafficking in a controlled substance in the first degree when he knowingly and unlawfully traffics in: a controlled substance" [emphasis added]. Under KRS 218A.010(28), the term "[t]raffic" means "to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance" [emphasis added]. Further, pursuant to KRS 218A.010(29), the term "[t]ransfer" means "to dispose of a controlled substance to another person without consideration and not in furtherance of commercial distribution."      Hence, a person may be found guilty of trafficking in a controlled substance in the first degree if the jury finds that he knowingly manufactured, distributed, dispensed, sold, or transferred a controlled substance, or if the jury finds that he knowingly possessed a controlled substance with the intent to manufacture, distribute, dispense, or sell the controlled substance. However, a person may not be found guilty of trafficking in a controlled substance in the first degree based solely on a jury’s finding that he knowingly possessed a controlled substance with the intent to transfer the controlled substance.

 

Commonwealth v. Whitmore, 2002 KY 186 (KY, 2002

 Here, the evidence was sufficient for the jury to believe that Whitmore was guilty of possessing cocaine with intent to sell it. Whitmore concedes as much. The jury could also easily infer that he possessed it with the intent to distribute it. The inaccuracy with the instruction was that it also included the elements of manufacturing and dispensing. Such inaccuracy stems from the statutory definitions in KRS 218A.010. Subsection 28 of that statute defines "traffic" as "… to manufacture, distribute, dispense, sell, transfer or possess with intent to manufacture, distribute, dispense, or sell a controlled substance." In this case, there was no evidence that Whitmore possessed the cocaine with the intent to manufacture or dispense it.  

Morrow v. Commonwealth, 2002 KY 75 (KY, 2002)   

One of the ways in which the General Assembly has sought to deter drug crimes is by establishing more serious penalties for repeat offenders of the Kentucky Controlled Substances Act. Thus, KRS 218A.l412(2)(b) directs that a defendant convicted of a "second or subsequent offense" of first degree trafficking in a controlled substance will receive a penalty within the Class B felony penalty range of between ten (10) to twenty (20) years imprisonment. KRS 218A.010(25) broadly defines "second or subsequent offense" to include a conviction at any prior time in any jurisdiction:   "Second or subsequent offense" means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his conviction of the offense, the offender has at anv time been convicted under this chaster. or under anv statute of the United States, or of any state relatina to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense….   Within the Kentucky Penal Code, the General Assembly has established sentencing enhancement procedures for persistent felony offenders which authorize judges and juries to punish more severely those individuals who continue to commit felony crimes. KRS 532.080(2) outlines the elements for second degree persistent felony offender status and KRS 532.080(5) authorizes trial courts to impose enhanced sentences upon such offenders:  A person who is found to be a persistent felony offender in the second degree shall be sentenced to an indeterminate term of imprisonment pursuant to the sentencing provisions of KRS 532.060(2) for the next highest degree than the offense for which convicted. A person who is found to be a persistent felony offender in the second degree shall not be eligible for probation, shock probation, or conditional discharge, unless all offenses for which the person stands convicted are Class D felony offenses which do not involve a violent act against a person, in which case probation, shock probation, or conditional discharge may be granted. A violent offender who is found to be a persistent felony offender in the second degree shall not be eligible for parole except as provided in KRS 439.3401.   Differences between the two enhancement provisions indicate that the General Assembly had different purposes in mind for each. While KRS Chapter 218A contains no limit upon either the age at which a defendant may be subject to the "second or subsequent offense" enhancement or how old a defendant must be before a prior KRS Chapter 218A conviction can constitute a "second or subsequent offense," persistent felony offenders must be at least twenty-one (21) years old and only those felony crimes committed after a defendant’s eighteenth (18th) birthday can qualify as a previous felony conviction. The age limitations in KRS 532.080 reserve PFO enhancement for more mature offenders who have failed previous attempts at rehabilitation. While a defendant may be subject to KRS Chapter 218A penalty enhancement regardless of when the prior offense was committed, KRS 532.080 exempts certain remote convictions from its definition of a previous felony conviction. While misdemeanor controlled substance offenses can lead to felony penalty enhancement under the Kentucky Controlled Substances Act, only crimes for which "a sentence to a term of imprisonment of one (1) year or more or a sentence to death was imposed" will allow PFO enhancement. The broader range of cases in which penalty enhancement is available under KRS Chapter 218A demonstrates the General Assembly’s intent to deal more harshly with repeat controlled substance offenders.

     Certainly, if Appellant had entered a guilty plea to only one count of first degree trafficking in a controlled substance, statutory and constitutional protections against double jeopardy would prevent the Commonwealth from using the one prior conviction for both Chapter 218A "second or subsequent offense" enhancement and for PFO enhancement. However, in this case, the August 1992 judgment reflects that Appellant entered pleas of guilty to two counts of first degree trafficking in a controlled substance. In Gray, this Court addressed a factual situation virtually identical to the one now before this Court and reached the conclusion that enhancement under both Chapter 218A and KRS 532.080 was improper because KRS 532.080(4) "requires merger of appellant’s prior convictions for PFO purposes, and . . . these merged convictions cannot subsequently be divided for further enhancement purposes." Upon reconsideration, we conclude that our analysis of this issue in Gray was incorrect.     In an "effort to avoid the label of persistent felony offender for persons who might be rehabilitated through an ordinary term of imprisonment for the offense most recently committed," KRS 532.080(4) provides that:   For the purpose of determining whether a person has two (2) or more previous felony convictions, two (2) or more convictions of a 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.       This subsection unquestionably deems Appellant’s two felony convictions for first degree trafficking in a controlled substance to be one conviction "for the purpose of determining whether a person has two (2) or more previous felony convictions" – in other words, for the purpose of determining whether Appellant is a first degree persistent felony offender. KRS 532.080(4), however, does not effect whether Appellant is subject to KRS Chapter 218A enhancement as a "second or subsequent" offender because KRS Chapter 218A’s definition of "second or subsequent offense" includes offenders who have "at any time been convicted under this chapter."   

Graves v. Commonwealth, 2000 KY 42143 (KY, 2000)

 It is unnecessary for a conviction of trafficking in a controlled substance that the controlled substance be seized by the police or that it be introduced at trial. Conviction can be premised on circumstantial evidence of such nature that, based on the whole case, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt. Howard v. Commonwealth, Ky. App., 787 S.W.2d 264 (1989). In this case, the jury was instructed that they could find each defendant guilty as either principal or accomplice under alternative theories of criminal liability, i.e., trafficking by sale or transfer, or trafficking by possession with intent to sell or transfer. KRS 218A.1412(1); KRS 218A.010(28). McDuffie testified that Woods told him prior to arriving at Trixie’s Lounge that he had the cocaine and that he intended to sell it to Thomas. That testimony alone supports Woods’s conviction of trafficking by possession with the intent to sell. Howard v. Commonwealth, supra. There was ample evidence that Thomas gave Woods $27,000.00 for the purpose of promoting a sale of cocaine to him by Woods. That was sufficient evidence to convict Thomas of complicity to first-degree trafficking. KRS 502.020(l). Likewise, Graves was present in the vehicle when Woods told McDuffie that he had the cocaine which he intended to sell to Thomas; Graves participated in directing Thomas and Furman to the parking lot where the transaction would take place; and Graves then positioned himself behind the wheel of Woods’s car, a fact from which a jury could infer an intent to aid and abet the commission of the offense by acting as the getaway driver in the event of the need for a hasty departure. That was sufficient circumstantial evidence to convict Graves of complicity to first-degree trafficking. Skinner v. Commonwealth, Ky., 864 S.W.2d 290 (1993). As for the failure of the police to find any cocaine at the scene, the jury could have believed that Woods, McDuffie, Thomas or Furman, all of whom temporarily escaped, did so with the cocaine in his possession.   

Com. v. McGinnis, 641 S.W.2d 45 (Ky. App., 1982)      

KRS 218A.010 defines certain terms and names of drugs within the act. Under subsection (9) it says: " ‘Marijuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; …."   In KRS 218A.050(3), among the many others, there is a separate listing of "Marihuana," "Tetrahydrocannabinols," and "Hashish" as being Schedule I controlled substances. Appellant contends that because there is a separate listing of the terms or names of the drug in this subsection it was the clear intent of the Legislature to provide a different penalty in 218A.990(2) if one was accused of trafficking in hashish rather than if accused of trafficking in marijuana under 218A.990(4) as a first offense.

 

KRS 218A.015 Definitions of mental states.

When used in this chapter, the terms "intentionally," "knowingly," "wantonly," and "recklessly," including but not limited to equivalent terms such as "with intent," shall have the same definition and the same principles shall apply to their use as those terms are defined and used in KRS Chapter 501.

Effective: June 20, 2005  History: Created 2005 Ky. Acts ch. 150, sec. 8, effective June 20, 2005.

 

NO ANNOTATION FOR THIS STATUTE:  

 

KRS 218A.020 Cabinet for Health and Family Services to administer chapter  — Control of substances rescheduled under federal law — Office of Drug Control Policy may request scheduling of substances similar to synthetic drugs.

(1) The Cabinet for Health and Family Services shall administer this chapter and may by regulation add substances to or delete or reschedule all substances enumerated in the schedules set forth in this chapter. In making a determination regarding a substance, the Cabinet for Health and Family Services may consider the following:

(a) The actual or relative potential for abuse;

(b) The scientific evidence of its pharmacological effect, if known;

(c) The state of current scientific knowledge regarding the substance;

(d) The history and current pattern of abuse;

(e) The scope, duration, and significance of abuse;

(f) The risk to the public health;

(g) The potential of the substance to produce psychic or physiological dependence liability; and

(h) Whether the substance is an immediate precursor of a substance already controlled under this chapter.

(2) After considering the factors enumerated in subsection (1) of this section, the Cabinet for Health and Family Services may adopt a regulation controlling the substance if it finds the substance has a potential for abuse.

(3) If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the Cabinet for Health and Family Services, the Cabinet for Health and Family Services may similarly control the substance under this chapter by regulation. If hydrocodone or any drug containing hydrocodone is rescheduled to Schedule II in this manner, the prescriptive authority existing on March 19, 2013, of any practitioner licensed under the laws of the Commonwealth to prescribe, dispense, or administer hydrocodone or drugs containing hydrocodone shall remain inviolate and shall continue to exist to the same extent as if those drugs had remained classified as Schedule III controlled substances.

(4) The Cabinet for Health and Family Services shall exclude any nonnarcotic substance from a schedule if the substance may be lawfully sold over the counter without prescription under the provisions of the Federal Food, Drug and Cosmetic Act, or the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, or the Kentucky Revised Statutes (for the purposes of this section the Kentucky Revised Statutes shall not include any regulations issued thereunder).

(5) The Office of Drug Control Policy may request that the Cabinet for Health and Family Services schedule a substance substantially similar to a synthetic cannabinoid or piperazine or a synthetic cathinone. The cabinet shall consider the request utilizing the criteria established by this section and shall issue a written response within sixty (60) days of the scheduling request delineating the cabinet’s decision to schedule or not schedule the substance and the basisfor the cabinet’s decision. The cabinet’s response shall be provided to the Legislative Research Commission and shall be a public record.

Effective: March 19, 2013   History: Amended 2013 Ky. Acts ch. 26, sec. 6, effective March 19, 2013. — Amended 2012 Ky. Acts ch. 108, sec. 4, effective April 11, 2012. — Amended 2005 Ky. Acts ch.b99, sec.b528, effective June 20, 2005. — Amended 1998 Ky. Acts ch.b426, sec.b471, effective July 15, 1998. — Amended 1974 Ky. Acts ch.b74, Art. VI, sec.b107(3). — Created 1972 Ky. Acts ch.b226, sec.b3. 

ANNOTATION FOR THIS STATUTE:   

Hamilton v. Commonwealth Of Ky. (Ky. App., 2010)

In this case, the promulgating administrative body-the Cabinet-has not had the opportunity to perform its statutory duty to defend the validity of the challenged administrative regulation. The Appellants failed to designate the Cabinet as a party to this appeal.

Appellants argue that 902 KAR 55:025 Section 7 is inconsistent with the statutory authority authorized by KRS 218A.020. Therefore, as KRS 13A.140(b) mandates that the Cabinet bears the burden to defend the regulation, it is an indispensable party. It is well established that failure to name an indispensable party results in the dismissal of an appeal. Courier-Journal, Inc. v. Lawson, 307 S.W.3d 617, 623 (Ky. 2010).

We also note the predecessor to our current Supreme Court has held that "[o]nly the parties to an appeal are bound by the appellate court’s disposition of the proceeding." Levin v. Ferrer, 535 S.W.2d 79, 82 (Ky. 1975). In the case before us, if 902 KAR 55:025 Section 7 were to be found inconsistent with statutory law, the Cabinet would be responsible for amending the regulation. Therefore, both logically and procedurally, it must be a party to the appeal.

Accordingly, we dismiss this appeal for failure to name an indispensable party.

Com. v. Hollingsworth, 685 S.W.2d 546 (Ky., 1984)   

The individual statutes listing the criteria for a particular classification read in combination with KRS 218A.020 set out specific mandatory standards to be used by the cabinet in classifying substances. The legislature has delegated only the administration of the law, and therefore, KRS 218A.020 and the statutes that follow are constitutional.  The appellee argues that even if the statutes are constitutional delegation of power, pentazocine in pill form cannot be classified as a Schedule III drug because the legislature specifically exempted it in KRS 218A.090(3). The substance was classified Schedule III by administrative regulation, and the appellee alleges that this action by the cabinet would be usurping the will of the legislature.  KRS 218A.090 reads:  Unless otherwise rescheduled by regulation of the cabinet for human resources the controlled substances listed in this section are included in Schedule III:  (3) Pentazocine (parenteral or injectable form only).   The appellee’s position is without merit since the statute specifically states that the cabinet is empowered to reschedule the substances. Additionally, KRS 218A.020(1) states that the cabinet may "by regulation add substances to or delete or reschedule all substances enumerated in the schedules set forth in this chapter."

Montaque v. Commonwealth, 1998 KY 42011 (KYCA, 1998)

Preliminarily, we note that Chapter 218A of the Kentucky Revised Statutes, which is titled "Controlled Substances," provides for the regulation of drugs and like agents having, among other characteristics, an "actual or relative potential for abuse." KRS 218A.020. The chapter prohibits various acts relating to controlled substances and provides penalties for violations of the various statutes including property forfeiture, fines and other criminal sanctions. KRS 218A.140, 218A.160, 218A.410, 218A.991. A part of this regulatory scheme, KRS 218A.992, provides in pertinent part as follows:     

Enhancement of penalty when in possession of a firearm at the time of commission of offense.   Although "possession" is not defined in the statute, our Supreme Court recently held that "possession" for purposes of KRS 218A.992 includes the notion of constructive possession as well as that of actual physical possession. Houston v. Commonwealth, Ky., ____ S.W.2d ____ (rendered 9/3/98). In that case, the defendant was convicted of drug trafficking after officers executing a search warrant for his apartment found cocaine and two loaded revolvers in the kitchen and marijuana and a loaded handgun in the living room. The defendant disavowed ownership of the guns but acknowledged that his fingerprints could be found on them. The Houston court held that "a drug violation penalty may be enhanced under KRS 218A.992 if the violator has constructive possession of a firearm." Id.  Houston was found to be in constructive possession of the guns, all of which were "in plain view and easily accessible." Id.

 

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KRS 218A.030 Controlled substances — How scheduled.

The controlled substances listed or to be listed in the schedules provided for in this chapter are included by whatever official, common, usual, chemical, or trade name designated.

History: Created 1972 Ky. Acts ch. 226, sec. 4.

ANNOTATION FOR THIS STATUTE:  

Harrod v. Com., 552 S.W.2d 682 (Ky. App., 1977)   

 In this case, however, both Dilaudid and Demerol are trade names for substances listed in KRS 218A.070 1 and as such are included within the substances listed there under the terms of KRS 218A.030 which provides that "controlled substances listed …in the schedules …in this chapter are included by whatever official, common, usual, chemical, or trade name designated." We hold, therefore, that Counts II and III of the indictment charged an offense within the meaning of RCr 6.10. If appellant wished to know within what particular scheduled substance the Commonwealth believed Dilaudid and Demerol to be included, RCr 6.22 affords him a means to obtain this knowledge. It should be noted that in this case appellant did move for a bill of particulars but asked for no information concerning the inclusion of Dilaudid or Demerol within the statute. Of course, at trial the prosecution would have to prove by appropriate evidence that Dilaudid and Demerol are included within the substances listed in KRS 218A.070.  Further, we do not believe that the counts of the indictment as written in any manner prejudiced the substantial rights of the appellant. The indictment sufficiently informed him of the nature of the charge against him so as to enable him to prepare a defense and it sufficiently stated that offense so as to bar a future prosecution for the same offense. Johnson v. Commonwealth, 299 Ky. 72, 184 S.W.2d 212 (1944).   Finally, appellant claims that the Commonwealth has failed to properly establish the chain of custody of the various narcotics samples admitted into evidence. A complete chain of custody of this evidence tracing its possession from the time it was obtained from the defendant to its final custodian must be established or the samples may not be admitted. Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974); 29 Am.Jur.2d Evidence Section 774 (1967). On retrial the Commonwealth should show this chain of custody. 

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KRS 218A.040 Criteria for classification under Schedule I.

The Cabinet for Health and Family Services shall place a substance in Schedule I if it  finds that the substance:

(1) Has high potential for abuse; and

(2) Has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.

Effective: June 20, 2005  History: Amended 2005 Ky. Acts ch. 99, sec. 529, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 472, effective July 15, 1998. — Amended 1974 Ky. Acts ch. 74, Art. VI, sec. 107(3). — Created 1972 Ky. Acts ch. 226, sec. 5.

ANNOTATION FOR THIS STATUTE:

 

Lofthouse v. Commonwealth, 2000 KY 42051 (KY, 2000)   

The Commonwealth posits that, as a matter of law, the act of furnishing narcotic drugs to another creates a substantial risk of death to the transferee sufficient to convict of either second-degree manslaughter (awareness of and conscious disregard of the risk) or reckless homicide (failure to perceive the risk). In support of this proposition, the Commonwealth first asserts that KRS 218A.040 and KRS 218A.060 provide that schedule I and schedule II controlled substances, u, heroin and cocaine, are inherently dangerous and pose a risk of death; and that knowledge of those facts is thereby statutorily imputed to anyone who traffics in those substances. In fact, neither statute recites that schedule I or schedule II controlled substances are inherently dangerous or pose a substantial risk of death. KRS 218A.040 provides inter alia that a schedule I substance has a high potential for abuse and either has no accepted medical use or lacks accepted safety for use in treatment under medical supervision. KRS 218A.060 provides inter alia that a schedule II substance has a high potential for abuse and that such abuse may lead to severe psychic or physical dependence. The language of neither statute establishes as a matter of law that the use of such substances poses a substantial risk of death.   The Commonwealth also cites a number of cases from other jurisdictions which hold that one who feloniously transfers a controlled substance to a person who dies as a result of its ingestion is criminally liable for that person’s death. Some of those cases are from jurisdictions which premise criminal liability on the so-called "felony murder rule," ie, if death ensues as a consequence of the commission of a dangerous felony, the intent to commit the dangerous felony provides the element of intent necessary to convict of the homicide. &, Peoole v. Patterson, 778 P.2d 549 (Cal. 1989); People v. Taylor, 169 Cal.Rptr. 290 (Cal. Ct. App. 1980); Heacock v. Commonwealth, 323 S.E.2d 90 (Va. 1984). Kentucky no longer subscribes to the felony murder rule. Bennett v. Commonwealth, Ky., 978 S.W.2d 322, 327 (1998). Other cases relied on by the Commonwealth are from jurisdictions with statutes reflecting a legislative intent to prosecute as homicides deaths resulting from the provision of controlled substances. E.a., State v. Wassil, 658 A.2d 548, 555 (Conn. 1995); Martin v. State, 377 So.2d 706 (Fla. 1979); State v. Ervin, 577 A.2d 1273 (N.J. Super.Ct. App. Div. 1990); State v. Thomas, 288 A.2d 32 (N.J. Super.Ct. App. Div. 1972).    The Commonwealth’s reliance on Commonwealth v. Catalina, 556 N.E.2d 973 (Mass. 1990) is also misplaced. The Massachusetts Supreme Court only held in that case that the evidence presented to the grand jury was sufficient to support an indictment for criminal homicide and specifically noted that it was not deciding whether the evidence was sufficient to prove guilt beyond a reasonable doubt. Id. at 979.   Thus, we reject both Appellant’s proposition that furnishing controlled substances to one who subsequently dies from their ingestion can never support a conviction of criminal homicide and the Commonwealth’s proposition that such will always support a conviction. Instead, we hold that guilt of criminal homicide, like any other offense, depends upon proof. Commonwealth v. Catalina, supra. For example, in the Tennessee case of State v. Randolph, supra, there was evidence that another of one defendant’s customers had died the same way two weeks earlier, and that another defendant knew that the heroin sold to the victim was "uncut" and dangerous because it had not been diluted. And in the New York case of People v. Cruciani, supra, there was evidence that the defendant injected the victim with heroin after she was already "bombed out" on depressants and that the defendant was aware of the substantial possibility that the injection would cause the victim’s death.

 

Com. v. Grubb, 862 S.W.2d 883 (Ky., 1993)

dissent: Montana in State v. Meadors, 177 Mont. 100, 580 P.2d 903 (1978), found no double jeopardy prohibition from a conviction for possession of two drugs prohibited on the same schedule. The wording of the Montana statute was similar to that of KRS 218A.040.     New Mexico, in State v. Smith, 94 N.M. 379, 610 P.2d 1208 (1980) found no double jeopardy problem in a case in which the defendant was convicted of four counts of trafficking with intent to distribute narcotic drugs all arising from one sale. There were four different substances, and the defendant claimed that the four charges merged into one.   The majority opinion has chosen a different avenue in order to address this type of situation. I cannot agree because I believe that the clear legislative intent is to provide punishment for those who sell or possess specific individual drugs regardless of the schedule which lists the drugs. In this instance, I must disagree with the majority view, and it is my opinion that the facts here amount to what might be called a single impulse but which clearly has compound consequences.

 

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KRS 218A.050 Schedule I controlled substances.

Unless otherwise rescheduled by administrative regulation of the Cabinet for Health

and Family Services, the controlled substances listed in this section are included in Schedule I:

(1) Any material, compound, mixture, or preparation which contains any quantity of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, unless specifically excepted, whenever the existence of these isomers, esters, ethers, or salts is possible within the specific chemical designation: Acetylmethadol; Allylprodine; Alphacetylmethadol; Alphameprodine; Alphamethadol; Benzethidine; Betacetylmethadol; Betameprodine; Betamethadol; Betaprodine; Clonitazene; Dextromoramide; Dextrorphan; Diampromide; Diethylthiambutene; Dimenoxadol; Dimepheptanol; Dimethylthiambutene; Dioxaphetyl butyrate; Dipipanone; Ethylmethylthiambutene; Etonitazene; Etoxeridine; Furethidine; Hydroxypethidine; Ketobemidone; Levomoramide; Levophenacylmorphan; Morpheridine; Noracymethadol; Norlevorphanol; Normethadone; Norpipanone; Phenadoxone; Phenampromide; Phenomorphan; Phenoperidine; Piritramide; Proheptazine; Properidine; Propiram; Racemoramide; Trimeperidine;

(2) Any material, compound, mixture, or preparation which contains any quantity of the following opium derivatives, including their salts, isomers, and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, or salts of isomers is possible within the specific chemical designation: Acetorphine; Acetyldihydrocodeine; Benzylmorphine; Codeine methylbromide; Codeine-N-Oxide; Cyprenorphine; Desomorphine; Dihydromorphine; Etorphine; Heroin; Hydromorphinol; Methyldesorphine; Methyldihydromorphine; Morphine methylbromide; Morphine methylsulfonate; Morphine-N-Oxide; Myrophine; Nicocodeine; Nicomorphine; Normorphine; Pholcodine; Thebacon;

(3) Any material, compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers, or salts of isomers, unless specifically excepted, whenever the existence of these salts,isomers, and salts of isomers is possible within the specific chemical designation: 3, 4-methylenedioxyamphetamine; 5-methoxy-3, 4-methylenedioxy amphetamine; 3, 4, 5-trimethoxyamphetamine; Bufotenine; Diethyltryptamine; Dimethyltryptamine; 4-methyl-2, 5-dimethoxyamphetamine; Ibogaine; Lysergic acid diethylamide; Marijuana; Mescaline; Peyote; N-ethyl-3-piperidyl benzilate; N-methyl-3-piperidyl benzilate; Psilocybin; Psilocyn; Tetrahydrocannabinols; Hashish; Phencyclidine, 2 Methylamino-1-phenylpropan-1-one (including but not limited to Methcathinone, Cat, and Ephedrone); synthetic drugs; or salvia;

(4) Any material, compound, mixture, or preparation which contains any quantity of the following substance having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers, unless specifically excepted, whenever the existence of these salts, isomers, or salts of isomers is possible within the specific chemical designation: gamma hydroxybutyric acid; and

(5) Any material, compound, mixture, or preparation which contains any quantity of the following substances:

(a) 2-(2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl) methyl]ethanamine (2,5H-NBOMe);

(b) 2-(4-iodo-2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl)methyl]ethanamine (2,5I-NBOMe);

(c) -(4-bromo-2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl)methyl]ethanamine (2,5B-NBOMe); or

(d) -(4-chloro-2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl)methyl]ethanamine (2,5C-NBOMe).

Effective: March 19, 2013   History: Amended 2013 Ky. Acts ch. 26, sec. 2, effective March 19, 2013. — Amended 2012 Ky. Acts ch. 108, sec. 5, effective April 11, 2012. – Amended 2011 Ky. Acts ch.b45, sec.b4, effective March 16, 2011. — Amended 2010 Ky. Acts ch.b149, sec.b5, effective April 13, 2010; and ch.b160, sec.b5, effective April 26, 2010. — Amended 2005 Ky. Acts ch.b99, sec.b530, effective June 20, 2005. — Amended 2000 Ky. Acts ch.b401, sec.b1, effective July 14, 2000. – Amended 1998 Ky. Acts ch.b426, sec.b473, effective July 15, 1998. — Amended 1994 Ky. Acts ch.b412, sec.b3, effective July 15, 1994.  Amended 1992 Ky. Acts ch.b441, sec.b2, effective July 14, 1992. — Amended 1980 Ky. Acts ch.b161, sec.b1, effective July 15, 1980. — Amended 1974 Ky. Acts ch.b74, Art. VI, sec.b107(3). — Created 1972 Ky. Acts ch.b226, sec.b6.

