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Sevier v. Commonwealth
Citations: 434 S.W.3d 443; 2014 WL 2779483; 2014 Ky. LEXIS 242Docket: Nos. 2012-SC-000238-MR, 2013-SC-000265-TG
Court: Kentucky Supreme Court; June 19, 2014; Kentucky; State Supreme Court
Jason Sevier and Carolyn Baughman were convicted by a circuit court jury for multiple drug-related offenses, including manufacturing methamphetamine and possession of drug paraphernalia. Sevier received a twenty-year sentence, while Baughman was sentenced to fifteen years. Both appealed their convictions, with their cases consolidated for review. They raised several arguments on appeal: 1. Double jeopardy violations concerning the convictions for manufacturing methamphetamine and possession of a precursor. 2. Insufficient evidence supporting their convictions for manufacturing methamphetamine, possession of a precursor, and child endangerment. 3. Inadequate jury instructions regarding the burden of proof. 4. Procedural errors in jury selection and the failure to swear in the bailiff. 5. Jurisdiction issues regarding restitution orders. 6. Improper imposition of court costs and a public defender fee. The court affirmed all convictions except for the possession of a methamphetamine precursor, which was vacated due to double jeopardy concerns. Additionally, the imposition of court costs and fees was reversed. The case was remanded to the trial court for further proceedings consistent with the opinion. The factual background reveals police responded to a drug complaint at a trailer, where they detected a strong ammonia odor associated with methamphetamine production. Upon searching the premises, they found various items and chemicals indicative of methamphetamine manufacturing, including pipes, scales, and precursor materials, alongside the presence of a child in the home. Evidence obtained from a consensual search of Reeves's car revealed batteries with their lithium strips removed and three hydrochloric acid (HCl) generators, known as smoke bottles, which tested positive for hydrochloric acid. These smoke bottles are typically utilized to create gaseous hydrochloric acid that is then incorporated into a chemical mixture, such as that in a pickle jar, to produce methamphetamine flakes. One smoke bottle was identified as recently used and actively reacting, with modifications for plastic tubing secured by duct tape. Due to the hazardous nature of the materials, an independent hazardous-waste disposal company was called to stabilize and remove the items. This evidence led to the arrests of Sevier, Baughman, and Reeves on multiple charges, including manufacturing methamphetamine and possession of drug paraphernalia. The trio was tried together and convicted on all charges, receiving sentences of twenty years for Sevier and fifteen years for Baughman. Sevier appealed his conviction, claiming that the charges of manufacturing methamphetamine and possession of a methamphetamine precursor violated double jeopardy, as both convictions stemmed from his possession of pseudoephedrine. Although this issue was not preserved for review, the court addressed it due to its constitutional significance. Applying the Blockburger test, which determines whether two offenses are distinct based on the unique elements each requires, the court considered the jury instructions and the applicable statutes for Sevier's conviction of manufacturing methamphetamine. Sevier was charged by the Commonwealth with possession of a methamphetamine precursor, specifically pseudoephedrine, with the intent to manufacture methamphetamine. Despite no pseudoephedrine being found in the trailer, the Commonwealth argued that its presence was implied due to the chemical reaction observed in a pickle jar found on the premises. The trial court instructed the jury that a conviction required proof beyond a reasonable doubt of Sevier's possession of pseudoephedrine, knowledge of its nature, and intent to use it as a precursor for methamphetamine production. The Commonwealth contended that there was no violation of double jeopardy, asserting that evidence of four other chemicals and six pieces of equipment used in methamphetamine manufacturing sufficed for the manufacturing charge, which could be based on factors distinct from those for the precursor charge. However, the court disagreed, determining that possession of a methamphetamine precursor is a lesser-included offense of manufacturing methamphetamine because both statutes do not require proof of unique facts. The primary distinction lies in the intent; while both statutes involve intent concerning methamphetamine production, the manufacturing statute demands a more comprehensive intent to manufacture. The possession element also varies, with the manufacturing statute allowing conviction based on multiple chemicals or equipment, whereas the precursor statute requires only one specific chemical. This nuanced difference was deemed inadequate to satisfy the Blockburger test, which assesses whether two offenses require proof of different elements. Possession of a methamphetamine precursor is determined to be a lesser-included offense of manufacturing methamphetamine, as both offenses aim to prevent the accumulation of items necessary for methamphetamine production. While the manufacturing-methamphetamine statute allows for proof through different facts, it does