Kotila v. Commonwealth

KOTILA, Appellant, Ronald Kentucky,

COMMONWEALTH

Appellee.

No. 2000-SC-0341-MR.

Supreme Kentucky. Court of

June 2003.

Rehearing Sept. Denied 2003. Hoffman,

Richard Assistant Public Ad- vocate, Department Advocacy, of Public Frankfort, for Appellant. Counsel III, Chandler, General, Attorney A.B. Fuchs, Gregory Attorney C. Assistant General, General, Office of Attorney Crim- Division, Frankfort, inal Appellate Counsel for Appellee.

OPINION OF THE COURT Appellant Ronald Kotila was convicted Pulaski Circuit Court of manufactur- ing methamphetamine by “possess[ing] the or equipment for the manufac- ture the intent methamphetamine,” KRS 218A.1432(l)(b), felony, a Class B 218A.1432(2). The offense was enhanced A felony by jury’s a Class additional finding that of a he was firearm time at the the offense was com- mitted, 218A.992(l)(a). Appellant twenty-five years was impris- sentenced to appeals onment and to this Court as a 110(2)(b), Ky. § right, matter of Const. (1) claiming judge the trial should have suppressed during obtained evidence (2) consensual search and he statements (3) during interrogation; made a custodial he len into the vehicle and that support insufficient to items the evidence was (4) conviction; Looking instructions be intoxicated. guilt phase appeared vehicle, erroneous; firearm enhance- through were windows bag laying have been reserved ment evidence should officers observed a Wal-Mart called in penalty phase; front seat. statute Officer Griffith is unconsti- under which he was convicted check of the plate for a license request vague. agree Because we tutionally plate Buick the license and learned a prejudi- convicted under Appellant was registered to that vehicle. Offi- instruction, cially we guilt erroneous phase proceeded cers Nelson and then Griffith reverse his conviction remand intending toward the entrance of store for a new to the Pulaski Circuit Court case question suspicious about his trial. Appel- aсtivity. they When encountered breezeway, Grif- lant in the store’s Officer 14, 1999, May off-duty Somerset On him, he stopped fith informed him that was officer, Nelson, David and his wife police suspected shoplifting, and frisked him. parking into lot drove the Wal-Mart unarmed and Appellant was found adjacent to maroon Buick. Offi- parked any not in contraband. Appellant apparently cer Nelson observed removing something into or some- placing offi- himself the Appellant identified by reaching Buick his arm thing from the purchased had cers and that he explained window, through opened and no- slightly front in that was on the bag the items the in looking ticed that was around Appellant produce the Buick and offered seat of so, he if to different directions as did as recognized it. Griffith prove receipt if anyone watching. Suspecting was see men- being Appellant’s previously name as something had stolen Appellant that either methamphet- with a tioned in connection shop- or placed possibly from the vehicle investigation. Officers Nelson and amine vehicle, the that lifted items into and/or to the Appellant returned with Griffith intoxicated, Nelson Appellant was Officer in a Stephens Buick called while Officer manag- find the Wal-Mart sent his wife to on request Appellant. for an NCIC check he police and officer while er a uniformed was able to reach of the officers One kept Appellant observation. the window and through partially-opened then removed Appellant the unlock door. the ear for several Appellant by waited produced a from the front seat and bag the minutes, store. then entered the Wal-Mart fact, did, in co- receipt which Wal-Mart had Appellant It was later determined bag. the with the contеnts of incide Buick and that the passenger in the been bag in the were two Among other items driver, Newhouse, inside the Rita was 48-pack and six boxes lithium batteries by Offi- during store the events observed tablets, the of- Equate antihistamine items keys the cer Nelson. Newhouse had in recognized commonly used the ficers explained, retrospect, the Buick which manufacture of simply opened had not why Appellant car door. to the Newhouse returned When Ms. Buick, requested consent Nelson, by two officers accompanied now

Officer Both Newhouse and officers, the vehicle. and search uniformed Jason Griffith to the search which maroon consented approached Appellant Stephens, Brad methamphetamine, quantity produced Griffith and Buick. Nelson had informed associat- chemicals and Appellant various Stephens suspicion of his methamphet- the manufacture of placed from sto- ed with may items have stolen amine, Id. .22 at Ruger stop. and loaded caliber be served Meanwhile, handgun. check re- NCIC be- Appellant S.Ct. 1575. reasons that outstanding fugitive vealed that there were cause Nelson him of suspected Officer against warrants from Appellant Wiscon- intoxication, resulting shoplifting and warrants, on Appellant sin. Based investigation should have been limited placed was under arrest transported resolving suspicions. Appel- those Since police to the station was his where he read was, fact, lant sober and had not stolen Arizona, Miranda rights, Miranda posits any further inves- anything, he S.Ct. U.S. 16 L.Ed.2d impermissible. tigation Appel- was While (1966), interrogated. Although Appel- law, correctly lant he states miscon- Buick, owning lant denied he maroon strues its application.

admitted that he “lived” in it. He also testimony during There was possessing

admitted to methamphet- suppression hearing con Appellant and, amine found the vehicle when ques- sented to the search of the vehicle and “it something tioned whether was he had deny Appellant giving did consent. ago made a couple days and that what Generally any evi over,” speaking, inculpatory was there what was left he (The during dence recovered responded “[t]hat’s in- consensual what is.” charge suppressed dictment will not be grounds did not with the search offense of of a that it was obtained without a search controlled sub- war Mendenhall, 218A.1415, United States stance the first rant. degree, KRS 544, 558-60, 1870, 1879-80, judge trial did not instruct the U.S. 100 S.Ct. on United v. jury actually (1980); the alternative States theory 64 L.Ed.2d 497 Watson, manufacturing 411, 424-25, 820, 96 423 U.S. S.Ct. 218A.1432(l)(a). Thus, 828, v. (1976); these admis- Florida 46 L.Ed.2d 598 cf by Appellant sions only 491, 505, 1319, were relevant as Royer, 460 U.S. 103 S.Ct. (1983) circumstantial evidence of in- Appellant’s 1328, 75 (plurality L.Ed.2d 229 opin tent methamphetamine, ion). However, a an given during consent necessary element offense which illegal seizure or detention so “taint” can 218A.1432(l)(b).) he was convicted. KRS its consequent search as to render Royer, 460 fruits inadmissible. U.S. I. AND SEARCH SEIZURE. (evidence 507-08, ob 103 S.Ct. at 1329 Appellant made a motion in limine by illegal tained during consensual search suppress the evidence during discovered suppressed detention because defendant’s the search of the Buick. The motion was by illegality consent was tainted overruled and the evidence was admitted Illinois, v. Brown detention); 422 U.S. cf. argues at trial. Appellant that the seizure 590, 604-05, 2254, 2262, 95 45 S.Ct. person subsequent search (confession L.Ed.2d 416 obtained vehicle were under the cir- unreasonable during illegal suppressed arrest even and, thus, cumstances the evidence stem- Miranda though warnings giv been had ming from that search have should been en). v. suppressed. He сites United States 675,

Sharpe, 470 U.S. 1568, proper inquiry becomes 105 S.Ct. 84 (1985), stopping Appellant L.Ed.2d whether on the Wal- proposition 605 premises scope that the and duration of activi- Mart was seizure under police so, and, permitted investigative an if during stop ties Fourth Amendment whether depends largely justified on the and rea- purposes legally intended that seizure was 232 Ohio, 1, probable cause need exist at the time for Terry Per v. 392 88

sonable. U.S. 1868, (1968), person stopped had believing actually 20 889 “when L.Ed.2d S.Ct. Deberry an committed a crime.” v. Common police ever a officer accosts individual wealth, 64, Fi away, Ky., he 500 S.W.2d 66 and restrains his freedom to walk 16, Banks, supra, recognized we person.” nally, Id. at has ‘seized’ suspicion “the level of articulable neces at 1877. See also Davis Missis S.Ct. 1394, 726-27, justify stop considerably is sary less sippi 394 U.S. 89 S.Ct. (Fourth wrongdoing preponder proof than L.Ed.2d 676 at 351 all ance of the evidence.” applies Amendment seizures Sokolow, person, including involving (citing United States v. 490 U.S. those arrest). 1, 7, 1581, 1585, 104 L.Ed.2d 1 brief detention short of traditional S.Ct. (1989)). Thus, question stop was a seizure and we are left determine whether initial Appellant asserts justified.

was reasonable and seizure was unfounded because Officer Terry, supra, In the hard and fast rule grounds to Nelson did not have reasonable any cause for seizure requiring probable intoxication. suspect him of either theft or replaced of a was whatsoever into Reaching apparently disagree. We approach more that allows brief flexible to insert by attempting locked vehicle officers who are investigative stops by win through partially opened arm one’s point specific “able to and articulable in different di looking dow while around such a Id. at justify stop. facts” to anyone if rections as to see whether Terry approach at 1880. The S.Ct. suspi watching support is sufficient to commonly require Further, “rea- seizures said the ini activity. of criminal cion suspicion,” presence or ab- sonable stop until the officers tial was not made appeal sence of which determined plate the license on the determined that under a de novo standard review. registered to that vehicle. Buick was States, actually Finally, Appellant Ornelas United U.S. was not 698-99, officer, Nelson, 1657, 1663, off-duty 134 L.Ed.2d stopped by 116 S.Ct. Banks, (1996); activi Ky., suspicious the initially Commonwealth who observed officer, Griffith, ty, by but the uniformed 68 S.W.3d on the related to who acted information suspi The articulable reasonable by him Nelson and the additional informa than the traditional cion standard is lower plate check. tion obtained from the license standard. In Baker v. probable cause During hearing, Griffith suppression the Commonwealth, (1999), Ky., 5 S.W.3d rise to giving articulated the circumstances inquiry the as follows: we identified stop: suspicion resulting and the his requires reasonable seizure is “Whether breezeway of Q: you were in the When totality of the circum a review of the that had you you did feel Wal-Mart stances, into the level taking consideration enough or reasonable sus- evidence police private intrusion into the matters Terry stop? That’s picion to do balancing against and the of citizens ask man for his I.D. stop and justification such action.” Id. at 145. for so. Very A. much per that are have also stated “officers We Q: isWhy that? stops seizures of mitted to make brief by an- complaint A. I’d been related investigation when purposes for persons other officer. are such that the action the circumstances tag? Q: And then how about the cross .... In such cases no aрpears reasonable Well, A. supported by that’s reasonable was the suspicion shoplifting, reason- something wrong. suspicion drug activity.