ANNOTATION FOR THIS STATUTE:

 
JONES v. Commonwealth of Ky. (Ky., 2011)

     It is a baseline fact that if such a purported drug is not actually a controlled substance, then it is a simulated controlled substance. This pivotal fact appears necessary for the Commonwealth to know how to charge in the case, since trafficking in a simulated substance is not a lesser-included offense of trafficking in a controlled substance. To prove trafficking in a controlled substance, the question then is what is necessary to positively identify a chemical substance as controlled? The statutes which establish the schedule of drugs and thus determine what is a "controlled substance" are instructive. KRS 218A.050 and KRS 218A.070 list which drugs are considered to be Schedule I or Schedule II controlled substances. Each lists "[a]ny material, compound, mixture or preparation that contains any quantity of the following" and proceeds to list chemicals that must be present before a substance fits in that schedule. The list reads like a chemist’s final exam. Without chemical testing or observing the effect of the drug after ingestion, any "identification" is mere guesswork, and such testimony should not be allowed. Additionally, these statutes, though first enacted in the 1970s when widespread drug abuse and trafficking hit our nation, have been amended six times, most recently in 2005. The legislature has clearly kept apace with the changing drug scene and chemical analyses, and it is a miscarriage of justice for the Court to fail to do so. 

  

Martin v. Commonwealth, 2003 KY 241 (KYCA, 2003)   

 There is no question that the substance involved was heroin. A drug analyst at the University of Louisville testified that the analysis of the drug was heroin. Heroin is listed in KRS 218A.050(2) as a Schedule I controlled substance and is defined as a "narcotic drug" in KRS 218A.010(a). Id. at 885.   The status of a drug listed in the schedules contained in KRS Chapter 218A. et seq. is not a question of fact for a jury’s consideration. Rather, it is a matter of law for determination by the trial court if the issue is raised. If Martin had properly raised the issue in his motion for a directed verdict, the trial court could have directed as a matter of law that cocaine is a Schedule II controlled substance as provided by KRS 218A.070(1)(d) and that marijuana is a Schedule I controlled substance as set forth in KRS 218A.050(3).

 

Luna v. Com., 571 S.W.2d 88 (Ky. App., 1977) 

Appellant argues that KRS 218A.990(2) is a separate offense from KRS 218A.050(3) and therefore, the indictment was improperly "amended" by the trial court after the trial had begun. We do not agree. We interpret the enhancement provision of KRS 218A.990(2) to mean that this provision is not a separate or additional offense under the Kentucky Penal Code, but is merely a means that permits evidence to be entered that may be helpful to the court or jury in fixing the term of punishment. In the case of Wolford v. Buchanan, 313 Ky. 512, 232 S.W.2d 1016 (1950), the defendant Wolford was indicted for the offense of housebreaking and the second and third counts of the indictment charged former felony convictions pursuant to the Habitual Criminal Act as it then existed. The law of this Commonwealth, at that time, was that the indictment could charge only one offense, and if the defendant was accused of two or more offenses, the Grand Jury must return a separate indictment for each offense. Wolford claimed, therefore, the indictment was defective since two offenses were charged in the single indictment. The court there, as we do here, held that the inclusion of the counts in the indictment pursuant to the Habitual Criminal Act were not charges of an offense, but addressed themselves only to the penalty. McIntyre v. Commonwealth, 154 Ky. 149, 156 S.W. 1058 (1913) and Allen v. Commonwealth, 272 Ky. 533, 114 S.W.2d 757 (1938).   RCr 6.12 states that an indictment is not "…invalid…for any defect or imperfection which does not tend to prejudice The substantial rights of the defendant upon the merits.   RCr 6.16 states:   The Court may permit an indictment or information to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

 

Cooper v. Com., 648 S.W.2d 530 (Ky. App., 1982) 

The evidence presented at trial established that the Bureau of Corrections by policy treated all marijuana as dangerous contraband and that all inmates are advised of this policy when first admitted to the reformatory. The relevant written policy of the Bureau is found in its "Internal Management Directive" at sections 307.01 to 307.06. A copy of these sections of the directive was filed in the evidence as an exhibit. The definitions of "dangerous contraband" and "contraband" contained therein are identical to their respective statutory definitions. Acknowledging the difficulty of specifically enumerating "all items which would be considered as contraband or dangerous contraband[,]" the directive goes on to furnish specific examples of each. Section 307.04 cites as examples of "dangerous contraband" firearms, weapons, explosives, ammunition, and "any narcotics or dangerous drugs as defined in the Kentucky Revised Statutes and Bureau for Health Services Regulations for Narcotics, Dangerous Drugs or Controlled Substances[.]" Section 307.05 cites as examples of "contraband" "unauthorized money or clothing, disguises or masks, any intoxicating substance, e.g., beer, alcohol, paint thinner, cleaning fluid, etc.[,]" and "any controlled substance not considered a dangerous drug or narcotic by either statute or Bureau for Health Services Regulations for Narcotics, Dangerous Drugs or Controlled Substances." The appellant points out that marijuana is not defined as a narcotic drug by the Controlled Substances Act (KRS Ch. 218A), and we note that KRS 217.725 which defined "dangerous drugs" was repealed in 1972. 1972 Ky.Acts ch. 226, Sec. 33. Marijuana is, however, listed as a Schedule I controlled substance in KRS 218A.050(3) although its possession by one for his own use is only a misdemeanor. KRS 218A.990(7).

 

Commonwealth v. Harrelson, 2000 KY 42076 (KY, 2000)  

  The General Assembly has criminalized the possession of marijuana because it contains THC. Both marijuana and hemp are members of the cannabis sp. of plants and hemp also contains THC, although arguably substantially lesser amounts than marijuana. The legislature has properly classified THC as a Schedule I controlled substance, KRS 218A.050(3), and has defined marijuana broadly enough to include hemp within that definition. KRS 218A.010(14). The mere fact that hemp may contain less THC than marijuana is of no consequence. Commonwealth v. Shivley, Ky., 814 S.W.2d 572 (1991) holds that the quantity of the controlled substance

 
 

KRS 218A.060 Criteria for classification under Schedule II.

The Cabinet for Health and Family Services shall place a substance in Schedule II if it finds that:

(1) The substance has high potential for abuse;

(2) The substance has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions; and

(3) The abuse of the substance may lead to severe psychic or physical dependence.

Effective: June 20, 2005   History: Amended 2005 Ky. Acts ch. 99, sec. 531, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 474, effective July 15, 1998. — Amended 1974 Ky. Acts ch. 74, Art. VI, sec. 107(3). — Created 1972 Ky. Acts ch. 226, sec. 7.

ANNOTATION FOR THIS STATUTE: 

Lofthouse v. Commonwealth, 2000 KY 42051 (KY, 2000)

The Commonwealth posits that, as a matter of law, the act of furnishing narcotic drugs to another creates a substantial risk of death to the transferee sufficient to convict of either second-degree manslaughter (awareness of and conscious disregard of the risk) or reckless homicide (failure to perceive the risk). In support of this proposition, the Commonwealth first asserts that KRS 218A.040 and KRS 218A.060 provide that schedule I and schedule II controlled substances, u, heroin and cocaine, are inherently dangerous and pose a risk of death; and that knowledge of those facts is thereby statutorily imputed to anyone who traffics in those substances. In fact, neither statute recites that schedule I or schedule II controlled substances are inherently dangerous or pose a substantial risk of death. KRS 218A.040 provides inter alia that a schedule I substance has a high potential for abuse and either has no accepted medical use or lacks accepted safety for use in treatment under medical supervision. KRS 218A.060 provides inter alia that a schedule II substance has a high potential for abuse and that such abuse may lead to severe psychic or physical dependence. The language of neither statute establishes as a matter of law that the use of such substances poses a substantial risk of death.

 

Com. v. Grubb, 862 S.W.2d 883 (Ky., 1993)   

The Court of Appeals reversed the conviction of Counts 3 and 5 and held the double jeopardy clause of the Kentucky Constitution forbids conviction of more than one offense when all the drugs involved are contained (listed) within the same statutory schedule of controlled substances. The issue articulated by the Court of Appeals is whether multiple sentences for drug trafficking may be imposed under the "compound consequences" prong of the Ingram test (arising from Ingram v. Commonwealth, Ky., 801 S.W.2d 321 [1990], when the defendant has trafficked in different named substances but which are criminalized in the same schedule (statute).   KRS 218A.060 and 218A.070 places the substances Percodan and Dilaudid in Schedule II as being of high potential for abuse. KRS 218A.140 (prior to the amendments to KRS 218A) prohibits acts relating to controlled substances and specifically states, "No person shall traffic in any controlled substance except as authorized in this chapter." KRS 218A.990 establishes the penalties for trafficking in "a controlled substance classified in schedules I or II…." The language of the statutes reflects that the legislature did not create a separate crime with respect to each forbidden substance contained in the same schedule. Certainly a punishment must be fixed clearly and without ambiguity and any doubt will be resolved against turning a single transaction into multiple offenses. Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955).  KRS Chapter 218A is titled "Controlled Substances" and proscribes the dealing and administration of drugs. The criteria for imposition of penalties does not specifically state that the penalties are intended to be additive when different substances are classified in the same controlled schedule and are involved in a single transaction.   A single sales transaction between the same principals at the same time and place which violates a single statutory provision does not justify conviction or a sentence for separate crimes, even though more than one item of a controlled substance (of the same schedule) is involved.   Said otherwise, the simultaneous unlawful possession (sale) of the same scheduled narcotic drugs giving rise to separate offenses results in fractionalizing the statute. We would soon arrive at the threshold of declaring that a single criminal transaction could be broken into multiple offenses based upon the total number of pills that were recovered, a manifestly absurd result. 

 

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KRS 218A.070 Schedule II controlled substances.

Unless otherwise rescheduled by regulation of the Cabinet for Health and Family Services, the controlled substances listed in this section are included in Schedule II:

(1) Any material, compound, mixture, or preparation which contains any quantity of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:

(a) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate;

(b) Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in paragraph (a), but not including the isoquinoline alkaloids of opium;

(c) Opium poppy and poppy straw;

(d) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, including cocaine and ecgonine and their salts, isomers, derivatives and salts of isomers and derivatives, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.

(2) Any material, compound, mixture, or preparation which contains any quantity of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers,  whenever the existence of these isomers, esters, ethers, and salts is possible within the specific chemical designation: Alphaprodine; Anileridine; Bezitramide; Dihydrocodeine; Diphenoxylate; Fentanyl; Isomethadone; Levomethorphan; Levorphanol; Metazocine; Methadone; Methadone-Intermediate; 4-cyano-2- dimethylamino-4; 4-diphenyl butane; Moramide-Intermediate; 2-methyl-3- morpholino-1; 1-diphenyl-propane-carboxylic acid; Pethidine; Pethidine- Intermediate-A, 4-cyano-1-methyl-4-phenylpiperidine, Pethidine-Intermediate-B, ethyl-4-phenylpiperidine-4-carboxylate; Pethidine-Intermediate-C, 1-methyl-4- phenylpiperidine-4-carboxylic acid; Phenazocine; Piminodine; Racemethorphan; Racemorphan.

(3) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:

(a) Amphetamine, its salts, optical isomers, and salts of its optical isomers;

(b) Phenmetrazine and its salts;

(c) Methylphenidate.

Effective: June 20, 2005  History: Amended 2005 Ky. Acts ch. 99, sec. 532, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 475, effective July 15, 1998 and ch. 606, sec. 67, effective July 15, 1998. — Amended 1994 Ky. Acts ch. 412, sec. 4, effective July 15, 1994. – Amended 1992 Ky. Acts ch. 441, sec. 3, effective July 14, 1992. – Amended 1978 Ky. Acts ch. 286, sec. 1, effective June 17, 1978. — Amended 1974 Ky. Acts ch. 74, Art. VI, sec. 107(3). — Created 1972 Ky. Acts ch. 226, sec. 8.

ANNOTATION FOR THIS STATUTE:

 
Com. v. Shivley, 814 S.W.2d 572 (Ky., 1991) 

 Notable discourse and distinctions have developed between the "usable quantity" and the "any amount" tests which are used by various courts to support a charge of cocaine possession. Jacobs v. Commonwealth, Ky., 551 S.W.2d 223 (1977), reviewed KRS 218A.070 as it related to prosecution for possession of phenmetrazine (a Schedule II nonnarcotic controlled substance). Therein it was stated that: "The quantity of the drug possessed is therefore irrelevant under the statute, so that evidence of possession of any amount of the controlled substance is sufficient to withstand a motion for a directed verdict of acquittal." Jacobs, supra, was limited to KRS 218A.070(3) and its application to amphetamine, methamphetamine, phenmetrazine, and methylphenidate.   The "any amount" test was utilized by the Court of Appeals in the case of Commonwealth v. O’Hara, Ky.App., 793 S.W.2d 840 (1990), and was there applied to contraband/marijuana found in the penitentiary. In O’Hara, KRS 520.010(3) was the focus of the requirement of possession of a specific quantity of marijuana to sustain a conviction under the statute. The Court of Appeals therein held that the legislature could easily have required a "usable amount" test had it so desired and declined to substitute its judgment for that of the legislature.   We have considered the rationale of the majority of courts that have followed the "any amount" approach. Hare v. State, 53 Ala.App. 596, 302 So.2d 569 (1974), held that the quantity of the drug possessed is immaterial. It is the possession that is denounced. Moreau v. State, 588 P.2d 275 (Alaska 1978), held that possession of even a trace of a prohibited drug may be sufficient to sustain a conviction where other evidence supports the inference of knowledge. Mickens v. People, 148 Colo. 237, 365 P.2d 679 (1961), states that the possession of a modicum of marijuana brought one within the inhibitions of the statute. Peachie v. State, 203 Md. 239, 100 A.2d 1 (1953), held the quantity of the drug possessed is not material. People v. Norman, 24 Ill.2d 403, 182 N.E.2d 188 (1962); State v. Young, 427 S.W.2d 510 (Mo.1968).   It is maintained that the courts, in this case, have correctly ascertained the General Assembly’s intent that there is some minimum amount of a controlled substance, the possession of which is not criminal, particularly where the substance is a residue attached to other items. Also, it is stated that KRS 446.080(1) requires the courts to construe all statutes liberally in order to carry out the intent of the legislature and that the courts may not engage in judicial legislation under the guise of interpretation. Purdy v. Palmore, Ky., 789 S.W.2d 12 (1990). However, we would add that under the rule of liberal construction, the words employed in the statute must be given their ordinary meaning. In effect, exceptions not made cannot be read therein. This is to say in this particular statute that the expression of one thing excludes another. Purdy, supra. From our reading of these statutes (KRS 218A.140 and KRS 218A.070) in light of KRS 446.080(1), we conclude that while we are required to give a liberal construction to such statutes, we should not disregard the unequivocal requirements of the statute. If the language is plain and unambiguous it must be given effect. There are no exceptions designated in the statute and, therefore, we read none therein under the argument of liberalism.

 

Sanders v. Com., 663 S.W.2d 216 (Ky. App., 1983)

 Some confusion may have been created by the amendment to KRS 218A.990, which became effective July 15, 1982. Subsection (7) now reads:   Any person who knowingly and unlawfully possesses a controlled substance classified in Schedules I or II which is a narcotic drug or which is included in KRS 218A.070(1)(d) shall, for the first offense be confined in the penitentiary for not less than one (1) year nor more than five (5) years ….

KRS 218A.070  relates to "Schedule II Controlled Substances." It has not been amended, and Subsection (1)(d) reads, "coca leaves and any salt, compound, derivative, or preparation of coca leaves …." Cocaine was, thus, specifically covered in the one to five-year penalty by the new language in KRS 218A.990(7).   The appellants and the Commonwealth attempt to argue what the legislature did or did not intend by the original statutes and by the amendment. We find none of the arguments to be dispositive. KRS 218A.010(10), both before and after July 15, 1982, defined "narcotic drug" to mean, among other things, "coca leaves and any salt, derivative, or preparation of coca leaves …." KRS 218A.010(10)(d). The definition is identical to the language in KRS 218A.070.    The appellants present a lengthy brief attempting to explain that cocaine is a non-narcotic. This may or may not be technically correct. It is quite apparent, however, that the legislature chose to include cocaine in its definition of narcotics and to treat it the same as a narcotic prior to July 15, 1982. This they had a right to do, and the penalty for possession of this drug was clearly to be one to five years.

 

Jacobs v. Com., 551 S.W.2d 223 (Ky., 1977)    

Appellant was subsequently convicted by the Pulaski Circuit Court of the offense of possession of phenmetrazine, a Schedule II nonnarcotic controlled substance under KRS 218A.070(3)(c). Three arguments are presented for the reversal of this conviction.   Appellant’s first argument stems from the wording of KRS 218A.070, which she argues controls only those drugs which are shown not to have been removed from the schedule of controlled substances at the time of the alleged offense, and also only that quantity of phenmetrazine which is shown to hold a potential for abuse associated with a stimulant effect on the central nervous system, so that in the failure of the Commonwealth to prove the drug had not been so rescheduled and that appellant possessed such a quantity, she was entitled to a directed verdict of acquittal. Applying this same line of reasoning, appellant further contends the jury should have been instructed that before they could find her guilty of possession of a controlled substance as designated by the statute, they were required to find she possessed such a quantity as specified above and to further find that phenmetrazine had not been rescheduled at the time the offense was alleged to have been committed. After having carefully considered the statute in question, we do not so construe its language and must disagree with appellant’s contentions. The troublesome section, KRS 218A.070, reads in part as follows:   "Unless otherwise rescheduled by regulation of the (state board of health) the controlled substances listed in this section are included in schedule II:

"(3)  Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:   "(c) Phenmetrazine and its salts;     As we read this language, the phrase "having a potential for abuse associated with a stimulant effect on the central nervous system" modifies "substances" rather than "quantity." As such, the language referred to is a phrase of description rather than, as appellant suggests, of limitation. The quantity of the drug possessed is therefore irrelevant under the statute, so that evidence of possession of any amount of the controlled substance is sufficient to withstand a motion for a directed verdict of acquittal. In regard to appellant’s contention that the Commonwealth was required to prove the drug had not been rescheduled at the time of the alleged offense, we are of the opinion that since an enactment of the legislature is presumed valid and effective unless clearly shown otherwise, Commonwealth v. Robinson, 192 Ky. 374, 233 S.W. 791 (1921), it was incumbent on the defendant to raise the issue by introducing evidence indicating the drug had been rescheduled; and in her failure to do so we conclude her not entitled to the directed verdict of acquittal. Having so reached these conclusions, we similarly conclude there to have been no error in the court’s instructions to the jury.

 

Martin v. Commonwealth, 2003 KY 241 (KYCA, 2003) 

 The status of a drug listed in the schedules contained in KRS Chapter 218A. et seq. is not a question of fact for a jury’s consideration. Rather, it is a matter of law for determination by the trial court if the issue is raised. If Martin had properly raised the issue in his motion for a directed verdict, the trial court could have directed as a matter of law that cocaine is a Schedule II controlled substance as provided by KRS 218A.070(1)(d) and that marijuana is a Schedule I controlled substance as set forth in KRS 218A.050(3).  Martin also errs in contending that the Commonwealth has the burden of establishing that these drugs have not been re-scheduled. Both KRS 218A.050 (containing Schedule I controlled substances) and 218A.070 (listing Schedule II controlled substances) are preceded by the following language: "Unless otherwise rescheduled by regulation of the Cabinet for Health Services, the controlled substances listed in this section are included in Schedule I [and II]." Martin argues that because the lists are subject to administrative adjustment, the Commonwealth must offer proof of the status of the drugs as of the time of the offense.   This very argument has been considered and rejected by the Supreme Court. In Jacobs v. Commonwealth, Ky., 551 S.W.2d 223, 225 (1977), the Court placed any such burden squarely on the defendant rather than the Commonwealth:    In regard to appellant’s contention that the Commonwealth was required to prove the drug had not been rescheduled at the time of the alleged offense, we are of the opinion that since an enactment of the legislature is presumed valid and effective unless clearly shown otherwise, Commonwealth v. Robinson, 192 Ky. 374, 233 S.W. 791 (1921), it was incumbent on the defendant to raise the issue by introducing evidence indicating the drug had been rescheduled; and in her failure to do so we conclude her not entitled to the directed verdict of acquittal.     Accordingly, we find no error in the trial court’s refusal to direct a verdict of acquittal on the drug-related counts of the indictment. The judgment of the Hopkins Circuit Court is affirmed.

 

Harrod v. Com., 552 S.W.2d 682 (Ky. App., 1977) 

 Appellant next contends that the court should have sustained his motion to dismiss counts II and III of the indictment charging trafficking in a schedule II drug known as Dilaudid and a schedule II drug known as Demerol. Neither Dilaudid nor Demerol is specifically listed by name in KRS 218A.070, nor does the record contain any competent evidence indicating that these substances are included within one of the various compounds scheduled in KRS 218A.070 or any schedule adopted by the state board of health pursuant to that statute. These counts, according to appellant, do not therefore charge an offense as required by RCr 6.10 and should have been dismissed.    In support of this position appellant cites United States v. Huff, 512 F.2d 66 (5th Cir. 1975). In that case the court held that a count in an indictment charging the defendant with unlawful possession of "methylenedioxy amphetamine, a Schedule I controlled substance" did not charge an offense. Methylenedioxy amphetamine, a different drug from 3, 4 methylenedioxy amphetamine, the drug actually listed in Schedule I, was not a controlled substance. The court concluded that the count consequently charged nothing more than an act which is legal.      In this case, however, both Dilaudid and Demerol are trade names for substances listed in KRS 218A.070 1 and as such are included within the substances listed there under the terms of KRS 218A.030 which provides that "controlled substances listed …in the schedules …in this chapter are included by whatever official, common, usual, chemical, or trade name designated." We hold, therefore, that Counts II and III of the indictment charged an offense within the meaning of RCr 6.10. If appellant wished to know within what particular scheduled substance the Commonwealth believed Dilaudid and Demerol to be included, RCr 6.22 affords him a means to obtain this knowledge. It should be noted that in this case appellant did move for a bill of particulars but asked for no information concerning the inclusion of Dilaudid or Demerol within the statute. Of course, at trial the prosecution would have to prove by appropriate evidence that Dilaudid and Demerol are included within the substances listed in KRS 218A.070.  Further, we do not believe that the counts of the indictment as written in any manner prejudiced the substantial rights of the appellant. The indictment sufficiently informed him of the nature of the charge against him so as to enable him to prepare a defense and it sufficiently stated that offense so as to bar a future prosecution for the same offense. Johnson v. Commonwealth, 299 Ky. 72, 184 S.W.2d 212 (1944).    Finally, appellant claims that the Commonwealth has failed to properly establish the chain of custody of the various narcotics samples admitted into evidence. A complete chain of custody of this evidence tracing its possession from the time it was obtained from the defendant to its final custodian must be established or the samples may not be admitted. Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974); 29 Am.Jur.2d Evidence Section 774 (1967). On retrial the Commonwealth should show this chain of custody.

 

Woods v. Com., 793 S.W.2d 809 (Ky., 1990)

 The appellant was specifically indicted and tried under KRS 218A.990(1) for trafficking in Schedule II narcotics (cocaine) and under KRS 218A.990(4) for trafficking in marijuana. The portion of the language in these two sections crucial to the question of what type of previous offense constitutes a second or subsequent offender seems clear. KRS 218A.990(1) states in pertinent part:   "Any person who knowingly and unlawfully traffics in or transfers a controlled substance classified in Schedules I or II which is a narcotic drug or which is included in KRS 218A.070(1)(d) shall, for the first offense, be [punishment stated], and for each subsequent offense shall be [enhanced punishment stated]."    The language of KRS 218A.990(4)(a) which is the basis of the appellant’s conviction for trafficking in marijuana follows the same format as the language used in KRS 218A.990(1). The only differences are in the punishments meted out. In each instance the words "each subsequent offense" infers an offense of the same type as the underlying charge. At least this is so if we apply ordinary rules of grammar and sentence structure.  There is ample reason to assume the General Assembly intended to refer to an offense of the same type. It makes sense to enhance convictions for possessing illegal drugs, offenses punished much less severely than trafficking, with more penalty if there has been previous convictions for trafficking. But the converse is not true. In trafficking the penalties are severe, and the subsequent penalties even more severe, so that enhancement where there is a prior offense would reasonably relate to a prior offense of the same kind, trafficking rather than a mere illegal possession.

 

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KRS 218A.080 Criteria for classification under Schedule III.

The Cabinet for Health and Family Services shall place a substance in Schedule III if it finds that:

(1) The substance has a potential for abuse less than the substances listed in Schedules I and II;

(2) The substance has currently accepted medical use in treatment in the United States; and

(3) Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence.

Effective: June 20, 2005  History: Amended 2005 Ky. Acts ch. 99, sec. 533, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 476, effective July 15, 1998. — Amended 1974 Ky. Acts ch. 74, Art. VI, sec. 107(3). — Created 1972 Ky. Acts ch. 226, sec. 9.

 

ANNOTATION FOR THIS STATUTE: 

Com. v. Hollingsworth, 685 S.W.2d 546 (Ky., 1984)

 Lastly, the appellee alleges that the pertinent regulation is constitutionally defective because it does not state that the cabinet has considered the eight items listed in KRS 218A.020 in addition to the standards stated in KRS 218A.080 when it determined pentazocine in pill form should be controlled. As stated previously the eight factors in question merge into any consideration of the "potential for abuse." Accordingly, KRS 218A.080 itself sets forth adequate standards for the cabinet to use in classifying a substance under 902 KAR 55:025.   The legislature has established adequate standards for the cabinet of human resources’ administration of the scheduling of controlled substances, and the cabinet has followed those standards in classifying pentazocine in pill form as a Schedule III substance. Therefore, KRS 218A.020 and those statutes which follow are not an unconstitutional delegation of legislative power.   The law is so certified.

 

Com. v. Grubb, 862 S.W.2d 883 (Ky., 1993) 

 The Commonwealth would seek to expand Kroth v. Commonwealth, Ky., 737 S.W.2d 680 (1987), however, the conviction of Kroth did not constitute double jeopardy as his conviction stemmed from the possession with intent to sell stolen drugs and constituted a violation of two separate and distinct statutory provisions, being a violation of KRS 218A.080 and also KRS 218A.100. The enumerated differences between Schedule III and Schedule IV types of controlled substances are self-evident.   A more recent decision of this Court, Ingram, supra, made clear that it has adopted a broader view of double jeopardy. Resultantly, Section 13 of the Kentucky Constitution would permit the Commonwealth to carve out of a single criminal episode the most serious offense, but not to punish a single episode as a multiple offense. In effect that case, as this one, presents a single impulse act having no compound consequences. We have determined that it may be justifiable, as in Kroth, supra, to impose separate punishments for the possession of different classes (schedules) of drugs on the ground that different items clearly present different threats to society. For example, KRS 218A.990 so provides as to the attendant penalties. A single act, under circumstances not found herein, could, however, threaten compound consequences.

The opinion of the Court of Appeals is affirmed.

 

Kroth v. Com., 737 S.W.2d 680 (Ky., 1987)    

The conviction of Kroth under Counts 2 and 3 of the indictment did not constitute double jeopardy.  Possession with intent to sell the stolen drugs constitutes a violation of two separate and distinct statutory provisions. KRS 218A.080 and KRS 218A.100 state the differences between Schedule III and Schedule IV types of controlled substances. Kroth could not be convicted of carrying face powder or toothpowder. The law prohibits only controlled substances or drugs. KRS 218A.140 provides in part that no person shall traffic in any controlled substance. The word "any" means exactly what it says.  It means possession with intent to sell of any controlled substance regardless of its statutory schedule classification suffices for purposes of prosecution under this chapter. It was not reversible error for the trial judge to allow the prosecutor to refer to allegedly inadmissible hearsay evidence in his opening statement which was to the effect that a police officer had received information that the defendant had burglarized the store.