not necessitate them. Criminal liability arises from possessing just one more chemical than needed for a possession-of-a-methamphetamine-precursor conviction, reflecting a single underlying act. The distinction between the two offenses is recognized by their classification, with manufacturing being a Class B felony and possession a Class D felony. The court expresses reluctance to permit multiple convictions when the possession of chemicals and equipment is intended for a singular purpose, asserting that such a scenario violates double jeopardy principles. Thus, holding convictions for both offenses simultaneously is impermissible. The appropriate remedy for a double-jeopardy violation is to vacate or reverse the lesser-included charge, even if the sentences are concurrent. This action is necessary to address potential adverse collateral consequences associated with the separate conviction. In this case, possession of a methamphetamine precursor is deemed a lesser-included offense of manufacturing methamphetamine, thus requiring the vacation of that conviction to resolve the double-jeopardy issue. Sevier argued that the evidence was insufficient for convictions of manufacturing methamphetamine and fourth-degree controlled-substance endangerment of a child. He claimed to have preserved this argument for appeal by joining a directed verdict motion made by a co-defendant’s attorney. Although it is concluded that he did join the motion, it is considered unpreserved for appeal due to its general nature and lack of specificity regarding the charges or grounds. Despite this, the court reviewed the issue for palpable error, which is defined as being shocking or intolerable. The court found no error in submitting the manufacturing charge to the jury. Sevier's argument that he could not intend to manufacture methamphetamine in the future because the process was complete was dismissed; sufficient evidence existed for the jury to infer his intent to manufacture in the future based on the presence of chemicals and paraphernalia found in his possession. Baughman’s claims of innocence were also refuted, as evidence found in her purse indicated involvement with methamphetamine, and her long-term presence at the location of the alleged manufacturing further undermined her defense. Overall, the evidence supported the jury's findings against both Sevier and Baughman. Baughman's status as an indefinite resident and her possession of methamphetamine accessories provided sufficient grounds for a jury to infer her intent to manufacture methamphetamine. The presence of chemicals and equipment in the home of her co-defendants does not conclusively establish her innocence, as possession can be shared among multiple individuals. The legal definition of possession for offenses under Chapter 218A encompasses both actual and constructive possession, allowing the jury to find that Baughman and her co-defendants possessed contraband if it was within their control. Evidence indicated that various chemicals and equipment necessary for methamphetamine manufacturing were easily accessible to Baughman in the kitchen, a common area, supporting the conclusion that she had control over these items. The trial court's decision to present the manufacturing charge to the jury did not infringe upon the rights of Baughman or her co-defendant Sevier, and the Commonwealth provided enough evidence for a reasonable jury to conclude that both intended to manufacture methamphetamine and possessed the contraband. Regarding Sevier’s conviction for fourth-degree controlled-substance endangerment of a child, he argued that his lack of parental or custodial rights precluded criminal liability. However, the statute under KRS 218A.1444 does not require a defendant to have a legal relationship with the child for liability to apply. The law holds individuals criminally responsible if they knowingly cause or permit a child to be present during the manufacture of a controlled substance, which does not necessitate any formal authority over the child. Consequently, a defendant can be convicted for facilitating a child's presence during drug production without needing to have parental rights or custodial authority. Under KRS 218A.1444, a defendant can be convicted of child endangerment related to controlled substance production without needing to demonstrate any parental authority or special relationship with the child present. The statute allows for liability even if the defendant fails to control the child's presence, as the act of producing a controlled substance knowingly in a child's vicinity constitutes causation. The definition of "permits," as outlined in Black’s Law Dictionary, indicates that it encompasses both formal consent and the opportunity for a child to be present. The legislative intent, as interpreted, suggests that "permits" applies to situations where a defendant allows a child to be present during illicit activities, without necessitating formal consent or parental rights. The court found that the Commonwealth provided sufficient evidence for a reasonable jury to determine that Sally was present during the manufacture of methamphetamine in the defendant's trailer. Although direct evidence of her presence throughout the entire process was limited, circumstantial evidence—including strong ammonia odors and ongoing chemical reactions observed by police—supported