*1 limitеd where rare and best to cases be longer no available
the substance is will Obviously, proof testing.
chemical substantial, competent have be
still objectively identify
and sufficient to
drug.
Here, compelling the most Appellant thought selling she
Xanax, thought and the technicians any like and had never seen
looked Xanax There is not even
simulated Xanax. actual- proof
scintilla of Xanax, alone
ly competent let Because proof.
substantial the Common- element prove
wealth failed to essential case, to a Appellant
of its was entitled in al- on the
directed verdict I charges. would reverse and
prazolam
require proof commensurate with sound in to- testing, easily
chemical obtainable world, and
day’s scientific which would policy.
sound
SCHRODER, J., joins dissenting
opinion. Kentucky,
COMMONWEALTH
Appellant, ADKINS, Appellee.
James David
No. 2009-SC-000782-DG.
Supreme Kentucky. 20, 2011.
Jan.
instructions did not adequately address his defense and so reversed his conviction and remanded for a new trial. granted We Commonwealth’s motion for discretionary review to consider to what extent our stat- provide utes for an innocent possession defense, and specifically we par- asked the ties to address the in light issue of KRS 218A.220, which exempts certain persons whose possession of controlled substances is incidental and temporary from the crim- inal provisions offense of the KRS Con- trolled Substances chapter. Agreeing with the Court of Appeаls that Adkins was enti- tled to an instruction embodying his inno- cent defense, we affirm. RELEVANT FACTS General, Jack Conway, Attorney Jason At trial the Commonwealth’s proof in- Moore, Bradley Attorney Assistant Gener- testimony cluded to the effect al, that on Office of Appeals, Attorney Criminal March 2007 a Office, member of the Frankfort, KY, Ohio General’s Counsel County Department Sheriffs Appellant. for arrested Ad- kins on charges unrelated at Adkins’s Drake, Jamesa J. Assistant Public Advo- brother’s home. particular That house cate, Department of Public Advocacy, Highway Dundee, fronts 69 in Kentucky, Frankfort, KY, Appellee. Counsel for and is close to and occupies the same parcel of Opinion land as Justice Adkins’s own home. During ABRAMSON. the search of person Adkins’s inci- arrest, dent to the the officer removed Following jury a trial in the Ohio Circuit from pocket Adkins’s a small sock contain- Court, James David Adkins was found ing several plastic unused baggies, two guilty of first-degree a con- straw-like implements suitable for snort- trolled (methamphetamine), smoking methamphetamine, and Kentucky violation of Revised Statute baggies two containing proved what to be (KRS) 218A.1412, and of almost grams seventeen drug. drug paraphernalia, in violation of KRS testimony Other was to the effect that 218A.500. He was sentenced to concurrent commonly packaged terms of years confinement of five illegal baggies sale small and that months, trial, twelve respectively. At Ad- grams seventeen of methamphetamine is presented kins “innocent considerably defense, person more than a would appeal and on to the Court of ingest any one time. Appeals, Based on this argued that the trial court argued erred evidence the Commonwealth refusing expressly Adkins had violated that portion addressed that defense. In a Opinion, panel unanimous of the Court of statutes which makes it unlaw- Appeals agreed with Adkins that the ful to possess methamphetamine “-withthe distribute, beyond a rea- dispense, or sell” believe from the ... intent to 218A.010(34)(2006).1 following: sonable doubt all of it. KRS *3 1.) possessed county he the That on or about that in this Adkins conceded 16, 2007, and other items the of- the finding March and before methamphetamine herein, pocket, but he denied ficer in his he had in his found indictment the intent that so with to “distrib- he did possession quantity methamphet- a ute, drug. He testi- amine, or sell” dispense, AND arrest, he time before his fied that a short 2.) so pos- That he knew the substance lying driveway in the found the sock methamphetamine, by sessed him was and his brother’s both his resi- serves AND pocket it into to placed dences and his 3.) That he had Also, young his keep away from son. sell, the intent possession in his with to it had dropped he believed been because it to another dispense per- distribute or acquaintances, a of his brother’s one son. dealer, attempted