itself that was able illegal Thus, at the time the consent to search totality We the agree that of the circum- Appellant being illegal- was was given, not stances was sufficient lead Griffith detained, “tainted,” ly the consent was not activity may believe that “criminal be and trial court into correctly the admitted afoot,” Terry, 392 U.S. at at 88 S.Ct. during evidence the items discovered the 1884, and, thus, he justified in effect- search. ing a brief seizure of Appellant’s questioning. for petition rehearing, In for United Supreme asserts that States point, At that scope stop Griffith’s Ohio, Terry Court has not that held ascertaining was limited Appellant’s supra, investigatory stops authorizes identity and him questioning about suspected misdemeanor offenses. He did suspected intoxication shoplifting. See argument not this trial raise before the Sharpe, United States v. In supra. re- appeal. court petition ‍​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌‌‌​​‌‌‌​‌‌‌​​​‌‌​‌​​​​​​​‌‌​​‌‍Since sponse questioning, Appellant identified for rehearing is “limited to a consideration produce himself volunteered to argued on the appeal,” issues CR Wal-Mart receipt prove his innocence. 76.32(l)(b), we need address this issue At point, investigation con- still note, however, at length. We where- (the suspected cerned shoplifting Supreme specifical- Court has never investigation merely moving to another ly Terry held stop is authorized on area of the Wal-Mart premises), thus de- suspicion misdemeanor, of a there little appropriate tention was still and supported doubt how the Court would about decide original suspicion. question. consent, Appellant’s With the offi Terry What holds is au- stop cers bag obtained the from the vehicle and thorized when the officer has an articula- placed its contents on the car. Although ble suspicion activity may that “criminal be all of the items were shown have been afoot.” 392 U.S. 88 S.Ct. at 1884. for, paid thus dissipating the suspicion “Terry stops” permitted of automobiles are shoplifting, the recognized officers the li upon that a suspicion misdemeanor traffic thium batteries and as com antihistamines committed, violation has been mon components used in manufacturing Court has held that both the driver and methamphetamine. With that information passenger may ordered out of the and Griffith’s knowledge that Appellant’s car the traffic is processed. while citation had name been mentioned connection Wilson, 408, 415, Maryland v. 519 U.S. with methamphetamine investigation, the 882, 886, 117 S.Ct. 137 L.Ed.2d 41 suspicion officers had a of pos reasonable Mimms, Pennsylvania v. (passenger); illegal drug activity sible to sufficient con 106, 111, 330, 333, U.S. 98 S.Ct. 54 L.Ed.2d temporary tinue the request detention and (1977) (driver). addition, In the Court permission to search the vehicle. ability police has held officer’s to Because the stop sup jail person upon probable initial was arrest and ported by a suspi reasonable applies articulable cause to misdemeanor as well shoplifting, cion of Appellant felony Lago the seizure of City offenses. Atwater v. of by way Terry Vista, stop illegal. was not 532 U.S. 121 S.Ct. subsequent vehicle, 1557, The search In 149 L.Ed.2d so hold- though by the unsupported suspicion ing, impos- noted that it is often Court Nelson) May night on the police for a officer to whether the David

sible tell 14— interroga- until after his committing who a crime her 1999. It was not suspect, is “jailable” committing Appellant is Detective Nelson that presence, tion (the Thus, pro- attorney. he as- “fine-only” offеnse distinction an was afforded Atwater). 348-49, Id. at serts that Miranda rights his were violat- posed by Thus, made to at 1554-55. it would be un- the statements he S.Ct. ed and sup- to to ar- have been require workable officers make Detective Nelson should are their they pressed. rests when sure that “jailable” to a

probable applies cause alleged to re- respect Appellant’s With 350,121 crime. Id. at at S.Ct. 1555. Wal-Mart, at attorney for an while quests the officer logic applies same when officer, Nelson, off-duty David Officer short of develops suspicion, reasonable suppression hearing: testified at cause, activity that “criminal is probable Q. you recall or not Mr. Do whether example, felony is a if afoot.” For theft attor- speak asked to to an Kotila property taken has value $300.00 ney? 514.030(2). How could the or more. KRS IA. don’t remember. the property officer know that the value of officer, Griffith, arresting Officer suspected was was less than that he stolen testified: Terry stop? making without $300.00 Garner, 1, 20,

See Tennessee v. U.S. Q. at the During any the time either 1694, 1706, 85 L.Ed.2d 1 105 S.Ct. you got back to breezeway when (“[T]he felony/misdemean- highly technical or not you the car do recall whether apply distinction ... difficult to speak any Mr. Kotila asked know, position no field. An officer attorney? precise property value example, speak any A. ask me to He did not stolen, was a first or or whether the crime attorney. offense.”). second threat- Appellant Griffith admitted him accusing officers for ened sue the II. RIGHT TO COUNSEL. Appellant ever shoplifting but denied suppression claimed attorney. Detective speak asked him

hearing stopped that when the officers he Douglas Nelson testified that talked breezeway, he told them in the Wal-Mart beginning inter- bеfore Officer Griffith attorney to call an so that that he wanted of Kotila: rogation accusing him he could sue the officers for or not he Q. you Did ask him whether He claimed that when shoplifting. also he was any rights had read him while in the actually he arrested Wal-Mart parking lot? down at the Wal-Mart fugitive war- lot on the Wisconsin parking rants, Yes, advised him his I Officer Griffith A. did.

Miranda rights that he told Griffith Q. say? Mr. did Griffith What According to attorney. that he wanted an attor- request he did not an A. He said him that he could Appellant, Griffith told to interview ney he didn’t want at the attorney they an when arrived call him down there. claimed police Finally, Appellant station. request attorney an continued to that he tell read him his A. He didn’t me he by Detective

during interrogation his (the rights. of Officer Douglas Nelson brother (1981). (Hearsay is admissible at a suppression 68 L.Ed.2d Unless defen- 104(a); 1101(1).) hearing. KRE legal KRE dant articulates a desire for counsel with the criminal respect charges Detective Nelson also with testified re- clarity brought against him with sufficient spect interrogation of Kotila: police that a un- reasonable officer would Q. any At time during conversa- derstand the be an invocation statement to tion with the defendant did he ask right of the defendant’s constitutional attorney? for an during present have counsel in- custodial No, A. he did not. terrogation, there no invocation of the interrogation The was au- Appellant right constitutional to counsel and no re- diotaped and Appellant transcribed. does quirement forego officer further claim not that the transcript inaccurate. States, interrogation. Davis v. United transcript clearly shows that Detec- 2354-57, 452, 458-62, U.S. S.Ct. tive Appellant Nelson advised of his Mi- (1994). Appellant’s 129 L.Ed.2d 362 ex- rights prior randa to beginning the inter- an pressed attorney desire to contaсt for rogation Appellant does not claim that lawsuit, purpose filing civil de- (he he did rights not understand his has expressed sire Appellant before was even significant history). criminal The tran- suspected of the- offense for which he was script any does not reflect requests by convicted, subsequently charged and did Appellant to consult an attorney during trigger requirement forego not fur- May 14—15 interrogation. During a interrogation attorney ther until an could 20, 1999, subsequent interrogation May be obtained. Appellant advised Detective Nelson that However, he had attorney. an the trial III. MANUFACTURING METHAM- judge suppressed May the entire 20th in- PHETAMINE: SUFFICIENCY terrogation and nothing during said OF THE EVIDENCE. interrogation was admitted trial. Prior manufacturing metham- In denying the motion suppress phetamine a specifically was not defined statements made during May 14—15 offense within the Controlled Substances found,

interrogation, judge the trial inter scheme, pre-1998 Act. Under the statutory alia, that: “He properly was advised of his “trafficking in a by controlled substance” rights. deprived He was not nor denied meant, alia, manufacturing posses- inter opportunity attorney to contact an if precursor sion of an immediate con- he so findings chose.” Those are sup trolled substance with the intent to convert ie., ported by evidence, substantial into a controlled substance. KRS testimony police of the three officers and (11), 218A.010(3),(9), (24); Commonwealth thus, transcript interrogation, Hayward, Ky., 674-75 are conclusive of the RCr issue. 9.78. Hayward We held in that under scheme, The trial judge statutory did find that pre-1998 “[possess- Appellant “expressed ..., a desire to ing primary precursor contact ephedrine attorney to sue police for their or pseudoephedrine, along with all the oth- However, interference him.” er the manufаc- communication of methamphetamine legal- was an invocation of ture provided right ly constitutional jury to counsel envi sufficient basis for the to find that Miranda, supra, sioned trafficking methamphet- Edwards added). Arizona, 477, 1880, v. 451 (emphasis U.S. 101 amine.” Id. at S.Ct. 677 white), funnel, 218A.1432(1), green one pro- (green, black and enacted ball, stirring cotton spoon, wooden one vides: glove Ruger handgun, .22 and one caliber guilty manufacturing A person is vial, glass rock salt. The containing methamphetamine knowingly he when glass jar, pieces jar, Mason unlawfully: and hose, subsequent- were and cotton ball (a) methamphetamine; or Manufactures ly and found to contain metham- tested (b) equip- Possesses the chemicals or phetamine residue. ment for the manufacture of metham- ex- According to Commonwealth’s with the intent to manufac- phetamine ways three to manufacture pert, there are methamphetamine. ture (1) the “P2P” method methamphetamine: added.) (Emphasis popular was the 1970’s and used that supra, judge As noted the trial precur- a chemical “phenol propanol” as jury did not on KRS instruct sor; and phosphorus iodine” “red 218A.1482(l)(a), granting a di effectively (see Hayward, v. method Commonwealth issue; acquittal on that rected verdict 675-76); “ephedrine supra, at thus, respect to no issue with that statute commonly used in most reduction” method appeal.1 Appellant is raised on asserts Kentucky and the method at issue here. to sup that there insufficient evidence expert Specifically, the testified manufacturing port his conviction of meth methamphetamine by the manufacture of 218A.1432(l)(b) amphetamine under KRS pos- requires ephedrine reduction method prove did not because the Commonwealth pseudoephedrine ephedrine session of possessed all of the chemicals or he (which the antihis- could be extracted from to manufacture equipment (which tamines), could be extracted lithium or that did so with (a batteries), he. com- lithium ether from the methamphet the intent fluid), sulfuric, starting ingredient mon responds amine. Commonwealth The (commonly muriatic acid hydrochloric or a conviction under KRS cleaners), salt, anhy- found in drain any of premised upon can be admitted that expert ammonia. The drous necessary to equipment the chemicals or manufactured methamphetamine cannot be methamphetamine and that manufacture method with- ephedrine reduction to cre the evidence at trial was sufficient anhydrous ammonia. out ate a reasonable inference Thus, Appellant clearly possess did methamphet intended to manufacture necessary to manufac- of the chemicals all amine. expert also ture necessary to man- equipment during search of identified The evidence found including grams Buick of 2.39 ufacture the maroon consisted dishes, filtering materi- Equate glassware, methamphetamine, spoons, six boxes funnels, hoses, balls), tablets, (e.g., lithium batter- al cotton antihistamine two vial, Although the ex- ies, fluid, items. glass one other household starting six cans of Appel- lid, testify that jar, jar specifically did not glass pert one one Kerr Mason possessed all of the cooking glass jar, lant pot, one small one black neces: methamphetamine, scale, sary pieces of hose weighing one three Mullins, (1966); Ky., 405 S.W.2d against jeopardy proscription double 1. The Ramey, Ky. Commonwealth precludes offense after retrial of the same acquittal. directed verdict of Commonwealth