 

Shelton v. Com., 928 S.W.2d 817 (Ky. App., 1996)   

 In 1987, despite a plea of double jeopardy, the Kentucky Supreme Court affirmed a defendant’s convictions on two counts of trafficking in a controlled substance. Kroth v. Commonwealth, Ky., 737 S.W.2d 680 (1987). The court relied upon the fact that the defendant had in his possession with intent to sell both Schedule III drugs, as defined in KRS 218A.080, and Schedule IV drugs, as defined in KRS 218A.100. It held that no double jeopardy violation existed because the appellant’s possession of these drugs constituted a violation of separate statutory provisions. Though no particular authority was cited, it would appear that the court sought to apply the traditional Blockburger rationale. The court clearly did not apply the broader "single act, single crime" approach that had been used in practice in Hamilton v. Commonwealth, as Kroth had committed only one act, the possession of different drugs at the same time.    Wager v. Commonwealth, Ky., 751 S.W.2d 28 (1988), the Blockburger rule and KRS 508.020 were again applied to affirm a conviction for both second-degree assault and first-degree rape arising out of a single incident.    In 1990, however, a different course of constitutional interpretation was embarked upon Ingram v. Commonwealth, 801 S.W.2d at 326. The defendant in Ingram had been convicted of selling marijuana to a minor, in violation of KRS 218A.990(5), and of trafficking in marijuana within one thousand yards of a school, in violation of KRS 218A.990(16), as the result of a single sale of two marijuana cigarettes. He received a five-year sentence for each offense to be served consecutively. The court affirmed the defendant’s conviction and sentence under KRS 218A.990(5) but reversed his conviction under KRS 218A.990(16), concluding that §13 of the Kentucky Constitution provides a defendant broader protection than that afforded under Blockburger and KRS 505.020. Jordan v. Commonwealth, 703 S.W.2d 870, which held to the contrary, was neither overruled nor mentioned in Ingram.   In coming to its conclusion in Ingram, the court relied upon Hamilton, and further cited Jones v. Commonwealth, Ky., 756 S.W.2d 462 (1988), as persuasive:   From Milward, Kentucky Criminal Practice, § 5.07 (1984):   Section 13 of the Kentucky Constitution, which prohibits an accused from being placed in double jeopardy for the same offense, prohibits the Commonwealth from carving out of one act or transaction two or more offenses.   [Jones, 756 S.W.2d] at 463.  Our interpretation of §13:  The Commonwealth is permitted to carve out of a single criminal episode the most serious offense, but not to punish a single episode as multiple offenses.    [Jones] at 463.   Ingram, 801 S.W.2d at 324. The quotation from Burton Milward, Kentucky Criminal Practice § 5.07 (1984) actually deals with statutorily included offenses in a single act rather than separate statutory offenses committed by a single act or transaction. The latter situation is covered in §23.10 of the same treatise where the traditional rule is stated. The second quotation is based upon what appears to have been a misreading of Blockburger insofar as it discusses the difference between continuing conduct constituting one offense as opposed to a single act constituting two separate offenses.    Nevertheless, by taking a principle which previously had applied only to successive prosecutions, and one which previously had applied only to a single offense containing included offenses and mixing them with a principle governing when a continuing course of conduct may only be prosecuted as one offense, the Ingram court arrived at its novel interpretation of § 13 of the Constitution. The court wrote that it was presented with "a single impulse and a single act, having no compound consequences. By virtue of additional, circumstantial facts, the behavior was offensive to two criminal statutes." Ingram, 801 S.W.2d at 324. As a result, the defendant was held to have "committed but one offense," for which dual convictions were constitutionally impermissible. Id.;  Walden v. Commonwealth, Ky., 805 S.W.2d 102 (1991).   Whether a single act constituting the commission of both the rape of and incest with the victim, as in Hamilton, 659 S.W.2d 201, might now be considered an act having "compound consequences" is not clear. Such an act would certainly have compound consequences for the victim. What does appear to be clear from Ingram is that a single act which violates more than one statute does not by that fact alone result in compound consequences.

           

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 KRS 218A.090 Schedule III controlled substances.

Unless otherwise rescheduled by regulation of the Cabinet for Health and Family Services, the controlled substances listed in this section are included in Schedule III:

(1) Unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system: Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid; chlorhexadol; glutethimide; lysergic acid; lysergic acid amide; methyprylon; sulfondiethylmethane; sulfonethylmethane; sulfonmethane.

(2) Nalorphine.

(3) Pentazocine (parenteral or injectable form only).

(4) Any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof:

(a) Not more than one and four-fifths (1.8) grams of codeine, or any of its salts, per one hundred (100) milliliters or not more than ninety (90) milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium;

(b) Not more than one and four-fifths (1.8) grams of codeine, or any of its salts, per one hundred (100) milliliters or not more than ninety (90) milligrams per dosage unit, with one (1) or more active nonnarcotic ingredients in recognized therapeutic amounts;

(c) Not more than three hundred (300) milligrams of dihydrocodeinone, or any of its salts, per one hundred (100) milliliters or not more than fifteen (15) milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium;

(d) Not more than three hundred (300) milligrams of dihydrocodeinone, or any of its salts, per one hundred (100) milliliters or not more than fifteen (15) milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts;

(e) Not more than one and four-fifths (1.8) grams of dihydrocodeine, or any of its salts, per one hundred (100) milliliters or not more than ninety (90) milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts;

(f) Not more than three hundred (300) milligrams of ethylmorphine, or any of its salts per one hundred (100) milliliters or not more than fifteen (15) milligrams per dosage unit, with one (1) or more ingredients in recognized therapeutic amounts;

(g) Not more than five hundred (500) milligrams of opium per one hundred (100) milliliters or per one hundred (100) grams, or not more than twenty-five (25) milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts;

(h) Not more than fifty (50) milligrams of morphine, or any of its salts, per one hundred (100) milliliters or per one hundred (100) grams with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts.

(i) The Cabinet for Health and Family Services may except by regulation any compound, mixture, or preparation containing any stimulant or depressant substance listed in subsection (1) from the application of all or any part of this chapter if the compound, mixture, or preparation contains one (1) or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system, and if the admixtures are included therein in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances which have a stimulant or depressant effect on the central nervous system.

(5) Any material, compound, mixture, or preparation containing any quantity of any of the following anabolic steroid substances, or any isomer, ester, salt, or derivative thereof:

(a) Boldenone;

(b) Clostebol;

(c) Dehydrochlormethyltestosterone;

(d) Drostanolone;

(e) Ethylestrenol;

(f) Fluoxymesterone;

(g) Formebulone;

(h) Mesterolone;

(i) Methandienone;

(j) Methandriol;

(k) Methenolone;

(l) Methyltestosterone;

(m) Mibolerone;

(n) Nandrolone;

(o) Norethandrolone;

(p) Oxandrolone;

(q) Oxymesterone;

(r) Oxymetholone;

(s) Stanolone;

(t) Stanozolol;

(u) Testolactone;

(v) Testosterone; and

(w) Trenbolone.

(6) This section shall not apply to any material, compound, mixture, or preparation containing any quantity of an anabolic steroid substance, or any isomer, ester, salt, or derivative thereof that is expressly intended for administration through implant to livestock or other nonhuman species, and that is approved by the United States Food and Drug Administration for such use.

Effective: June 20, 2005  History: Amended 2005 Ky. Acts ch. 99, sec. 534, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 477, effective July 15, 1998. — Amended 1992 Ky. Acts ch. 441, sec. 4, effective July 14, 1992. — Amended 1990 Ky. Acts ch. 160, sec. 1, effective July 13, 1990. — Amended 1980 Ky. Acts ch. 161, sec. 2, effective July 15, 1980. — Amended 1974 Ky. Acts ch. 74, Art. VI, sec. 107(3). — Created 1972 Ky. Acts ch. 226, sec. 10.  

ANNOTATION FOR THIS STATUTE: 

Com. v. Hollingsworth, 685 S.W.2d 546 (Ky., 1984)

 The appellee, Thomas Edward Hollingsworth, was indicted on September 9, 1982, for trafficking in a Schedule III controlled substance, pentazocine, contrary to KRS 218 A.140. At the close of the Commonwealth’s case Appellee moved for a directed verdict on the grounds that the statute dealing with Schedule III drugs, KRS 218A.090 did not control pentazocine in pill form. The trial court noted that the pill form of the drug was controlled by regulation enacted pursuant to KRS 218A.020. However, the court ruled that the guidelines set out for classification of substances in the statute were not mandatory, and therefore, the statute was an unconstitutional delegation of legislative power. The court ordered a verdict of acquittal be entered on behalf of the appellant.    This court has ruled that for there to be a constitutional delegation of legislative authority, the legislature must delegate only the administration of the law itself and must not delegate the exercise of its discretion as to what the law shall be. Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984). This is accomplished by setting forth standards controlling the exercise of administrative discretion. Ibid.    Appellee argues that KRS 218A.020 is unconstitutional because the permissive language used to describe the Cabinet’s duties would permit the Cabinet to reschedule drugs at their pleasure. KRS 218A.020(1) & (2) reads as follows:    (1) The Cabinet for Human Resources shall administer this chapter and may by regulation add substances to or delete or reschedule all substances enumerated in the schedules set forth in this chapter. In making a determination regarding a substance, the Cabinet for Human Resources may consider the following:

        (a) The actual or relative potential for abuse:

        (b) The scientific evidence of its pharmacological effect, if known:

        (c) The state of current scientific knowledge regarding the substance:

        (d) The history and current pattern of abuse:

        (e) The scope, duration, and significance of abuse:

        (f) The risk to the public health:

        (g) The potential of the substance to produce psychic or physiological dependence liability: and

        (h) Whether the substance is an immediate precursor of a substance already controlled under this chapter.

(2) After considering the factors enumerated in subsection (1) the cabinet for human resources may adopt a regulation controlling the substance if it finds the substance has a potential for abuse.

        Subsection (1) of this statute states which agency has the power to administer the chapter. Also implicit in the same language is the fact that the cabinet has the affirmative duty to administer the chapter according to the standards set by the legislature.

        Subsection (2) states the general standard the cabinet is to use in determining whether a substance should be controlled, i.e., "if it finds the substance has a potential for abuse." Subsection (1) lists eight factors which aid the cabinet in making the determination, and although subsection (1) states that the cabinet may consider the factors, subsection (2) states that a substance may be controlled only after the previous listed factors are considered. Additionally, the eight factors listed are basic questions regarding abuse and merge into any determination regarding the "potential for abuse" of a substance.

        Although this statute addressed the general issue of a substance with a potential for abuse, it does not set forth the specific standards to be used for a particular classification. This language is contained in the statutes that follow KRS 218A.020 which list the factors to be considered in placing a drug in one of the five different schedules. The drug involved in the present case, pentazocine, was classified under Schedule III, KRS 218A.080, which reads:  The Cabinet for Human Resources shall place a substance in Schedule III if it finds that:

        (1) The substance has a potential for abuse less than the substances listed in Schedules I and II;

        (2) The substance has currently accepted medical use in treatment in the United States; and

        (3) Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence.

        Far from stating that the Cabinet may reschedule at its pleasure, the statute states that the Cabinet "shall" place a substance in this schedule if the three criteria are met.  The individual statutes listing the criteria for a particular classification read in combination with KRS 218A.020 set out specific mandatory standards to be used by the cabinet in classifying substances. The legislature has delegated only the administration of the law, and therefore, KRS 218A.020 and the statutes that follow are constitutional.

The appellee argues that even if the statutes are constitutional delegation of power, pentazocine in pill form cannot be classified as a Schedule III drug because the legislature specifically exempted it in KRS 218A.090(3). The substance was classified Schedule III by administrative regulation, and the appellee alleges that this action by the cabinet would be usurping the will of the legislature.    The legislature has established adequate standards for the cabinet of human resources’ administration of the scheduling of controlled substances, and the cabinet has followed those standards in classifying pentazocine in pill form as a Schedule III substance. Therefore, KRS 218A.020 and those statutes which follow are not an unconstitutional delegation of legislative power.    The law is so certified.

 
 

KRS 218A.100 Criteria for classification under Schedule IV.

The Cabinet for Health and Family Services shall place a substance in Schedule IV if it finds that:

(1) The substance has a low potential for abuse relative to substances in Schedule III;

(2) The substance has currently accepted medical use in treatment in the United States; and

(3) Abuse of the substance may lead to limited physical dependence or psychological dependence relative to the substances in Schedule III.

Effective: June 20, 2005  History: Amended 2005 Ky. Acts ch. 99, sec. 535, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 478, effective July 15, 1998. — Amended 1974 Ky. Acts ch. 74, Art VI, sec. 107(3). — Created 1972 Ky. Acts ch. 226, sec. 11.

 

ANNOTATION FOR THIS STATUTE:

  
Com. v. Grubb, 862 S.W.2d 883 (Ky., 1993)

 The Commonwealth would seek to expand Kroth v. Commonwealth, Ky., 737 S.W.2d 680 (1987), however, the conviction of Kroth did not constitute double jeopardy as his conviction stemmed from the possession with intent to sell stolen drugs and constituted a violation of two separate and distinct statutory provisions, being a violation of KRS 218A.080 and also KRS 218A.100. The enumerated differences between Schedule III and Schedule IV types of controlled substances are self-evident.    A more recent decision of this Court, Ingram, supra, made clear that it has adopted a broader view of double jeopardy. Resultantly, Section 13 of the Kentucky Constitution would permit the Commonwealth to carve out of a single criminal episode the most serious offense, but not to punish a single episode as a multiple offense. In effect that case, as this one, presents a single impulse act having no compound consequences. We have determined that it may be justifiable, as in Kroth, supra, to impose separate punishments for the possession of different classes (schedules) of drugs on the ground that different items clearly present different threats to society.

For example, KRS 218A.990 so provides as to the attendant penalties. A single act, under circumstances not found herein, could, however, threaten compound consequences.    The opinion of the Court of Appeals is affirmed.

 
Kroth v. Com., 737 S.W.2d 680 (Ky., 1987) 

 The conviction of Kroth under Counts 2 and 3 of the indictment did not constitute double jeopardy. Possession with intent to sell the stolen drugs constitutes a violation of two separate and distinct statutory provisions. KRS 218A.080 and KRS 218A.100 state the differences between Schedule III and Schedule IV types of controlled substances. Kroth could not be convicted of carrying face powder or toothpowder. The law prohibits only controlled substances or drugs. KRS 218A.140 provides in part that no person shall traffic in any controlled substance. The word "any" means exactly what it says. It means possession with intent to sell of any controlled substance regardless of its statutory schedule classification suffices for purposes of prosecution under this chapter.  It was not reversible error for the trial judge to allow the prosecutor to refer to allegedly inadmissible hearsay evidence in his opening statement which was to the effect that a police officer had received information that the defendant had burglarized the store.   An opening statement is not evidence and the trial judge admonished the jurors to that effect. The prosecutor himself told the jury that the opening statement was not evidence. The outcome of the trial would not have been any different had the complained of statement been excluded. The evidence against Kroth was overwhelming. Tests presented at trial showed the pieces of cement found in his apartment matched with samples taken from the scene of the crime. The plasterboard dust on the tools in his possession was of the same type found in the drug store wall. The defendant’s fingerprints and handwriting were found on a map at the scene of the crime and plasterboard dust was present on his boots when he was arrested.

 

Shelton v. Com., 928 S.W.2d 817 (Ky. App., 1996)   

 In 1987, despite a plea of double jeopardy, the Kentucky Supreme Court affirmed a defendant’s convictions on two counts of trafficking in a controlled substance. Kroth v. Commonwealth, Ky., 737 S.W.2d 680 (1987). The court relied upon the fact that the defendant had in his possession with intent to sell both Schedule III drugs, as defined in KRS 218A.080, and Schedule IV drugs, as defined in KRS 218A.100. It held that no double jeopardy violation existed because the appellant’s possession of these drugs constituted a violation of separate statutory provisions. Though no particular authority was cited, it would appear that the court sought to apply the traditional Blockburger rationale. The court clearly did not apply the broader "single act, single crime" approach that had been used in practice in Hamilton v. Commonwealth, as Kroth had committed only one act, the possession of different drugs at the same time.    Wager v. Commonwealth, Ky., 751 S.W.2d 28 (1988), the Blockburger rule and KRS 508.020 were again applied to affirm a conviction for both second-degree assault and first-degree rape arising out of a single incident.     In 1990, however, a different course of constitutional interpretation was embarked upon Ingram v. Commonwealth, 801 S.W.2d at 326. The defendant in Ingram had been convicted of selling marijuana to a minor, in violation of KRS 218A.990(5), and of trafficking in marijuana within one thousand yards of a school, in violation of KRS 218A.990(16), as the result of a single sale of two marijuana cigarettes. He received a five-year sentence for each offense to be served consecutively. The court affirmed the defendant’s conviction and sentence under KRS 218A.990(5) but reversed his conviction under KRS 218A.990(16), concluding that §13 of the Kentucky Constitution provides a defendant broader protection than that afforded under Blockburger and KRS 505.020. Jordan v. Commonwealth, 703 S.W.2d 870, which held to the contrary, was neither overruled nor mentioned in Ingram.    In coming to its conclusion in Ingram, the court relied upon Hamilton, and further cited Jones v. Commonwealth, Ky., 756 S.W.2d 462 (1988), as persuasive:   From Milward, Kentucky Criminal Practice, §5.07 (1984):  Section 13 of the Kentucky Constitution, which prohibits an accused from being placed in double jeopardy for the same offense, prohibits the Commonwealth from carving out of one act or transaction two or more offenses.  [Jones, 756 S.W.2d] at 463. Our interpretation of §13:   The Commonwealth is permitted to carve out of a single criminal episode the most serious offense, but not to punish a single episode as multiple offenses.    [Jones] at 463.    Ingram, 801 S.W.2d at 324.  The quotation from Burton Milward, Kentucky Criminal Practice §5.07 (1984) actually deals with statutorily included offenses in a single act rather than separate statutory offenses committed by a single act or transaction. The latter situation is covered in §23.10 of the same treatise where the traditional rule is stated. The second quotation is based upon what appears to have been a misreading of Blockburger insofar as it discusses the difference between continuing conduct constituting one offense as opposed to a single act constituting two separate offenses.    Nevertheless, by taking a principle which previously had applied only to successive prosecutions, and one which previously had applied only to a single offense containing included offenses and mixing them with a principle governing when a continuing course of conduct may only be prosecuted as one offense, the Ingram court arrived at its novel interpretation of §13 of the Constitution. The court wrote that it was presented with "a single impulse and a single act, having no compound consequences. By virtue of additional, circumstantial facts, the behavior was offensive to two criminal statutes." Ingram, 801 S.W.2d at 324. As a result, the defendant was held to have "committed but one offense," for which dual convictions were constitutionally impermissible. Id.; Walden v. Commonwealth, Ky., 805 S.W.2d 102 (1991).    Whether a single act constituting the commission of both the rape of and incest with the victim, as in Hamilton, 659 S.W.2d 201, might now be considered an act having "compound consequences" is not clear. Such an act would certainly have compound consequences for the victim. What does appear to be clear from Ingram is that a single act which violates more than one statute does not by that fact alone result in compound consequences.

  
 

KRS 218A.110 Schedule IV controlled substances.

Unless otherwise rescheduled by regulation of the Cabinet for Health and Family

Services, the controlled substances listed in this section are included in Schedule IV:

(1) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system: chloral betaine; chloral hydrate; ethchlorvynol; ethinamate; meprobamate; paraldehyde; petrichloral.

(2) The Cabinet for Health and Family Services may except by regulation any compound, mixture, or preparation containing any depressant substance listed in subsection (1) from the application of all or any part of this chapter if the compound, mixture, or preparation contains one (1) or more active medicinal ingredients not having a depressant effect on the central nervous system, and if the admixtures are included therein in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances which have a depressant effect on the central nervous system.

Effective: June 20, 2005  History: Amended 2005 Ky. Acts ch. 99, sec. 536, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 479, effective July 15, 1998. — Amended 1974 Ky. Acts ch. 74, Art VI, sec. 107(3). — Created 1972 Ky. Acts ch. 226, sec. 12.

NO ANNOTATION FOR THIS STATUTE:

 
 

KRS 218A.120 Criteria for classification under Schedule V.

The Cabinet for Health and Family Services shall place a substance in Schedule V if it finds that:

(1) The substance has low potential for abuse relative to the controlled substances listed in Schedule IV;

(2) The substance has currently accepted medical use in treatment in the United States; and

(3) The substance has limited physical dependence or psychological dependence liability relative to the controlled substances listed in Schedule IV.

Effective: June 20, 2005  History: Amended 2005 Ky. Acts ch. 99, sec. 537, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 480, effective July 15, 1998. — Amended 1974 Ky. Acts ch. 74, Art VI, sec. 107(3). — Created 1972 Ky. Acts ch. 226, sec. 13.

NO ANNOTATION FOR THIS STATUTE:

 
 

KRS 218A.130 Schedule V controlled substances.

Unless otherwise rescheduled by regulation of the Cabinet for Health and Family Services the  controlled substances listed in this section are included in Schedule V:

Any compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, which also contains one (1) or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation, valuable medicinal qualities other than those possessed by the narcotic drug alone: Not more than two hundred (200) milligrams of codeine, or any of its salts, per one hundred (100) milliliters or per one hundred (100) grams.

Effective: June 20, 2005 History: Amended 2005 Ky. Acts ch. 99, sec. 538, effective June 20, 2005. – Amended 1998 Ky. Acts ch. 426, sec. 481, effective July 15, 1998. — Amended 1974 Ky. Acts ch. 74, Art VI, sec. 107(3); and ch. 308, sec. 40. — Created 1972 Ky. Acts ch. 226, sec. 14.

NO ANNOTATION FOR THIS STATUTE:

 
 
 

KRS 218A.135 Pretrial release of defendant charged with offense for which conviction may result in presumptive probation.

(1) Any statute to the contrary notwithstanding, a defendant charged with an offense under this chapter for which a conviction may result in presumptive probation shall be placed on pretrial release on his or her own recognizance or on unsecured bond by the court subject to any conditions, other than bail, specified in KRS 431.515 to 431.550.

(2) The provisions of this section shall not apply to a defendant who is found by the court to present a flight risk or to be a danger to others.

(3) If a court determines that a defendant shall not be released pursuant to subsection (2) of this section, the court shall document the reasons for denying the release in a written order.

Effective: July 12, 2012  History: Amended 2012 Ky. Acts ch. 156, sec. 6, effective July 12, 2012. — Created 2011 Ky. Acts ch. 2, sec. 19, effective June 8, 2011.

NO ANNOTATION FOR THIS STATUTE:

 
 

KRS 218A.140 Prohibited acts relating to controlled substances — Penalties.

(1)

(a) No person shall obtain or attempt to obtain a prescription for a controlled substance by knowingly misrepresenting to, or knowingly withholding information from, a practitioner.

(b) No person shall procure or attempt to procure the administration of a controlled substance by knowingly misrepresenting to, or withholding information from, a practitioner.

(c) No person shall obtain or attempt to obtain a controlled substance or procure or attempt to procure the administration of a controlled substance by the use of a false name or the giving of a false address.

(d) No person shall knowingly make a false statement regarding any prescription, order, report, or record required by this chapter.

(e) No person shall, for the purpose of obtaining a controlled substance, falsely assume the title of or represent himself or herself to be a manufacturer, wholesaler, distributor, repacker, pharmacist, practitioner, or other authorized person.

(f) In order to obtain a controlled substance, no person shall present a prescription for a controlled substance that was obtained in violation of this chapter.

(g) No person shall affix any false or forged label to a package or receptacle containing any controlled substance.

(2) No person shall possess, manufacture, sell, dispense, prescribe, distribute, or administer any counterfeit substance.

(3) No person shall knowingly obtain or attempt to obtain a prescription for a controlled substance without having formed a valid practitioner-patient relationship with the practitioner or his or her designee from whom the person seeks to obtain the prescription.

(4) No person shall knowingly assist a person in obtaining or attempting to obtain a prescription in violation of this chapter.

(5) Any person who violates any subsection of this section shall be guilty of a Class D felony.

Effective: June 8, 2011   History: Amended 2011 Ky. Acts ch. 2, sec. 6, effective June 8, 2011. — Amended 2007 Ky. Acts ch. 124, sec. 2, effective June 26, 2007. — Amended 1998 Ky. Acts ch. 301, sec. 22, effective July 15, 1998. — Amended 1992 Ky. Acts ch. 441, sec. 5, effective July 14, 1992. — Created 1990 Ky. Acts ch. 160, sec. 2, effective July 13, 1990. 

ANNOTATION FOR THIS STATUTE:  

Embrey v. Commonwealth, No. 2008-CA-000535-MR (Ky. App. 8/21/2009) (Ky. App., 2009)

   On October 19, 2007, the Muhlenberg County grand jury indicted Embrey on four counts of obtaining a controlled substance by fraud, subsequent offense, in violation of Kentucky Revised Statutes (KRS) 218A.140, and on one count of being a first-degree persistent felony offender in violation of KRS 532.080. The indictment specifically stated that between October 13, 2006, and July 27, 2007, Embrey fraudulently obtained, on four separate occasions, prescriptions for controlled substances from practitioners within the Commonwealth of Kentucky. Embrey pled "not guilty" to each count and was released on bail.

   In sum, we hold that the circuit court did not abuse its discretion by allowing the pharmacy records to be presented to the jury at trial. Accordingly, the judgment of the Muhlenberg Circuit Court is affirmed. 

Saylor v. Dalloul, No. 2007-CA-001544-MR (Ky. App. 2/13/2009) (Ky. App., 2009)

      Rocky Saylor appeals the order dismissing without prejudice, his claim against Ellias Dalloul, M.D., for lack of prosecution under CR 77.02 entered by the Harlan Circuit Court. We find no abuse of discretion by the court and therefore affirm.

        Saylor brought suit against Dr. Dalloul and alleged that Dr. Dalloul made false and misleading statements to the police which resulted in Saylor being indicted on Attempt to Obtain a Controlled Substance by Fraud, KRS 218A.140(1)(a). Saylor allegedly suffered embarrassment, emotional distress, and incarceration. Litigation began on October 2, 2003, and an answer was filed on October 14, 2003. On October 14, 2003, Dr. Dalloul propounded discovery to Saylor to which Saylor responded on December 9, 2003.

    We understand the frustration that might occur when opposing counsel is unavailable to discuss or litigate a case. Unfortunately, the focus of the trial court’s notice of its intentions to dismiss for lack of prosecution under CR 77.02 was on the actions of Saylor.4 Saylor argues that opposing counsel was not available for an extended period of time. However, Saylor’s counsel could have proceeded with pretrial steps, including discovery, and placed the burden on opposing counsel to find the time to practice his case. We note that Saylor was released in September 2006 and, thus, likely available to consult with counsel thereafter. Nevertheless, there had been no pretrial action by Saylor as of June 11, 2007.

        Based on the languishing nature of this case and the lack of pre-trial steps by Saylor, we believe the trial court did not exceed its discretion, properly applied CR 77.02, and was not obligated to make the required findings under Ward. Accordingly, finding no error, we affirm the Harlan Circuit Court.

