Opinion
NO. 2016-CA-001360-MR
01-26-2018
JOSHUA MCALPIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: F. Todd Lewis Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 14-CR-001309 OPINION
AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE: JONES, J. LAMBERT, AND STUMBO, JUDGES. JONES, JUDGE: Following a jury trial, the Appellant, Joshua McAlpin, was found guilty of one count illegal possession of drug paraphernalia and one count of possession of a controlled substance first degree (heroin). The trial court imposed a sentence of three years for each count to run concurrently, probated for five years. On direct appeal, McAlpin challenges both convictions. For the reasons set forth below, we affirm McAlpin's conviction for possession of a controlled substance first degree (heroin), but reverse his conviction for possession of drug paraphernalia.
Judge Janet Stumbo concurred in this opinion prior to retiring from the Kentucky Court of Appeals effective December 31, 2017. Release of this opinion was delayed by administrative handling.
I. BACKGROUND
On February 10, 2011, the Louisville Metro Police Department ("Metro Police") responded to an apartment located in Louisville, Kentucky, to assist a probation officer in locating Amelia Durham, a fugitive probationer. Durham was on probation for a prior felony conviction. Durham and McAlpin have a child together, and Durham was known to live intermittently with McAlpin at the apartment. When Metro Police arrived at the apartment Durham, who was alone in the apartment at the time, attempted to exit the opposite direction. She was stopped by Metro Police and detained. Metro Police then proceeded to search the apartment.
During the search of the apartment, Metro Police discovered pills, some of which were identified as Suboxone, and various items consistent with the use of heroin including used and unused syringes, seven spoons, two pieces of aluminum foil, and four pieces of cotton. While Metro Police were still at the apartment, two other individuals arrived, Silas Koger and Clark Duerr. Both Koger and Duerr admitted to Metro Police that they were heroin addicts; however, both denied using heroin at that time. Both men were searched by Metro Police and no contraband was found on either man. Koger, however, admitted that a stack of laundry where one of the spoons was located belonged to him.
Suboxone is used as an opiate antagonist to help with withdrawal from heroin or other opiates.
Eventually McAlpin returned to his apartment from his nearby dental office. McAlpin was searched by Metro Police. McAlpin was found with $925 on him, but otherwise no other contraband was found on his person. McAlpin was then taken to a bedroom within the apartment, where he was questioned by Detective Tom Schardein with Metro Police. McAlpin testified at his suppression hearing that he was placed in handcuffs while in the bedroom. Detective Schardein testified that he did not recall placing McAlpin in handcuffs. He further testified that he believes he would have noted this fact in his records if it had occurred. The records do not indicate that McAlpin was placed in handcuffs. While being questioned by Detective Schardein, McAlpin admitted to a history of opiate addiction. McAlpin, however, denied using or possessing heroin.
Subsequently, over three years following the initial search of McAlpin's apartment, on May 21, 2014, McAlpin was indicted for illegal possession of drug paraphernalia, and possession of a controlled substance first degree (heroin). At the conclusion of McAlpin's trial, the jury received instructions on both "Possession of a Controlled Substance (Heroin)" and "Illegal Use or Possession of Drug Paraphernalia." McAlpin was convicted of both charges. Subsequently, after the jury's conviction, McAlpin and the Commonwealth agreed that the Commonwealth would recommend a sentence of three years, probated for five years. The trial court imposed a sentence of three years on each count to run concurrently, probated for five years. This appeal followed.
II. Analysis
A. Misdemeanor Drug Paraphernalia Conviction
Unlawful use or possession of drug paraphernalia is a Class A misdemeanor. KRS 218A.500(7). "Except as otherwise expressly provided, the prosecution of an offense other than a felony must be commenced within one (1) year after it is committed." KRS 500.050(2). None of the exceptions listed in KRS 500.050 apply in this case.
Kentucky Revised Statutes.