237 upon could from See jury description meaning. conclude of Revenue Cabinet v. ephedrine the Hubbard, reduction method of manu- 717, 37 719-20 Ky., S.W.3d facturing the (2000) (“[U]se of the definite ‍​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌‌‌​​‌‌‌​‌‌‌​​​‌‌​‌​​​​​​​‌‌​​‌‍article ‘the’ equipment found in the Buick was suffi- the statute refers to the indicates to accomplish cient the task. body parts not entire to discrete or ....”); components Hay craft, Cardwell v.

Whether conviction under this (1954) (the 916, Ky., 918 trial 268 (as requires possession statute all op contributory negligence court’s instruction posed to any) equip the chemicals or necessary ment was erroneous in that contained the manufacture metham phetamine manufacturing some definite article “the” the before words process is a matter statutory construc “proximate in language cause” “such First, tion. we examine language the of dicates that ‘the sole’ rather than ‘a con statute, itself. v. United States meant.”); tributing’ cause Schardein Possibilities, P.S.C., 335, Health 207 F.3d Harrison, 1, 316, Ky. v. 230 18 S.W.2d 319 (6th (“The Cir.2000) 338-39 starting point (1929)(“[I]f the makers Constitution statutory in a interpretation case is had intended to ‘office’ qualify word [in itself.”). language of the statute Obvious Ky. § they 161] Const. would have insert ly, multiple manufacturing methods ed the definite article ‘the’ ‘of before and the availability of a range broad ”) omitted); (quotation fice.’ Sheriff of readily available chemicals and equipment Litt.) Buckner, (1 126, Fayette Ky. 11 necessary for each manufacturing process 128 (holding legislative act ref militates against itemizing within “the erencing clerk the court” intended all possible statute chemical and particular clerk of court referenced else equipment by combinations which meth legislation). where For similar in amphetamine could be manufactured. see, terpretations by jurisdictions, other Nevertheless, KRS does e.g., State Farm Fire & Cas. Co. v. Old “[possеsses not read equip chemicals or Co., 142, Republic Ins. 466 Mich. 644 ment,” or “[possesses some chemi o/the 715, (2002); N.W.2d 718 Patricca Zon cals equipment,” “[pjossesses any ing Adjustment, Bd. Pa. equipment.” chemicals or It reads (1991); A.2d McClanahan v. “[pjossesses the equipment Co., Wyo. Constr. Woodward manufacture of methamphet (1957); amine.” presence P.2d of the article 341-42 Williams v. because, (3 significant grammatical “the” is McComb, 38 Eq.) N.C. Ired.

ly speaking, possession of some but not speaking, ‘The,’is (“[Grammatically a def all of the or equipment does nouns, specif inite article before which are satisfy statutory language. “The” understood, ic or used limit or aas function word before a “[u]sed extent.”). determine their We are direct plural denoting noun group indicate Assembly ed the General to construe group reference as a whole.” “according our statutes to the common and Webster’s Third Dic New International approved usage language.” KRS tionary 2369 446.080(4). directive, Following that we equipment” construe “the chemicals or

In spanning decisions three differ mean all of the chemicals all centuries, ent the appellate courts of this Commonwealth have found use of the

word “the” to a significant have effect

238

This to- by is These statutes must be construed supported construction also given and effect to all of them. subsequent gether Assembly’s own the General respect enactments with Louis, Ry. I.M. S. Co. v. United St. & in manufacture of of chemicals used States, 198, 207, 120,122, 40 251 U.S. S.Ct. 2000 General As- The 225 also Seatrain 64 L.Ed. See (2000 250.489(1) sembly Ky. Co., KRS enacted v. 444 Shipbuilding Corp. Shell Oil Acts, 233, 4), provides: 596, 800, 814, § “It 572, ch. which 100 63 U.S. S.Ct. (1980) (“[WJhile any person unlawful for to know- shall be L.Ed.2d 36 the views of any in ingly possess anhydrous subsequent Congresses ammonia cannot override enacting contain- the unmistakable intent approved container other than an one, significant suсh are entitled to views “approved It an container” er.” defined weight, particularly pre- so when require- “which or exceeds the one meets enacting is Congress of the cise intent for regulation ments of the Federal law (internal obscure.”) omitted); citations am- storage handling anhydrous Admin, Inc., Darlington, Fed. Hous. v. 250.482(4) (2000 Acts, Ky. monia.” KRS 141, 84, 90, 145, 79 3 S.Ct. 358 U.S. 1.) 233, § It ch. also enacted (1958) (“Subsequent legisla- L.Ed.2d (2000 250.991(2) Acts, 233, 7), Ky. § ch. intent tion which declares the earlier provides: which not, course, is law conclusive deter- Any possesses person knowingly who mining previous Congress meant. what the anhydrous ammonia in a container other weight later is But the law entitled in violation approved than an container problem it construc- comes to the when guilty D of KRS 250.489 is of Class tion.”); Commonwealth, Ky. Shewmaker felony proven unless it is that the (2000) (“It is 30 S.W.3d App., KRS 250.489 with the intent violated cogni- Legislature that the presumed vio- at the time it zant of statutes preexisting 218A.1432,in lation of KRS which case mat- a later statute on the same enacted felony B the first a Class offense ter.”); Township, Starke Sch. California felony and a A for each subse- Class Cty. Kellogg, Ind.App. quent offense. (1941) (“If it gath- can be N.E.2d added.) (Emphasis subsequent pari statute ered from possess any quantity Appellant did not meaning legislature at- materia what anhydrous ammonia. relevance statute, to the of a former tached words 250.489(1) the 2000 enactments of KRS declara- they legislative will amount to 250.991(2) is their to this case and KRS meaning, govern and will tion its intent with re- legislative clarification of statute.”); 2B of the first construction whether, by 1998 enactment of spect its Statutory Sutherland Singer, Norman J. 218A.1432(l)(b), the General Assem- (6th 4.9:11, § 120-21 ed. Construction manufac- bly intended that offense of 2000) (“Where statute is amend- a former commit- turing methamphetamine could be by ed, meaning clarified sub- or a doubtful оf less than all ted a number of courts legislation sequent equipment. or subse- that such amendment have held leg- Congress presumed strong must have been evidence quent legislation statute.”). It first legislation have of its former intent of the known islative for the Gener- and to have have been redundant the Acts of 1853 and felony B provi- Assembly to create a new Class laws in view of the al passed the new anhydrous ammonia in an “possession of already enacted. legislation sions of the unapproved container with intent manu- ed within the B ver- felony offense” Class methamphetamine” facture if sion “pos- mere of the offense in KRS described 250.489(1) 250.991(2). of anhydrous session ammonia with intent and KRS Evidence to manufacture of methamphetamine” possession anhydrous was al- of in an ammonia a B ready felony Class unapproved under KRS container with the intent 218A.1432(l)(b); ergo, legislative methamphetamine the intent manufacture would 218A.1432(l)(b) respect with to KRS prove must both offenses. have been that of possession of some Thus, because under the Common necessary the equipment, e.g., interpretation, KRS wealth’s ammonia, anhydrous with even the intent 218A.1432(l)(b) would be an “included of