Adkins to reputed drug have the word sought Adkins “unlawful- report phone. sup- the sheriff it to (1) of ly” inserted in subsection this in- events, and port of this version Adkins so read “he struction that it would unlaw- they two friends testified that had of his fully quantity had a possession in his from the acquaintance leaving seen the methamphetamine.” The trial court re- driveway day, earlier that and brother’s because it was fused insertion reluc- one of those testi- both Adkins and friends tant model instruction alter the object they fied a small fall from saw (3) because view subsection its he prepar- truck as acquaintance’s adequate gave Adkins ave- ing away. Adkins pull testified nue for his innocent arguing when was unable to contact the sheriff defense. by phone he intended to turn the to report office and the sheriffs Appeals disagreed. Rely- The Court of suspicions acquain- about his brother’s ing reiterating on trial cases This evidence innocent or lawful tance. law court is to on the whole instruct him, argued entitled be- particular case and in instruct on court, fore trial instruction ex- statutory if defenses is rea- as pressly recognizing evidence, sonably from the deducible charges against him. defense to Commonwealth, 241 Fredline S.W.3d v. request court denied Adkins’s (intoxication);
The trial (Ky.2007) 793 Mondie instead, following the model instruc- Commonwealth, (Ky.2005) S.W.3d 203 § Ken- Cooper’s found at 9.11B burglary); Mishler v. (protection against (2010), tucky to Juries in- Instructions (Ky.1977) S.W.2d 676 as follows: structed (intoxication), Appeals held the Court defendant, presented James that Adkins had sufficient evi- You will find Adkins, in a dence of an innocent defense to guilty David in the entitle him to an affirmative instruction degree controlled substance first instruction, if, granted We only you if and that defense. encapsulating under this among meaning, things, first-degree traf- "traffic” "to 1. 218A.1412 establishes KRS manufacture, distribute, knоwing ficking possess and unlawful traffick- as the intent to with drugs, including methamphet- in certain dispense, substance.” or sell controlled 218A.010(34) (2006) defines amine. discretionary review to whether hypothetical consider Commonwealth’s prescription “innocent is a defense with a trafficker. basis, particular and in we
statutory asked primarily Commonwealth maintains to consider KRS 218A.220 parties that Adkins’s defense was not the sort of applicability to brief to this case. Be- its affirmative, statutory defense at issue in addressing specific question, fore upon the cases which the of Appeals however, gen- we consider Adkins’s more relied, understood, better but as the eral claim that the statute itself it, trial simply court understood provides him the innocent *4 denial or converse of one of the elements defense he asserts. offеnse, of the actual and thus does not require express its own instruction. We
ANALYSIS
disagree.
Correctly
Appeals
I.
Of
The Court
De-
Code,
With the
adoption
the Penal
termined That
“Innocent Posses-
course, our criminal law became exclusive
Implicit
sion” Is A
In
Defense
The
ly
500.020,
then,
statutory, ICRS
and since
Controlled Substance Statutes.
accordingly,
our
instruction cases
argues
The Commonwealth
have focused on whеther
the evidence
Appeals opinion
wrong
for a would permit
finding
statutory
of a
couple of reasons. The Commonwealth’s
so,
defense.
they
required
If
have
a hypothetical
first contention is based on
affirmatively reflecting
instruction
that de
inapplicable
According
to this case.
to the
See,
fense in some manner.
e.g., Thomas
Commonwealth, because Adkins was not
Commonwealth,
v.
(Ky.
170
348
S.W.3d
charged
illegal possession, but with
2005) (extreme
disturbance);
emotional
trafficking,
proposed
Adkins’s
instruction Mondie,
(protection
at
158
209
S.W.3d
suggesting
risked
to the
that if Ad-
against burglary); Walker v. Common
acquired
drugs innocently
kins
(mistake
wealth,
(Ky.2004)
127
596
S.W.3d
whereas,
guilty
trafficking,
could not be
law).
in this
similar
case
out,
even
points
the Commonwealth
a
ly supports
giving
of an instruction
person
fully,
who obtains
law
such
drugs
affirmatively reflecting the
of in
defense
a
through
proper prescription,
can be
nocent
of a
controlled sub
guilty
form
alleged
stance.
against
provide
if he
to
Adkins
intends
right
posses
to
drugs to others and has no
do so.