 

Jones v. Commonwealth, No. 2007-CA-002490-MR (Ky. App. 10/3/2008) (Ky. App., 2008)

    On October 30, 2006, Jones was indicted upon three counts of obtaining or attempting to obtain a controlled substance by fraud or deceit, a Class D felony. Kentucky Revised Statutes (KRS) 218A.140. The charges resulted from three episodes of "doctor shopping" whereby Jones obtained prescriptions for Hydrocodone (2 occasions) and OxyCodone (1 occasion), Schedule II narcotics, without informing the prescribing physicians about previous narcotic prescriptions he had obtained.

  In summary, the record reflects that the trial court did weigh the merits of Jones’s proffered excuses for failing to comply with his obligations under the sentencing enhancement clause, and found them lacking. This determination is supported by the record. As such, we are constrained to conclude that the trial court did not abuse its discretion in enforcing the clause.

 

Thorpe v. Commonwealth, No. 2008-CA-000823-MR (Ky. App. 10/2/2009) (Ky. App., 2009)

     Julia Thorpe appeals her conviction in the Mason Circuit Court of fraudulently obtaining a prescription for a controlled substance and of being a persistent felony offender. After our review of the record, we reverse and remand for a new trial.

   Thorpe was on trial for fraudulently obtaining a prescription for a controlled substance under Kentucky Revised Statute (KRS) 218A.140(1)(a). That statute makes it a crime to "obtain or attempt to obtain a prescription for a controlled substance by knowingly misrepresenting to, or knowingly withholding information from, a practitioner." Neither party disputed that Thorpe indeed did obtain a prescription for a controlled substance. However, at issue is her mens rea, whether she knew that her mother had permanently relocated to Lexington — and thus whether she intentionally concealed the change in circumstances from the doctor.

     Based on the improper admission of unduly prejudicial evidence, we reverse this conviction and remand to the trial court for further proceedings consistent with this opinion.

Williams v. Commonwealth of Kentucky (Ky. App., 2003)    

  Although the plain language of KRS 218A.140(1)(a) may support appellant’s argument with regards to the overbreadth challenge, we hold that a limiting construction is the proper measure to be taken in this case. We think a limiting construction can be used to avoid invalidating KRS 218A.140(1)(a) based upon overbreadth grounds. We would narrowly construe the terms "knowingly misrepresenting to" and "knowingly withholding information from" as relevant only to the procurement of prescriptions. Thus, the language of the statute in question may be limited to "[n]o person shall obtain or attempt to obtain a prescription for a controlled substance by knowingly misrepresenting to, or knowingly withholding information [relevant to the procurement of that prescription] from, a practitioner."   As discussed by the Court in Martin, appellant has fair warning of a narrowing construction when the legislature’s goal is "obvious from the face of the statute," and when the appellant’s behavior is such that he would "not be surprised to learn that [his conduct] . . . constituted a crime." Id. at 55, quoting Osborne v. Ohio, 495 U.S. 103, 116, 110 S. Ct. 1691, 109 L. Ed. 2d 98 (1990). It is obvious from the plain language of KRS 218A.140 that this statute is intended to prohibit an individual from obtaining a controlled substance through knowingly giving fraudulent information relevant to the procurement of a prescription or knowingly withholding such information from a practitioner. Therefore, we hold that KRS 218A.140(1)(a) is not facially overbroad. 

Stidham v. Clark, 2002 KY 58 (KY, 2002) 

 Appellant Michael A. Stidham appeals from the denial of his petition for a writ of prohibition filed against Appellee Thomas L. Clark, Judge of the Fayette Circuit Court, to prohibit him from authorizing the release to a Fayette County grand jury of records pertaining to Appellant’s treatment by Dr. Edwin Bunch, a licensed psychiatrist. The Court of Appeals denied the petition in a one-sentence order that stated no reason for the denial. However, an earlier order denying Appellant’s motion for emergency relief under CR 76.36(4) stated that "[t]he petitioner has not made an adequate showing that the respondent judge has abused his discretion in permitting the discovery of the questioned documents …."  Because the disclosure of information claimed to be privileged is not discretionary but requires a finding that the information falls either within or outside the scope of the privilege or within a specified exception to the privilege, and because the record does not reflect that the Commonwealth met the applicable burden of proof necessary to even warrant an in camera review of Dr. Bunch’s records, we reverse.    The grand jury seeks to review Dr. Bunch’s records to determine if Appellant has violated KRS 218A.140(1) by obtaining prescriptions for the same controlled substance from multiple medical practitioners by withholding information from each practitioner that the same prescription has been obtained from another or other practitioner(s). The Appellee Commonwealth’s attorney (hereinafter "the Commonwealth") refers to this offense as "doctor shopping." The grand jury caused a subpoena duces tecum to be served on Dr. Bunch to produce "any and all medical records, including any and all narcotics, contracts, and any and all patient history forms" pertaining to Appellant. The issue was joined by Appellant’s motion to quash the subpoena on grounds that the subpoenaed records of his treatment fall within the psychotherapist-patient privilege defined in KRE 507(b):   General rule of privilege.  A patient, or the patient’s authorized representative, has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications. made for the purpose of diagnosis or treatment of the patient’s mental condition, between the patient, the patient’s psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.    KRE 507(c) identifies three exceptions to the general rule of privilege, none of which apply to this case.     The Commonwealth asserted in response to the motion to quash that (1) Dr. Bunch’s records are not privileged records of psychotherapeutic treatment of a mental condition but unprivileged records of medical treatment of a physical condition, or, in the alternative, (2) KRS 218A.280 creates an exception to the privilege in addition to those identified in KRE 507(c).   KRS 218A.280 provides:   Information communicated to a practitioner in an effort unlawfully to procure a controlled substance, or unlawfully to procure the administration of any controlled substance, shall not be deemed a privileged communication.   Judge Clark concluded that whether any or all of the entries in Dr. Bunch’s records were privileged could only be determined by an in camera inspection of the entire 296-page record. Following that inspection, Judge Clark rendered an opinion and order finding that the records contain information pertaining to Dr. Bunch’s treatment of both Appellant’s chronic pain, which was deemed to be medical treatment of a physical condition, and his treatment of psychological and emotional problems caused by that pain, which was deemed to be psychotherapeutic treatment of a mental condition. The judge also found that the records pertaining to the treatment of Appellant’s mental condition contain no information falling within the parameters of KRS 218A.280. Accordingly, he concluded that the grand jury could review those entries in the records pertaining to Dr. Bunch’s diagnosis and treatment of Appellant’s chronic pain but not those entries pertaining to his diagnosis and treatment of Appellant’s psychological and emotional problems. The Commonwealth has not contested the latter conclusion, perhaps because the prescriptions claimed to have been obtained in violation of KRS 218A.140(1) were for pain medication. Regardless, since Dr. Bunch’s records are not before us for review, we could not determine, even if asked, whether Judge Clark’s KRE 104(a) findings of fact with respect to the contents of Dr. Bunch’s records are clearly erroneous. Our inquiry is limited to determining what evidence is required to overcome a prima facie showing of privilege and whether sufficient evidence was introduced in this case to warrant the in camera review that resulted in Judge Clark’s findings. 

Kroth v. Com., 737 S.W.2d 680 (Ky., 1987)

 The conviction of Kroth under Counts 2 and 3 of the indictment did not constitute double jeopardy. Possession with intent to sell the stolen drugs constitutes a violation of two separate and distinct statutory provisions. KRS 218A.080 and KRS 218A.100 state the differences between Schedule III and Schedule IV types of controlled substances. Kroth could not be convicted of carrying face powder or toothpowder. The law prohibits only controlled substances or drugs. KRS 218A.140 provides in part that no person shall traffic in any controlled substance. The word "any" means exactly what it says. It means possession with intent to sell of any controlled substance regardless of its statutory schedule classification suffices for purposes of prosecution under this chapter.     It was not reversible error for the trial judge to allow the prosecutor to refer to allegedly inadmissible hearsay evidence in his opening statement which was to the effect that a police officer had received information that the defendant had burglarized the store.

 

Com. v. Shivley, 814 S.W.2d 572 (Ky., 1991)     

Mr. Shivley was indicted under KRS 218A.140 and subsection 2 provides: "No person shall possess any controlled substance except as authorized in this chapter." Cocaine is classified as a Schedule II controlled substance. KRS 218A.070(1)(d). Neither statute determines any amount of cocaine which may be possessed legally. Cocaine residue is, in fact, cocaine and we find no argument to the contrary.    Notable discourse and distinctions have developed between the "usable quantity" and the "any amount" tests which are used by various courts to support a charge of cocaine possession. Jacobs v. Commonwealth, Ky., 551 S.W.2d 223 (1977), reviewed KRS 218A.070 as it related to prosecution for possession of phenmetrazine (a Schedule II nonnarcotic controlled substance). Therein it was stated that: "The quantity of the drug possessed is therefore irrelevant under the statute, so that evidence of possession of any amount of the controlled substance is sufficient to withstand a motion for a directed verdict of acquittal." Jacobs, supra, was limited to KRS 218A.070(3) and its application to amphetamine, methamphetamine, phenmetrazine, and methylphenidate.    The "any amount" test was utilized by the Court of Appeals in the case of Commonwealth v. O’Hara, Ky.App., 793 S.W.2d 840 (1990), and was there applied to contraband/marijuana found in the penitentiary.  In O’Hara, KRS 520.010(3) was the focus of the requirement of possession of a specific quantity of marijuana to sustain a conviction under the statute. The Court of Appeals therein held that the legislature could easily have required a "usable amount" test had it so desired and declined to substitute its judgment for that of the legislature.     We have considered the rationale of the majority of courts that have followed the "any amount" approach. Hare v. State, 53 Ala.App. 596, 302 So.2d 569 (1974), held that the quantity of the drug possessed is immaterial. It is the possession that is denounced. Moreau v. State, 588 P.2d 275 (Alaska 1978), held that possession of even a trace of a prohibited drug may be sufficient to sustain a conviction where other evidence supports the inference of knowledge. Mickens v. People, 148 Colo. 237, 365 P.2d 679 (1961), states that the possession of a modicum of marijuana brought one within the inhibitions of the statute. Peachie v. State, 203 Md. 239, 100 A.2d 1 (1953), held the quantity of the drug possessed is not material. People v. Norman, 24 Ill.2d 403, 182 N.E.2d 188 (1962); State v. Young, 427 S.W.2d 510 (Mo.1968).

 

Com. v. Grubb, 862 S.W.2d 883 (Ky., 1993)   

 KRS 218A.060 and 218A.070 places the substances Percodan and Dilaudid in Schedule II as being of high potential for abuse. KRS 218A.140 (prior to the amendments to KRS 218A) prohibits acts relating to controlled substances and specifically states, "No person shall traffic in any controlled substance except as authorized in this chapter."  KRS 218A.990 establishes the penalties for trafficking in "a controlled substance classified in schedules I or II…." The language of the statutes reflects that the legislature did not create a separate crime with respect to each forbidden substance contained in the same schedule. Certainly a punishment must be fixed clearly and without ambiguity and any doubt will be resolved against turning a single transaction into multiple offenses. Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955).   KRS Chapter 218A is titled "Controlled Substances" and proscribes the dealing and administration of drugs. The criteria for imposition of penalties does not specifically state that the penalties are intended to be additive when different substances are classified in the same controlled schedule and are involved in a single transaction.    A single sales transaction between the same principals at the same time and place which violates a single statutory provision does not justify conviction or a sentence for separate crimes, even though more than one item of a controlled substance (of the same schedule) is involved.

Kotila v. Commonwealth of Kentucky (Ky., 2003) 

 See KRS 218A.140(1)(a) ("No person shall obtain or attempt to obtain a prescription for a controlled substance by knowingly misrepresenting to, or knowingly withholding information from, a practitioner."  KRS 218A.140(1)(b) ("No person shall procure or attempt to procure the administration of a controlled substance by knowingly misrepresenting to, or withholding information from, a practitioner." (emphasis added)); KRS 218A.140(1)(c) ("No person shall obtain or attempt to obtain a controlled substance or procure or attempt to procure the administration of a controlled substance by the use of a false name or the giving of a false address."  

Hayes v. Com., 625 S.W.2d 575 (Ky., 1981) 

 The appellant brings four assignments of error. He questions the conviction for possession of the narcotics that had been taken from the pharmacy during the course of the robbery, citing Sherley v. Commonwealth, Ky., 558 S.W.2d 615 (1977), in support of his theory that his possession of the stolen substances merged with or was included in the robbery offense. We cannot accede to this proposition. With exceptions not here pertinent, KRS 218A.140 (2) makes the possession of a controlled substance illegal regardless of the manner in which the culprit came into that possession. It cannot sensibly be regarded as a legal possession because the possessor accomplished it through theft.  It is an entirely separate crime from theft.  See the similar result reached with respect to the possession of stolen property Sutton v. Commonwealth, Ky., 623 S.W.2d 879 (1981), and Sebastian v. Commonwealth, Ky., 623 S.W.2d 880 (1981).

Riley v. Commonwealth of Kentucky (Ky., 2003)   

 Appellant next argues that his sentence must be set aside because the 1994 McCracken Circuit Court conviction that was used for PFO first-degree enhancement was invalid. Specifically, while the 1994 judgment recites that Appellant’s conviction was of "trafficking in a controlled substance in the first degree," a Class C felony, KRS 218A.1412(2), the 1993 indictment on which that judgment was premised, did not charge him with that offense but with "trafficking in a schedule II non-narcotic," a Class D felony. KRS 218A.140(1) (amended, 1992 Ky. Acts, ch. 441, §5); KRS 218A.990(2)(a) (repealed, 1992 Ky. Acts, ch. 441, §30). The error probably relates to the facts that the Controlled Substances Act was substantially amended by the 1992 General Assembly, 1992 Ky. Acts, ch. 441, effective July 14, 1992, and that some of the offenses charged in the 1993 indictment were committed before July 14, 1992, and others were committed after that date. The trafficking offense was committed on July 7, 1992, which explains why the indictment was under the subsequently repealed statutes.     Appellant is obviously correct in his assertion that the 1994 judgment recites a conviction for an offense for which he was not indicted. Nevertheless, (1) the sentence imposed for that conviction was five years imprisonment, which falls within the penalty range for either a Class D or Class C felony, KRS 532.060(2)(c) and (d); (2) the same judgment also contains two additional felony convictions for trafficking in marijuana (more than eight ounces, less than five pounds), Class D felonies, KRS 218A.1421(3)(a) (offenses committed after July 14, 1992), the validity of which Appellant does not contest; and (3) a prior judgment of conviction is valid until set aside by the court that entered it and cannot be collaterally attacked in a PFO proceeding. Webb v. Commonwealth, Ky., 904 S.W.2d 226, 229. Thus, even if Appellant’s 1994 conviction of trafficking in a controlled substance in the first degree were invalid (an issue we do not reach), such does not affect the validity of the PFO first-degree enhancement of his present conviction. In fact, the trial judge did not instruct the jury at the penalty phase of the trial sub judice that it could find Appellant to be a PFO first-degree on the basis of his 1994 conviction of trafficking in a controlled substance in the first degree but only on the basis of his conviction in the same judgment of trafficking in marijuana (more than eight ounces, less than five pounds).

 

Morrison v. Com., 607 S.W.2d 114 (Ky., 1980)

 The movant, Vikki Y. Morrison, was convicted in Boyd Circuit Court pursuant to KRS 218A.140(4)(a) for attempting to obtain a Schedule II narcotic by use of a forged prescription, and fined $3000.00. The Court of Appeals affirmed, — S.W.2d —-. We granted discretionary review, and reverse.     Morrison questions the instructions under which she was convicted which allowed the jury to convict her if she "knew or could have known" that the prescription was forged. While KRS 218A.140(4)(a) does not include a mental state as an element of the offense, a reading of the statute obviously indicated that knowledge is necessary to sustain a conviction under this section. However, when the trial court included the phrase "could have known" in the instructions to the jury, the instructions became fatally defective. The phrase "could have known" is too nebulous and all-inclusive and there is no conceivable way that its inclusion could be justified under the statute.    Morrison also contends that the trial court erred in permitting the prosecution to elicit testimony regarding her silence at the time of her arrest. This causes us some concern and we trust that it will not be repeated upon the retrial of this case.    Morrison further submits that she should have been granted a directed verdict of acquittal because of insufficiency of the evidence. We have reviewed the entire record and the appropriate law and conclude that the evidence was sufficient to submit the case to the jury.    For the foregoing reasons, the decision of the Court of Appeals and the judgment of conviction of the Boyd Circuit Court are reversed with directions to grant Morrison a new trial.

 

Wonn v. Com., 606 S.W.2d 169 (Ky. App., 1980)

Appellant assigns as error the fact that he was precluded from testifying in his own behalf based upon the trial court’s Cotton ruling that impeachment upon his earlier conviction under KRS 218A.140 would be proper. Counsel acknowledges that such a felony does fall within the aegis of Cotton; however, he argues that as the prior conviction embodied the same elements as that which currently was tried, the jury would be unduly swayed, thus creating an element of unfair prejudice.    The common law permitted impeachment based upon any felony or "infamous crime." This policy was tempered Cowan v. Commonwealth, Ky., 407 S.W.2d 695 (1966), only to the extent of restricting inquiry to a single instance of prior conviction.     However, recognition of the deterrent effect on a defendant’s election to testify, of a defendant’s foregoing taking the stand in anticipation of indiscriminate impeachment, spawned Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970). That holding limited impeachment on previous convictions to that relating to credibility, i. e. crimes involving dishonesty, stealing, and false swearing. Although the fact of such prior convictions is irrelevant and immaterial to establishing the elements of the current proceeding, it is relevant and material to credibility.    Acknowledging that the probability of prejudice is greater when the immediate case also turns on issues of dishonesty or false statement, and especially so when the charges are the same, Cotton further vested the trial court with discretion in determining the presence of undue prejudice. Through an in-chambers hearing the court is to weigh admissibility against the danger of improperly influencing the outcome through the tendency to persuade to convict based on the prior conviction rather than upon the present substantive evidence.    Credibility of a witness is always relevant; however, it becomes an issue only after one takes the stand. The Cotton rule incorporates certain safeguards for the accused who elects to serve as his own witness; nevertheless, it cannot extend its protection to one not yet before the court in that role.    Accordingly, we are unable to accept as error appellant’s suggestion of prejudice when presented merely on a speculative basis. The Commonwealth gratuitously provided Mr. Wonn with prior notice of its intention to impeach based upon the prior prescription fraud conviction should he testify. He, thereby, chose not to be confronted with such but rather exercised his established and clearly defined constitutional right to remain silent. Had he taken the stand, and subsequently been presented with the previous charge, the issues of unfair prejudice and error could properly be raised before us. As presented, however, the question of prejudice is too ill-defined and abstract as to permit review.

Grenke v. Com., 796 S.W.2d 858 (Ky., 1990)    

On July 15, 1988, at a prearranged meeting, appellant Grenke sold a quantity of cocaine to an undercover officer for $1100. About fifteen minutes later, during the same meeting, and evidently following some discussion of how the buyer might "cook" cocaine to produce a solid form known as "crack," and after a walk to a hardware store in a fruitless search for cooking implements, Grenke gave the officer a sample of crack. Grenke was subsequently indicted, on separate counts, for trafficking in cocaine (for the sale) and for transferring cocaine/crack (for the gift), both in violation of KRS 218A.140 and 218A.990. Upon trial by jury, he was convicted on both counts, and was sentenced to ten years imprisonment on each, to run consecutively. He appeals as a matter of right.    The principal issue presented is whether, in the context of double jeopardy, the sale of the cocaine and the subsequent transfer of the crack amounted to a single offense, as opposed to two offenses. Appellant maintains that the described events of his meeting with the officer constituted a single transaction, and that the charge of transferring cocaine merges into the charge of trafficking in cocaine. He asserts that he has been tried twice for the same crime, in violation of constitutional protections against double jeopardy, but offers no elaboration, and cites no authority in support of this contention. We are not generally disposed to develop an appellant’s sketch of argument; in any event, the record provides no basis for this argument, and the Commonwealth’s position–that the sale of the cocaine and the gift of  the crack were distinct offenses, punishable separately–is sound.    That the events occurred within fifteen minutes of each other and during a continuous meeting between the appellant and the officer does not negate the fact that two separate offenses, their elements established by separate facts, were committed.  It was not the meeting that was criminal, but rather certain transactions which occurred in the course of the meeting. Constitutional prohibitions against multiple jeopardy do not extend to prosecution and punishment of independent crimes committed during a single course of conduct. Van Dyke v. Commonwealth, Ky., 581 S.W.2d 563 (1979); Linder v. Commonwealth, Ky., 714 S.W.2d 154 (1986). Given the facts of this case, we can only conclude that the appellant committed two distinct criminal acts, and was for each legitimately subject to prosecution, conviction, and punishment.

Powell v. Com., 843 S.W.2d 908 (Ky. App., 1992)

 While conceding that he was tried for violations of KRS 218A.140(2) and that the statutory definition quoted above is strictly applicable only to Penal Code offenses, the Appellant cites Shepherd v. Suburban Motor Freight, Ky.App., 780 S.W.2d 633 (1989), in support of his argument that the statutory definition should be persuasive authority in defining constructive possession for drug offenses outside of the Penal Code.    While the point of law set forth in Rupard and Hargrave is sound, we note that neither case dealt with a challenge to the trial court’s definition of constructive possession. Moreover, the instruction actually given by the trial court appears to authorize conviction because the items in question were possibly within the Appellant’s constructive possession, rather than actually being within his dominion and control. The definition of constructive possession given under KRS 500.080(14) clearly sets forth the actual dominion and control requirement.    Since KRS Chapter 218A does not contain a definition of "possession" and offenses committed under that chapter are subject to criminal prosecution, albeit not under the Penal Code, we find that the definition of possession set forth in KRS 500.080(14) is the proper definition to be contained in the jury instructions for cases arising under KRS Chapter 218A. Accordingly, we find that the Appellant’s conviction for possession of cocaine must be reversed.

Jackson v. Com., 806 S.W.2d 643 (Ky., 1991)

 On September 5, 1989, two separate indictments were returned against Hurst by the Mercer County Grand Jury. The first indictment, 89-CR-035(1), charged him with possession of cocaine, a felony, in violation of KRS 218A.140(2). The second indictment, numbered 89-CR-035(2), charged him with DUI, a misdemeanor in violation of KRS 189A.010.     No order of consolidation was ever entered, as authorized by RCr 9.12. This rule permits the trial judge to consolidate the misdemeanor with the felony case. Nor was there an order of remand to the district court of the misdemeanor charge.    The next event was an order dismissing the felony count, leaving only the misdemeanor. Plea negotiations commenced between the prosecutor and defense counsel. Several days in advance of trial the parties advised the court that it would not be necessary to impanel a jury to dispose of the misdemeanor charge. The Commonwealth recommended as punishment for the misdemeanor a fine of $500 with probation, which appellant agreed to accept. On the day assigned for the hearing, November 17, 1989, the trial judge, ignoring the agreement of the Commonwealth, imposed a $500 fine and thirty days in jail. He also refused to probate any portion of this sentence. No order to this effect was entered at the time. On this same day, and before the court adjourned, appellant filed three motions. By these motions he sought a reconsideration of the denial of probation; a setting aside of the judgment and sentence and the grant of a new trial; and a suspension of sentence and bail pending a determination of the first two motions. The regular trial judge never ruled upon any of these motions. On November 22nd appellant filed a motion and affidavit seeking to recuse the regular circuit judge, and also a remand of the misdemeanor case to the district court for final disposition. On this same day, the regular circuit judge entered an order noting appellant’s motion for disqualification and remand. The order provided that:   The court has reviewed the affidavit of the defendant. As the felony charge against the defendant was dismissed, the only charge now against defendant is a misdemeanor which is normally in the jurisdiction of District Court.   WHEREFORE IT IS HEREBY ORDERED that this case is remanded to the Mercer District Court for any further proceedings.

 

Penn v. Com., 687 S.W.2d 135 (Ky., 1985)   

As authority for this position, movant cites the case of, Commonwealth v. Bailey, Ky., 82 S.W. 299 (1904). Bailey is no longer controlling since it was based on a statute which is no longer in existence.    The language of the current statute requires a contrary result to that of Bailey. KRS 524.020 says that: "A person is guilty of bribing a witness when he offers, confers or agrees to confer any pecuniary benefit upon a witness or a person he believes may be called as a witness …"  The inclusion in this statute of the above underlined language broadens the scope of the statute to include the bribe offered under the facts of this case. KRS 524.020 was enacted to prevent this kind of corrupt interference with the judicial process and the proper administration of justice. The question is not whether the person offered the bribe has technically been classified as a "witness" in a pending proceeding so much as it is whether the person offered THE BRIBE, "… MAY BE CALLED AS A WITNESS IN ANY OFFICIAL PROCEEDING …" the current statute’s specific use of the word "may" in and of itself removes the absolute requirement previously imposed by Bailey, that the accused should know that the person to whom the bribe was offered was in fact a witness. The jury must only be convinced that the accused had an intent to influence the testimony of a potential witness.    Under this interpretation of KRS 524.020 it is clear that Singleton’s testimony at trial provides sufficient evidence to support the conviction. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977).

 

Thacker v. Commonwealth, 2002 KY 70 (KYCA, 2002)

 On May 4, 2001, Leo Thacker pled guilty in Fayette Circuit Court to several counts of obtaining, and several counts of attempting to obtain a controlled substance by means of fraud, in violation of KRS 218A.140. By judgment entered May 29, 2001, Thacker was sentenced to five years’ probation in lieu of a five-year prison sentence as a second-degree persistent felony offender. Pursuant to RCr 8.09, he reserved his right to appeal from that judgment and now contends that the trial court erred when it denied his motion to suppress evidence. Thacker claims that the evidence was tainted by an enforcement officer’s misuse of an electronic prescription-monitoring system. The system is maintained by the Cabinet for Health Services and the so-called KASPER or Kentucky All Schedules Prescription Electronic Reporting System. Convinced that the officer’s use of the KASPER system violated neither KRS 218A.202, the defining statute, nor constitutional provisions against unreasonable searches and seizures, we affirm.

 
 

KRS 218A.1401 Selling controlled substances other than synthetic drugs or salvia to minor — Penalties.

(1) A person is guilty of selling controlled substances to a minor when he or she, being eighteen (18) years of age or older, knowingly and unlawfully sells or transfers any quantity of a controlled substance other than synthetic drugs or salvia to any person under eighteen (18) years of age.

(2) Selling controlled substances to a minor is a Class C felony for a first offense, and a Class B felony for each subsequent offense, unless a more severe penalty for trafficking in controlled substances is applicable, in which case the higher penalty shall apply.

Effective: April 11, 2012   History: Amended 2012 Ky. Acts ch. 108, sec. 6, effective April 11, 2012. — Amended 2011 Ky. Acts ch. 45, sec. 6, effective March 16, 2011. — Amended 2010 Ky. Acts ch. 149, sec. 7, effective April 13, 2010; and ch. 160, sec. 7, effective April 26, 2010. — Created 1992 Ky. Acts ch. 441, sec. 21, effective July 14, 1992. 

NO ANNOTATION FOR THIS STATUTE:  

 

KRS 218A.1402 Criminal conspiracy to commit offense in KRS Chapter 218A — Penalties.