to manufacture methamphetamine, does felony B fense” of the Class version of not constitute “manufacturing metham- 250.489(1), convicting KRS a defendant phetamine.” possessing anhydrous ammonia under both interpretation urged by Com- statutes constitute jeopardy. would double negative monwealth would also 505.020(l)(a) (2)(a). create Indeed, KRS if noted, jeopardy double ramifications. As interpretation Commonwealth’s of the Commonwealth posses- 218A.1432(l)(b) contends that correct, KRS were sion any piece of chemical equip- 250.489(1) felony class B version of KRS ment with the intent to manufacture suрerfluous would be it be because would methamphetamine constitutes manufac- the same offense as that described in KRS turing methamphetamine in 218A.1432(l)(b) violation of except it re would 218A.1432(l)(b). KRS Anhydrous ammo- quire proof of the an additional element of nia is a chemical used to manufacture unapproved prosecutor no container —and Thus, charge would one version of the of same interpretation, Commonwealth’s posses- fense if conviction of another version could anhydrous sion of ammonia with the in- be obtained with less proof. See TRW tent methamphetamine manufacture Andrews, 19, 31, Inc. v. 534 U.S. S.Ct. would be violation (2001) (“It KRS 449, 151 ‘a L.Ed.2d 339 218A.1432(l)(b). cardinal principle statutory construction’ whole, upon ‘a statute ought, to be then, Consider, im- jeopardy double that, prevented, so construed if it can be plications if, e.g., Appellant had also been sentence, clause, no or word shall be su in possession anhydrous in an ammonia void, ”); perfluous, insignificant.’ Penn 250.489(1) unapproved container. KRS sylvania Dept, Pub. v. Daven Welfare possession anhydrous criminalizes mere 552, 562, port, 495 U.S. 110 S.Ct. unapproved ammonia container as a (“Our (1990) 109 L.Ed.2d 588 cases 250.991(2) felony. Class D KRS further express deep reluctance to interpret provides possession anhydrous am- provision so as statutory super to render monia in an unapproved container with fluous provisions other the same enact intent manufacture ment”); Phon, Ky., Commonwealth v. felony. B Class Notice that if mere (2000) (“statutes should possession anhydrous ammonia in- way they such construed do tent manufacture ineffectual.”). meaningless become manufacturing constitute metham- If, conclude, phetamine however, violation of KRS as we conviction 218A.1432(l)(b), as the of manufacturing Commonwealth mеthamphetamine pur- suggests, that offense by would be an “includ- suant KRS Thus, by again, legislature has enacted ephedrine possession reduction method to criminalize necessary' separate to do so re statute the same the chemicals (1) anhydrous conduct that the Commonwealth asserts is quires proof of - ammonia, already criminalized of all of the KRS 218A.1432(l)(b). And, although other chemicals 218A.1437(1) applied to cannot be this case methamphetamine, and the intent subsequent then because was enacted methamphetamine, offense, 250.991(2), light it does shed further of KRS B enactment the Class 250.489(1), legislative respect intent with felony of KRS neither version 218A.1432(l)(b); for if the Assem- jeopardy has nor is General implications double bly possession B had intended of a metham- superfluous. Conviction of the Class 250.489(1) intent manu- phetamine precursor with felony requires version of KRS (1) a B methamphetamine facture to be Class anhydrous of am proof possession of (2) 218A.1432(l)(b), container, felony under monia, KRS unapproved in an and (3) enacted methamphet subsequently would not have KRS the intent manufacture 218A.1437(1) Thus, the same offense a requires each to make amine. while offense D felony. E.g., Shipbuild- Seatrain proof possession anhydrous of of ammonia Class ing, at S.Ct. at 814. And supra, metham with the intent manufacture logic precludes a conclusion that the Gen- requires proof of an phetamine, each also classify Assembly posses- eral intended element that other does not. KRS 218A.1432(l)(b) methamphetamine precursor of as a posses sion a requires proof of D of lithium felony class but necessary possession sion of all of the other chemicals (or, starting or fluid for mat- to manufacture while batteries methamphetamine 250.991(2) 250.489(1) ter, spoon, а a or a jar, KRS Mason wooden and KRS do ball) not, 2A felony. cotton as a B Suth- proof and latter class require statutes 46:05, § Statutory erland Construction anhydrous pos ammonia was (“The container, general 175-76 rule is followed in an while unapproved sessed 218A.1432(l)(b) dealing statutes with the prior not. Com and later KRS does See subject although apparent matter Burge, Ky., 947 S.W.2d same monwealth conflict, reasonably possi- as should far as 809-11 harmony with each ble be construed In addition to 2000 General Assem- and to so as allow both to stand other 250.489(1) bly’s of and enactment KRS each.”). give and force effect 250.991(2), KRS General Assem- 218A.1437(1), D bly enacted KRS a Class 218A.1437(1) Obviously, KRS felony, viz: 250.489(1) B of KRS felony Class version where there gap

A unlawful were intended to fill the guilty possession possession methamphet- methamphetamine precursor proof of a when is unlawfully anhydrous or ammonia pos- precursor he she amine knowingly or container with the intent to drug product unapproved an sesses or combination but not products containing methamphetamine drug ephedrine, of all of the other pseudoephedrine, proof possession phenylpropanola- salts, isomers, meth- mine, necessary to manufacture or their or salts isomers, This leads us to the ines- drug amphetamine. intent to use the with the conclusion drug products capable or combination of product 218A.1432(l)(b) defen- applies when a precursor n or all possesses all of the chemicals dant other controlled substance. equipment necessary of the to manufac- predicated only were upon ture posses- alternative, Absent separate con- sion all necessary 218A.1437(1) of the chemicals or all viction under KRS for also equipment, a defendant possessing methamphetamine precursor can present be convicted under the statu- intent methamphet- (1) tory scheme of B D felony a Class amine not jeopar- constitute double 250.489(1) 250.991(2) under KRS for (because chemical, dy precursor is a not anhydrous ammonia an of equipment). item unapproved container (depending upon the Appellant’s As for final argu presence or absence of an intent manu- proof ment —that mere of the element of methamphetamine); facture a Class D the equipment used in the 218A.1437(1) felony posses- manufacture of does precursor sion of a methamphetamine not prove additionally required ele (with the intent to manufacture metham- ment intent —we note that there was phetamine); B felony but Class that, in evidence this case addition 218A.1432(l)(b) under KRS possession for (1) possessing necessary equipment, of less than all of the other Appellant possessed also some of the (even equipment with the chemicals necessary to manufacture meth intent). requisite Whether a defendant amphetamine, including a substantial can be convicted of criminal attempt (2) quantity necessary precursor, Ap of a manufacture methamphetamine by posses- pellant he admitted that knew how to man sion all of less than of the necessary chem- ufacture methamphetamine he and equipment icals or fully will be more dis- previously had cussed Part IV-B manufactured the 2.39 Opinion, of this infra. grams of methamphetamine during found We also note that jeopardy prin- double Buick, search of as corroborated ciples preclude convictions of both the fact several items of the manufacturing methamphetamine prem- equipment found in the Buick contained ised upon possession all the necessary methamphetamine residue. This was am 218A.1432(l)(b) chemicals under KRS and ple juror evidence from which a reasonable of possession of a methamphetamine pre- beyond could believe a reasonable doubt 218A.1437(1), cursor under KRS if posses- Appellant possessed equipment sion precursor of the same is used to prove Buick found with the intent to man both In scenario, offenses. the latter methamphetamine. ufacture Common require statute does not proof of an addi- Benham, wealth v. Ky., 816 S.W.2d tional element that the former does not. Burge, supra. Both require proof offenses of a pre-

cursor with the intent to manufacture IY. MANUFACTURING methamphetamine. addition, In KRS METHAMPHETAMINE: 218A.1432(l)(b) requires proof posses- INSTRUCTIONS. sion all of the other necessary chemicals Manufacturing A. Methamphetamine.

with requisite intent whereas KRS 218A.1437(1) that, requires proof of no next asserts even addition- elements; thus, 218A.1437(1) al if support KRS there was sufficient evidence to conviction, would be a lesser included offense of the trial KRS court’s instructions 218A.1432(l)(b). 505.020(2)(a). respect KRS offense of manufactur However, if the conviction under ing methamphetamine were erroneous. 6 boxes of anti- Assuming methamphetamine, sufficient agree. evidence

We tablets, batteries, 1 glass under alter- histamine support a conviction either jar/lid, (chemicals vial, jar, glass 1 Kerr Mason of KRS equipment) native fluid, starting 6 cans of black cook- 218A.1432(l)(b), following instruction jar, ing glass weighing pot, small specimen properly a similar would have scale, pieces (green, black hose jury: framed the issue white), funnel, green 1 wooden guilty of will find the defendant You salt, glove stirring spoon, a with rock manufacturing methamphetamine ball; and 1 cotton if, if, you be- this instruction bеyond a ‍​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌‌‌​​‌‌‌​‌‌‌​​​‌‌​‌​​​​​​​‌‌​​‌‍AND lieve from the evidence reason- county, in this on or able doubt that B. That he did so with the intent to (date) finding and before the about (he)(she) herein, know- the indictment obviously inadequate This instruction ingly: under the alternative (his)(her) all of A. Had in Appellant did not because the chemicals all chemicals that Com- possess two necessary for the manufacture testified were neces- expert monwealth’s methamphetamine; sary methamphetamine, AND sulfuric, ie., hy- anhydrous ammonia B. Did the intent to manu- so with drochloric, or muriatic acid. methamphetamine.2 facture the instruction adequacy The of If, here, as evidence is insufficient-to the in KRS equipment under the alternative chemicals a conviction under the support 218A.1432(l)(b) Ap question. ais closer a con- support but sufficient to alternative that instruction could pellant contends the alternative, equipment under the viction an instruc pass “equipment not muster as “all of the chemicals or” would the words to chemicals tion” because it also referred A of the simply deleted from subsection be However, the in the vehicle. that were instruction. find required jury to that instruction the contrast, by the given In the instruction all of the items recov Appellant possessed case was as follows: judge trial this thus, Buick; it is the maroon ered from guilty of You will find the Defendant of the chemi arguable that the inclusion under manufacturing methamphetamine instruction was A of the cals subsection if, if, you be- this instruction and the Common required since such harmless beyond a reason- necessary lieve from the evidence prove more than was wealth to following: all of the able doubt equipment the obtain a under conviction Commonwealth, Ky., v. county or about alternative.3 Baze A. That in this on (1997). 817, 14, 1999, 823 quantity hе a 965 S.W.2d May possessed respect obviously The is true with posit could not 3. same 2. One could quantity already-manufactured meth- equipment the of possess the an amphetamine also included as methamphetamine that was to manufacture intent the A of of offense under subsection knowingly possessing them. Never element without quantity theless, meth- required by the That same both are instruction. mental states subject of in- amphetamine also the and criminal instruc first-degree con- on within the context struction tions should be stated as a included offense. trolled substance lesser statutory v. Com the framework. McGuire fact, monwealth, 931, (1994). al- Ky., In 936 KRS 218A.1415. 885 S.W.2d However, expert the did not as whether instructions Commonwealth’s jury require beyond pair piece the to believe rea or some pliers similar possessed doubt that all Appellant sonable be in order equipment would also needed equipment necessary of the to manufac the the lithium from batteries. extract ture pro some lithium posited The could expert cess. The resolution of factual in a issues by stomping be extracted on batteries cardboard.) criminal jury. case reserved for the off fail- peeling Commonwealth, Medley Ky., 704 S.W.2d require jury ure of the instructions to (“the 190, jury always has the beyond doubt that find a reasonable option disbelieving the evidence offered all Appellant possessed equipment of the prove guilt returning guilty’ ‘not manufacture of verdict”); Commonwealth, Ky., Mishler requires reversal and remand for a new (1977) (“it privi 556 S.W.2d trial.