What constitutes innocent
event, however,
sion
As
it-
of a controlled substance?
courts
self,
intent,
coupled with the unlawful
be-
several sister states which have ad
illegal,
comes
we find ourselves back
dressed the “innocеnt
noted,
particular
easy
claim
have
pos-
imagine
Adkins’s
that his
it is
numerous
session,
merely
acquisition,
person might
not
circumstances in which a
clearly
lawful.
take
of a
did not
controlled
See,
by
e.g.,
prescrip-
any
obtain the
without
unlawful intent.
(Utah 2008);
Miller,
part
State v.
Adams
drugs
of the intent ele-
confiscating
merely to the converse
parent
A
App.1985).
child,
finding
express
her
a teacher
require
his or
and thus
not
from
ment
does
classroom,
daughter
her
a
in his or
As the Common-
drugs
instruction.
defensive
for her bedridden
picking up prescription
notes,
a
correctly
pre-Penal
our
Code
wealth
left
medicine
parent,
finding
a homeowner
between
attempted
distinguish
de-
cases
be, deemed
guest,
all could
behind
alibi,
fenses,
amounted
such as
strictly construed
under
illegal possessors
charged
and did
denial
the act
simple
Moreover,
if the
possession statutes.
an affirmative defеnsive in-
require
her
to his or
transferred
teacher
Commonwealth,
struction, e.g. Shavers v.
gave the
or the homeowner
principal,
(Ky.1974);
v.
514 S.W.2d
Stafford
who came
guest’s spouse
drugs to
(Ky.1973);
S.W.2d 738
home
up,
the teacher and
pick them
Commonwealth, 487 S.W.2d
Owens
traffick
guilty
owner could be deemed
confessing
(Ky.1972),
defenses
are confident
as well. We
*5
asserting
but
an excuse or
predicate act
Assembly did
intend to crimi
General
it,
rеquire
for
did
such
justification
which
of con
nalize the
or transfer
See,
Kohler v.
e.g.
an instruction.
Com-
in
such
substances
circumstances
trolled
monwealth,
(Ky.1973);
492 S.W.2d
reason,
these,
among
and it is for that
Commonwealth,
quiring
“Innocent Possession” Defense For
among
things,
the defendant
Incidental Possession In
Of
Aid
“unlawfully
feloniously
a narcotic
sold
Public Officers.
provided
opportunity
the de-
drug,”
argue
that his
had not
fendant
conduct
Our
regarding
pos-
conclusion
“innocent
“felonious,”
in-
opportunity
been
session” is confirmed
KRS 218A.220.
and the defendant
entitled
adequate,
exempts
That statute
from the controlled
embodying
affirmative instruction
to an
substance prohibitions persons engaged in
pre-Penal
To the extent
defense.
storing
lawful
such
transporting of
matter,
precedent bears on the
Code
substances, public officials and
em-
their
therefore, it supports the decision reached
ployees
agents
require
whose duties
Appeals.
by the
them, and,
here,
pertinent
Appeals correctly
the Court of
ob-
As
persons
“temporаry
pos-
whose
incidental
served, moreover, our
since the
cases
session ...
is for
purpose
aiding
*6
adoption
Penal Code have insisted
public
in performing
officers
their official
expressly
that the instructions should
re-
question
The
duties.”
is whether a person
statutory
flect a
defense if there is evi- who
possession
takes
of a controlled sub-
it,
reasonably
and this is
supporting
dence
stance,
done,
as Adkins claims to have
with
so even where intent is an element of the
intention
turning
unilateral
of
it over
alleged
purports
offense and the defense
police
per-
to the
“aids” the officer in the
that
negate
to
element or in some other
duties,
formance
his or her
or whether
justify
way
mitigate
to
or
it.
v.