The indictment in this case was not returned until more than three years after the offense. Moreover, as McAlpin argues in his brief, the jury instruction on this count failed to include the requirement that McAlpin must have committed the offense within a year preceding the indictment.
In a misdemeanor case, it is error not to predicate conviction upon a belief from the evidence beyond a reasonable doubt that the offense was committed within twelve months before the finding of the indictment or the issuance of the warrant or other accusatory document.Cooper and Cetrulo, Kentucky Instructions to Juries (5th Ed.), Criminal § 1.11.
The Commonwealth concedes that the faulty jury instruction, combined with the clear evidence that the prosecution was not timely commenced, creates palpable error. Moreover, in a commendable showing of candor, the Commonwealth also points out that McAlpin was sentenced to three years on a misdemeanor charge that has a maximum penalty of twelve months in jail. A defendant may not waive a sentence in excess of the statutory maximum. McClanahan v. Commonwealth, 308 S.W.3d 694, 695 (Ky. 2010) ("Appellant's thirty-five-year sentence exceeded the lawful range of punishment established by the General Assembly, and whether agreed upon or not, the trial court's imposition of such a sentence is a violation of the separation of powers doctrine embodied in Sections 27 and 28 of the Kentucky Constitution, and is an abuse of discretion."). Based on the alleged errors and the Commonwealth's concession that the prosecution, jury instruction and sentence were improper, we must reverse McAlpin's misdemeanor drug paraphernalia conviction. This renders any additional arguments regarding this conviction moot. The remainder of our analysis focuses solely on the possession conviction.
B. Possession of a Controlled Substance First Degree
1. Sufficiency of the Evidence
McAlpin asserts that when the actual state of the evidence is reviewed closely, it becomes apparent that the Commonwealth failed to introduce sufficient proof that he possessed the heroin located in the apartment. This error was preserved by a motion for directed verdict at the close of the Commonwealth's proof, renewed at the close of all proof, and by a motion for judgment of acquittal/new trial.
The Kentucky Supreme recently reiterated the roles of the trial court and the appellate courts when entertaining challenges to the sufficiency of evidence in criminal cases. The Court explained:
In reviewing a motion for a directed verdict the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. Id. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserve for the jury questions as to the credibility and weight to be given to such testimony. Id. "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Id. (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). "[T]here must be evidence of substance, and the trial court is expressly authorized to
direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence." Benham, 816 S.W.2d at 186-187; Banks v. Commonwealth, 313 S.W.3d 567, 570 (Ky. 2010).Gullett v. Commonwealth, 514 S.W.3d 518, 527-28 (Ky. 2017).
McAlpin maintains that there was insufficient evidence to convict him of possessing the heroin located in the apartment because the Commonwealth did not offer any evidence to prove that any of the items containing heroin residue were actually under McAlpin's control. According to McAlpin, the most the Commonwealth's evidence proved is that McAlpin was present at the apartment on the day in question and may have had some prior knowledge that other residents or visitors were involved in using heroin.
Possession of heroin is a violation of KRS 218A.1415. Since that statute is outside the Penal Code, the Penal Code's definition of "possess" does not apply. Instead, we employ the common meaning of the word "possess." See Pate v. Commonwealth, 134 S.W.3d 593, 598 (Ky. 2004). "If a person owns; he possesses." Id.
Additionally, the Kentucky Supreme Court has held that "'possession' for purposes of KRS Chapter 218A includes both actual and constructive possession." Id. "To prove constructive possession, the Commonwealth must present evidence which establishes that the contraband was subject to the defendant's dominion and control." Id. at 598-99. However, the dominion and control exerted by the defendant does not have to be exclusive. "Possession of dangerous drugs and, likewise, the instrumentalities used in their creation, 'need not be exclusive' and may be held by more than one person." Sevier v. Commonwealth, 434 S.W.3d 443, 455 (Ky. 2014); see also Franklin v. Commonwealth, 490 S.W.2d 148, 150 (Ky. 1972) ("Two or more persons may be in possession of the same drug at the same time."). While a defendant's exclusive control over a premises is sufficient to raise an inference of possession and knowledge, in cases where the defendant exercises only joint control the Commonwealth must introduce additional evidence to prove the defendant knew the substance was present and had it under his control. See Hayes v. Commonwealth, 175 S.W.3d 574, 594 (Ky. 2005). "Constructive possession, much like actual possession, may be proven by circumstantial evidence." Haney v. Commonwealth, 500 S.W.3d 833, 835 (Ky. App. 2016).