the inference that methamphetamine production occurred shortly before their arrival, implicating Sally's presence at the scene. Sevier was found in a bedroom with items indicating recent methamphetamine use, supporting the conclusion that the methamphetamine was recently produced in the trailer. The evidence suggests that Sally was present during its manufacture, as she was at the trailer when police arrived, which was her primary residence. The incident occurred on a Sunday, when Sally would not have been attending school, further implying her presence during the production. The jury was justified in inferring Sally's involvement based on the circumstantial evidence and the lack of counter-evidence. Under KRS 218A.1444, the presence of a child during the manufacture of a controlled substance does not require proof that the child was placed in danger of serious physical injury or death for a conviction. The statute delineates two distinct acts that can lead to criminal liability: (1) knowingly causing or permitting a child to be present during the illegal manufacturing of a controlled substance and (2) possessing a hazardous chemical substance with intent to manufacture a controlled substance in a manner that endangers a child. The first act requires a mental state of "knowingly" and an overt act of causing or permitting the child's presence, making it a standalone basis for conviction without needing additional elements. The clause following 'or' in KRS 218A.1444(1) outlines a criminal offense: possessing a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine, which must occur in circumstances that endanger a child. This provision includes two critical elements required for a conviction. The act of possession and intent constitutes the overt act, while the risk to a child supplies the necessary mental state, characterized as wantonness. The statute's structure, particularly the disjunctive 'or', indicates two distinct methods for committing fourth-degree controlled-substance endangerment of a child. The risk-of-danger element applies solely to the clause regarding hazardous chemical possession, not to the manufacture of a controlled substance, which clarifies that proof of child endangerment is not needed when the conviction is based on manufacturing in the presence of a child. Sevier’s claim of insufficient evidence is deemed unfounded as it relies on an irrelevant element. Furthermore, regarding jury instructions, Sevier argues that the instructions were confusing because they listed all defendants together, potentially leading jurors to mistakenly believe a guilty verdict for one required guilty verdicts for all. Although Sevier acknowledged the issue was unpreserved, he sought review under RCr 10.26, which was conducted for palpable error. The jury instructions were generally consistent, emphasizing the necessary elements to establish guilt, specifically mentioning possession and intent concerning the manufacture of methamphetamine. Sevier contends that the trial court's jury instructions implied that the jury could convict all three defendants based on the guilt of just one, despite the absence of complicity or accomplice liability theories. However, the court disagrees, noting that the plural term "defendants" and the phrase "he or she" indicate that each defendant must be evaluated individually. The presence of individual verdict forms for each defendant further necessitated separate determinations of guilt. Thus, any interpretation suggesting a requirement for collective judgment would misread the instructions and disregard juror common sense. Additionally, while the trial court failed to designate and excuse an alternate juror before deliberations began, this did not constitute palpable error. The trial court had initially seated thirteen jurors to account for potential juror absences. Although the court did not follow Civil Rule 47.03 by selecting an alternate before deliberation, Sevier's framing of the issue as an alternate invading the jury's sanctity misrepresents the situation, which is better understood as the court's failure to properly manage juror selection. Sevier urges the court to consider the majority position in other jurisdictions that presume prejudice in cases where more than twelve jurors deliberate, but this issue has not been adjudicated in Kentucky for nearly two centuries. Sevier advocates for a presumption of prejudice based on two cases: McAdams v. State and Stokes v. State. In McAdams, a Wyoming trial court mistakenly allowed thirteen jurors, including an alternate, to deliberate, leading to a guilty verdict. The Wyoming Supreme Court determined that the presence of the alternate juror was not automatically reversible error but applied a two-prong test to evaluate plain error: whether the alternate's presence prejudiced the defendant and whether corrective measures were taken. The court found that the mere presence of an alternate during deliberations created a presumption of prejudice, as it could not ascertain the impact of the alternate's participation on the jury's verdict. The prosecution was required to demonstrate either no effect from the alternate's participation or that procedural safeguards mitigated any potential influence. The court concluded that the alternate's presence violated the defendant's right to a fair trial by breaching the principle of jury privacy. In