lege jury of the believe unbelievable wishes”); jury

if the so Rader v. Common Attempt. B. Criminal wealth, (“it Ky., 242 S.W.2d tri also asserts that the proper is never for a court to direct al judge jury should have instructed of guilty plea verdict where there is attempt metham criminal to manufacture guilty, notwithstanding not the fact phеtamine as a lesser included offense. guilt may evidence of his convinc This for the argument fails same reason ing”), Commonwealth, quoting Bardin v. argument pos the Commonwealth’s Ky. 231 S.W. all session of some but less than necessary equipment

The Commonwealth’s did expert testify support that the equipment primary found conviction offense. opinion maroon Buick was all of the As noted Part III of supra, 218A.1437(1), methamphet 2002 enactment amine, though testimony possession methamphetamine was sufficient of a precur sor, to create a of D a felony reasonable inference a that is created Class testified, if fact. But even he had so it was lesser of Class B felo included offense jury for the accept ny manufacturing to decide whether of instruction, that testimony. Under the as attempt Criminal to manufacture metham given, jurors if the beyond phetamine by believed a rea less possession of some but pos sonable doubt that in than Appellant necessary was all of the however, of items in equipment, session found the maroon a C would be Class Buick, 506.010(4)(c). they were to him guilty—re felony. find It thus would gardless they statutory of incongruous interpret whether believed D equip those items constituted all of a for creating felony scheme as Class necessary possession methamphetamine ment metham of a precur manufacture of, phetamine. (Appellant questioned felony sor but Class for possession a C ready-manufactured methamphetamine, by posses- Since for was indicted definition, could be a chemical neces- sion substance in the first neither of controlled methamphet- sary degree, possession grams for the of manufacture of 2.39 of meth- posses- amphetamine amine nor a included offense found the maroon Buick lesser of equipment simply separate uncharged of the necessary sion chemicals or offense (although, methamphetamine have been included in the instruc- should not Commonwealth, proba- supra, Ky., of as noted evidence such was tions. Houston v. offense). tive of the intent element S.W.2d batteries, fluid, as a crimi- starting methamphetamine lithium evidence of e.g., Ma- actually attempt nal manufacture meth- jar, bah. spoon, son a wooden cotton amphetamine. E.g., United States incongruity ap- Admittedly, the less (5th Anderson, Cir. 987 F.2d 255-56 where, here, manufacturing as parent 1993) (conviction attempt of to manufac- predicated solely upon posses- offense is .upheld on evi- ture equipment sion of and not chemicals. fully functioning methamphet- dence However, if there were sufficient evidence cooking in which laboratory amine actual theories, jury to create a issue under both methamphetamine ingredients was in preclude a conclusion that logic would a recipe for process, presence attempt criminal be a lesser includ- would manufacturing methamphetamine); State equipment ed offense under the alternative (Mo.Ct. Rollett, but not under the chemicals alternative. App.2002) (purchase pseudoephedrine Consistency prevents holding us from every other item while in of- attempt criminal is a lesser included methamphet- necessary to manufacture when, here, the supports fense as evidence attempt amine sufficient to convict equipment a conviction under the alterna- Thus, methamphetamine). manufacture alternative, and tive but not the chemicals Assembly has elevated what our General support not when the evidenсe would as criminal jurisdictions regard other E.g., conviction under both alternatives. as primary to the status attempt same 2A Statutory Sutherland Construction see unprecedented, While not offense. Jp6:05, (“The § rule is general at 175-76 195.211(2), infra, § discussed Mo.Rev.Stat. prior and deal- followed that later statutes wheth- an issue as to that fact does create subject although ing with the same matter less than but er mere some conflict, apparent far as rea- should as equip- necessary all of the chemicals or sonably harmony possible be construed criminal ment a Class C can constitute other so as to allow both with each to violate under KRS 506.010 attempt give stand and to force and effect B crimi- what would be a Class otherwise each.”). also interpretation Such 218A.1432(l)(b). attempt nal under' KRS being bring statute close to perilously mere courts held that Missouri’s have Part VI vagueness void discussed than all of the possession of some but less this Opinion, infra. for the only jurisdiction Kentucky is insuf- statute, i.e., 218A.14S2(l)(b), that KRS ficient intent element of prove to even the specifically equates possession of possession of of included offense lesser necessary for the equipment to manufacture precursor a with intent of manufacture Mo.Rev.Stat. methamphetamine. (though manufacturing methamphetamine Agee, § 37 S.W.3d 195.420. See State v. inter- Supreme Court of Kansas has 834, (possession (Mo.Ct.App.2001) 838-39 manufacturing methamphet- preted its and a pseudoephedrine of tablets of 168 65-4159, statute, §Ann. amine Kan. Stat. intent to prove tank insufficient propane “could applying when defendant to manufacture pseudoephedrine use Arles, successfully manufactured metham- v. 998 methamphetamine); have State Martens, 136, (Mo.Ct.App.1999)(pur- P.3d State v. 54 139-40 phetаmine,” S.W.2d (Kan.2002)). suphedrine, lamp 960, jurisdictions chase of twelve boxes of 965 Other solvent, filters, oil, tubing, air coffee line all of the chemicals possession treat of fuel, insuffi- and alcohol propane, Coleman necessary

245 prove cient suphedrine legislative reconfirmed the absence of a with intent methamphet- manufacture intent chemical Morrow, amine); 679, State v. 996 S.W.2d of equipment precursor item other than a 683 five (Mo.Ct.App.1999) (purchase of (or anhydrous in an unapproved ammonia pseudoephedrine ephedrine, bottles of and container) felo- would constitute Class C toluene, and drain “Liquid Fire” cleaner ny. Shipbuilding Corp. Seatrain v. Shell prove possession precur- insufficient to Co., 596, 572, 800, 444 100 Oil U.S. S.Ct. sors with intent to manufacture metham- 814, (1980); 36 Fed. Hous. L.Ed.2d phetamine). Admin, Inc., 84, Darlington, v. 358 U.S. Withrow, (Mo. In v. State S.Ct. 3 L.Ed.2d 132 1999) (en banc), the Supreme Court This does not mean that there could Missouri relationship addressed the be- be a attempt never conviction of criminal tween a Missouri statute proscribing both For manufacturing methamphetamine and at- example, possessed defendant who less tempting to manufacture methamphet- than all chemicals to manu- amine, 195.211(2), § Mo.Rev.Stat. a Class facture con- could be B felony, general Missouri’s criminal criminal attempt victed violate KRS statute, 564.011, attempt Mo.Rev.Stat. 218A.1432(l)(a) if already begun he had though which is similar not identical manufacturing process. United States 506.010,4 KRS which also classifies (10th Smith, 264 F.3d 1016-17 attempt to commit a felony Class B aas Cir.2001) possessing (though less than ev- felony. Class Id. at C 78. Withrow con- erything statutory cluded that the needed manufacture metham- scheme did not phetamine, create two attempt begun levels of criminal defendant had the initial but simply elevated attempt i.e., criminal tо manu- manufacturing step process, facture methamphetamine from Class C soaking the ground-up pseudoephedrine felony to B felony, Class and overruled water). Or, may tablets the defendant previous lower court holding cases engage leaving other actions no reason- there could be a criminal attempt under able doubt of a In criminal intent. United Mo.Rev.Stat. 564.011 to attempt to manu- Johnson, (10th States F.2d Cir. facture methamphetamine under Mo.Rev. 1985), attempt conviction to manufac- 195.211(2). § Stat. Id. at 78-80. ture methamphetamine upheld where fifty-five the defendant

Likewise, purchased pounds we legisla- conclude precursor a chemical and there was tive intent enacting additional evidence that the defendant was to what elevate alias, requested support used an that the otherwise a conviction a C substance Class mislabeled, felony agreed pay under KRS 506.010 B be to Class $900.00 felony,5 per product and that subsequent gallon having for a a market enactment 218A.1437(1) D felony per as a gallon. Class value Id. at 675. $323.00 4. require proof Both statutes a a step,” step "substantial of substantial Mis- than does the statute, 5.01(2) but the Missouri like Section souri statute or the Model Code. Code, requires of the Model Penal step "strongly the substantial corroborate” Similarly, pro- Assembly 5. the 1994 General 506.010(2) the criminal intent whereas KRS attempt vided that to KRS criminal violate requires step 521.050, that the substantial leave "no 521.020 or KRS Class C felo- both nies, of felony. reasonable doubt” criminal intent. Obvi- be C would also a Class Acts, ously Kentucky requires greater § Ky. the statute ch. 2. methamphetamine pre- a

There could a conviction of crimi- of also be 218A.1432(l)(b) 218A.1437(1), cursor, nal to violate as a lesser in- attempt KRS attempted 446.110, but failed to offense, if the defendant citing KRS which cluded possession of all of the chemicals obtain pertinent part: in provides necessary to manufacture equipment punishment If forfeiture or any penalty, E.g., in United States any the new mitigated by provision is (10th Cir.1991), Leopard, 936 F.2d law, provision may, such the consent to manufacture attempt a conviction affected, applied any to party the upheld where methamphetamine pronounced after new judgment law purchase to from an arranged defendant effect. takes government complete agent undercover Phon, Ky., See Commonwealth v. laboratory in a installed According to 107-108 truck, it, accepted for paid U-Haul 218A.1437(1),by creating Appellant, KRS truck, keys to while and was arrested offense, effectively a new lesser included attempting away the truck from drive punishment” "mitigated” “penalty Id. 1140-41. fact that the scene. at 218A.1432(l)(b). imposed by We in agent had to include the deliv- failed apparently need not decide here this novel foil, heater, ery a aluminum a distilla- question newly of whether created lesser require not agent tion was held reversal purview included offense is within evinc- light clearly in of the circumstances Appel- hold KRS 446.110. we Since ing a criminal intent. Id. at 1141. Under law, under the chemi- sce- lant cannot be convicted Kentucky the defendant this 218A.1432(l)(b), crimi- cals alternative of KRS nario could be convicted of least does not create lesser attempt nal violate KRS new statute acquire pos- attempted applicable had this case. because he included offense Instead, chemicals or separate session of all the it creates offense methamphet- equipment to this because was applicable case McAdam, Appel- 31 Kan. for amine. State after the conduct which created Cf. (2003) (evi- Const., App.2d P.3d occurred. U.S. lant was indicted attempted and others I, 9-10; § dence that defendant Ky. §§ Art. Const. 19. they anhydrous to steal ammonia when everything already

were V. FIREARM ENHANCEMENT. methamphet- they needed manufacture their search of the maroon During suffi- except anhydrous ammonia amine Buick, police officers discovered load- conviction of support conspiracy cient handgun in a holster Ruger ed .22 caliber No methamphetamine). just -the driver’s seat. KRS behind cases, however, pos- are found where mere provides: 218A.992 of some but less than all session provisions the law notwith- Other the manufac- standing, any person who convicted suffi- was held ture any was at chapter who violation support cient to a-conviction criminal of the commission of of- time attempt. firearm, shall: possession of fense Precursor Instruction. C. (a) penalized Be class more one severely provided penalty than petition for rehear