Any person who commits a criminal conspiracy as defined in KRS 506.040 to commit any offense in this chapter shall be subject to the same penalties as provided for the underlying offense as specified in this chapter.

Effective: June 26, 2007  History: Amended 2007 Ky. Acts ch. 124, sec. 3, effective June 26, 2007. — Created 1992 Ky. Acts ch. 441, sec. 22, effective July 14, 1992.  

ANNOTATION FOR THIS STATUTE:

 
Dishman v. Com., 906 S.W.2d 335 (Ky., 1995) 

 Dishman argues that KRS 506.120 is unconstitutionally vague because it contains the language "continuing basis." Dishman contends that one cannot understand the difference between the criminal syndicate statute and KRS 218A.1402 which prohibits criminal conspiracy to traffic in a controlled substance. Initially, we must conclude that this issue was not properly preserved for appellate review as required by RCr 9.22 and Turpin, supra.    Clearly any difference between the two statutes does not make either unconstitutionally vague. KRS 218A.1402 prohibits a conspiracy as defined in KRS 506.040. KRS 506.040 is distinguishable from KRS 506.120, the criminal syndicate offense, because the former does not require the involvement of five or more persons as does the latter. A conspiracy can result from an agreement between one or more persons, KRS 506.040, or otherwise. Commonwealth v. Sego, Ky., 872 S.W.2d 441 (1994).    The "continuing basis" language in the criminal syndicate statute has been held to be proper because the standard of proof on this element of the crime is by its very nature indefinite. Commonwealth v. Phillips, Ky., 655 S.W.2d 6 (1983). The prosecution is not held to proving a specific number of incidents or any element of time, but must show by the proof, what the jury could infer from the evidence as intent to collaborate on a continuing basis. This intent to collaborate on a continuing basis was demonstrated with regard to Dishman and the "First Family." The criminal syndicate statute is not unconstitutionally vague and there was no error in this regard.

 
 

KRS 218A.1403 Advertising controlled substance — Penalties.

(1) No person shall advertise through any media other than a professional or trade publication any controlled substance by either its "trade name" or by its generic or formulary name.

(2) Any person who violates subsection (1) of this section shall be guilty of a Class B misdemeanor for the first offense and a Class A misdemeanor for each subsequent offense.

Effective: July 14, 1992 History: Created 1992 Ky. Acts ch. 441, sec. 26, effective July 14, 1992.

NO ANNOTATION FOR THIS STATUTE: 

 

KRS 218A.1404 Prohibited activities relating to controlled substances — Penalties.

(1) No person shall traffic in any controlled substance except as authorized by law.

(2) No person shall possess any controlled substance except as authorized by law.

(3) No person shall dispense, prescribe, distribute, or administer any controlled substance except as authorized by law.

(4) Unless another specific penalty is provided in this chapter, any person who violates the provisions of subsection (1) or (3) of this section shall be guilty of a Class D felony for the first offense and a Class C felony for subsequent offenses and any person who violates the provisions of subsection (2) of this section shall be guilty of a Class A misdemeanor.

Effective: June 8, 2011   History: Amended 2011 Ky. Acts ch. 2, sec. 7, effective June 8, 2011. — Created 1992 Ky. Acts ch. 441, sec. 27, effective July 14, 1992. 

NO ANNOTATION FOR THIS STATUTE: 

 

KRS 218A.1405 Use and investment of drug-related income — Penalties.

(1) It shall be unlawful for any person who has knowingly received any income derived directly or indirectly from trafficking in a controlled substance to use or invest any part of that income, or any proceeds thereof, to acquire any property, or to establish or operate any commercial enterprise.

(a) As used in this section, "property" includes real and personal property, whether tangible or intangible.

(b) As used in this section, "commercial enterprise" means any proprietorship, partnership, corporation, association or other legal entity, including any individual or group not a legal entity, which is engaged in any business or commercial activity or whose activities affect business or commerce.

(2) Any person who violates this section shall be guilty of a Class D felony and, in addition to other penalties prescribed by law, shall forfeit any property constituting or derived from any income received directly or indirectly from trafficking in a controlled substance.

Effective: July 14, 1992  History: Created 1992 Ky. Acts ch. 441, sec. 29, effective July 14, 1992.

NO ANNOTATION FOR THIS STATUTE: 

 

KRS 218A.141 Additional penalties for trafficking in controlled substance other than salvia or marijuana.

Any person convicted of, pleading guilty to, or entering an Alford plea to any offense involving trafficking in a controlled substance, other than trafficking in salvia or marijuana, shall, in addition to any other penalty authorized by law, be sentenced to:

(1) Pay the costs of disposal of the controlled substances;

(2) Pay the costs of disposal of all equipment, chemicals, materials, or other items used in or in furtherance of the trafficking offense;

(3) Pay the costs involved with environmental clean-up and remediation required for the real property and personal property used for or in furtherance of the trafficking offenses; and

(4) Pay the costs of protecting the public from dangers from chemicals, materials, and other items used for or in furtherance of the trafficking offense from the time of the arrest until the time that the clean-up or remediation of the real and personal property is concluded. The Commonwealth shall have a lien on all of the assets of the defendant until the amount specified by the court under this subsection is paid in full. The Commonwealth’s attorney shall file the lien.

Effective: April 11, 2012   History: Amended 2012 Ky. Acts ch. 108, sec. 7, effective April 11, 2012. — Amended 2011 Ky. Acts ch. 45, sec. 7, effective March 16, 2011. — Amended 2010 Ky. Acts ch. 149, sec. 8, effective April 13, 2010; and ch. 160, sec. 8, effective April 26, 2010. — Created 1998 Ky. Acts ch. 606, sec. 61, effective July 15, 1998. 

NO ANNOTATION FOR THIS STATUTE: 

 
 

KRS 218A.1411 Trafficking in controlled substance in or near school — Exception for misdemeanor salvia offenses — Penalty.

(1) Any person who unlawfully traffics in a controlled substance classified in Schedules I, II, III, IV or V, or a controlled substance analogue in any building used primarily for classroom instruction in a school or on any premises located within one thousand (1,000) feet of any school building used primarily for classroom instruction shall be guilty of a Class D felony, unless a more severe penalty is set forth in this chapter, in which case the higher penalty shall apply. The measurement shall be taken in a straight line from the nearest wall of the school to the place of violation.

(2) The provisions of subsection (1) of this section shall not apply to any misdemeanor offense relating to salvia.

Effective: April 11, 2012   History: Amended 2012 Ky. Acts ch. 108, sec. 8, effective April 11, 2012. — Amended 2011 Ky. Acts ch. 2, sec. 8, effective June 8, 2011; and ch. 45, sec. 8, effective March 16, 2011.– Amended 2010 Ky. Acts ch. 149, sec. 9, effective April 13, 2010; and ch. 160, sec. 9, effective April 26, 2010. — Created 1992 Ky. Acts ch. 441, sec. 11, effective July 14, 1992. 

ANNOTATION FOR THIS STATUTE: 

SAXTON v. Commonwealth of Ky. (Ky., 2010)

  Pursuant to Kentucky Revised Statute (KRS) 218A.1411, any one who unlawfully traffics in a controlled substance within one thousand (1, 000) yards of a school is guilty of a Class D felony unless the provisions of KRS Chapter 218A otherwise provide a more severe penalty for the offense. Following his conviction for selling marijuana within 1, 000 yards of Graves County High School, Appellant Orlando Saxton challenges that conviction on the ground that the Commonwealth was required to prove that he knew he was trafficking within the prohibited proximity to a school. He also alleges that his conviction was tainted by palpable error because police entrapped him by arranging for the drug transaction to occur at a specific location near the school. Finding no error on either ground, we affirm his conviction.

     I. KRS 218A.1411 Does Not Require Proof That a Defendant Knew He Was Trafficking Illegal Drugs Within 1, 000 Yards of a School.

        Kentucky has codified criminal offenses involving trafficking and possession of controlled substances in KRS Chapter 218A entitled simply "Controlled Substances." Trafficking in the first-degree, second-degree and third-degree all require that a person "knowingly and unlawfully" traffic in the particular controlled substances covered by that specific offense. See KRS 218A.1412,.1413, and.1414. Similarly, KRS 218A.1421 prohibits "knowingly and unlawfully" trafficking in marijuana and provides penalties ranging from a Class A misdemeanor to a Class B felony contingent upon the quantity of marijuana and whether it is a first or subsequent offense. But for KRS 218A. 1411 regarding trafficking in proximity to a school, Saxton would have been charged with a Class A misdemeanor due to the fact he sold less than 8 ounces of marijuana and it was his first offense. He challenges his Class D felony conviction pursuant to KRS 218A.1411, maintaining that various provisions in KRS Chapter 501 of the Kentucky Penal Code and, by analogy, United States Supreme Court case law, require the Commonwealth to prove he knew he was conducting the drug transaction within 1, 000 yards of a school. We begin not with Saxton’s extra-statutory language arguments but with the plain language of the statute. 

 

Kirk v. Commonwealth, No. 2008-CA-000575-MR (Ky. App. 2/20/2009) (Ky. App., 2009)

   Specifically, the Commonwealth concedes that KRS 501.050 does in fact require all felonies under the Kentucky Penal Code to have proof of one of the mental states set forth in KRS 501.030(2). However, the Commonwealth further correctly notes that the felony offense at issue here, namely, KRS 218A.1411, falls outside of the penal code. Thus, the Commonwealth asserts that KRS 501.050 does not require a mens rea for KRS 218A.1411. Further, the Commonwealth asserts that as every other offense in KRS Chapter 218A contains the mens rea of knowingly, the omission with respect to KRS 218A.1411 was deliberate on the part of the legislature.

        Finally, in response to Kirk’s arguments concerning federal law, the Commonwealth asserts that the Kentucky statute does not mirror the federal statute, and that in fact, the Kentucky statute indicates a legislative desire to be harsher than its federal counterpart. Specifically, the Commonwealth notes that the 21 U.S.C. §860 enhances trafficking penalties for individuals trafficking within 1000 feet of a school, while KRS 218A.1411 increases the applicable range to one thousand yards. Further, the Commonwealth asserts that federal caselaw simply does not add any culpable mental state to the federal statute.5 Accordingly, the Commonwealth reasons that as the federal court did not add a culpable mental state to the federal statute, this Court should not add a capable mental state to KRS 218A.1411. 

Miller v. Commonwealth, No. 2007-CA-000900-MR (Ky. App. 3/21/2008) (Ky. App., 2008)

      On December 7, 2000, Miller was arrested by Louisville police officers, who found him asleep behind the wheel of a parked automobile with its engine running. Miller told the officers that he had a quantity of marijuana in his possession, which the officers recovered. The officers also seized a loaded .22 caliber handgun from Miller’s coat pocket, as well as $154 in cash, rolling papers, and a cell phone. Finally, the officers discovered that Miller was a convicted felon with nineteen months left on his parole.

        As a result of the above, the Jefferson County grand jury indicted Miller on February 15, 2001, on charges of Possession of a Firearm by a Convicted Felon, pursuant to KRS 527.040; Trafficking in a Controlled Substance within 1000 Yards of a School, Marijuana, While in Possession of a Firearm, pursuant to KRS 218A.1411; and for Illegal Use or Possession of Drug Paraphernalia While in Possession of a Firearm, pursuant to KRS 218A.500. Miller opted to accept the Commonwealth’s offer on a plea of guilty. In exchange for the guilty plea, the Commonwealth offered to amend the trafficking charge to Possession of Marijuana While in Possession of a Firearm, and recommended a five-year sentence for each of the three charges, to run concurrently for a total of five years. Pursuant to the agreement, Miller had to forfeit all items seized at the time of his arrest, but his automobile would be released to either him or his representative. The circuit court accepted Miller’s plea on June 19, 2001, entered a judgment on the guilty plea, and sentenced him in accordance with the Commonwealth’s recommendation on August 7, 2001. The final judgment specifically stated, "[a]ll items seized at the time of Defendant’s arrest are to be forfeited with the exception of an automobile which shall be released to Defendant or his representative." The same day, the circuit court entered an Order of Forfeiture, listing the firearm and cash as the forfeited property.

    Turning to the present appeal, we first hold that Miller did not bring his motion for relief within a reasonable time, as required by CR 60.02. He specifically brought his motion under subsections (e) and (f), which "motion shall be made within a reasonable time[.]" CR 60.02. Assuming that Miller’s automobile was indeed sold at auction by the Commonwealth prior to his final sentencing, which was held on August 6, 2001, Miller should have raised the issue at the sentencing hearing. Instead, he waited more than five years to raise the issue in his motion for post-conviction relief. We hold that Miller’s delay in bringing the motion for relief was unreasonable, therefore justifying the circuit court’s denial of relief.

Saxton v. Commonwealth, No. 2007-CA-002335-MR (Ky. App. 11/7/2008) (Ky. App., 2008)

 Contrary to Saxton’s claim, KRS 218A.1411 does not require the actor to "knowingly" traffic in a controlled substance within 1,000 yards of a school in order to be convicted of the offense. That is to say, there is no requirement that a conviction for violation of KRS 218A.1411 arises from proof that the actor knew the sale was conducted in proximity to a school. Rather, KRS 218A.1411 is silent as to mens rea. It merely requires proof of the unlawful transaction of a controlled substance or controlled substance analogue (i.e., fake drugs) within 1,000 yards of a school.

        We are further persuaded that a requirement of mens rea is not imparted to KRS 218A.1411 by the application of any provisions of the Kentucky Penal Code. As the Commonwealth properly notes, KRS 501.050(1) requires proof of a mental state (intentionally, knowingly, wantonly or recklessly) for felonies set out in the Kentucky Penal Code, KRS Chapter 500, et seq. The offense of trafficking within 1,000 yards of a school is not a provision of the Kentucky Penal Code, and KRS 501.050(1) is not applicable. Since the clear language of KRS 218A.1411 does not set out the mental state of "knowingly" as an element of the offense, and because we find that no other statutory provision imparts to KRS 218A.1411 the requirement of proof of a mental state, we find no error on this issue. 

Brimmer v. Commomwealth, 1999 KY 42162 (KYCA, 1999)

 Jason Brimmer (Brimmer) appeals from his conviction for trafficking in a controlled substance within 1,000 yards of a school in violation of KRS 218A.1411. Brimmer maintains that a Montessori school is not a "school" for purposes of KRS 218A.1411 and therefore, this Court must reverse his conviction. After carefully reviewing the facts of this case and the applicable law, this Court affirms the Jessamine Circuit Court’s judgment.     On appeal, Brimmer argues that the circuit court erred by ruling that ABC is a "school" for purposes of KRS 218A.1411. He maintains that ABC is a daycare business that markets itself as a Montessori school and that the ABC building is not used primarily for classroom instruction. After reviewing the record below including the testimony at the hearing, this Court has concluded that the circuit court correctly ruled that ABC constituted a "school" for purposes of KRS 218A.1411.    Under KRS 218A.1411, Any person who unlawfully traffics in a controlled substance classified in Schedules I, II, III, IV, or V, or a controlled substance analogue in any building used primarily for classroom instruction in a school or any premises located within one thousand (1,000) yards of any school building used primarily for classroom instruction shall be guilty of a Class D felony, unless a more severe penalty is set forth in this chapter, in which case the higher penalty shall apply.    Kentucky courts have not addressed the issue of whether a building used for a Montessori school constitutes a "school" or building used primarily for classroom instruction pursuant to KRS 218A.1411.  Sanders v. Commonwealth, Ky. App., 901 S.W.2d 51 (1995), this Court considered whether a defendant could be convicted under KRS 218A.1411 for trafficking within 1,000 yards of a college or university.  This Court rejected the appellant’s argument that the statute applied only to elementary and secondary schools. The court noted, "[i]f the General Assembly had intended to limit the application of the statute to transactions within 1,000 yards of a primary or secondary school, it surely would have employed those specific terms in the statute rather than the generic term `school.’" Id. at 52.     Courts from other jurisdictions have addressed issues similar to the question facing this Court in the instant case. Cole v. City of Ruston, 573 So.2d 641 (La. Ct. App. 1991), a merchant sought a permit to sell beer in a convenience store. The applicable city ordinance prohibited granting a beer permit for any premises situated within 300 feet or less of a public playground or of a building used as a school. A Montessori school was located within 300 feet of the merchant’s business. The applicant argued that the Montessori school was really a kindergarten, not a school within the meaning of the ordinance. The court rejected the applicant’s argument, finding that the Montessori school operated as a school-not solely as a nursery. The court considered evidence that four-to seven-year-old students were taught by a state-certified Montessori teacher according to a detailed, state-certified plan of instruction drawn in accordance with the Montessori method. The court concluded that the Montessori school was a school within the meaning of the ordinance. Id. at 643.

Sanders v. Com., 901 S.W.2d 51 (Ky. App., 1995) 

The appellant simply maintains that the school building that served as the basis for the enhanced charge under KRS 218A.1411, i.e., Draughon’s Junior College, is not a "school" within the meaning of the statute.    He contends that the statute should be read to apply only to elementary and secondary schools.   KRS 218A.1411 provides as follows:   Any person who unlawfully traffics in a controlled substance classified in Schedules I, II, III, IV or V, or a controlled substance analogue in any building used primarily for classroom instruction in a school or on any premises located within one thousand (1,000) yards of any school building used primarily for classroom instruction shall be guilty of a Class D felony, unless a more severe penalty is set forth in this chapter, in which case the higher penalty shall apply. The measurement shall be taken in a straight line from the nearest wall of the school to the place of violation.    Statutory language should be given its ordinary meaning unless such language has a peculiar meaning in the law. See KRS 446.080; Inter-County Rural Electric Coop. Corp. v. Reeves, 294 Ky. 458, 171 S.W.2d 978 (1943). The ordinary meaning of the word "school" includes colleges and universities. Webster’s Ninth New Collegiate Dictionary 1051 (1985). State Board of Pharmacy v. White, 84 Ky. 626, 2 S.W. 225 (1886); KRS 164.120.    If the General Assembly had intended to limit the application of the statute to transactions within 1,000 yards of a primary or secondary school, it surely would have employed those specific terms in the statute rather than the generic term "school." 

Cochran v. Commonwealth (Ky. App., 2003)   

 The trial court rejected Cochran’s contention that the building was not used primarily for classroom instruction. In Brimmer v. Commonwealth,5 this court recognized that a Montessori school was a building encompassed within the meaning of KRS 218A.1411. Although in this case the church that housed a part of the school was used for worship services, the parsonage building itself was used for the purpose of housing the school. Children in kindergarten through grade seven attended the school, the protection of which the statute seeks to safeguard.  Cochran’s contention that he was unaware that the church and adjoining building were used as a school, and therefore, he should escape the enhanced penalty provisions of the statute is meritless. Neither the statute nor due process require that a drug dealer know that he is dealing within one thousand yards of a school.  Additionally, in this case, a visible sign plainly designated the building as a school   

Martin v. Commonwealth, 2003 KY 241 (KYCA, 2003)

 Odell Kinte Martin appeals a judgment of August 23, 2001, of the Hopkins Circuit Court sentencing him to serve ten years in prison. A jury found him guilty of the following crimes: trafficking in a controlled substance (cocaine), KRS 218A.1412; trafficking in marijuana within 1,000 yards of a school, KRS 218A.1411; second-degree unlawful imprisonment, KRS 509.030; unlawful transaction with a minor (causing a minor to engage in drug trafficking), KRS 530.065; and first-degree persistent felony offender, KRS 532.080. Finding no error, we affirm.

 

Wilson v. Commonwealth, 1998 KY 15002 (KYCA, 1998)

 Israel Wilson entered a conditional plea of guilty, pursuant to Ky. R. Crim. Proc. (RCr) 8.09, to trafficking in marijuana within one thousand yards of a school, Ky. Rev. Stat. (KRS) 218A.1411, and to the status offense of being a second-degree persistent felony offender, KRS 532.080(2). He appeals from the denial of his motion to suppress evidence seized pursuant to a warrantless search of his automobile by parole officers incident to his arrest for violations of the conditions of his parole.    Like the Supreme Court in Griffin, we believe that the operation of the parole system presents "special needs" beyond normal law enforcement. The parole system allows for the early release of convicted criminals from prison, but does not grant complete freedom. It is imperative that the Commonwealth impose conditions of release on parolees to ensure that parole is a period of genuine rehabilitation and that those released on parole do not become a threat to the community. Undoubtedly, the Commonwealth may remand parolees to the control of the Division of Probation and Parole and may subject them to certain conditions. KRS 439.470-480. One of the conditions to which Wilson agreed to be subject was the exposure to search and seizure based upon a parole officer’s reasonable belief that he had contraband on his person or property. At the suppression hearing, the trial court concluded that for the seized evidence to be admissible, the Commonwealth must demonstrate that the parole officers had a "reason to believe" Wilson had contraband in his car. This is a lesser standard than probable cause.                                                                               

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KRS 218A.1412 Trafficking in controlled substance in first degree — Penalties.

(1) A person is guilty of trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in:

(a) Four (4) grams or more of cocaine;

(b) Two (2) grams or more of heroin or methamphetamine;

(c) 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;

(d) Any quantity of lysergic acid diethylamide; phencyclidine; gamma hydroxybutyric acid (GHB), including its salts, isomers, salts of isomers, and analogues; or flunitrazepam, including its salts, isomers, and salts of isomers; or

(e) Any quantity of a controlled substance specified in paragraph (a), (b), or (c) of this subsection in an amount less than the amounts specified in those paragraphs.

(2) The amounts specified in subsection (1) of this section may occur in a single transaction or may occur in a series of transactions over a period of time not to exceed ninety (90) days that cumulatively result in the quantities specified in this section.

(3)

(a) Except as provided in paragraph (b) of this subsection, any person who violates the provisions of this section shall be guilty of a Class C felony for the first offense and a Class B felony for a second or subsequent offense.

(b) Any person who violates the provisions of subsection (1)(e) of this section shall be guilty of a Class D felony for the first offense and a Class C felony for a second offense or subsequent offense.

Effective : April 11, 2012   History: Amended 2011 Ky. Acts ch. 2, sec. 9, effective June 8, 2011. — Amended 2002 Ky. Acts ch. 259, sec. 1, effective July 15, 2002. — Amended 2000 Ky. Acts ch. 169, sec. 1, effective July 14, 2000. — Amended 1998 Ky. Acts ch. 606, sec. 63, effective July 15, 1998. — Created 1992 Ky. Acts ch. 441, sec. 12, effective July 14, 1992.

ANNOTATION FOR THIS STATUTE:

[U] Schell v. Commonwealth (Ky. App., 2013) 2012-CA-000158-MR  June 21, 2013

On November 23, 2011, Schell filed a CR 60.02 motion to modify his sentence arguing that the recent amendment of … (KRS) 218A.1412 should be retroactively applied to his 2006 sentence. He also requested an evidentiary hearing and appointment of counsel. Without conducting a hearing or appointing counsel, the trial court entered an order denying Schell’s motion. This appeal followed.

The Supreme Court concluded that:

Although Rogers is correct that [KRS 446.110] allows for the retroactive application of penalty-mitigating changes to the law, Commonwealth v. Phon, 17 S.W.3d 106 (Ky. 2000), by the statute’s plain terms the retroactivity is limited to changes that take effect prior to the "pronouncement" of judgment. Here, judgment was pronounced against Rogers no later than October 22, 2010, when the Nelson Circuit Court entered judgment against him. House Bill 463 did not go into effect until the following July [2011], some nine months later. Because House Bill 463 had not gone into effect at the time the judgment against Rogers was pronounced, Rogers may not now invoke the new law’s penalty provisions.  Rogers, 366 S.W.3d at 456.

        Because Schell was sentenced in August 2006, nearly five years prior to the effective date of the amendment to KRS 218A.1412, he "may not now invoke the new law’s penalty provisions." Id. Accordingly, we conclude that the trial court did not abuse its discretion in denying Schell’s CR 60.02 motion.

 Graves v. Commonwealth, 384 S.W.3d 144 (Ky., 2012)    October 25, 2012

  Appellant, Perry Graves, appeals as a matter of right from a judgment entered upon a jury verdict by the Monroe Circuit Court convicting him of first degree trafficking in a controlled substance, second or subsequent offense, and sentencing him to twenty years imprisonment. On appeal, he asserts the following arguments: 1) the trial court erred during the guilt phase of his trial, by admitting evidence of other acts of drug trafficking; 2) the trial court deprived him of his right to trial by jury by not requiring the jury to decide if he should be sentenced as a first offender, or as a second or subsequent offender; and 3) the trial court erred by not sentencing him in accordance with KRS 218A.1412(3)(b), as amended in 2011.

We reverse the judgment of the Monroe Circuit Court and remand for a new trial because evidence alleging Appellant had committed other acts of drug trafficking was admitted in violation of KRE 404(b) and we cannot determine with fair assurance that the error did not substantially sway the verdict. We also address other issues raised by Appellant insofar as they may recur upon retrial.

 
[U] Taylor v. Commonwealth (Ky. App., 2013) NO. 2012-CA-000067-MR    March 22, 2013

Taylor is incorrect in his assertion that KRS 446.110 can make KRS 218A.1412, KRS 218A.1415 and KRS 532.080 retroactively apply to his sentence. In Rogers, 366 S.W.3d at 455-456, in the direct appeal of his conviction and sentence, Rogers also sought to use KRS 446.110 to permit him to benefit from the reduced penalties in the amended KRS 218A.1412, KRS 218A.1415 and KRS 532.080. KRS 446.110 provides in relevant part that "if any penalty, forfeiture or punishment is mitigated by any provision of [a] new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect." Our Supreme Court determined that by its plain terms KRS 446.110 limits retroactivity to changes that take effect prior to the "pronouncement" of judgment. Rogers, 366 S.W.3d at 456. Therefore, because Rogers’s judgment was pronounced nine months before HB 463 went into effect (even though his judgment was not yet final), the penalty mitigating changes to the law could not be applied retroactively to him. Id.

 

[U] Greer v. Commonwealth (Ky. App., 2013)  2011-CA-001928-MR    May 17, 2013

The Commonwealth argues that said definition encompasses any attempt to traffic. Based on Slaughter v. Commonwealth, 45 S.W.3d 873 (Ky. App. 2000), we must disagree. In Slaughter, the defendant’s conviction and sentence for attempted trafficking in a controlled substance, second-offense (KRS 218A.1412), was upheld by this Court. Greer’s conviction for trafficking in the first degree stems from the same statute, KRS 218A.1412. However, Greer’s argument is unavailing. Greer had possession of an amount of cocaine that squarely brought him within the statute, more specifically he possessed an amount of cocaine from which the jury could infer that he intended to traffic; that is the crime. This is not a case where he was not found to possess cocaine but took substantially all those steps necessary to organize a drug transaction, thus, an attempt to commit a trafficking crime. Accordingly, we must conclude that Greer was not entitled to an attempt-to-traffic instruction; accordingly, we find no reversible error.

 

[U] Farris v. Commonwealth (Ky. App., 2012)   2011-CA-001700-MR  December 21, 2012

On appeal, Appellant argues that the trial court erred in (1) failing to instruct the jury on criminal facilitation of trafficking in cocaine, and (2) instructing the jury under the previous version of KRS 218A.1412, instead of under the mitigating provisions of the amended version of KRS 218A.1412. The Commonwealth concedes that the jury should have been instructed on criminal facilitation as set forth in KRS 506.080(1), because a reasonable jury could have believed that Appellant facilitated her co-defendant’s trafficking by allowing him to sell cocaine out of her home. As such, the Commonwealth acknowledges that this case should be remanded for a new trial. As such, we need not reach the statutory issue as such is rendered moot and unlikely to occur on remand.