Stokes v. State, the Maryland Court of Appeals took a different stance, ruling that the presence of an officially designated alternate during deliberations injects improper outside influence, as alternates do not hold legal status as jurors and are considered akin to third parties. This distinction led to the conclusion that an alternate's presence compromises the sanctity of jury deliberations, creating an unrebuttable presumption of prejudice against the defendant. Sevier argues for the adoption of the stranger-to-the-proceedings rationale, suggesting that an alternate juror’s presence during deliberations is presumptively prejudicial. However, a key factual distinction exists between Sevier’s case and the precedents of McAdams and Stokes; specifically, the status of the extra jurors prior to the verdict announcement. In McAdams and Stokes, alternate jurors were explicitly labeled as strangers to the jury, creating a scenario where their presence could be seen as a threat to jury secrecy and open discussion. In contrast, Kentucky law treats all thirteen jurors as fully participating until one is randomly dismissed, meaning there is no stranger in the jury room during deliberation. The absence of a labeled alternate means that all jurors, including the extra juror, share equal accountability for the verdict, undermining the concerns about potential chilling effects and confidentiality breaches posited by other jurisdictions. Thus, the presumption of prejudice does not apply. Instead, the case aligns more closely with the reasoning in Crossland v. Commonwealth, which applies a traditional harmless-error analysis to alternate juror situations. Crossland asserts that errors, even those of constitutional significance, are typically subject to this standard unless substantial justice is compromised. Consequently, the analysis of Sevier's case should proceed under the harmless error standard, provided the error is properly preserved. The absence of proper preservation leads to an analysis of the alleged error under the palpable error standard defined by RCr 10.26. The case at hand reveals that Sevier failed to object when an extra-juror error was identified after the jury's verdict announcement but before the verdict was made public, rendering the issue unpreserved. Consequently, the error is reviewed under the palpable error standard, which defines a palpable error as one that is shocking or jurisprudentially intolerable, and must demonstrate a likelihood of a different outcome or a fundamental error threatening due process. Sevier asserts a constitutional right to a twelve-member jury, citing Section Seven of the Kentucky Constitution, which preserves the traditional jury trial method. Historical context from the Constitutional Convention indicates a clear intent to maintain the twelve-person jury as a constitutional requirement. Although it is established that a defendant cannot be tried by fewer than twelve jurors without a personal waiver, the applicability of this principle to cases with more than twelve jurors has not been previously examined in Kentucky. The significance of the number twelve in jury composition is acknowledged as historically rooted yet somewhat arbitrary, with references to its mystical value. Despite this, larger juries have often been viewed as beneficial for defendants, a notion supported by case law dating back to the 19th century. The Supreme Court’s decision in Thompson v. Utah emphasized that reducing jury size diminishes the rights of the accused, highlighting the belief that a larger jury size enhances protections for defendants. The Supreme Court has recognized the potential advantages of a twelve-member jury in ensuring a fair trial under the Sixth Amendment, suggesting that larger juries may enhance community representation and increase the likelihood of acquittal for defendants. No state permits fewer than twelve jurors in capital cases, reflecting a societal consensus on the importance of a larger jury for significant decisions like capital punishment. However, the court ruled that deviations from the twelve-member jury requirement, such as allowing a thirteen-person jury, do not constitute a constitutional error if they provide greater protections than those guaranteed by the Kentucky Constitution, which mandates a twelve-member jury. The trial court's allowance of a thirteen-person jury was deemed an error but not one of constitutional significance, as it ultimately did not prejudice the defendant, Sevier. Citing precedent from Ross v. Neal, the court noted that the presence of an additional juror does not inherently compromise the integrity of the jury's verdict, especially when that verdict remains unanimous. The Commonwealth still had the burden of proof, and the inclusion of the extra juror did not adversely affect the outcome of the trial. Additionally, the trial court's failure to swear in the bailiff, as required by RCr 9.68, was acknowledged but not considered a reversible error, as the specifics of the alleged error did not demonstrate a palpable impact on the proceedings. The trial court's failure to comply with RCr 9.68 is acknowledged as error, but it is not deemed palpable because Sevier failed to substantiate claims of due process violations or demonstrate that the bailiff's actions compromised his rights. Sevier did not provide evidence that the unsworn bailiff