In this case, the contraband was located on items found in an apartment McAlpin shared with his girlfriend and the mother of his child, Angela Durham. The contraband was found scattered throughout the apartment. Given that McAlpin did not have exclusive possession of the apartment, the Commonwealth could not prevail simply by showing that McAlpin resided in the apartment. It had the burden of establishing that McAlpin knew the items were present and had actual or constructive control over them. Having reviewed the record, we believe the Commonwealth met its burden and that it was appropriate to submit the case to the jury for final decision.
As noted, many of the items were located throughout the apartment. However, the Commonwealth did introduce evidence that spoons with cotton residue stuck to them were found in the medicine cabinet next to a prescription for amoxicillin in McAlpin's name and on a dresser table in the bedroom beside a gun with McAlpin's name on it. Additionally, expert testimony established that it was common for addicts to use heroin together.
At trial, Durham, who had already pleaded guilty to misdemeanor charges, testified that all of the items in the apartment were hers except for one needle and a spoon found in Silas Koger's laundry. However, the Commonwealth impeached Durham by playing a portion of a conversation Durham and McAlpin had while he was being detained in jail. During that conversation, McAlpin attributed ownership of the paraphernalia on which the heroin was found to herself, McAlpin, Koger, and Duerr.
Durham: Dude, they found so many fuckin' syringes. Did you see how many syringes they found and spoons?
McAlpin: Yeah, I don't know whose shit that was. That's what I'm saying dude.
Durham: It was Silas's shit. Chance's shit, your shit , my shit—
McAlpin: That's what I'm saying dude—none of that
shit was even ours and you and me are gettin' charged with everybody else's bullshit. That really pisses me off.(emphasis added).
During another conversation, McAlpin explained to Durham that both of them should not be charged for possession. He insinuated that if one of them was able to work out a "deal," that person should exonerate the other.
McAlpin: Well, that's what I'm saying (unintelligible). I mean if you're going to have, if you're getting hit with those charges and there's nothing, there's nothing you can do to just make them disappear then I don't know. I mean—if you ever work out a deal with Scott through the courts on those charges, then you know, they need to erase mine. Or if I tell them that it was, you know, it was all my shit and you didn't know, it was all my shit and you didn't know nothing about it, then they need to erase yours. But not both us need to get charged with that. You know what I'm saying.From this conversation, the jury could infer that Durham's testimony that the items found in the apartment were all hers was manufactured so that the charges against McAlpin would be "erased[.]"
The trial court ultimately concluded that the evidence was sufficient to create a jury issue, and we are sufficiently convinced that it was not clearly unreasonable for the jury to conclude that McAlpin constructively possessed all items located in his apartment. Accordingly, the trial court did not err in denying McAlpin's motion for a directed verdict.
2. Alleged Miranda Violation
During McAlpin's trial, Detective Tom Schardein testified that McAlpin admitted that he was addicted to both opiates and heroin, and told him that the Suboxone pills located in the apartment belonged to him and were for the purpose of getting "clean" over that weekend. McAlpin asserts that his statements to Detective Schardein should have been suppressed because he not was given the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Whether a person is in custody is a mixed question of fact and law that must be decided de novo on appeal. Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) and United States v. Salvo, 133 F.3d 943 (6th Cir. 1998). In order to determine if someone is in custody, "the ultimate inquiry is simply whether there [was] a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)). "A reviewing court must be careful to use an objective standard in determining whether a person was in custody because 'the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.'" Beckham v. Commonwealth, 248 S.W.3d 547, 551 (Ky. 2008) (quoting Stansbury, 511 U.S. at 323).