Finally, in if provision to that offense pertaining that the trial court ing, requests Appellant felony .... jury it is instruct the be directed remand

247 evi Id. at The Appellant applicable.” asserts the be 632-33. he, prove was Supreme dence insufficient to as Court in York v. Bel held New Newhouse, ton, 454, opposed 2860, Rita the driver of 69 453 U.S. 101 S.Ct. vehicle, possessed Actu handgun. the the (1981), that the interior L.Ed.2d 768 entire possession trigger al is not required to of a all vehicle and containers therein 218A.992; possession constructive within defendant’s should be considered Commonwealth, Ky., suffices. Houston v. 460, Id. 101 “immediate control.” at S.Ct. 975 927 S.W.2d Thus, possession 2864. constructive possession Constructive exists when a within the firearm a vehicle at time not possession offense, does have actual arrest and the commission of the power knowingly but instead has the here, requirement as the “nexus” satisfies given and intention at a time to exercise of KRS 218A.992. object, dominion and control of either Appellant further asserts that it was directly through others. error to introduce the firearm evidence Commonwealth, Ky., Johnson v. S.W.3d jury and to on the enhance- instruct the (quoting United States ment the the during guilt phase issue

Kitchen, (7th Cir.1995)). 57 F.3d fact, trial. trial In the court included the in Appellant during admitted firearm an element of an of- enhancer as terrogation by Douglas Detective Nelson fense described in the instructions that both he and had used Newhouse in “manufacturing methamphetamine while handgun target practice earlier that possession of a firearm.” jury The day (Appellant) same and that he had then “manufacturing instructed on meth- placed gun in the vehicle. con We amphetamine” as a lesser included offense clude that the evidence was sufficient to in did jury the event the not find support jury's verdict that Appellant in possession have been of the firearm. possessed handgun during the commis Appellant primarily following relies on the sion of the offense. Commonwealth, in statement Adams v. (1996): Ky.App., 931 S.W.2d

That conclusion also resolves the question of whether there was a sufficient firearm, however, The is gun “nexus” between the metham an element to determine phetamine required by offenses as guilt substantive offense. Conse- 218A.992. noted in requirement We quently, nothing ‍​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌‌‌​​‌‌‌​‌‌‌​​​‌‌​‌​​​​​​​‌‌​​‌‍KRS 218A.992is more Montague, Ky., Commonwealth v. sentencing reflecting than a statute (2000), S.W.3d 629 but also held dangerous perpe- nature of crime “whenever is established ... that a de by an trated armed criminal. fendant had constructive of a Id. at 468.

firearm within his or her ‘immediate con arrested,6 wаs not trol’ when then ... the Com issue Adams any monwealth should not have to whether issue must re prove firearm but penalty phase connection between the and the served to the whether offense possession for the the proscription against jeopardy sentence enhancement double Commonwealth, cases, case, cf., Ky., 6. But Johnson such as the instant the distinction was, (noting n. 1 Mon- immaterial because defendant when, taque test fact, will be satisfied addi committing drug of arrested while tion, the defendant arrested "while commit fense). offense,” that, ting drug many but 248 not “provide adequate does no by using possession

was violated the one because separate underly- to enhance three firearm ordinary intelligence to a tice ing agree that offenses. We “manufactur- contemplated illegal conduct is ” ing while in Commonwealth, Ky., v. 96 .... Martin is a firearm” not defined offense. (2003) 38, (quoting 59 United Rather, 218A.992 application Harriss, 612, 617, States v. 347 U.S. 74 merely increases the classification 808, 812, (1954)). 98 L.Ed. 989 How S.Ct. offense, just underlying proof prior ever, void-for-vagueness the doctrine penal- conviction can serve to enhance the penal “a the requires that statute define ty subsequent E.g., for a offense. criminal offense with sufficient definiteness 218A.1432(2). In respect, it would be can understand ordinary people what to entirely proper reserve the enhance- in manner that prohibited conduct using the penalty phase ment issue for arbitrary encourage not and discrimi does recom- instruction forms similar those natory (quoting Id. Kolen enforcement.” subsequent mended for enhance- offense 352, Lawson, 357, 103 der v. 461 S.Ct. U.S. E.g., Cooper, Kentucky ment. 1 Instruc- (1983)). 1855, (Criminal), 1858, 903 §§ 75 L.Ed.2d See 12.20— tions to Juries Commonwealth, Caretenders, 12.25. Inc. v. also (1991). Further, 83, Ky., 821 S.W.2d However, unlike evidence of pri- implicate not First where statute does conviction, prеjudice no unfair resulted values, chal vagueness “[a] Amendment during from the firearm resolving issue the ... cannot aimed at statute lenge be guilt phase Appellant’s the trial. be limited on its face but must Buick discovery of the firearm the was particular of the statute Appellant application relevant the issue of whether using controlled v. Ev illegal charged.” was the vehicle States conduct United activity. (10th Cir.2003) If the substance evidence ans, 1011, 318 F.3d purposes, admissible for substantive no ad omitted); (quotation Chapman see Unit by resolving prejudice ditional occurred States, 453, 467, 111 S.Ct. ed U.S. during guilt issue (“First 1929, L.Ed.2d enhancing phase, kidnap much as factors infringed by Amendment freedoms are not are ping capital to a offense resolved dur statute], vagueness claim must [the so guilt judge that the trial ing phase so applied be evaluated as the statute is penalty will know to conduct the whether case.”); Maynard facts of this Cart phase pursuant to KRS 532.025 KRS wright, 486 U.S. 108 S.Ct. 3.79B, C, Cooper, §§ supra, 532.055. See 1857-58, (‘Vague 100 L.Ed.2d event, specimen D E. In instruc threatening to statutes not challenges ness id., recommended at tions similar to those are examined First Amendment interests E, §§ preferable 9.34D hand; light of the facts of case factor as an including the enhancement as-applied ba judged statute is underlying of element of additional 218A.1432(l)(b) sis.”). Obviously, KRS way, prejudi no Either we discern fense. First Amendment. implicate does respect error with issue. cial Nevertheless, because of the volume VI. CONSTITUTIONALITY emanating from appeals convictions and 218A.1432(l)(b).

OF KRS statute, application of this we choose directly rather than on address the issue contends that KRS as-applied unconstitutionally case-by-case, basis. vague opinion, of Part III of Appellant’s primary vagueness claim od. As noted in relates to the fact that the statute crimi- supra, the in this case indicates evidence possession nalizes the of inno- otherwise least three by there are at methods items, all except cent household of which can methamphetamine which be manufac- anhydrous purchased ammonia can at be tured, requiring possession a dif- each department any almost retail store. The ferent combination of chemicals and even expert Commonwealth’s testified that require the equipment. To statute to anhydrous can at a purchased ammonia specify possible all of the combinations of welding or supply supply farm store at equipment and used manu- chemicals to a commercial refrigeration outlet without methamphetamine facture “would be any requirement keep that the seller even un- pointless and would make statute a record of the sale. Caretenders, supra, wieldy.” at 88. It argument if might have more merit preclude would also of the stat- extension interpreted permitting we the statute as proscription ute’s to manufacturing new possession any, conviction for the rather if as they methods are discovered. all, than equipment in Hayward, unlikely As noted it supra, methamphet- that anyone possess com- right amine. As we noted Commonwealth coincidence, by bination Hayward, supra, “there is no reason other requirement and the that the defendant methamphet- than the manufacture of of the possess all chemicals or all amine for having a combination pseu- equipment constituting right combina- salt, doephedrine, lye, crystals, rock iodine virtually possibility tion eliminates the toluene, acid, phosphorus, red sulfuric Fi- arbitrary subjective enforcement. hydrochloriс place.” acid in one 49 S.W.3d nally, as the statute was con- at 676. The same is true with respect Condict, strued in State v. supra, ad- equipment necessary the chemicals and requirement possession ditional by the be with the intent to manufacture meth- ephedrine reduction Regardless, method. uncertainty amphetamine any cures as to Court Appeals recently up- Missouri proscribed. the nature of the conduct We held the constitutionality of a mak- statute conclude that KRS is not ing “unlawful to possess chemicals Usted unconstitutionally vague. subsection of ... with [related statute] Accordingly, Appellant’s conviction is re- the intent to manufacture ... controlled substance,” versed and this case is remanded requirement because trial in Pulaski Circuit Court for new any uncertainty scienter cured as to the opin- accordance with the content of this proscribed. nature of the conduct State Condict, 65 S.W.3d 17 (Mo.Ct.App.2001) ion. 195.420). §