neglected duties to maintain jury integrity. Therefore, the lack of swearing the bailiff was not a palpable error. Regarding restitution, the trial court ordered Sevier and two co-defendants to pay $2,407.38 for cleaning up active methamphetamine labs, asserting joint and several liabilities. Sevier contends that restitution should only benefit crime victims and argues that the Commonwealth is not a victim. However, KRS 532.032 allows for restitution orders in criminal cases, defined as compensation to victims for losses incurred due to criminal acts. The court distinguishes Sevier's interpretation of the Vaughn case, which involved extradition costs and was not applicable here, emphasizing that expenses from crime cleanup are indeed linked to victim restitution. The court supports broad interpretations of remedial statutes, noting that society suffers from vice crimes, thus validating the trial court's discretion in ordering restitution to the Commonwealth for the cleanup costs. However, the court cautions that such discretion should not be unlimited, indicating restitution may only be imposed for extraordinary expenses beyond typical law enforcement costs. Law enforcement engaged an independent hazardous-waste disposal company to safely eliminate chemically tainted materials from methamphetamine production, which posed risks to the community and environment. The costs incurred for this neutralization and disposal are deemed to fall outside typical police duties and qualify as "expenses suffered by a victim because of a criminal act." Consequently, the trial court's order for joint-and-several restitution of $2,407.38 was affirmed. Sevier contested the trial court’s imposition of court costs and a partial public defender fee, arguing that the court had orally waived the costs during sentencing, a decision not reflected in the final judgment. The Commonwealth acknowledged this inconsistency, leading to a reversal of the court costs. Regarding the public defender fee, Sevier argued that a required hearing to assess his ability to pay was not conducted. However, because of the conflicting findings regarding his financial capability to pay both a partial fee and court costs, the court deemed it unnecessary to resolve these issues. According to KRS 23A.205(2), court costs are mandatory upon conviction unless the defendant is classified as a "poor person," meaning unable to pay without depriving themselves or their dependents of essential needs. The trial court's waiver implied an analysis of Sevier’s finances, indicating he could not afford costs in the foreseeable future. Conversely, the imposition of a public defender fee requires a hearing to assess the defendant's ability to pay. The trial court's findings that Sevier could afford a partial fee while being unable to pay court costs were determined to be inconsistent. A defendant's entitlement to a public defender does not exempt him from court cost taxation, as a more significant demonstration of financial need is required to waive costs than to establish need for a public defender. In this case, since the Commonwealth recognized that the trial court waived court costs without a required hearing under KRS 31.211(1) to assess public defender fees, it was determined that this waiver indicates a serious financial hardship. Consequently, the trial court's waiver precludes imposing a partial public defender fee, leading to the reversal of both costs and fees. The court vacates the convictions of Sevier and Baughman for possession of a methamphetamine precursor due to double jeopardy, while affirming other convictions and joint-and-several restitution orders. The case is remanded for the trial court to issue new final judgments consistent with this opinion. All justices concurred except for one who concurs in result only. The text references the identity protection of a child and discusses meth oil production as part of the context. Additionally, it notes that similar arguments from Sevier and Baughman are considered collectively, and emphasizes the rule against multiple prosecutions for the same conduct, aligning with federal precedent. All chemicals listed in KRS 218A.1437(1) are classified as methamphetamine production chemicals and fall under the manufacturing-methamphetamine statute. This ruling does not contradict the decision in Shemwell v. Commonwealth, which involved a conviction for manufacturing methamphetamine requiring actual production and a separate conviction for possession of a precursor with intent for future manufacture. The dual convictions in Shemwell were deemed factually distinct, thus not violating double jeopardy principles. The appellants argued insufficient evidence for their possession-of-a-methamphetamine-precursor conviction, but since this conviction was vacated, it will not be further addressed. Baughman acknowledged that her related issue was unpreserved, as CR 50.01 mandates that directed verdict motions specify grounds, with failure to comply limiting appellate review. RCr 10.26 allows for considering palpable errors affecting substantial rights, despite preservation issues, if they result in manifest injustice. The jury may infer intent from circumstances surrounding a crime, as established in prior cases like Pate v. Commonwealth, where evidence of methamphetamine precursors and related maps supported the inference of intent to produce methamphetamine. While the prosecution must prove all elements beyond a reasonable doubt, intent can be inferred from circumstantial evidence. In Franklin v. Commonwealth, 490 S.W.2d 148, the court established that 'possession' under KRS Chapter 218A encompasses both actual and constructive possession. To prove constructive possession, the Commonwealth must demonstrate that the contraband was under the defendant's dominion and control. KRS 218A.1444 states that a person is guilty of controlled substance endangerment to a child in the fourth degree if they knowingly allow a child to be present during the illegal manufacture of a controlled substance or methamphetamine. Additionally, a conviction can also arise from possessing hazardous chemicals intended for illegal substance manufacture in circumstances that jeopardize a child's safety. The court applies traditional statutory construction rules when faced with ambiguous statutes. Recent rulings, such as Martin v. Commonwealth, clarify that errors in jury instructions can be subject to judicial review even if the specific instruction was not requested. The excerpt also references legal drafting principles regarding pluralization in legal texts, highlighting the potential issues with using parenthetical plurals. The discussion includes a comparison to Wyoming law regarding alternate jurors, noting that participation in deliberations by alternates is typically considered prejudicial, with limited circumstances under which this presumption can be rebutted. Circumstances are outlined regarding the presence of alternate jurors in deliberations, emphasizing that an alternate not present when the jury room door closes or who briefly enters to collect belongings before deliberations are not grounds for presumption of prejudice. The court refrains from commenting on scenarios where an alternate is introduced after deliberations or removed before a unanimous verdict, as these situations are not currently before them. An alternate juror was randomly dismissed before the verdict announcement, and neither party requested a jury poll. After additional evidence, a new twelve-member jury considered sentencing, with no objections from the defendant regarding being tried and sentenced by different juries. The court notes that it has established that defendants are not entitled to the same jury for guilt and sentencing phases. The excerpt references Kentucky's constitutional history regarding jury trials, affirming the right to a jury of twelve and a unanimous verdict. Historical context is provided, indicating that while twelve jurors became the norm by the fourteenth century, variations existed earlier. The discussion includes a citation of U.S. Supreme Court cases that address the implications of juror numbers, indicating that fewer jurors can disadvantage defendants, although procedural issues like juror numbers do not invoke ex post facto concerns. The court recognizes that an additional juror could also benefit the State by enabling a single juror to prevent acquittal. The prosecution in criminal matters bears a more onerous burden, reaffirming the precedential value of prior cases, including Commonwealth v. Simmons and Commonwealth v. Wasson, which emphasize that statutory protections can exceed constitutional rights. Historical context is provided by referencing Kentucky's Second Constitution of 1799, which upheld the sanctity of jury trials. The court identifies a procedural error in the trial judge's failure to administer an oath to the jury officers as mandated by RCr 9.68, yet notes that this error is not reversible if the officer performed their duties effectively, as established in prior cases like Cole and Mason. In this instance, no evidence was presented indicating the bailiff's failure to perform their responsibilities, thus the court does not find any violations affecting the parties' rights. Appellants Sevier and Baughman were jointly tried, with Sevier making a vague due process claim regarding restitution that lacked substantive legal grounding, leading the court to decline further review. The mention of statutes such as KRS 532.350 indicates that costs related to contraband disposal may be charged to defendants, but does not extend to all costs associated with different types of contraband. Certain types of contraband, which do not pose an immediate threat to officers, have historically been stored and destroyed by police departments, indicating that associated expenses are not extraordinary or beyond typical police responsibilities. KRS 532.350(l)(a) and relevant case law (e.g., Travis v. Commonwealth, Roberts v. Commonwealth, and Cardwell v. Commonwealth) establish that errors in documentation, whether clerical or judicial, hinge on whether they result from deliberate judicial reasoning. An evident clerical error was identified when the trial court's intended sentence, clear from the videotaped record and communicated during the sentencing hearing, was not accurately recorded. KRS 453.190(2) and KRS 23A.205(2) highlight that imposing court costs is inappropriate without a reasonable belief in the defendant's ability to pay. Furthermore, being classified as "needy" does not automatically exempt a defendant from court costs, as the threshold for financial hardship required to waive costs is more stringent than that for qualifying for public defender services.