Several factors have been identified by the United States Supreme Court that would suggest when a person is in custody. Those factors are: "the threatening presence of several officers, the display of a weapon by an officer, the physical touching of the person of the suspect, and the use of language or tone of voice indicating that compliance with the officer's request might be compelled." U.S. v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In addition to the Mendenhall factors, in Smith v. Commonwealth, 312 S.W.3d 353 (Ky. 2010), our Kentucky Supreme Court identified additional factors to consider when determining custody, those factors are as follows:
(1) the purpose of the questioning; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so, whether the suspect possessed unrestrained freedom of movement during questioning, and whether the suspect initiated contact with the police or voluntarily admitted the officers into the residence and acquiesced to their requests to answer some questions.Id. at 358-59.
Here, we cannot agree with McAlpin that the trial court erred as a matter of law when it denied his motion to suppress. In this case, there was disputed evidence regarding whether McAlpin was "in custody." According to McAlpin's testimony, when he arrived at his apartment on February 10, 2011, it was occupied by at least four Metro Police officers, he was immediately Terry searched, and then taken to a bedroom and questioned by Detective Schardein. There was disputed evidence whether McAlpin entered the apartment on his own or was "pulled in" by an officer. McAlpin further testified that he was placed in handcuffs, however this was denied by Detective Schardein who testified that he did not recall placing McAlpin in handcuffs and according to Detective Schardein he felt that had McAlpin been placed in handcuffs he would have documented it. There was no notation or documentation that McAlpin was ever placed in handcuffs.
Moreover, there was no evidence that any of the Metro officers acted aggressively towards McAlpin or prohibited him from leaving. Although, McAlpin testified he saw an officer's weapon, he could not recall which officer it was, nor was there any evidence that the officer's weapon that McAlpin saw went beyond those of Metro Police's holstered guns. He also testified that Detective Schardein asked him "to give him a good reason not to take him to jail." However, like the trial court we cannot agree this statement is coercive. Detective Schardein did not deny that he might have said this statement and indicated that it was something he has said in the past, but Detective Schardein also noted that he never told McAlpin that he could not leave and that McAlpin eventually did leave the apartment. As such, based on the above we cannot say the trial court erred when it denied McAlpin's motion to suppress. Therefore, we find no error on this issue.
Even if there had been an error, however, Miranda violations are subject to harmless error review. Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky. 1998). This is an important point in this case because at trial Detective Schardein testified that McAlpin admitted only to being an addict who was trying to get clean. Even if the trial court had suppressed the statements McAlpin made to Detective Schardein, the jury would have still been aware of these facts because McAlpin discussed his addiction with Durham in the recorded jail conversations that were played to the jury. During those conversations McAlpin discussed needing Suboxone to get "straight" and to "help me get off this shit." He also admitted to having "withdrawals." Given the straightforward nature of these conversations, the jury would have certainly concluded that McAlpin was addicted to opiates even without Detective Schardein's testimony.
3. Jury Instructions
Finally, we turn to McAlpin's argument that the jury instruction on the possession charge was inadequate in that it failed to require a unanimous verdict. McAlpin explains that unanimity was lacking because heroin was found on numerous items throughout the apartment, but the instruction did not require the jury to agree on which items belonged to McAlpin. Because this argument was not preserved, McAlpin requests that we review the instruction for palpable error.
Under RCr 10.26, an unpreserved error may be reviewed on appeal if the error is "palpable" and "affects the substantial rights of a party[.]" Id. Even then, relief is appropriate only "upon a determination that manifest injustice has resulted from the error." Id. An error is "palpable," only if it is clear or plain under current law. Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006). Generally, a palpable error "affects the substantial rights of a party" only if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005). "[A]n unpreserved error that is both palpable and prejudicial, still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice; in other words, unless the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be 'shocking or jurisprudentially intolerable.'" Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)). "If the jury instructions do not include factual differentiation between the charges, it is reversible error, even if the error is unpreserved." Banks v. Commonwealth, 313 S.W.3d 567, 572 (Ky. 2010).