0construing Mo.Rev.Stat. COOPER, GRAVES, JOHNSTONE, points our out J.J., STUMBO, KELLER, J., concur. statute, Missouri’s, unlike does not identi IV(B), except concurs as Part to which fy un which chemicals or it is by separate opinion. he dissents possess lawful LAMBERT, C.J., 218A.1432(l)(b). except fact, concurs pro In the statute IV(A), Parts III and he dissents which any scribes combination of by separate opinion, man which equipment necessary WINTERSHEIMER, J., any joins. ufacture meth- some, all, KELLER, Justice, but less than concurring in part dissenting part. and equipment or for the manufac- chemicals methamphetamine ture of insufficient as majority’s I Although agree with a matter law to constitute “substantial holding Manufacturing Appellant’s that step” completion of must be re- towards the offense of Methamphetamine conviction erro- for a new trial because versed I Manufacturing Methamphetamine. dis- instruction, I separately jury neous write I agree majority’s analysis, with majority’s I with the disagree because hold that the trial court erred when IV(B) that the trial court Part conclusion Appellant’s request it denied for less- request for a properly Appellant’s denied offense instruction. Accord- er-included instruction as to lesser-included offense ingly, part. I dissent in Meth- to Manufacture Attempt Criminal Assembly provided has The General amphetamine. majority recognizes The may be that convicted of “[a] defendant at- liability 506.010 for that KRS creates any offense an that is included tempts to commit criminal offenses but offense properly formally charged,”2 holds that trial court denied with which he is requested give Appellant’s instruction “[a]n offense is explicitly has stated because, if the had concluded jury even consists of an [i]t so included ... when equip- lacked some of the charged attempt to commit the offense methamphetamine, a ment to manufacture to commit an otherwise included offense all, some, but possesses who not opinion Although majority therein.”3 to manufac- equipment the chemicals for criminal at- provision some makes methamphetamine the intent to ture with tempt offenses Manu- lesser-included not manufacture has it concludes facturing Methamphetamine, prohibited by an offense KRS committed committed un- attempt that no offense is majority’s The ultimate holding 506.010. when a defendant der KRS 506.010 (3) conclusions: appears to stem from three methamphet- the intent (1) incomplete for liability 506.010 KRS all, some, but not possesses amine to man- equipment necessary methamphetamine manufacture would majori- ufacture “incongruous” with the General Assem- be regard boils ty’s reasoning in —which of Posses- bly’s subsequent criminalization the General As- down to a conclusion that Precursor Methamphetamine sion displace must intended to sembly have (2) 218A.1437; felony D Class under KRS 506.010 as KRS applicability Manufacturing Methamphetamine when Manufacturing Methamphetamine 218A.1432(l)(b) attempt is itself an KRS 218A.1432(l)(b), au- which enacted offense, intent in legislative and thus “the range felony penalty B thorizes Class ele- enacting KRS was to directly con- for an inchoate crime—is support a con- what would otherwise vate n effect Kentucky precedent to the trary to felony C under KRS viction of a Class no fa- implication finds “[rjepeal by felony”;1 B 506.010 to Class an offense which conviction of Majority Opinion stances under at 114 S.W.3d 1. charging instru- expressly named in the appropriate.”). ment is 505.020(2). See also Official Commen- 2. KRS (Banks/Baldwin 1974) tary to KRS 505.020 added). 505.020(2)(b) (emphasis 3.KRS ("[Subsection provide[s] ... the circum- ] liability. scope vor the courts”4 and that limit the of KRS 506.010 “[i]n within strong And, of a statutory harmonizing absence indication to enactments contrary, express issue, statute will not I 506.010 would hold au- by to have im- abrogated deemed liability been felony criminal thorizes Class C plication.” If Assembly General for defendants who intend to manufacture provide felony penalties wished to Class B and who undertake for a criminal manu- attempt actually manufacturing steps” “substantial towards methamphetamine, facture it could have knowingly accumu- (1) by: so adopting done either a differ- so, lating necessary do materials to but 218A.1432(l)(a), i.e., ent version of KRS they apprehended who are before can person guilty one that read of “[a] complete the KRS Manu- manufacturing he methamphetamine when by facturing Methamphetamine offense knowingly unlawfully and manufactures or all knowingly possessing of the chemicals attempts methamphet- or all of the to man- amine”;6 (2) or to amending KRS 506.010 ufacture felony a B provide penalty range Class Accordingly, on the basis of evidence for a criminal attempt to commit a viola- at trial in this presented Ap- case—where Instead, tion of KRS 218A.1432.7 what the (6) only six pellant possessed not boxes Assembly simply General did was prohibit Equate antihistamine tablets also but two of all of the chemicals or (2) (6) batteries, lithium six cans start- all the equipment necessary manu- fluid, vial, ing glass glass jars, a three a facture provide a scale, cooking pot, weighing black a three B felony Class for penalty the offense. hose, funnel, a pieces spoon, explicit As KRS 218A.1432 makes no cotton ball—the trial court 506.010, should have mention of KRS one the fun- permitted jury to consider the lesser- premises statutory interpre- damental i.e., Attempt included offense of Criminal that “it of the duty tation — Methamphetamine by Manufacture in- attempt court to harmonize inter- 506.010(l)(b)’s pretation to give structing so as effect to sec- it as to KRS both “sub- statutes, or tions if possible”8 step planned stantial a course of conduct —should unnecessarily counsel hesitation before we to culminate of the commission Brock, Caterpillar, 4. Ky., v. Inc. 915 S.W.2d tion of a controlled substance the use of (1996). giving false name or the of a false address.” added)). (emphasis Hopkins County 5. Board Education Brooks, (1992). ("A 506.010(4)(a) Ky.App., 824 attempt S.W.2d 7. See KRS criminal felony attempted is a C Class when the crime (“No 218A.140(l)(a) 6. KRS See shall 521.050"). is a violation KRS 521.020 or attempt prescription or obtain to obtain for a majority opinion provision references this by knowingly misrepre- controlled substance legislature’s sup- indicative intent to, senting knowingly withholding or informa- plant KRS 506.010 with KRS from, added)); practitioner.” (emphasis tion 218A.1432(l)(b). Majority Opinion, supra See 218A.140(l)(b) ("No person pro- KRS view, however, shall my note 1 at 245 n.5. In KRS attempt procure or cure the administration 506.010(4)(a) contrary evidences and il- by knowingly of a controlled substance mis- Assembly lustrates how the General has em- to, representing withholding information range pirically provided penalty enhanced from, added)); (emphasis practitioner.” attempt for an offense. 218A.140(l)(c) ("No person shall obtain Commonwealth, attempt Ky., to obtain a controlled substance or 8. Williams attempt procure procure administra- a jury to find Attempt permit liabili- its belief that crime”9 basis Criminal felony An C ty. substantially guilty instruction similar of a Class under appropriate: have following would been “incongruous” KRS 506.010 would be felony range D penalty the Class Gen- Assembly provided eral has NO_CRIMINAL INSTRUCTION for Possession of a Metham- 218A.1437 ATTEMPT TO MANUFACTURE observe, I phetamine Precursor. METHAMPHETAMINE however, not that KRS 218A.1437did exist you If do find the Defendant (3) years Appellant’s until three after _, you under Instruction No. guilty bar, crime, and, thus, as to the case at Criminal guilty Attempt him will find incongruity relies on “back hypothetical un- Methamphetamine to Manufacture because, as the analysis to the future” if, if, you Instruction der this opinion, in its majority observes elsewhere beyond a rea- believe from evidence applicable “is to this KRS 218A.1437 not following: all the sonable doubt the it was created con- case because after county May in this about A. That or indicted oc- duct for which 14, 1999, the possessed Defendant one Further, litany given the curred.”10 more, all, of chemicals or but not the manufacturing equip- some, all, or but not the case, in this possessed by Appellant ment metham- presented diverge sharply actual the facts phetamine; felony for a hypothetical from the “Class C ball, felony AND D for meth- cotton but Class precursor” concern amphetamine knowing- B. That the Defendant did so Finally, the majority’s analysis. the drives and, it ly doing, in so was the Defen- “incongrui- primary majority’s in the flaw dant’s intention to manufacture meth- the analysis fails to ty” appreciate amphetamine; necessary for KRS 506.010 findings factual AND stated, hypothetical the liability. Simply under the circumstances as he C. That situations, i.e., mere factual be, them Defendant’s believed the spoon or a cotton jar, “a Mason wooden step constituted a actions substantial ball,”11 in an majority employs the which in planned a course conduct to cul- attempt inappropriateness illustrate the in the manufacture of metham- minate range for penalty a Class C permitting phetamine. Meth- Attempt Manufacture Criminal permit reason- (and, amphetamine, would majority’s presumably, first finding by Paragraph Appellant’s required claim is doubt response to able primary) (2) constitute Conduct shall not be held to 506.010: 9.KRS (l)(b) step under subsection substantial (1) guilty attempt to A of criminal which it is act or omission unless when, acting a crime with the commit as to the de- leaves no reasonable doubt required culpability otherwise for kind of the to commit crime fendant’s intention crime, the he: commission of charged attempting. which he is (b) Intentionally any- or to do does omits Opinion, Majority 114 S.W.3d 10. which, thing circumstances (2003) be, is a substantial he believes them planned step of conduct in course Id. at 243. in commission of crime. culminate 11. (C) (1) above draft supports instruction.12 evidence conclusions that: or knowingly possessed defendant one any event,