 

Accordingly, the judgment and sentence of the Fayette Circuit Court is reversed and this matter is remanded for further proceedings in accordance with this opinion.

Jackson v. Commonwealth, 363 S.W.3d 11 (Ky., 2012)

1. At the time of the arrest, KRS 218A.1412 made a first offense of first-degree trafficking a Class C felony. That provision has since been amended. KRS 218A.992 stated (and still states) that if a person is convicted of a violation of a provision of KRS Chapter 218A and was in possession of a firearm in furtherance of the offense, then the person shall “be penalized one (1) more class severely than provided in the penalty provision pertaining to that offense if it is a felony.” KRS 218A.992(1)(a). In other words, the offense is punished as though it were a Class B felony when the firearm enhancement statute is implicated.

Brown v. Commonwealth, No. 2008-CA-001242-MR (Ky. App. 1/29/2010) (Ky. App., 2010)

Brown argues that the indictment was defective because KRS 218A.1412, as it existed in 1999, excluded methamphetamine. Prior to July 14, 2000, trafficking in methamphetamine was prohibited by KRS 218A.1435, whereas KRS 218A.1412 prohibited trafficking of other controlled substances, excluding methamphetamine. However, on July 14, 2000, the General Assembly repealed KRS 218A.1435 and amended KRS 218A.1412 to include "a controlled substance that contains any quantity of methamphetamine." Because Brown’s offense was committed in 1999, the offense was in violation of KRS 218A.1435 rather than the amended KRS 218A.1412.

However, because the factual allegations of the indictment stated an offense under KRS218A.1435, the citation of KRS 218A.1412 was not erroneous. See Dalton v. Commonwealth, 478 S.W.2d 734 (Ky. 1972); RCr 6.10(3). Thus, the indictment was not invalid. As such, the failure of Brown’s counsel to object to the indictment did not constitute ineffective assistance of counsel.

Commonwealth v. Hall, No. 2009-CA-000017-MR (Ky. App. 4/9/2010) (Ky. App., 2010)

Hall argues that Kentucky law has not finally settled the issue of whether a PFO enhancement under KRS 532.080 can be applied in conjunction with and in addition to sentencing for violations of KRS Chapter 218A. We disagree.

This issue has had a bit of a contradictory odyssey through Kentucky case law. In Dawson v. Commonwealth, 756 S.W.2d 935, 937 (Ky. 1988), the Supreme Court of Kentucky directly addressed the double jeopardy issue raised by Hall and agreed with his contention as follows:

The trial judge correctly determined that the $10,000 originally assessed by the jury on the possession of talwin conviction no longer applied once the sentence was enhanced under the PFO statute. The prosecution elected to seek penalties under the PFO statute rather than KRS 218A.990. They cannot select penalties under both statutes, absent a clear indication by the statutes. (Emphasis added.)

Five years later, the Kentucky Court of Appeals reiterated the Dawson holding that the prosecution must elect one of the two penalties and that it could not punish under both KRS 532.080 and KRS Chapter 218A. In Harrison v. Commonwealth, 842 S.W.2d 531, 532 (Ky.App. 1993), this Court held as follows:

Appellants argue that trafficking in a controlled substance is proscribed in KRS 218A which is outside the penal code and has its own specific sentencing structure, thereby rendering KRS 532.080 inapplicable.

* * * * *

Although not the primary issue before the Court in Dawson v. Commonwealth, Ky., 756 S.W.2d 935 (1988), the Kentucky Supreme Court did permit the use of the persistent felony offender statute, KRS 532.080, in a drug conviction case. It merely asserted the trial court could not sentence under both KRS 218A and KRS 532.080, but could choose one or the other. (Emphasis added.)

        In Peyton v. Commonwealth, 931 S.W.2d 451, 455 (Ky. 1996), the Supreme Court cited Dawson with approval as it commented once again on this issue: "… and this Court has held that a trial court could not sentence under both statutes, but could choose one or the other." (Emphasis added.)

        The tradition continued on as this precedent was firmly reinforced in Gray v. Commonwealth, 979 S.W.2d 454 (Ky. 1998). In Gray, the Supreme Court succinctly observed as follows:

To state this principle in other words, a single prior conviction cannot form the basis for enhancement under both the drug statute and the PFO statute.   Id. at 456.

        Four years later, our Supreme Court overruled Gray when it decided Morrow v. Commonwealth, 77 S.W.3d 558 (Ky. 2002). As in the case before us, the defendant in Morrow pled guilty to being a subsequent offender under KRS 218A.1412 and to being a second-degree PFO under KRS 532.080(5). The court interpreted the statutory scheme as reflecting the intent of the General Assembly to deal more harshly with repeat offenders involving controlled substances. It held that one previous offense could not be used. But if a defendant had been previously convicted of more than one offense, the separate offenses qualified for separate enhancements. In order for KRS 218A.1412(2)(b) to apply, at least one of the previous offenses had to be a TICS (again, trafficking in a controlled substance) charge. Morrow’s conclusion on this issue is as follows:

Because Appellant’s prior criminal record contains two convictions for first degree trafficking in a controlled substance, the trial court properly sentenced him in accordance with both the KRS 218A.1412 "second or subsequent offense" enhancement and the KRS 532.080(5), second degree [sic] PFO enhancement. Id. at 564. (Emphasis added.)

Therefore, if Hall had a previous conviction for first-degree TICS as well as some other felony conviction (trafficking or otherwise) upon which the Commonwealth relied to charge him with PFO, the court erred by not applying both the subsequent offender and PFO enhancements.

Hall’s indictment from June 6, 2007, lists the three counts of TICS subsequent offender as being based on a past indictment in Shelby County, 04-CR0-046. That indictment resulted in a conviction of TICS in the first degree in 2005. The PFO charge in the 2007 indictment was based on a past indictment in Shelby County, 03-CR-0156, which resulted in a conviction of illegal possession of a controlled substance in the first degree.3 Hall had indeed committed separate trafficking and felony offenses in the past. Therefore, Morrow dictates that it was improper for the court not to sentence him under both KRS 218A.1412(2)(b) and KRS 532.080(5).

In summary, the trial court should have applied the PFO statutory sentencing to the subsequent offender statute. The court committed palpable error when it erroneously dismissed, sua sponte, the PFO charge and gave Hall a sentence below the statutory minimum of twenty years. Therefore, we remand this case to Shelby Circuit Court for sentencing comporting with the statutory scheme.

 

King v. Commonwealth, No. 2008-CA-001258-MR (Ky. App. 7/31/2009) (Ky. App., 2009)

    On appeal, King first argues that the trial court erred in denying her request for a facilitation instruction pursuant to KRS 506.080. She specifically contends that the evidence established that she was a facilitator of her mother’s drug sales, at most, because she served merely as a "go-between" who participated in the subject transactions because of her mother’s disability. King also notes that she did not actually profit from either of the sales and that she did not participate in the planning of either transaction. "It is within a trial court’s discretion to deny a requested instruction, and its decision will not be reversed absent an abuse of that discretion." Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005).

        King was charged with and convicted of two counts of violating KRS 218A.1412, which provides, in relevant part: "A person is guilty of trafficking in a controlled substance in the first degree when he knowingly and unlawfully traffics in: a controlled substance, that is classified in Schedules I or II which is a narcotic drug[.]" KRS 218A.1412(1). KRS 218A.010(40) defines "traffic" as follows: "`Traffic,’ except as provided in KRS 218A.1431, means to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance[.]"

  In this case, taking all the evidence into account, this Court believes it obvious that a jury could reasonably find King guilty beyond a reasonable doubt as to the trafficking charges. While King argues that she only intended to aid her mother, she still acted in a manner consistent with trafficking. Moreover, while King may not have been the person whom the informant used to set up the subject transactions, she was the person who accepted money, exchanged it for drugs, and brought the drugs to the informant — not once, but twice. The second transaction actually occurred without her mother being in any way present — she acted alone. Furthermore, even if one were to believe that King in no way benefited financially from the sale, she still could be guilty of trafficking for transferring the goods. Under the facts presented at trial by the Commonwealth, the jury was entitled to deliberate upon the trafficking charges and a directed verdict was inappropriate.

Bailey v. Commonwealth of Kentucky, No. 2007-CA-001963-MR (Ky. App. 2/6/2009) (Ky. App., 2009)

       On July 27, 2006, the Jefferson County Grand Jury indicted Bailey on one count of Trafficking in a Controlled Substance in the First Degree (Cocaine), a Class C felony pursuant to KRS 218A.1412; one count of Illegal Possession of a Controlled Substance (Marijuana), a Class A misdemeanor pursuant to KRS 218A.1422; one count of Illegal Use or Possession of Drug Paraphernalia, a Class A misdemeanor pursuant to KRS 218A.500; one count of Trafficking in a Controlled Substance Within 1,000 Yards of a School (Cocaine), a Class C felony pursuant to KRS 218A.1412; and one count of being a Persistent Felony Offender I pursuant to KRS 532.080. On July 31, 2006, Bailey appeared in open court with counsel and entered a plea of not guilty as to all charges.

  Bailey finally contends that the trial court’s jury instructions were erroneous because they did not accurately reflect the requirements for a conviction of possession of drug paraphernalia as set forth in KRS 218A.500. However, with respect to this conviction and sentence, the Court notes that the record reflects an error in the trial court’s judgment. Possession of drug paraphernalia is a Class A misdemeanor punishable by up to twelve (12) months in prison and/or a $500.00 fine pursuant to KRS 218A.500. Because Bailey had also been convicted of trafficking in a controlled substance, a Class C felony requiring a minimum five-year sentence pursuant to KRS 218A.1412, the possession conviction was not put before the jury to be considered during the sentencing phase of trial. Instead, the parties agreed that Bailey should be sentenced to one (1) day’s imprisonment on the possession conviction with credit given for time served. The trial court appeared to consent to this agreement.

        Accordingly, during the sentencing hearing of August 28, 2007, the trial court orally sentenced Bailey to one (1) day’s imprisonment on the possession of drug paraphernalia conviction. However, the court’s written "Judgment of Conviction and Sentence" sets forth that Bailey was sentenced to five (5) years on this conviction. This clerical error in the record requires remand so that it can be corrected. RCr 10.10; Cardwell v. Commonwealth, 12 S.W.3d 672, 674-75 (Ky. 2000). More importantly, these facts also indicate that Bailey’s complaints as to the possession of drug paraphernalia instruction raise an issue that has been rendered moot by the fact that Bailey has satisfied his sentence on this conviction. See Dillingham v. Commonwealth, 249 S.W.2d 827, 828 (Ky. 1952); Henry v. Commonwealth, 586 S.W.2d 304, 306 (Ky. App. 1979).

        The judgment of the Jefferson Circuit Court is affirmed, and the matter is remanded for correction of the judgment per this opinion.

 

Brooks v. Com., 217 S.W.3d 219 (Ky., 2007)

  However, prior to Appellant’s offense[s], the statutory scheme was again amended. In 2000, KRS 218A.1435 which had defined the offense and provided the penalty for trafficking in methamphetamine was repealed.16 Concurrently, the methamphetamine exception in the general trafficking statute, KRS 218A.1412, was removed, merging the offense of trafficking in methamphetamine into the general trafficking statute for any Schedule I or II narcotic drug.17 However, the definition of trafficking specific to methamphetamine was not repealed, and it remains in effect.18 Thus, there is a discrepancy in the current scheme stemming from the conflicting definitions of "trafficking" as outlined above. Under the "trafficking" definition applicable to the general statute, KRS 218A.1412, manufacturing would appear to be a lesser included offense of trafficking, and a conviction for both offenses would be proscribed. But that construction would ignore the definition that is specific to trafficking in methamphetamine. From this state of affairs, we must discover legislative intent. First, under prevailing law, manufacturing methamphetamine (a Class B felony)19 is a greater offense than trafficking in methamphetamine (a Class C felony).20 Additionally, though KRS 218A.1412 directs us to the generally applicable definition of "traffic," this definition explicitly excepts from its purview KRS 218.1431. Thus, KRS 218A.1412 directs us back to the trafficking definition specific to methamphetamine. The legislature’s failure to repeal the trafficking definition that is specific to methamphetamine strongly suggests a legislative intent that such definition continue to be utilized.

Bailey v. Commonwealth of Kentucky, No. 2007-CA-001963-MR (Ky. App. 2/6/2009) (Ky. App., 2009)

   On July 27, 2006, the Jefferson County Grand Jury indicted Bailey on one count of Trafficking in a Controlled Substance in the First Degree (Cocaine), a Class C felony pursuant to KRS 218A.1412; one count of Illegal Possession of a Controlled Substance (Marijuana), a Class A misdemeanor pursuant to KRS 218A.1422; one count of Illegal Use or Possession of Drug Paraphernalia, a Class A misdemeanor pursuant to KRS 218A.500; one count of Trafficking in a Controlled Substance Within 1,000 Yards of a School (Cocaine), a Class C felony pursuant to KRS 218A.1412; and one count of being a Persistent Felony Offender I pursuant to KRS 532.080. On July 31, 2006, Bailey appeared in open court with counsel and entered a plea of not guilty as to all charges.

Bailey finally contends that the trial court’s jury instructions were erroneous because they did not accurately reflect the requirements for a conviction of possession of drug paraphernalia as set forth in KRS 218A.500. However, with respect to this conviction and sentence, the Court notes that the record reflects an error in the trial court’s judgment. Possession of drug paraphernalia is a Class A misdemeanor punishable by up to twelve (12) months in prison and/or a $500.00 fine pursuant to KRS 218A.500. Because Bailey had also been convicted of trafficking in a controlled substance, a Class C felony requiring a minimum five-year sentence pursuant to KRS 218A.1412, the possession conviction was not put before the jury to be considered during the sentencing phase of trial. Instead, the parties agreed that Bailey should be sentenced to one (1) day’s imprisonment on the possession conviction with credit given for time served. The trial court appeared to consent to this agreement.

    Accordingly, during the sentencing hearing of August 28, 2007, the trial court orally sentenced Bailey to one (1) day’s imprisonment on the possession of drug paraphernalia conviction. However, the court’s written "Judgment of Conviction and Sentence" sets forth that Bailey was sentenced to five (5) years on this conviction. This clerical error in the record requires remand so that it can be corrected. RCr 10.10; Cardwell v. Commonwealth, 12 S.W.3d 672, 674-75 (Ky. 2000). More importantly, these facts also indicate that Bailey’s complaints as to the possession of drug paraphernalia instruction raise an issue that has been rendered moot by the fact that Bailey has satisfied his sentence on this conviction. See Dillingham v. Commonwealth, 249 S.W.2d 827, 828 (Ky. 1952); Henry v. Commonwealth, 586 S.W.2d 304, 306 (Ky. App. 1979

Allen v. Commonwealth , No. 2006-CA-002537-MR (Ky. App. 10/19/2007) (Ky. App., 2007)

   The charge of trafficking is governed by KRS 218A.1412. The relevant language of KRS 218A.1412(A) states: "A person is guilty of trafficking in a controlled substance in the first degree when he knowingly and unlawfully traffics in: a controlled substance…" KRS 218A.010(34) defines traffic as meaning "to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance." There is no disagreement that cocaine is a controlled substance. The jury in the trial court was instructed that to "sell" means to dispose of a controlled substance to another person for payment or other consideration. Allen contends that it was the unidentified passenger, not him, who possessed and transferred the package to the CI, thus making the unidentified passenger guilty of the crime. The issue here is one of semantics. A transfer is "any mode of disposing or parting with an asset or an interest in an asset, including the payment of money…The term embraces every method — direct or indirect." Black’s Law Dictionary 1503 (7th Ed. 1999). While it may not have been Allen’s hands that held the package at the time it was given over to the CI, he was nonetheless integral in the transaction. His actions varied from direct to indirect, in that he arranged the meeting with the CI; drove the car containing the substance and the passenger; and accepted the money from the CI. This Court is satisfied that his role was significant enough that the jury could have adjudged him as having disposed of the package to the CI.

 

Johnson v. Commonwealth of Kentucky (Ky., 2003)   

We affirm for two reasons. First, the trial court’s analysis was correct. As noted in Part V of this opinion, supra, RCr 6.16 allows an amendment any time prior to verdict so long as the indictment does not charge an "additional or different offense." Both KRS 218A.1412 and former KRS 218A.1435 punish a first offense as a Class C felony.    KRS 218A.1412 includes "methamphetamine" as a "controlled substance." The methamphetamine language was added to KRS 218A.1412(1) in the same legislation and effective the same date that KRS 218A.1435 was repealed. (2000 Ky. Acts, ch. 169, § 1, eff. 7-14-00.) The definition of "trafficking," KRS 218A.010(28), which includes possession of a controlled substance with the intent to sell, is the same when applied to KRS 218A.1412 as it was when applied to former KRS 218A.1435. Obviously, the 2000 General Assembly recognized the similarities of the statutes and purposely subsumed KRS 218A.1435 into KRS 218A.1412, probably to create consistency between KRS 218A.1412 and KRS 218A.1415, which specifically included and still includes possession of methamphetamine within the offense of possession of a controlled substance in the first degree. Thus, no "additional or different offense" was charged but only the same offense recompiled within a differently numbered statute. See Anderson v. Commonwealth, Ky., 63 S.W.3d 135, 141 ("simply chang[ing] the dates" on the indictment does not charge an additional or different offense); cf. Godby v. Commonwealth, Ky., 491 S.W.2d 647, 650 ("The omission of the citation of the statute defining the offense was not fatal if the defendants were not misled."). 

Rodefer v. Commonwealth, No. 2003-CA-001059-MR (KY, 2004)

Pursuant to KRS 218A.1412(1), "[a] person is guilty of trafficking in a controlled substance in the first degree when he knowingly and unlawfully traffics in: a controlled substance".  Under KRS 218A.010(28), the term "[t]raffic" means "to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance"  Further, pursuant to KRS 218A.010(29), the term "[t]ransfer" means "to dispose of a controlled substance to another person without consideration and not in furtherance of commercial distribution."    Hence, a person may be found guilty of trafficking in a controlled substance in the first degree if the jury finds that he knowingly manufactured, distributed, dispensed, sold, or transferred a controlled substance, or if the jury finds that he knowingly possessed a controlled substance with the intent to manufacture, distribute, dispense, or sell the controlled substance. However, a person may not be found guilty of trafficking in a controlled substance in the first degree based solely on a jury’s finding that he knowingly possessed a controlled substance with the intent to transfer the controlled substance. 

Graves v. Commonwealth, 2000 KY 42143 (KY, 2000)

 It is unnecessary for a conviction of trafficking in a controlled substance that the controlled substance be seized by the police or that it be introduced at trial. Conviction can be premised on circumstantial evidence of such nature that, based on the whole case, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt. Howard v. Commonwealth, Ky. App., 787 S.W.2d 264 (1989). In this case, the jury was instructed that they could find each defendant guilty as either principal or accomplice under alternative theories of criminal liability, i.e., trafficking by sale or transfer, or trafficking by possession with intent to sell or transfer. KRS 218A.1412(1); KRS 218A.010(28). McDuffie testified that Woods told him prior to arriving at Trixie’s Lounge that he had the cocaine and that he intended to sell it to Thomas. That testimony alone supports Woods’s conviction of trafficking by possession with the intent to sell. Howard v. Commonwealth, supra. There was ample evidence that Thomas gave Woods $27,000.00 for the purpose of promoting a sale of cocaine to him by Woods. That was sufficient evidence to convict Thomas of complicity to first-degree trafficking. KRS 502.020(l). Likewise, Graves was present in the vehicle when Woods told McDuffie that he had the cocaine which he intended to sell to Thomas; Graves participated in directing Thomas and Furman to the parking lot where the transaction would take place; and Graves then positioned himself behind the wheel of Woods’s car, a fact from which a jury could infer an intent to aid and abet the commission of the offense by acting as the getaway driver in the event of the need for a hasty departure. That was sufficient circumstantial evidence to convict Graves of complicity to first-degree trafficking. Skinner v. Commonwealth, Ky., 864 S.W.2d 290 (1993). As for the failure of the police to find any cocaine at the scene, the jury could have believed that Woods, McDuffie, Thomas or Furman, all of whom temporarily escaped, did so with the cocaine in his possession. 

Brooks v. Com., 905 S.W.2d 861 (Ky., 1995)   

The indictment indicates that Brooks was charged and convicted pursuant to KRS 218A.1412. KRS 218A.990, which formerly dealt with penalties, was repealed effective July 14, 1992. KRS 218A.1412, enacted in 1992, and effective July 14, 1992, applies to the crimes charged herein.    Brooks was also convicted of being a second-degree persistent felony offender pursuant to KRS 532.080 which permits an enhanced sentence of imprisonment. The sentence of Brooks for first-degree trafficking in a controlled substance under KRS 218A.1412 was correctly enhanced pursuant to KRS 532.080 because of her conviction as a second-degree persistent felony offender. Berry v. Commonwealth, Ky., 782 S.W.2d 625 (1990), is not applicable. 

Morrow v. Commonwealth, 2002 KY 75 (KY, 2002) 

 The single issue Appellant raises on appeal concerns the length of his sentence. Appellant argues that Gray v. Commonwealth holds that his underlying trafficking offense could be enhanced under either KRS Chapter 218A or KRS 532.080(5), but not both, because his two prior felony trafficking convictions stemmed from the same indictment and a single final judgment. Appellant thus contends that his underlying Class C felony conviction could be enhanced for sentencing purposes only to a Class B felony with a permissible penalty range of between ten (10) and twenty (20) years imprisonment. Appellant argues that his thirty (30) year sentence falls outside the permissible penalty range.     Although Appellant correctly notes that this Court reversed and remanded a similarly situated matter in Gray, "the doctrine of stare decisis does not commit us to the sanctification of ancient [or relatively recent] fallacy."  While we recognize this Court should decide cases "with a respect for precedent," this respect does not "require blind imitation of the past" or unquestioned acceptance ad infinitum. Rather, in many ways, respect for precedent demands proper reconsideration when we find sound legal reasons to question the correctness of our prior analysis. After careful reconsideration of the Gray holding, we find that Gray both misinterpreted the primary authority upon which it relied and overlooked the separate provisions governing and policies underlying KRS Chapter 218A "second or subsequent offense" enhancement. Accordingly, we overrule Grav v. Commonwealth and hold that a defendant with two prior convictions for first degree trafficking in a controlled substance who is again convicted under that section can be sentenced within the penalty range for Class A felonies ("not less than twenty (20) years nor more than fifty (50) years, or life imprisonment"), regardless of whether the sentences for the prior convictions were ordered to run concurrently within the same judgment. Such an offender is eligible for penalty enhancement as both a KRS Chapter 218A "second or subsequent" offender and as a second degree persistent felony offender. As Appellant appears to fit this profile, we find that the trial court sentenced him appropriately and affirm the judgment of the Jefferson Circuit court.

 
Slaughter v. Commonwealth, 2000 KY 42337 (KYCA, 2000)

 Following a jury trial, Michael Slaughter was convicted of attempted trafficking in a controlled substance, second offense (KRS 218A.1412), possession of drug paraphernalia, second offense (KRS 218A.500), and tampering with physical evidence (KRS 524.100). In this appeal he claims that the trial court erred by excluding testimony and photographs of the alley where Slaughter was alleged to have discarded a plastic bag containing the controlled substance; by refusing to grant his motion for directed verdict on the charge of attempted trafficking; and by fixing a penalty contrary to that provided by the legislature. We affirm.

 

Lofthouse v. Commonwealth, 2000 KY 42051 (KY, 2000) 

 Jerry Buford died of a drug overdose at his residence in McCracken County, Kentucky, during the early morning hours of April 11, 1995. Specifically, his cardiovascular, pulmonary and central nervous systems failed as a result of his voluntary ingestion of quantities of alcohol, cocaine and heroin. Appellant Joseph K. Lofthouse had provided Buford with the cocaine and heroin which contributed to his death. Following a trial by jury, Appellant was convicted of reckless homicide, KRS 507.050, and of two counts of trafficking in a controlled substance in the first degree, KRS 218A.1412. He was sentenced to one year in prison for his conviction of reckless homicide, and to five years in prison for each of his convictions of trafficking in a controlled substance. The sentences were ordered to run consecutively for a total of eleven years. The Court of Appeals affirmed and we granted discretionary review. CR 76.20. We now affirm in part and reverse in part, vacating the conviction of reckless homicide and affirming the convictions of trafficking in a controlled substance in the first degree. 

Commonwealth v. Commonwealth, No. 2003-CA-000392-MR (KY, 2004)  

 This matter is before the court pursuant to the Commonwealth’s motion for forfeiture of $17,937.00 in U.S. currency seized from defendant’s home. The Commonwealth argues that the jury’s verdict of guilty compels a conclusion that the jury believed the money was the defendant’s and was obtained from the unlawful sale of drugs. The court accepts the Commonwealth’s argument, and finds that the $17,937.00 in U.S. currency was defendant’s property and the product of illegal activity.     In view of the defendant’s resources ($17,937.00) and ability to contribute to his own defense, defendant shall be ordered to contribute the sum of $2,500.00 as partial compensation for defendant’s legal representation by the Office of Public Advocacy. Also, defendant shall pay the statutorily imposed court costs. The remainder of defendant’s funds, seized at the time of his arrest, shall be forfeited pursuant to KRS 218A.410. 

Tweedy v. Commonwealth, 2003 KY 310 (KYCA, 2003)    

 In order to be convicted of trafficking in a controlled substance under KRS 218A.1412(1) and KRS 218A.1413(1), a defendant must "knowingly and unlawfully traffic in: a controlled substance…"The term "traffic" is defined by KRS 218A.010(24) as follows:  "Traffic" means to manufacture, distribute, dispense, sell, transfer or possess with intent to manufacture, distribute, dispense or sell a controlled substance.    Therefore, either the actual transfer of a controlled substance or the possession of a controlled substance with the intent to sell are sufficient to warrant a conviction for trafficking in a controlled substance in the first and second degree. 

Robinson v. Commonwealth, No. 2004-SC-000050-MR (KY, 2005) 

With respect to the denial of the directed verdict on the trafficking count, KRS 218A.1412 says a person is guilty of First-Degree Trafficking in a Controlled Substance "….when he knowingly and unlawfully traffics in….methamphetamine, including its salts, isomers, and salts of isomers;" KRS 218A.1431(3) further defines "Traffic" specifically related to methamphetamine, as "….to distribute, dispense, sell, transfer, or possess with intent to distribute, dispense or sell methamphetamine."    The Commonwealth presented evidence of the several small packages of finished methamphetamine product, empty baggies which could be used for packaging future product and what is known as a "cutting agent." There was also evidence of a substantial amount of cash ($580.00) found in the residence at the time of the search. Deputy Poteet testified that, as a neighbor of Clemons, he noticed that the Clemons residence received many short-term visitors. As an officer, Deputy Poteet testified that this type of activity was associated with drug trafficking. Considering the testimony and the evidence on this issue, the trial court correctly determined that the Commonwealth had met its burden of proof as to KRS 218A.1412 and 218A.1431(3).    Considering the evidence as a whole, as available to this trial court, we do not find it unreasonable for a jury to find guilt. The trial court did not err. 

Houston v. Com., 975 S.W.2d 925 (Ky., 1998)

CONSTRUCTIVE POSSESSION:  Kentucky courts have continued to utilize the constructive possession concept to connect defendants to illegal drugs and contraband. Leavell v. Commonwealth, Ky., 737 S.W.2d 695 (1987), a defendant who had the key to a vehicle’s trunk wherein marijuana was later found was held to be in constructive possession of that drug. In the more recent case Clay v. Commonwealth, Ky.App., 867 S.W.2d 200 (1993), the Court of Appeals similarly held that although cocaine was not found on the defendant’s person, the defendant could be connected to the drug by the theory of constructive possession. See also: Dawson v. Commonwealth, Ky., 756 S.W.2d 935 (1988); Hargrave v. Commonwealth, Ky., 724 S.W.2d 202 (1986), cert. denied, 484 U.S. 821, 108 S.Ct. 81, 98 L.Ed.2d 43 (1987).      Although constructive possession has long been used to connect defendants to drugs, we have found no Kentucky cases which utilize the concept of constructive possession to connect defendants to firearms. However, we note that other jurisdictions have accepted the idea that a person may have constructive possession of a firearm. Argo v. State, 53 Ark.App. 103, 920 S.W.2d 18,20 (Ark.Ct.App., 1996) ("A showing of constructive possession … is sufficient to prove a defendant is in possession of a firearm."); Simpson v. State, 213 Ga.App. 143, 444 S.E.2d 115, 117 (Ga.App., 1994)("…this court has previously held that constructive possession is sufficient to prove a violation of the subject offense [possession of firearm by a felon]."); State v. Eickelberg, 574 N.W.2d 1, 6 (Iowa, 1997) (Defendants’ sentences properly enhanced under statute even though defendants did not actually possess firearms because there was sufficient evidence to "support the finding that defendants were in immediate possession or control of the firearms" while participating in a drug offense.); State v. Neeley, 704 So.2d 443, 447 (La.App., 1997) ("… constructive possession, as opposed to actual possession, is sufficient to satisfy the possession element [of the crime of possession of firearm by convicted felon]."); People v. Williams, 212 Mich.App. 607, 538 N.W.2d 89, 91 (Mich.App., 1995) ("Possession [of a firearm] may be actual or constructive and may be proved by circumstantial evidence."); Jones v. State, 111 Nev. 848, 899 P.2d 544, 546 (Nev., 1995) (" … these actions permitted the jury to find the requisite knowledge and control necessary for constructive possession of a weapon."); State v. Messer, 107 Ohio App.3d 51, 667 N.E.2d 1022, 1025 (Ohio App., 1995)(" ‘Possession’ [of a firearm] may be either actual or constructive."); Hill v. State, 898 P.2d 155, 166 (Okla.Crim.App., 1995)("Lacking any direct evidence Appellant actually possessed either the cocaine or the gun, the State must prove he constructively possessed each."); State v. Wells, 147 Or.App. 125, 935 P.2d 447, 449 (Or.App., 1997)("Possession [of a firearm for purposes of being a felon in possession of a firearm] may be actual or constructive."); Commonwealth v. Woody, 451 Pa.Super. 324, 679 A.2d 817, 820 (Pa.Super., 1996)("We find that a jury could reasonably infer … that appellant maintained constructive possession of the firearm and drugs recovered from his vehicle."); State v. Reyes, 671 A.2d 1236, 1237 (R.I., 1996)(Appellate court held that trial judge properly "reasoned that defendant had constructive possession of the weapon."); Archer v. Commonwealth, 26 Va.App. 1, 492 S.E.2d 826, 831 (Va.App., 1997) ("Proof that appellant possessed the gun found under the mattress, either actually or constructively, was sufficient to support his conviction for possession of a firearm by a convicted felon.")     Whether the definition of possession includes the concept of constructive possession has apparently been a point of disagreement in the lower courts. Compare Clay v. Commonwealth, Ky.App., 867 S.W.2d 200 (1994)(constructive possession is enough to connect defendant to drugs in her home) with Powell v. Commonwealth, Ky.App., 843 S.W.2d 908 (1992)(actual possession is required to connect defendant to drugs). To resolve this conflict, we hold that for offenses arising under KRS 218A, the concept of "constructive possession" is applicable. Clay, supra; Leavell, supra; Rupard, supra. To the extent the Court of Appeals opinion in Powell v. Commonwealth, Ky.App., 843 S.W.2d 908 (1992), requires actual possession of contraband for the purposes of KRS Chapter 218A, it is overruled.      We believe that a directed verdict was not warranted in this case because a reasonable juror could have believed beyond a reasonable doubt that appellant had constructive possession of the firearms in this case. Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983). Evidence was introduced at trial which would support a reasonable juror’s conclusion that appellant had constructive possession of the firearms. At the scene appellant told police that he had handled one of the firearms and that his fingerprints might be on it; and according to police testimony at trial, each of the guns was fully loaded; and the guns were apparently in plain view and were easily accessible. 

Bendingfield v. Commonwealth of Kentucky (Ky. App., 2003)

 William Leron Johnson (Johnson) entered a conditional plea on November 15, 2001, to trafficking in cocaine (KRS 218A.1412), possession of a handgun by a convicted felon (KRS 527.040), promoting contraband (KRS 520.050), and driving under the influence (DUI) second offense (KRS 189A.010) for which he was sentenced to a total of ten years’ imprisonment. Johnson’s conditional plea reserved the right to appeal the trial court’s denial of his motion to suppress. The request was to suppress Johnson’s confession because the officer did not have Johnson sign an acknowledgement that he was given his Miranda2 rights. This change in the law is an issue that should be addressed by our Supreme Court. Therefore, we affirm. 

Martin v. Commonwealth, 2003 KY 241 (KYCA, 2003) 

 Odell Kinte Martin appeals a judgment of August 23, 2001, of the Hopkins Circuit Court sentencing him to serve ten years in prison. A jury found him guilty of the following crimes: trafficking in a controlled substance (cocaine), KRS 218A.1412; trafficking in marijuana within 1,000 yards of a school, KRS 218A.1411; second-degree unlawful imprisonment, KRS 509.030; unlawful transaction with a minor (causing a minor to engage in drug trafficking), KRS 530.065; and first-degree persistent felony offender, KRS 532.080. Finding no error, we affirm. 

Buford v. Com., 942 S.W.2d 909 (Ky. App., 1997)

 Buford also maintains that he was entitled to a directed verdict on the charge of trafficking in a controlled substance in the first degree. He states in this regard that the Commonwealth did not prove that he intended to traffic in a controlled substance. Using the "flick" defense, he maintains that he thought he was selling fake cocaine and not actual cocaine to the undercover officer. We acknowledge that the controlling statute, KRS 218A.1412, requires that the Commonwealth prove Buford knowingly sold cocaine. 

Commonwealth v. Churchwell, 938 S.W.2d 586 (Ky. App., 1996)   

 As noted above, KRS 218A.1421(2)(b) permits a felony conviction on a marijuana trafficking charge if it is a "second or subsequent offense." Despite appellee’s argument to the contrary the language of KRS 218A.010(21), which defines a "second or subsequent offense" as being one which occurs after any prior conviction under KRS Chapter 218 or any other state or federal law, clearly does not require the underlying prior drug trafficking conviction to be a conviction for trafficking in marijuana in order for it to be relied upon to enhance a subsequent conviction pursuant to KRS 218A.1421(2).

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KRS 218A.1413 Trafficking in controlled substance in second degree — Penalties.

(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:

1. Ten (10) or more dosage units of a controlled substance classified in Schedules I and II that is not a narcotic drug; or specified in KRS 218A.1412, and which is not a synthetic drug, salvia, or marijuana; or

2. Twenty (20) or more dosage units of a controlled substance classified in Schedule III;

(b) He or she knowingly and unlawfully prescribes, distributes, supplies, or sells an anabolic steroid for:

1. Enhancing human performance in an exercise, sport, or game; or

2. Hormonal manipulation intended to increase muscle mass, strength, or weight in the human species without a medical necessity; or

(c) He or she knowingly and unlawfully traffics in any quantity of a controlled substance specified in paragraph (a) of this subsection in an amount less than the amounts specified in that paragraph.

(2)

(a) Except as provided in paragraph (b) of this subsection, any person who violates the provisions of subsection (1) of this section shall be guilty of a Class D felony for the first offense and a Class C felony for a second or subsequent offense.

(b) Any person who violates the provisions of subsection (1)(c) of this section shall be guilty of:

1. A Class D felony for the first offense, except that KRS Chapter 532 to the contrary notwithstanding, the maximum sentence to be imposed shall be no greater than three (3) years; and

2. A Class D felony for a second offense or subsequent offense.

Effective: July 12, 2012    History: Amended 2012 Ky. Acts ch. 108, sec. 9, effective April 11, 2012; and ch. 156, sec. 7, effective July 12, 2012. — Amended 2011 Ky. Acts ch. 2, sec. 10, effective June 8, 2011; and ch. 45, sec. 9, effective March 16, 2011. — Amended 2010 Ky. Acts ch. 149, sec. 10, effective April 13, 2010; and ch. 160, sec. 10, effective April 26, 2010. — Amended 1998 Ky. Acts ch. 606, sec. 64, effective July 15, 1998. — Created 1992 Ky. Acts ch. 441, sec. 13, effective July 14, 1992.  Legislative Research Commission Note (7/12/2012). This statute was amended by 2012 Ky. Acts chs. 108 and 156, which do not appear to be in conflict and have been codified together.

ANNOTATION FOR THIS STATUTE: 

[U] Gamble v. Commonwealth (Ky. App., 2013)   2011-CA-001658-MR    February 1, 2013

We more plainly read the second part of the statute as "notwithstanding the contrary provisions of KRS 532." With this phrase, the General Assembly clearly acknowledges that parts of KRS 532 conflict with its assignment of a three-year maximum sentence and unequivocally directs that those parts of KRS 532 not be applied to KRS 218A.1413. Read as a whole, we interpret KRS 218A.1413(2)(b)(1) to say that violation of the statute constitutes a Class D felony for the first offense and the maximum sentence to be imposed for a first offense is three years, despite those portions of KRS 532 which would enhance that sentence. This reading of the statute is not only reasonable, but it clearly serves the General Assembly’s intent to reduce the cost of incarcerating certain drug offenders. By placing the crime of second-degree TICS in the new "sub-group" of Class D felonies punishable by only three years, and by excluding the same crime from enhancement under the PFO statute, the punishment for second-degree TICS is reduced, as is the cost of incarcerating those who commit that crime. Further, the possibility for sentence enhancement is already built into the statute, as second or subsequent offenses will earn a person progressively higher maximum sentences.

In its Order denying Gamble’s Motion to Dismiss the PFO charge, the trial court found that, while the language of HB 463 limited the maximum incarceration of a person guilty of second-degree TICS to three years, the General Assembly did not intend to expressly prohibit the enhancement of that sentence under the PFO statute. The trial court based its finding on Section 26 of HB 463, which amended KRS 532.080 to read that the punishment for possession of a controlled substance could not be enhanced beyond three years. The trial court asserted that the General Assembly’s choice not to impose the same express prohibition upon the TICS statute showed the Legislature’s intent for KRS 532 to apply to that crime. We find the trial court’s reasoning erroneous, as it proves to be little more than implication which is easily disproven by examining, as we do above, the General Assembly’s actions in amending the sentencing guidelines for certain drug-related crimes. 

[U] Bedson v. Commonwealth (Ky. App., 2012)   2011-CA-001590-MR   October 12, 2012

Tyler Ramsey Bedson has appealed from the final judgment and sentence of probation entered by the Fayette Circuit Court on August 4, 2011, pursuant to a conditional guilty plea. Bedson’s argument on appeal relates to the application of the deferred prosecution program created by the General Assembly in House Bill (HB) 463. Because we agree with the Commonwealth that Bedson is not eligible for deferred prosecution pursuant to Kentucky Revised Statutes (KRS) 281A.14151, we affirm his conviction.

In August 2010, the Fayette County grand jury returned a four-count indictment charging eighteen-year-old Bedson with first-degree trafficking in a controlled substance, first offense (benzylpipearzine and/or trifluoromethylphenypiperazine) (KRS 281A.1412); second degree trafficking in a controlled substance, second offense (psilocin/psilocybin and/or methylphenidate and/or hydrocodone) (KRS 218A.1413); trafficking in marijuana less than eight ounces (KRS 218A.1421); and possession of drug paraphernalia, first offense (KRS 218A.500(2)). These charges arose from Bedson’s arrest by Lexington Metro Police Department Officer John Steele on June 10, 2010. Officer Steele pulled over Bedson’s vehicle after the victim of an altercation identified him driving by. When he approached the vehicle, Officer Steele noted a strong odor of marijuana coming from inside of the vehicle. Officer Steele’s search of the vehicle uncovered 7.5 hydrocodone pills, two extended release methylphenidate pills, four Ecstasy pills, 4.1 grams of mushrooms, 9 whole and 22 half yellow methylphenidate pills, marijuana, digital scales, a marijuana pipe, and marijuana papers. 

Tweedy v. Commonwealth, 2003 KY 310 (KYCA, 2003)   

In order to be convicted of trafficking in a controlled substance under KRS 218A.1412(1) and KRS 218A.1413(1), a defendant must "knowingly and unlawfully traffic in: a controlled substance…"The term "traffic" is defined by KRS 218A.010(24) as follows:   “Traffic" means to manufacture, distribute, dispense, sell, transfer or possess with intent to manufacture, distribute, dispense or sell a controlled substance.  Therefore, either the actual transfer of a controlled substance or the possession of a controlled substance with the intent to sell are sufficient to warrant a conviction for trafficking in a controlled substance in the first and second degree. 

Commonwealth v. Churchwell, 938 S.W.2d 586 (Ky. App., 1996)   

Moreover, we are not persuaded by appellee’s assertion that the legislature’s enactment of specific provisions which relate only to marijuana offenses evidences an intention that such offenses should be treated separately from other drug offenses for enhancement purposes. Indeed, a review of the other drug trafficking penalty statutes shows that each of those statutes, just like KRS 218A.1421, provides that a "second or subsequent offense" shall be enhanced to a felony classification which is one classification more serious than a first offense of trafficking in the same drug. See KRS 218A.1412, KRS 218A.1413, and KRS 218A.1414. Moreover, other than the fact that KRS Chapter 218A may treat marijuana offenses somewhat more leniently than other drug offenses, the primary distinction between the various drug trafficking penalty statutes is that, unlike the others, the marijuana trafficking statute provides for graduated penalties depending upon the quantity of marijuana involved in a particular offense. Further, we note that were we to agree with appellee’s assertion, then a defendant who was twice convicted of trafficking in a single marijuana cigarette would face an enhanced penalty, while another defendant who was convicted of trafficking up to eight ounces of marijuana, after having previously been convicted of multiple counts of trafficking in large quantities of other types of drugs, would not face an enhanced penalty pursuant to KRS Chapter 218A. We are unwilling to conclude that such an inconsistent result was intended by the legislature when enacting KRS 218A.1421(2). 

Commonwealth v. Bryant, 2002 KY 6 (KYCA, 2002)

 We would also note that although the defendant in the recent case of Commonwealth v. Hayward, Ky., 49 S.W.3d 674 (2001) did not argue that the statute (KRS 218A.1413) was unconstitutionally vague or overbroad, our Supreme Court held that possession of ephedrine or pseudoephedrine (the precursor drug of methamphetamine), along with chemicals and equipment used in the manufacture of methamphetamine in one place was sufficient evidence that the defendant manufactured methamphetamine to sustain a conviction for trafficking in a schedule II controlled substance. The Court stated, "there is no reason other than the manufacture of methamphetamine for having a combination of pseudoephedrine, lye, rock salt, iodine crystals, red phosphorous, toluene, sulphuric acid, and hydrochloric acid in one place." Id. at 676.   In analyzing a statute pursuant to a claim of vagueness, we are mindful of the following cardinal principles of statutory construction: In construing a statute, the courts must consider "the intended purpose of the statute – the reason and spirit of the statute – and the mischief intended to be remedied." City of Louisville v. Helman, Ky., 253 S.W.2d 598, 600 (1952). The courts should reject a construction that is "unreasonable and absurd, in preference for one that is `reasonable, rational, sensible and intelligent’…."  Johnson v. Frankfort & C.R.R., 303 Ky. 256, 197 S.W.2d 432, 434 (1946).   In addition, the courts must construe statutes in a manner that saves their constitutionality whenever possible consistent with "reason and common sense." Diemer v. Commonwealth, Transportation Cabinet, Ky., 786 S.W.2d 861, 863 (1990). On the other hand, a court should not add words or cure an omission "to give constitution-ally [sic] permissible meaning where none would otherwise exist." Id. at 864-65. Kash, 967 S.W.2d at 43-44.    The purpose of KRS 218A.1432(1)(b) is to prohibit the manufacture of methamphetamine, and one cannot seriously contend that said purpose is unreasonable or improper. Nor can one quarrel with the classification of methamphetamine as an illegal substance or dangerous drug. We believe our interpretation of KRS 218A.1432(1)(b) herein gives effect to its rational and reasonable purpose.   For the reasons stated above, the order of the Todd Circuit Court is reversed and this matter is remanded with directions to reinstate the indictment. 

Commonwealth v. Hayward, 2001 KY 29 (KY, 2001)

 The legal definition of "immediate precursor" is "a substance which is the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit manufacture." KRS 218A.010. Kentucky State Police Crime Laboratory forensic chemist William Bowers testified that extracting the principal compound pseudoephedrine from Sudafed tablets is the initial step in manufacturing methamphetamine. Bowers explained that the next step would be to put the pseudoephedrine into a solution with red phosphorous, iodine, and hydrochloric acid and cook the solution to form methamphetamine oil. The last step is to treat the methamphetamine oil with hydrochloric acid to make methamphetamine in powder form. Both pseudoephedrine and the requisite reagents required to synthesize methamphetamine (including red phosphorus, sulfuric acid, iodine and hydrochloric acid) were found in Appellee’s residence.

Warren v. Com., 981 S.W.2d 134 (Ky. App., 1998)

 Warren argues that the issue as to whether a revoked sentence must run consecutively or concurrently is governed by KRS 533.060 and KRS 533.040. She further contends that KRS 533.060 dictates when a revoked sentence must run consecutively and KRS 533.040 dictates when a revoked sentence must run concurrently. Warren correctly points out that the language of KRS 533.060(2) 1 appears to require that any sentence received for a felony conviction committed while on probation for a prior felony conviction must be served consecutively to any other felony sentence. In Harris v. Commonwealth, Ky.App., 674 S.W.2d 528 (1984), the court held that KRS 533.060(2) did not apply to a situation involving revocation of probation or conditional discharge of a misdemeanor sentence based on the commission of a felony offense while on probation for the misdemeanor offense. Thus, we agree with Warren that KRS 533.060(2) does not apply in this case, but this fact does not justify the relief requested by appellant. 

Warren v. Commonwealth, 1998 KY 15037 (KYCA, 1998)   

On January 31, 1995, the McCracken County Grand Jury indicted Warren in Case No. 95-CR-23 on one felony count of Second-Degree Trafficking in a Schedule III Controlled Substance, First Offense, KRS 218A.1413. On July 14, 1995, Warren entered a guilty plea to an amended misdemeanor offense of Second-Degree Possession of a Controlled Substance, KRS 218A.1416, pursuant to a plea agreement with the Commonwealth, in which the Commonwealth agreed to recommend a sentence of twelve (12) months, and further agreed to take no position on probation. On September 1, 1995, the circuit court sentenced Warren to twelve (12) months, but it suspended service of the sentence and placed her on conditional discharge for a period of two years. The requirements of the conditional discharge included refraining from committing another offense and avoiding injurious or vicious habits.      Even though Snow involved revocation of a probated felony sentence following conviction for a misdemeanor offense, rather than the reverse, the language of KRS 533.040(3) would readily apply in either situation. It states that "[a] sentence of probation or conditional discharge shall run concurrently with any…state jail, [or] prison …term for another offense …unless the sentence of probation …is revoked." Consequently, we believe KRS 533.040(3) applies in the case at bar to allow the trial court to run the reinstated misdemeanor sentence consecutive to the felony sentence. While Harris v. Commonwealth, Ky. App., 674 S.W.2d 528 (1984), held that a revoked misdemeanor sentence should run concurrently with the sentence for a subsequent felony conviction, the court relied on KRS 532.110(1), and did not discuss KRS 533.040. As the court in Snow v. Commonwealth, supra, held, KRS 533.040(3) is more specifically directed toward situations involving the running of revoked sentences and therefore takes precedence over the more general KRS 532.110(1) in those cases.

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KRS 218A.1414 Trafficking in controlled substance in third degree — Penalties.

(1) A person is guilty of trafficking in a controlled substance in the third degree when he or she knowingly and unlawfully traffics in:

(a) Twenty (20) or more dosage units of a controlled substance classified in Schedules IV or V; or

(b) Any quantity of a controlled substance specified in paragraph (a) of this subsection in an amount less than the amount specified in that paragraph.

(2)

(a) Any person who violates the provisions of subsection (1)(a) of this section shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for a second or subsequent offense.

(b) Any person who violates the provisions of subsection (1)(b) of this section shall be guilty of:

1. A Class A misdemeanor for the first offense, subject to the imposition of presumptive probation; and

2. A Class D felony for a second or subsequent offense, except that KRS Chapter 532 to the contrary notwithstanding, the maximum sentence to be imposed shall be no greater than three (3) years.

Effective:  June 8, 2011   History: Amended 2011 Ky. Acts ch. 2, sec. 11, effective June 8, 2011. — Created 1992 Ky. Acts ch. 441, sec. 14, effective July 14, 1992.

ANNOTATION FOR THIS STATUTE:

Commonwealth v. Churchwell, 938 S.W.2d 586 (Ky. App., 1996)    

Moreover, we are not persuaded by appellee’s assertion that the legislature’s enactment of specific provisions which relate only to marijuana offenses evidences an intention that such offenses should be treated separately from other drug offenses for enhancement purposes. Indeed, a review of the other drug trafficking penalty statutes shows that each of those statutes, just like KRS 218A.1421, provides that a "second or subsequent offense" shall be enhanced to a felony classification which is one classification more serious than a first offense of trafficking in the same drug. See KRS 218A.1412, KRS 218A.1413, and KRS 218A.1414. Moreover, other than the fact that KRS Chapter 218A may treat marijuana offenses somewhat more leniently than other drug offenses, the primary distinction between the various drug trafficking penalty statutes is that, unlike the others, the marijuana trafficking statute provides for graduated penalties depending upon the quantity of marijuana involved in a particular offense. Further, we note that were we to agree with appellee’s assertion, then a defendant who was twice convicted of trafficking in a single marijuana cigarette would face an enhanced penalty, while another defendant who was convicted of trafficking up to eight ounces of marijuana, after having previously been convicted of multiple counts of trafficking in large quantities of other types of drugs, would not face an enhanced penalty pursuant to KRS Chapter 218A. We are unwilling to conclude that such an inconsistent result was intended by the legislature when enacting KRS 218A.1421(2). 

 

KRS 218A.1415 Possession of controlled substance in first degree — Penalties.

(1) A person is guilty of possession of a controlled substance in the first degree when he or she knowingly and unlawfully possesses:

(a) A controlled substance that is classified in Schedules I or II and is a narcotic drug;

(b) A controlled substance analogue;

(c) Methamphetamine;

(d) Lysergic acid diethylamide;

(e) Phencyclidine;

(f) Gamma hydroxybutyric acid (GHB), including its salts, isomers, salts of isomers, and analogues; or

(g) Flunitrazepam, including its salts, isomers, and salts of isomers.

(2) Possession of a controlled substance in the first degree is a Class D felony subject to the following provisions:

(a) The maximum term of incarceration shall be no greater than three (3) years, notwithstanding KRS Chapter 532;

(b) For a person’s first or second offense under this section, he or she may be subject to a period of:

1. Deferred prosecution pursuant to KRS 218A.14151; or

2. Presumptive probation;

(c) Deferred prosecution under paragraph (b) of this subsection shall be the preferred alternative for a first offense; and

(d) If a person does not enter a deferred prosecution program for his or her first or second offense, he or she shall be subject to a period of presumptive probation, unless a court determines the defendant is not eligible for presumptive probation as defined in KRS 218A.010.

Effective: June 8, 2011   History: Amended 2011 Ky. Acts ch. 2, sec. 12, effective June 8, 2011. — Amended 2002 Ky. Acts ch. 259, sec. 2, effective July 15, 2002. — Amended 1998 Ky. Acts ch. 606, sec. 65, effective July 15, 1998. — Created 1992 Ky. Acts ch. 441, sec. 15, effective July 14, 1992.

ANNOTATION FOR THIS STATUTE:

Jones v. Commonwealth (Ky. App., 2012) 2011-CA-001298-MR December 21, 2012

……We therefore agree with the Commonwealth that after denying entry into the deferred prosecution program, the Commonwealth must take a position on the issue of presumptive probation. The "substantial and compelling" reasons required by the statute are not reasons for denying deferred prosecutions.

When KRS 218A.1415 and KRS 218A.14151 are read in conjunction, it is clear this is the correct interpretation. According to KRS 218A.1415, for a person’s first or second offense of possession of a controlled substance, he or she may be subject to deferred prosecution or presumptive probation. KRS 218A.14151 then states; that if deferred prosecution is denied, the Commonwealth must state on the record its opinion as to whether presumptive probation would be appropriate.

Moreover, as the Commonwealth argues, this interpretation is the only interpretation which would not be violative of the Kentucky Constitution’s separation of powers provisions.  

[U]  Bedson v. Commonwealth (Ky. App., 2012) 2011-CA-001590-MR  October 12, 2012

On June 8, 2011, HB 463 went into effect and provided for deferred prosecution under certain circumstances. Shortly thereafter, Bedson applied for deferred prosecution. However, the Commonwealth objected to his participation in the program, and Bedson requested that the court clarify his eligibility. In his application, Bedson stated that he had been charged with first-degree possession of a controlled substance pursuant to KRS 218A.1415 and attached a copy of an e-mail from the Assistant Commonwealth Attorney stating the plea offer, including amendments to counts one and two from trafficking to possession.

 On appeal, Bedson limits his argument to one issue; namely, his eligibility to participate in the deferred prosecution program created by HB 463 and set forth in KRS 281A.14151.  He argues that the circuit court, and the Commonwealth, have misinterpreted the language and application of KRS 218A.14151(b) by inserting the word "originally" before the words "charged with" so that the deferred prosecution program would not apply to individuals whose original offense was amended down to a lesser charge pursuant to a plea bargain. In addition, Bedson states that both the circuit court and the Commonwealth failed to comply with the mandatory requirements of KRS 218A.1415 (2) and KRS 218A.14151(2). On the other hand, the Commonwealth contends that the circuit court properly construed the statute in finding that Bedson was ineligible for the program and that neither the Commonwealth nor the court needed to comply with further steps provided in KRS 218A.14151(2) or KRS 218A.1415 if he was not eligible. We agree with the Commonwealth that the circuit court properly held that Bedson was not eligible for the deferred prosecution program.

Boone v. Commonwealth (Ky. App., 2013)2012-CA-000828-MR     January 4, 2013

… we first note that Boone was convicted of possession in 2006 and again in 2008. For purposes of KRS 532.080(8), these convictions are properly characterized as "prior felony offense[s]". Additionally, Boone was charged with and entered a plea of guilty to a felony other than possession (i.e., trafficking) in the instant case. That charge satisfies the first sentence of KRS 532.080(8) as it is not a "conviction . . . under KRS 218A.1415". Additionally, we find persuasive the Commonwealth’s contention that under Kentucky’s scheme for trying a PFO charge, evidence of prior felonies is introduced only after the defendant has been convicted of a subsequent felony offense. Thus, under KRS 532.080(8), the Commonwealth may base a PFO charge on a prior felony possession conviction under KRS 218A.1415  when the indictment includes a felony charge other than a felony possession charge. That is what occurred herein, and we find no error.

Goins v. Commonwealth (Ky. App., 2012)    2011-CA-000067-MR  October 19, 2012

On June 15, 2011, Goins filed a motion to modify his sentence arguing the recent amendment of KRS 218A.1415, eliminating enhancement for second or subsequent possession offenses, should be retroactively applied to his 2008 sentence. He also requested an evidentiary hearing and appointment of counsel. On June 22, 2011, without convening a hearing or appointing counsel, the trial court entered an order denying retroactive relief. Thereafter, Goins filed a motion under CR 52.02 and CR 52.04 seeking specific findings for the denial of CR 60.02 relief. The trial court entered an order on July 6, 2011, denying the motion and stating it had made sufficient findings and conclusions in its original order. These two appeals followed. We affirm both.

We quickly dispense with Goins’ argument that he should have received the benefit of retroactive application of the amendment of KRS 218A.14156 and therefore, his underlying sentence for cocaine possession in the first degree, second or subsequent offense, should have been reduced. Goins was sentenced nearly three years before the amendment became effective. In no way did he consent to the future change, nor did he give the court notice that he intended to claim the benefit of some unknown change that might someday reduce the maximum penalty for his crime.

Merriweather v. Commonwealth (Ky. App., 2012)  2011-CA-001398-MR   December 21, 2012

Merriweather makes one final argument on appeal. He argues that he was entitled to the remedial benefit of the amended statutes KRS 218A.1415and KRS 532.080(8). 4 After the guilt phase of Merriweather’s trial, but before the penalty phase, the amended version of these two statutes became effective. The old version of KRS 218A.1415 set the maximum penalty for its violation at ten years’ imprisonment. The amended version set the maximum penalty at three years.

Commonwealth v. Vibbert (Ky. App., 2013)   2012-CA-000231-MR   April 12, 2013

Turning to the matter herein, Vibbert was charged with possession of a controlled substance under KRS 218A.1415, which is a Class D felony. It is the Commonwealth’s attorney, then, and not the county attorney, who has the authority to prosecute said felony. In fact, county attorney is not even mentioned in KRS Chapter 218A. Further, pursuant to KRS 218A.14151, if a defendant successfully completes a deferred prosecution program, "the charges against the defendant shall be dismissed." Obviously, only a court has the power to enter an order of dismissal. Thus, the statute plainly requires the court to make a final disposition of a felony charge, an act that is explicitly outside a district court’s jurisdiction. See Waugh v. Commonwealth, 605 S.W.2d 43, 45 (Ky. App. 1980) ("KRS 24A.110 gives no jurisdiction for final disposition of felony cases to the district courts. Such is reserved to the circuit courts.")

Given the clear delineation of the district court’s jurisdiction, had the legislature intended to include district courts within the scope of KRS 218A.14151, it would have explicitly done so by amending the district court’s jurisdiction. We believe that the same holds true for county attorneys. The statute as currently written must be interpreted as limiting deferred prosecution agreements for felonies under KRS 218A.1415  to the discretion of the Commonwealth’s attorney and the circuit court. Accordingly, neither the Barren County Attorney nor the district court had any authority to authorize the agreement with Vibbert and, therefore, the Commonwealth was not bound by such. Therefore, we must conclude that the circuit court erred in dismissing the subsequent indictment.

For the reasons set forth herein, the order of the Barren Circuit Court dismissing the indictment against Vibbert is reversed and this matter is remanded for further proceedings consistent with this opinion.

Finn v. Commonwealth, No. 2008-SC-000749-DG (Ky. 5/20/2010) (Ky., 2010)

Finn also asserts that "[practical considerations require that the `any quantity’ provision of KRS 218a. 1415[(1)] and the use of the word `residue’ in KRS 218A.510(5) are to be defined in different manners. The `any quantity’ provision [in drug possession statutes] must be construed to mean at least more than mere film or microscopic levels" and suggests that possession of "mere film or microscopic levels" would be better punished as possessing drug paraphernalia.

But the evidence in the case at hand proved that not only did Finn possess and use drug paraphernalia but also that he was knowingly in possession of cocaine by his own admission to a police officer. Because the Commonwealth adduced sufficient evidence to convict Finn of both offenses, we find no error in the trial court’s denial of a directed verdict. 

Cole v. Commonwealth, No. 2008-CA-000464-MR (Ky. App. 6/12/2009) (Ky. App., 2009)

     In subsequent cases, the Supreme Court has continued to follow Shivley and has repeatedly rejected the contention that a usable amount of a controlled substance such as cocaine must be present to support a conviction for possession under KRS 218A.1415(1). See, e.g., Hampton v. Commonwealth, 231 S.W.3d 740, 750 (Ky. 2007); Bolen v. Commonwealth, 31 S.W.3d 907, 909-10 (Ky. 2000). Moreover, the plain language of KRS 218A.1415(1) compels such a conclusion. It provides that "[a] person is guilty of possession of a controlled substance in the first degree when he knowingly and unlawfully possesses: a controlled substance that contains any quantity of" a Schedule II narcotic such as cocaine.

        In this case, evidence showed that Cole was in possession of a glass pipe that contained cocaine residue, which is sufficient to justify denial of his motion for a directed verdict and to uphold his conviction for possession of a controlled substance under KRS 218A.1415.  

Smoot v. Commonwealth, No. 2008-CA-000864-MR (Ky. App. 10/9/2009) (Ky. App., 2009)

      Smoot asserts there was insufficient evidence to prove that he possessed a controlled substance as required by KRS 218A.1415. Specifically, Smoot points to Officer Stratton’s testimony that a search of Smoot’s person (emptying his pockets, checking his waistband, checking his collar, checking his socks and patting his body down) before placing him in the cruiser did not reveal any contraband. Thus, Smoot reasons that "[s]imply because [he] was the party being transported at the time that [Officer] Stratton discovered the cocaine is insufficient to support the inference" that Smoot possessed the cocaine. Smoot’s Brief at 5. We disagree.

    Upon appellate review, our role is to determine "whether the [prosecutorial] conduct was of such an `egregious’ nature as to deny the accused his constitutional right of due process of law." Slaughter v. Com., 744 S.W.2d 407, 411 (Ky. 1987). Our inquiry must focus upon the "overall fairness of the trial, and not the culpability of the prosecutor." Id. at 411-412. Generally, "great leeway" is afforded counsel in closing argument. Id. at 412.

        In this case, the prosecutor made the following objectionable statements to the jury: (1) "criminals learn to adapt like everybody else . . .," (2) "defense counsel expects you to believe that criminals aren’t resourceful enough to hide these drugs," and (3) "because of the Stephon Smoot’s of the world, they do an inspection of the back seat." Smoot’s Brief at 9.

        Considering these prosecutorial statements in the context of the trial, we are simply unable to conclude that such statements fell outside the proper bounds of a closing argument. See Slaughter, 744 S.W.2d 407. Indeed, the defense’s theory at trial focused upon Smoot’s denial that he possessed the cocaine and deposited it in the backseat of the patrol car. And, even if these prosecutorial statements were improper, we do not believe they affected the outcome of the trial. See Slaughter, 744 S.W.2d 407. As such, we perceive no reversible error.

        For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed. 

Taylor v. Commonwealth, No. 2007-CA-002455-MR (Ky. App. 5/1/2009) (Ky. App., 2009)

      The charges against Appellant originated when a police officer who was patrolling through a park on a bicycle noticed Appellant sitting at a picnic table. The officer saw Appellant take something out of his sock and put it by his feet. When the officer approached and asked for identification, Appellant became belligerent. The officer then observed a pipe on the ground near Appellant’s feet. On this basis, Appellant was charged with possession of drug paraphernalia. When the pipe was tested and found to contain cocaine, the charge of possession of a controlled substance was added. After a jury trial, Appellant was convicted of both offenses and sentenced to concurrent one-year terms.

        KRS 218A.1415 provides that a person is guilty of possession of a controlled substance in the first degree when he knowingly and unlawfully possesses a Schedule I or II narcotic drug. Cocaine is classified as a Schedule II narcotic drug. KRS 218A.070(1)(d). For purposes of KRS 218A.1415, "possession" includes constructive possession as well as actual possession. Houston v. Commonwealth, 975 S.W.2d 925 (Ky. 1998). The Supreme Court of Kentucky has framed the test for constructive possession as whether the contraband is subject to the defendant’s dominion and control. Pate v. Commonwealth, 134 S.W.3d 593 (Ky. 2004); Burnett v. Commonwealth, 31 S.W.3d 878 (Ky. 2000).

     Returning to the case at bar, although Appellant was in a public place, the crack pipe was subject to his immediate control. Additionally, there was an available factual inference that the officer had observed Appellant’s actual possession of the pipe immediately before it was dropped to the ground. Under such circumstances, we cannot conclude that it would have been clearly unreasonable for the jury to find guilt. Appellant has thus failed to show that he was entitled to a directed verdict of acquittal. 

Martin v. Commonwealth, No. 2006-SC-000370-MR (Ky. 5/24/2007) (Ky., 2007) 

   A conviction for first degree possession of a controlled substance, as it relates to this case, required the jury to find that Martin knowingly and unlawfully possessed any quantity of cocaine (a Schedule 11 controlled substance). See KRS 218A.1415(1) and KRS 218A.070(1)(d) (listing cocaine as a Schedule II controlled substance).

        Under KRS 218A.1415 and the case law interpreting the statute, the existence of cocaine residue on a crack pipe — even if the residue cannot be accurately weighed or measured — is sufficient to support a conviction for possession of a controlled substance. See Commonwealth v. Shivlev, 814 S.W.2d 572, 574 (Ky. 1991) (holding that cocaine residue supports a charge of cocaine possession when there is other evidence or the inference that a defendant knowingly possessed the controlled substance); Bolen v. Commonwealth, 31 S.W.3d 907, 909-10 (Ky. 2000) (following Shivlev).

        Turning to the testimony at trial relating to the first degree possession of a controlled substance charge, there was evidence from which a jury could infer that Martin knowingly possessed in her shoe a crack pipe containing cocaine residue. Thus, Martin was not entitled to a directed verdict of acquittal on that charge. 

Pitcock v. Commonwealth, No. 2007-CA-000207-MR (Ky. App. 11/2/2007) (Ky. App., 2007)

  In support of his position that the definition of possession presented to the jury was erroneous, Pitcock cites Pate v. Commonwealth, 134 S.W.3d 593 (Ky. 2004). In Pate, the Kentucky Supreme Court held that the Kentucky Penal Code’s definition of possession as utilized in KRS 500.080(14) does not apply to offenses covered by KRS Chapter 218A. Id. at 598. Instead, the Court set forth that to possess, as employed by KRS Chapter 218A, means "[t]o have as property; own." Id. The definition of possession given to the jury was: "to have actual physical possession or otherwise to exercise actual dominion or control over a tangible object…." Pitcock contends that that definition is at odds with the requirements of Pate. We agree. The definition is taken verbatim from KRS 500.080(14), and Pitcock was charged under KRS 218A.1415. The definition was indeed erroneous under Pate.

        Nonetheless, we do not conclude that the instruction constituted "a substantial error resulting in manifest prejudice." RCr 10.26. The Pate Court additionally noted that possession for purposes of KRS Chapter 218A includes both "actual" and "constructive" possession. Pate, 134 S.W.3d at 598. "To prove constructive possession, the Commonwealth must present evidence which establishes that the contraband was subject to the defendant’s dominion and control." Id. at 598-99, quoting Burnett v. Commonwealth, 31 S.W.3d 878, 881 (Ky. 2000). We have previously held that "the person who owns or exercises dominion or control over a motor vehicle is deemed to be the possessor of any contraband discovered inside it." Paul v. Commonwealth, 765 S.W.2d 24, 26 (Ky.App. 1988); Deboy v. Commonwealth, 214 S.W.3d 926, 930 (Ky.App. 2007).

        Our Supreme Court has recently reaffirmed this interpretation, holding that "proof that a defendant has possession and control of a vehicle is evidence to support a conviction for constructive possession of contraband found within the vehicle." Burnett, 31 S.W.3d at 880. The jury’s decision reflected that it believed that Pitcock was the driver of the SUV and that, therefore, he had possession and control of the vehicle. Thus, the fact that crack cocaine was found within the SUV supports a conviction for possession of contraband. We conclude that manifest injustice did not occur as a result of the trial court’s error because there is not a substantial possibility that the jury’s decision would have been different but for the harmless error. 

Commonwealth of Kentucky v. Bowles (Ky. App., 2003)   

On appeal, the Commonwealth first argues that the circuit court lacked the authority to void the felony conviction for illegal possession of a controlled substance (cocaine) under KRS 218A.1415 through the use of KRS 218A.275 because the legislature intended that section to apply only to first convictions under either KRS 218A.1416 or KRS 218A.1417, but not under KRS 218A.1415. On the other hand, Bowles argues that KRS 218A.275 is unambiguous and that the Commonwealth is attempting to insert an exception in KRS 218A.275(9) that does not exist. We agree with Bowles that KRS 218A.275(9) does not except felony convictions under KRS 218A.1415 from its application, as does the remainder of the statute.

Johnson v. Commonwealth of Kentucky (Ky., 2003)  

 KRS 218A.1415, the offense of which Appellant was actually convicted. An indictment is sufficient if it fairly informs the accused of the nature of the charged offense and does not mislead him. Thomas v. Commonwealth, Ky., 931 S.W.2d 446, 449.  A defendant receives sufficient notice of a lesser included offense when the specific language of the accusatory pleading adequately warns the defendant that the state will seek to prove the elements of the lesser offense, or if the lesser offense is necessarily included within the statutory definition of the charged offense. 

Simpson v. Commonwealth, No. 2004-CA-000641-MR (KY, 2005) 

Bolen asserts that the statute calls for "any quantity" and that quantity implies a measurable amount. See KRS 218A.1415(1). This argument is directly contrary to this Courts holding Commonwealth v. Shivley, Ky., 814 S.W.2d 572 (1991) that "possession of cocaine residue …is sufficient to entitle the Commonwealth’s charge to go to a jury when there is other evidence or the inference that defendant knowingly possessed the controlled substance." M. at 574. Similar to this case, testing in Shivley revealed cocaine residue that could not be accurately weighed. However, this Court declared that the quantity of the controlled substance possessed is immaterial to the criminality of the act. u. at 573. Commonwealth v. Harrison, Ky., 14 S.W.3d 541, 549-50 (2000). Therefore, the existence of cocaine residue on each pipe was sufficient to support a conviction under KRS 218A.1415( 1).    [I]f the conviction of possession was premised upon the methamphetamine found in the jar in the trunk of the vehicle, KRS 505.020(1)(a) would require that the possession conviction be vacated. However, if the conviction was premised upon the methamphetamine residue found on the piece of burnt aluminum foil in the duffel bag in the back seat, the conviction would not necessarily violate KRS 505.020(1)(a). This residue would have been sufficient to support a conviction under KRS 218A.1415(1), and a reasonable jury could have believed that this residue was not a product of the manufacturing process occurring in the trunk of the vehicle, e.g., the residue represented methamphetamine purchased on the street or manufactured elsewhere and used personally by Appellant. With such a finding, a reasonable jury could have convicted Appellant of manufacturing methamphetamine (based upon the manufacturing process occurring in the trunk of the vehicle) and possession of methamphetamine (based upon the residue found in the back seat) without violating KRS 502.020(1)(a).

Fulcher v. Commonwealth, No. 2002-SC-0855-MR (KY, 2004) 

 Because we have previously determined in Part I of this opinion, supra, that the evidence was insufficient to support a conviction of manufacturing methamphetamine under KRS 218A.1432(1)(b) (possession of the chemicals and equipment), and because Appellant was not charged with mere possession of methamphetamine, KRS 218A.1415(1), this issue affects only his convictions of possession of anhydrous ammonia in an unapproved container for the purpose of manufacturing methamphetamine on August 3, 2001, and of use or possession of drug paraphernalia on August 3, 2001. The instruction on possession of anhydrous ammonia on August 3, 2001, permitted a conviction based on possession not only of the anhydrous ammonia found in the glass jar on that date but also on possession of the altered propane tank, despite the fact that the Kentucky State Police had previously disabled the tank for future use by puncturing it with bullet holes, thus precluding a second conviction for possessing anhydrous ammonia in the tank on August 3, 2001. Thus, the conviction of possession of anhydrous ammonia on August 3, 2001, must be reversed for a new trial at which the jury will be instructed that a conviction of unlawfully possessing anhydrous ammonia must be premised upon the anhydrous ammonia found in the glass jar on that date. (The anhydrous ammonia found in the glass jar could not have been the same anhydrous ammonia found in a bowl in the deep freeze during the July 24th search because the officers who found the anhydrous ammonia on July 24th diluted it and poured it out on the ground.)      The statute defining the offense of use or possession of drug paraphernalia provides that "[i]t is unlawful for any person to use, or to possess with intent to use, drug paraphernalia for the purpose of… manufacturing…ingesting, inhaling… a controlled substance in violation of this chapter." KRS 218A.500(2) (emphasis added). Under the "to use" theory, a defendant could be convicted of either presently and unlawfully using the drug paraphernalia or having unlawfully used it in the past. Under the "intent to use" theory, a defendant could be convicted of presently possessing the drug paraphernalia with an intent to unlawfully use it in the future.

Cimiotta v. Commonwealth (Ky. App., 2003) 

 Kenneth Cimiotta appeals his convictions for trafficking in marijuana (KRS 218A.1421), possession of drug paraphernalia (KRS 218A.500), first-degree possession of a controlled substance (KRS 218A.1415), and operating a motor vehicle with alcohol concentration of or above 0.08 or while under the influence of alcohol or other substance (KRS 189A.010), under a conditional plea for which he received a total sentence of four years, probated for five years. His conditional plea reserved the right to appeal the trial court’s denial of his motion to suppress — which alleged that the police did not have reasonable suspicion to stop him, and lacked probable cause for the arrest. We agree with Cimiotta that the police detective did not have a reasonable suspicion for the stop. Therefore, we reverse and remand.

Kotila v. Commonwealth of Kentucky (Ky., 2003)   

When Ms. Newhouse returned to the Buick, the officers requested a consent to search the vehicle. Both Newhouse and Appellant consented to the search which produced a quantity of methamphetamine, various chemicals and equipment associated with the manufacture of methamphetamine, and a loaded .22 caliber Ruger handgun. Meanwhile, the NCIC check revealed that there were outstanding fugitive warrants against Appellant from Wisconsin. Based on the warrants, Appellant was placed under arrest and transported to the police station where he was read his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and interrogated.  Although Appellant denied owning the maroon Buick, he admitted that he "lived" in it. He also admitted to possessing the methamphetamine found in the vehicle and, when questioned whether "it was something he had made a couple of days ago and that what was there was what was left over," he responded "[t]hat’s what it is." (The indictment did not charge Appellant with the offense of possession of a controlled substance in the first degree, KRS 218A.1415, and the trial judge did not instruct the jury on the alternative theory of actually manufacturing methamphetamine under KRS 218A.1432(1)(a). Thus, these admissions by Appellant were relevant only as circumstantial evidence of Appellant’s intent to manufacture methamphetamine, a necessary element of the offense of which he was convicted. KRS 218A.1432(1)(b).)

Hawkins v. Commonwealth (Ky. App., 2003) 

 Teddy Shawn Hawkins (Hawkins) appeals his convictions for possession of a controlled substance, first degree, (KRS 218A.1415), and possession of drug paraphernalia, second degree, (KRS 218A.500), under a conditional plea for which he received a sentence of five years’ imprisonment. His conditional plea reserved the right to appeal the denial of a motion for specific performance of a deal supposedly made between him and his arresting officer. We agree with the Commonwealth that a police officer has no authority to enter into a plea agreement with a defendant, and even if the prosecutor had agreed with such a deal, Hawkins did not perform according to the terms he said were in the contract. Hence, we affirm.

Taylor v. Commonwealth, No. 2001-SC-0870-MR (Ky., 2003)

Taylor testified in his own defense and admitted that he was guilty of the offense of driving on a suspended license and eluding police. He otherwise denied the methamphetamine charge. Upon close of the evidence, the trial judge directed a verdict for the Commonwealth on the two charges Taylor admitted committing. The trial judge informed the jury of that directed verdict and instructed the jury on the remaining drug charge. It should be noted that the indictment did not charge Taylor with the offense of first-degree possession of a controlled substance, KRS 218A.1415, and the trial judge did not instruct the jury on the alternative theory of actually manufacturing methamphetamine under KRS 218A.1432(1)(a).     The jury convicted Taylor of manufacturing methamphetamine. Based on the jury’s verdict during the penalty phase, Taylor was sentenced to twenty years on the drug charge and five years each on the two other charges, the sentences to run consecutively for a total of thirty years in prison.     Taylor claims that the statute which proscribes manufacturing methamphetamine is void for vagueness because it does not alert the average citizen that his activity is illegal and it fails to provide guidelines to prevent arbitrary and discriminatory law enforcement. He also asserts that it violates the prohibition against cruel and unusual punishment. We disagree with both contentions.      KRS 218A.1432(1)(b) is not unconstitutionally vague. Kotila v. Commonwealth, 2000-SC-0341-MR (Final Sept. 18, 2003). Nor does it violate the prohibition against cruel and unusual punishment. The length of sentence is a matter of legislative prerogative. See Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984). The trial judge correctly held that KRS 218A.1432(1)(b) is constitutional.

Nelson v. Commonwealth of Kentucky (Ky. App., 2003)

 On appeal, Nelson raises four (4) issues which he contends requires reversal of his convictions. First, he argues that the trial court erred when it permitted sentencing on the misdemeanor offenses to be held at the same time as the felony offenses. By allowing such to occur during the truth-insentencing phase of the trial, the jury was aware of Nelson’s prior criminal convictions prior to sentencing him on the misdemeanor offenses. While truth-in-sentencing is permitted prior to felony sentencing, the Kentucky Legislature and the Courts have not opted to permit such disclosure in misdemeanor cases. KRS 532.055(1).  Nelson concedes that the issue has not been preserved but argues that this Court should review it under RCr 10.26, the palpable error rule. Citing Newton v. Commonwealth, Ky.App., 760 S.W.2d 100 (1988) and Commonwealth v. Philpot, Ky., 75 S.W.3d 209 (2002), Nelson contends palpable error occurred as to his sentencing on the misdemeanor  charges. While we agree that the court erred by permitting the jury to hear evidence of Nelson’s prior criminal history, the circumstances of this case vary greatly from either case cited above and hence, we find any error herein harmless and not palpable. In this case, the jury had already determined Nelson guilty of all five criminal offenses — three of which were felonies and two misdemeanors. Any misdemeanor sentence imposed in this case was required to run concurrent with the felony sentences imposed. In fact, the two twelve (12) month sentences were ordered to run concurrent with Nelson’s twelve years’ imprisonment imposed by the jury on his felony convictions. Thus, any sentence imposed on the misdemeanor offenses (whether one day or 12 months) was to run concurrent with the felony sentences imposed and any error was harmless error in that Nelson would not serve any additional time in prison on his misdemeanor convictions. The Kentucky Supreme Court set forth the proper procedure to be followed in the sentencing phase of trials involving convictions of both felony and misdemeanor offenses, (see Philpot, supra, at 218), and although the circuit court herein failed to follow the proper procedure, Nelson suffered no actual harm and thus any error was harmless.

Thomas v. Commonwealth, 2003 KY 34 (KY, 2003) 

 Commonwealth v. Reynolds, Ky., 365 S.W.2d 853, 854 (1963), our predecessor court engaged in an analysis of the term "convicted" or "conviction" and noted:    The word generally means the ascertainment of defendant’s guilt by some legal mode and adjudication that the accused is guilty. This may be accomplished by a confession by the accused in open court, a plea of guilty or a verdict which ascertains and publishes the fact of guilt. We believe… in the majority of jurisdictions… the word "conviction" is not limited to a final judgment.  Kentucky Law has recognized the equivocal nature of these terms and has held that the meaning implicated depends upon the particular statute in question. Id.; Kentucky County Judge/Executive Association, Inc. v. Justice Cabinet, Department of Corrections, Ky. App., 938 S.W.2d 582 (1997); Dial v. Commonwealth, 142 Ky. 32, 133 S.W. 976 (1911).

Bolen v. Kentucky (Ky. App., 2003)   

On October 30, 1998, a jury convicted Bolen of possession of drug paraphernalia, second offense (KRS2 218A.500); first-degree possession of a controlled substance (KRS 218A.1415); resisting arrest (KRS 520.090); and first-degree persistent felony offender (PFO)(KRS 532.080). The jury recommended a sentence of five years for the first-degree possession of a controlled substance conviction and five years for the possession of drug paraphernalia conviction, to run consecutively. During the PFO phase of the trial, the jury recommended that Bolen’s sentence for first-degree possession of a controlled substance be enhanced to fifteen years and his sentence for possession of drug paraphernalia be enhanced to ten years, to run consecutively, for a total of twenty-five years to serve. At final sentencing, the trial court reduced Bolen’s sentence to a total of twenty years. The amendment was required to comply with KRS 532.110(1)(c), which limits the maximum aggregate sentencing for multiple Class D felony convictions to twenty years. This reduction was implemented by reducing the first-degree possession of a controlled substance sentence from fifteen to ten years.     Second, Bolen has a right under Kentucky law to have his sentence set by a jury. Kentucky statutes require sentencing by a jury in felony cases. KRS 532.055(2) states that when a jury returns a guilty verdict, "the court shall conduct a sentencing hearing before the jury and the jury will determine the punishment to be imposed." Wilson v. Commonwealth, Ky., 765 S.W.2d 22, 22 (1989)(emphasis original). Wilson goes on to note that "[o]nly in the event that the jury is unable to agree on a sentence shall the judge impose the sentence." Id.     The Commonwealth argues that these statutes do not apply to this case on remand because a jury has already determined the sentence. However, in Wilson the Supreme Court vacated a sentence imposed by the trial court on resentencing. The Supreme Court held that a trial judge cannot "abrogate a criminal defendant’s right to jury sentencing by speculating on what sentence the jury would have imposed if properly instructed." Id.     Unlike the defendant in Wilson, Bolen is not entitled to receive a completely new sentence on remand. The Supreme Court affirmed portions of Bolen’s sentence and his right to resentencing is limited to the PFO trial phase. However, like the defendant in Wilson, Bolen is entitled to be sentenced by a properly instructed jury.

 

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