Kentucky Rule of Criminal Procedure. --------
In Miller v. Commonwealth, 283 S.W.3d 690 (Ky. 2009), our Kentucky Supreme Court provided much guidance on the requirement of a unanimous jury verdict. Specifically, the Miller Court held:
In this regard, "[i]t is [] elementary that the burden is on the government in a criminal case to prove every element of the charged offense beyond a reasonable doubt and that the failure to do so is an error of Constitutional magnitude." Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002). Plainly, a defendant cannot be convicted of a criminal offense except by a unanimous verdict. Ky. Const. § 7; Cannon v. Commonwealth, 291 Ky. 50, 163 S.W.2d 15 (1942); RCr 9.82(1). Therefore, we have held that:
[w]hether the issue is viewed as one of insufficient evidence, or double jeopardy, or denial of a unanimous verdict, when multiple offenses are charged in a single indictment, the Commonwealth must introduce evidence sufficient to prove each offense and to differentiate each count from the others, and the jury must be separately instructed on each charged offense.
Miller, 77 S.W.3d at 576.
Prior to our recent decision in Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008), it was possible for an instructional error such as this to be "cured" by the Commonwealth's introduction and explanation of the identifying characteristics from which the jury could determine the existence of facts proving each of the offenses, rendering any error in the instructions harmless. See Bell v. Commonwealth, 245 S.W.3d 738, 744 (Ky. 2008). Then, in Dixon v. Commonwealth, 263 S.W.3d 583, 593 (Ky. 2008), we recognized that "the arguments of counsel are not [now] sufficient to rehabilitate otherwise erroneous or imprecise jury instructions"
because the arguments of counsel are not evidence. Harp further corrected dictum in Bell which supported the proposition that counsel could "cure" defects in identical instructions in closing argument, reaffirming the proposition that:
a party claiming that an erroneous jury instruction, or an erroneous failure to give a necessary jury instruction [is harmless error], bears a steep burden because we have held that "[i]n this jurisdiction it is a rule of longstanding and frequent repetition that erroneous instructions to the jury are presumed to be prejudicial; [thus,] an appellee claiming harmless error bears the burden of showing affirmatively that no prejudice resulted from the error."
Harp, 266 S.W.3d at 818.
Thus, it is now settled that a trial court errs in a case involving multiple charges if its instructions to the jury fail to factually differentiate between the separate offenses according to the evidence. Combs, 198 S.W.3d at 580. Here, because the trial court used identical jury instructions on multiple counts of third-degree rape and sodomy, none of which could be distinguished from the others as to what factually distinct crime each applied to, Appellant was presumptively prejudiced. Nor has the Commonwealth met its burden to show affirmatively that "no prejudice resulted from the error." Harp, 266 S.W.3d at 818. Therefore, the identical jury instructions, here, can not be considered harmless.
[I]t must be evident and clear from the instructions and verdict form that the jury agreed, not only that [Appellant] committed one count of sodomy, but also exactly which incident they all believed occurred [and voted for]. Otherwise, [Appellant] is not only denied a unanimous verdict, but is also stripped of any realistic basis for appellate review
of his conviction for sodomy. In other words, without knowing which instance of sodomy is the basis of his conviction, [Appellant] cannot rationally challenge the sufficiency of the evidence on appeal.
Bell, 245 S.W.3d at 744.
Miller, 283 S.W.3d at 695-696.
Being error, we now hold such instructional error as this to be palpable error, Id. "[T]he instructional error explained above . . . constituted palpable, reversible error." Id.; cf. Commonwealth v. Davidson, 277 S.W.3d 232, 233, 235-36 (Ky. 2009). Yet, that is not to say that every error in jury instructions rises to the level of palpable error.