In nothing I see or arbitrary more of “the chemicals ... for the manu- incongruous about manner which Assembly attempted General has (2) methamphetamine,”13 facture methamphetamine manufacturing tackle in- by the defendant possessed Kentucky. In years, recent the General product “a drug clude or combination Assembly steps has taken to address products ephedrine, pseu- drug containing and, production in so or doephedrine, pheynlpropanolamine, has doing, created new criminal offenses isomers, isomers,” salts, their salts that fit contingencies alternative and that possessed the defendant the chemi- designed were to allow law enforcement cal “with manu- or chemicals the intent to prior intervention production the actual methamphetamine,”15 Com- facture I interpret As prosecute the may monwealth offender statutes, relevant involving cases con- (or all16) duct July committed after if the three any of offenses —Manu- 506.010(2); Act, 12. pre- See Commonwealth Controlled Substances "immediate Prather, ("[T]he Ky., 690 S.W.2d cursor” is as "a defined substance which is steps substantial directed statute are principal compound commonly used convincingly use, overt acts ‘... which demon- produced primarily for is an which crime, purpose strate firm to commit a intermediary immediate chemical used or intervention, allowing police while based likely to be in of a used the manufacture upon incriminating observation such con- substance, controlled the control of which is duct, prevent in order to crime the when curtail, necessary prevent, to or limit manu- ”) attempt (quot- criminal apparent.' becomes 218A.010(11). And, such, facture.” KRS Woods, ing State St.2d Ohio cases, virtually all a who intends to (1976)). Compare N.E.2d Com- drug product precursor ause as a to metham- Prather, (evidence supra monwealth v. of re- phetamine necessarily will intend to manufac- demonstrating connaissance and evidence in- Thus, pros- ture under a through tent to robbery plan follow Manufacturing Methamphetamine ecution for "convincingly purpose demonstrated a firm (b), 218A.1432(l)(a) under KRS or either of and supported jury's commit crime” ver- require proof of a which dict); Commonwealth, Slaughter Ky.App., chemical, precursor Unlawful Possession (2001) (verdict attempted S.W.3d 873 Methamphetamine KRS Precursor under trafficking sup- in a controlled substance be a 218A.1437 will lesser-included offense ported, part, by evidence that defendant by proof because it of the can be "established approached inquired vehicle and as to what required same or less all the facts than wanted, occupant nearby the then went into a establish commission the offense and, return, building upon his discussed the note, 505.020(2)(a). charged.” I would KRS drug purchase). size aof however, methamphetamine precur- that the range statute sor criminalizes a broader 218A.1432(l)(b). 13. KRS Manufacturing activity Methamphet- than prohibits possession amine because it of cer- 218A.1437G). 14. KRS drug products tain "with the intent to use precursor methamphetamine as a [them] 218A.1432(l)(b). 15. KRS I would observe other substance." KRS controlled that, criminalizing instead of added). 218A.1437(1) (emphasis precursor-containing drug products "with methamphetamine” the intent to manufacture 505.020(1) ("When single methamphetamine precursor 16.See statute reads drug product may course of of a defendant estab- "with intent to use the conduct (1) drug products precursor lish the commission of more than one combination of as a offense, prosecuted may he for each of- other controlled sub- fense.”). Thus, 218A.1437(1). Attorney Although "pre- stance.” KRS a Commonwealth (3) Kentucky’s cursor" itself is not defined in seek for аll three could an indictment methamphetamine, to manufacture factoring Methamphetamine sary under KRS 218A.1432(l)(b) (a felony), B Class Crimi- he or did with the that she so intent Attempt Methamphet- nal to Manufacture and that methamphetamine, manufacture (a 506.010(l)(b) amine under KRS Class C the defendant’s actions were a substantial felony); or Possession of a Meth- Unlawful planned in a course of conduct step amphetamine Precursor KRS culminate manufac- (a course, felony).17 D 218A.1432 Class Of ture, appropriate then the crime is Crimi- defendant can be convicted of one Methamphet- to Manufacture Attempt nal (2) offenses, these because latter two amine, penalty and the defendant faces are lesser-included offenses of first.18 (5) (10) range of five and ten between (3) together, three Considered these If, years. however, that it is determined vary methamphet- operate crimes some, knowingly possessed defendant punishment with his or amine offender’s all, necessary to but not of the chemicals her If culpability. it is determined methamphetamine, manufacture possessed all of knowingly defendant knowingly he or among she the chemicals possessed drug was one or more methamphetamine and that he or she did 218A.1437(1), products defined KRS metham- so with intent manufacture he or with the intent to she did so phetamine, appropriate then the crime is but the methamphetamine,19 Manufacturing Methamphetamine under beyond a rea- factfinder does believe 218A.1432(l)(b), and the defendant actions doubt that the defendant’s sonable penalty range ten faces of between step towards constituted a substantial twenty years. If it is determined offense, the appro- then completion of knowingly possessed defendant some, all, рriate a Metham- but not of the chemicals neces- crime is Possession of salts,

offenses, iso- proceed upon nylpropanolamine,] trial all their [or could to three mers, isomers]; (3) separate offenses as offenses. or salts of AND drug product be or 17.An instruction for this offense would C.That had the [he she] following: drug to the in his products similar or combination of use [if/them] with the intent to NO_ INSTRUCTION precursor [methamphetamine] [or as a to OF A METHAMPHET- POSSESSION other controlled substance.] AMINE PRECURSOR special care to tailor an Trial courts must take one, presents as which instruction such this guilty the of Pos- You will find Defendant alternatives, present- multiple to the evidence if, Methamphetamine session of a Precursor possibility avoid the ed at trial in order to if, only you the evidence believe from See Commonwealth non-unanimous verdict. beyond a reasonable doubt all of the follow- Whitmore, Ky., 92 80-81 ing: county, [date] That in this on or about A. not, ("He 505.020(l)(b) may how- 18. See or had or her] in [he she] [his ever, (1) one of- be convicted of more than drug [drug product/combination of in ... is included [o]ne fense when offense [ephedrine,] products] containing [pseu- other[.]”). the doephedrine,] [phenylpropanolamine,] or salts, isomers, or salts of iso- [or their finding Technically, jury's would be the 19. mers]; possessed drug product that the defendant the AND precursor to [it] "with intent use as [drug B. That or knew that [he she] 218A.1437(1); methamphetamine[.]” KRS products] product/combination drug instruction, supra note But see su- 17. possessed by contained Draft [him her] [ephedrine,] [pseudoephedrine,] [phe- pra note 15. interpretation of recognize my I phetamine Precursor under 218A.1437, and the defendant would face liability lacks the conven- KRS 506.010 (1) penalty range of between one and five “bright adopted by line” ience (5) Accordingly, it is the years. height- that, this my position, under majority, and culpability with a ened associated “sub- define the would have further Court finding20 step” distinguishes stantial prohibited as Criminal scope of conduct D felony C and offenses. As Class Attempt Methamphet- Manufacture such, Attempt Criminal Manufacture However, in future cases. since amine Methamphetamine’s availability as a less- in is to the law interpret this Court’s role only er-included offense is not consistent it, before rather at- individual cases than with, of, but an important part the overall occupy of Metham- tempting field statutory scheme. law in fell phetamine Manufacturing one majority opinion reviews some I wait swoop, appropriate for the in the cases which defendants in other questions cases to decide harder such jurisdictions prosecuted, have been supports whether the evidence “substan- schemes, statutory different for lesser-in- step” finding drug if: products tial manufacturing methamphetamine cluded 218A.1437(1) identified in KRS are the However, given relatively offenses. only for metham- phenomenon of widespread prose- recent phetamine possessed by manufacture for manufacturing cutions methamphet- defendant; if the possess- defendant amine, full scope attempt of criminal substantially es less liability methamphetamine for offenses has manufacturing equipment present than is yet just to be jurisdic- decided—not in this But, bar, can here. the case at which tion, but nationwide —because courts have distinguished from much of the Mis- evidentiary examined insufficiency claims authority majority souri cited a limited number factual con- evi- Although texts. ob- Commonwealth introduced majority correctly holds, that no published opinion serves prove dence case bar, similar facts to the case at that the was familiar with man- supported evidence verdict criminal I ufacturing processes, find evidence attempt methamphet- than support more sufficient conclu- amine, the fact is that no held court has possession of these Appellant’s sion that otherwise, Thus, per- either. there is no to- step” a “substantial items constituted authority majority’s sug- suasive for the methamphetamine. manufacturing wards that, law, gestion as a matter of only the view, it my In the trial court erred when possession of all the chemicals or all of request for an Appellant’s denied instruc- equipment necessary to manufacture Manufacture Attempt tion on Criminal methamphetamine can constitute a “sub- Methamphetamine as a of- lesser-included step stantial in planned a course of conduct Manufacturing Methamphetamine, in” fense methamphetamine to culminate manu- that, remand, facture. upon and I would direct intentions.”); Commentary 20. See to KRS 506.010 nal Model Penal Code and (Banks/Baldwin 1974) ("[KRS 506.010(l)(a) I, 5.01, 6(a) Commentaries, § Part cmt. (b) emphasize principal purpose ]& that the (A.L.I.1985) ("Whether particular act ais requiring an act or to act for the omission obviously a de- step is matter of substantial attempt offense of criminal is to establish gree.”). and firmness of a existence defendant’s crimi- REPORTER, Ky. 3d SERIES SOUTH WESTERN credulity It court include the lesser-includ- utes.1 strains to believe trial should Assembly require jury pos- in its General intended to ed offense instructions. equip- of the chemicals or session all guilty adjudged ment for one be Justice, LAMBERT, in dissenting Chief manufacture. If the methamphetamine part. intended, Assembly had so it General A., Part respect In III and Part IV with have used the word “all” surely 218A.1432, majority opinion to KRS is general the more “thе.” rather than excessively unduly technical and restric- Moreover, the element of intent to manu- provides tive. KRS 218A.1432 as follows: in methamphetamine facture “(1) guilty A of manufacturing is prevents possibility 218A.1432 knowingly when he and wrongful possession of such conviction for (a) unlawfully: methamphet- manufactures pur- or innocent chemicals amine; (b) possesses the chemicals or poses. equipment for manufacture metham- in- ‍​‌‌​‌​‌​‌‌‌‌​​‌‌‌‌‌‌​​‌‌‌​‌‌‌​​​‌‌​‌​​​​​​​‌‌​​‌‍majority interpretation The is also phetamine the intent to manufacture it is read consistent with statute when added) methamphetamine.”(emphasis majority’s Under the inter- entirety. its majority “the chemi- construes words pretation, defendant would have to be mean chemicals equipment” cals or “all” manufacturing act meth- virtually result, As equipment. the burden on to be amphetamine guilty. interpre- This prosecution man- illogical because KRS tation enhanced, ufacturing greatly will be cases 218A.1432(l)(a) separately proscribes man- amount of and an offender with least ufacturing pos- If the prevent be his con- ingenuity will able meaning, it provision is to have session by merely omitting from his cache viction manufacturing provi- differ from the must ingredients of tools one or two of the sion, majority interpretation, but under the common, missing in the bringing more (b) 218A.1432(l)(a) and have little or only at the last moment. components has been virtu- difference. Possession no Thus, to achieve a conviction under the of the law. ally written out majority interpretation, will be neces- sary to catch the offender “red-handed.” J., WINTERSHEIMER, joins this opin- part. ion dissenting give

There no need to the statute such “the phrase technical construction. The be equipment” need not inter- preted equipment”. as It “all interpreted as the easily

could essen-

tial, primary, substantially to that equipment, words

effect, prevent a draconi- thereby such of the law. application ascertain responsibility

Our

give the intent of the General effect to

Assembly interpretation our of stat-

1. KRS 446.080.

Case Details

Case Name: Kotila v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Jun 12, 2003

Citation: 114 S.W.3d 226

Docket Number: 2000-SC-0341-MR

Court Abbreviation: Ky.