Fredline
“aiding” requires
prior
some
arrangement
(intoxi-
Commonwealth, 241
797
S.W.3d at
person pos-
betwеen the officer and the
cation);
v.
Mishler
556
drugs.
sessing the
(same);
at 680
v.
S.W.2d
Thomas
Com-
note,
prior
As the
our
parties
decisions
(extreme
monwealth,
but specify that he struction modified also, believe, It such as informants. we guilty posses- not be could found unless his persons find con- encourage meant who unlawful, cer- sion of while inno- trolled substances or otherwise come tainly only way not the the instructions cently into their turn them embody could be made to his innocent they might give whatever information defense, was not un- improper about so have them. statute does the facts case der of this and so should assurance that providing A more in- granted. complete have been that limited is not a crime. As purpose struction these сircumstances would be general, “unlawfully” phrase to insert before the portion pro- defense this 218A.220 *7 (1) in his in “had subsection inci- requires possession vides that the given the instruction that was then to and notify the possessor dental the concept the or separately authorities and turn in the state of innocent appropriate reasonably possession. as soon That legal controlled substanсe additional instruc- possible. provide: would person temporary possession A who has III. Adkins Was Entitled to an Affir- of a controlled substance for the time mative Instruction on Innocent reasonably necessary to return the con- Possession. trolled to its to turn owner or Here, Adkins offered evidence public over controlled substance to into possession he came incidental performing officers their duties official he lying when found it possess sub- does controlled driveway. in his evi brother’s There was unlawfully. stance dence addition to testimo Adkins’s own explanation This affirmative of lawful or that, before, drug ny short time a known possession, coupled innocent the addi- something dealer had in the dropped possession “unlawfully” tion of ele- driveway. There was also Adkins’s testi (1), properly expresses ment subsection mony immediately find almost after retrial, he the defense Adkins raised. On attempted to call the report phone sheriff them. There were is entitled have the so instructed. sell, distribute,
CONCLUSION “with the intent to or it to dispense person.” another (emphasis sum, prohibiting posses- our statutes added). There is problem no with criminal sion of and in controlled sub- as to liability selling. is there Nor a diffi- specify justify punishment stances сulty being with dispensing illegal since it possession or must be delivery is defined as to an “ultimate require- “knowing and unlawful.” This 218A.010(8). However, KRS user.” dis- implicitly recognizes possibility ment innocent, tribute means “to trans- deliver than possession incidental or fer, administering dispensing.” for a of inno- and thus allows 218A.010(10). cent where there is evidence This include giving would incidentally officer, came law about enforcement which longer reasonably thаn exempt liability continued no would be of criminal under necessary to allow for lawful and appropri- KRS 218A.220. disposal. specifi- ate KRS 218A.220 more Therefore, on the face instructions cally exonerates —and so creates a defense themselves, Appellant could have been upon temporary, based incidental —the convicted was something which not ille- possession of for thе controlled substances is, gal This distribution. made the —that purpose aiding public officers giving exemption instruction abso- duties, includes, performance of their Therefore, it lutely critical. was not harm- believe,
we for incidental less, “adequate nor there an avenue purpose turning over the controlled sub- his arguing innocent de- stance to the Because the police. fense.” in this case was sufficient to support defense, lawful en-
titled to proffered af-
firmatively reflecting possession. affirm
Accordingly, Opinion we Appeals and so the mat- remand
ter for proceedings additional to the Ohio
Circuit Court. Appellant, HUDSON, Matthew MINTON, C.J.; NOBLE, SCHRODER, *8 SCOTT, VENTERS, JJ„ concur. CUNNINGHAM, J., CEMETERY; by separate HILL concurs CAVE Honorable Coleman, opinion. John B. Administrative Law Compensation Judge; and Workers’ CUNNINGHAM, Justice, concurring: Board, Appellees. however, majority; I concur with the I No. 2010-SC-000223-WC. write the trial separately address court’s assertion that the last paragraph Supreme Kentucky. adequate the instruction was “an avenue arguing de- Jan. 2011. been, might fense.” It does not. Had it I persuaded
have been that it harmless
error. paragraph last of the instruction
requires possess illegal Appellant