In this case, it is McAlpin's position that the jury instructions provided by the trial court lacked such specificity that they denied him a unanimous verdict and, in turn due process of the law, as the instructions provided no distinctions on what pieces of evidence the jury was voting on for purposes of convicting him. In support of his position, McAlpin primarily relies on two recent Kentucky Supreme Court opinions, Kingrey v. Commonwealth, 396 S.W.3d 824 (Ky. 2013) and Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013).
In Kingrey, the jury instruction at issue provided for a conviction of the defendant if the jury determined that the defendant had "committed the crime between January 1, 2007, and May 31, 2008." Kingrey, 396 S.W.3d at 830. Evidence at trial for that period, however, revealed the defendant had committed multiple acts that constituted the one offense for which he was convicted. Id. at 831. Consequently, the Kentucky Supreme Court reversed because it was unclear to the Court "which instance of the crime is the basis of his conviction . . . ." Id. at 832.
Like Kingrey, in Johnson, the defendant was convicted of a single act of first-degree criminal abuse, however, evidence revealed that the victim suffered, during a specified time period, from two different acts of criminal abuse which were inflicted at different times. Johnson, 405 S.W.3d at 448. In overturning the defendant's conviction for criminal abuse, the Kentucky Supreme Court noted that the jury instructions did not specify which act of abuse the jury was to consider thus creating the possibility that some of the jurors based the defendant's guilt on one act and other jurors based the defendant's guilt on the other act. Id. The Kentucky Supreme Court held that "a general jury verdict based on an instruction including two or more separate instances of a criminal offense, whether explicitly stated in the instruction or based on the proof—violates the requirement of a unanimous verdict." Id. at 449.
Further, and more recently, the Kentucky Supreme Court noted that the "clear import of Johnson is that a verdict is not unanimous unless all of the jurors based their conviction of the defendant on the same criminal act; and that the instructions and verdict forms must be couched in language that eliminates any ambiguity regarding the jury's consensus." Ruiz v. Commonwealth, 471 S.W.3d 675, 678 (Ky. 2015).
Here we find neither Kingrey nor Johnson to be persuasive as the facts of this case are easily distinguishable. In this case, and unlike Kingrey and Johnson, the criminal act, the charge, and the conviction for which McAlpin appeals from all stem from one singular instance, the search of his apartment on February 10, 2011. The evidence at trial, the used and unused syringes, the spoons, the pieces of aluminum foil, and the four pieces of cotton all came from the February 10, 2011, search of McAlpin's apartment for which McAlpin was charged with one single count of illegal possession of drug paraphernalia and one count possession of a controlled substance first degree (heroin). McAlpin was not charged with a crime for each individual item found in his apartment. Rather, McAlpin was charged with a crime based on the evidence recovered on one single instance, the February 10, 2011, search and by our review of the jury instructions at issue the jury was directed to only consider the February 10, 2011, search in its determination of guilt.
Therefore, there was no violation of the unanimity rule and for that matter, McAlpin's constitutional rights, as it was unnecessary for the trial court to specify all the different items located in the apartment on February 10, 2011. See Stanfill v. Commonwealth, 515 S.W.3d 193, 200 (Ky. App. 2016) ("There was a single crime for which Appellant was charged, manufacturing methamphetamine, with an instruction providing multiple theories on how to arrive at a verdict."). McAlpin was convicted of a single crime, possession, which occurred on a single date. There was no requirement that the jury had to consider each piece of evidence the Commonwealth used to support that specific, singular crime separately. Accordingly, there was no unanimity violation.
III. Conclusion
For the reasons stated above, we reverse McAlpin's conviction for possession of drug paraphernalia, but affirm the conviction for possession of a controlled substance (heroin) in the first degree.
ALL CONCUR. BRIEF FOR APPELLANT: F. Todd Lewis
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky