Opinion
NO. 2013-CA-001522-MR
06-05-2015
COVEEKUS WADLINGTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Roy A. Durham II Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 12-CR-00486
OPINION
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
BEFORE: MAZE, NICKELL, AND VANMETER, JUDGES. VANMETER, JUDGE: Coveekus Wadlington appeals from the August 27, 2013, judgment and sentence of the Christian Circuit Court, finding him guilty of multiple offenses and sentencing him to a total of ten years' incarceration. We affirm in part, but reverse in part and remand with instructions to amend the convictions of record.
On October 16, 2012, Wadlington arrived at Idella Green's home and attempted to exchange crack cocaine for sex. Green testified that she smacked Wadlington in the face, cursed at him, and slammed the door. Wadlington then threw a cinderblock through a window in Green's home and Green called the police. Officer Trumball and Officer Todd Dearmond from the Hopkinsville Police Department responded to the scene. Green gave a physical description of Wadlington and provided his name. Green testified that the officers indicated that they knew who Wadlington was and where he lived. Green chose not to press charges. Officer Trumball sent Wadlington's name over the police radio and received a response from Sergeant Seth Meek advising of an address where Wadlington was possibly residing. That address had been previously obtained by Sergeant Meek when he acquired a cell phone that had been left behind by a fleeing cab passenger when Sergeant Meek had stopped the cab. After calling a number in the phone associated with "Baby Momma," the woman who answered stated that the phone belonged to Wadlington. The phone contained text messages indicating the owner's place of residence to be 926 Howell Street.
After hearing Wadlington's name and address come across the police radio, Captain Michael Seis responded to 926 Howell Street. Captain Seis pulled into the driveway and saw that a light was on in the house. He dispatched that he was going to attempt to make contact, and then made his way towards the house. Once he arrived at the home's front steps, Captain Seis detected the odor of marijuana. While waiting for additional officers to arrive, Captain Seis witnessed someone inside the house turn off the light and slam the window closed. After several more officers arrived, Captain Seis knocked on the door and asked Wadlington to come to the door. No one answered the door, but Captain Seis could hear movement inside the house, including what sounded like someone going into, or placing something into, the attic. Captain Seis further testified that an officer had ducked down, peered through a crack in the blinds, and observed someone lying on the couch with his back to the door. He also observed a marijuana blunt lying on an interior table.
After knocking several times and receiving no response, the officers decided to attempt an entry. The door was opened and three officers entered the house. Two males, Wadlington and Russell Edwards, were present in the home. The officers discerned the odor of marijuana in the home and witnessed a marijuana blunt on the windowsill as well as a small baggy of white powder. Wadlington and Edwards were detained and a search warrant was obtained by Captain Seis. Once the search warrant was acquired, officers found a digital scale under a bedroom rug, two guns in the attic, and a third gun under a mat in the bathroom. Wadlington was arrested and taken to jail, where a deputy jailer discovered $3,700.00 between the sole and insole of Wadlington's shoe.
Wadlington was indicted for trafficking in a controlled substance, first-degree, second offense or greater, cocaine, while armed; possession of a handgun by a convicted felon, three counts; possession of marijuana, while armed; possession of drug paraphernalia, subsequent offense; and being a persistent felony offender (PFO), first-degree. Wadlington filed a motion for suppression of evidence, in which he argued that the police erred in believing that Wadlington occupied the residence at 926 Howell Street and also that none of the drugs or guns were found in his immediate vicinity at the time of the search. A suppression hearing was held, after which the trial court denied the motion and made a notation that the warrant was not implicated and that the evidentiary issues had been resolved.
The parties proceeded to trial. At the close of the Commonwealth's case, Wadlington moved for a directed verdict on the issue of marijuana possession. The motion was denied. Wadlington renewed his motion for a directed verdict at the close of all the evidence, which the court again denied. The jury found Wadlington guilty of trafficking in a controlled substance, first degree, cocaine, while armed; possession of drug paraphernalia, while armed; and possession of marijuana, while armed. The jury recommended ten, five, and five-year sentences, respectively. Prior to the penalty phase, Wadlington objected to the enhancement of all three handgun offenses. The jury found Wadlington guilty of three counts of possession of a firearm by a convicted felon and recommended five-year sentences on each count. The jury also found Wadlington guilty of being a first-degree PFO and recommended that all three firearm possession charges be enhanced to ten years each, all to run concurrent. This appeal followed.
On appeal, Wadlington first argues that the trial court erred by denying his motion to suppress. In particular, Wadlington challenges the warrantless entry made by officers prior to their procurement of a search warrant. An issue not raised in the trial court may not be raised for the first time on appeal. Gabow v. Commonwealth, 34 S.W.3d 63, 75 (Ky.2000), habeas granted on other grounds, Gabow v. Deuth, 302 F.Supp.2d 687 (W.D.Ky.2004). In his motion to suppress, Wadlington raised several questions relating to Wadlington's place of residence at the time of the search and the proximity of the evidence to Wadlington's person. Despite his assertion to the contrary, Wadlington's motion does not address the warrantless entry of the police officers. In addition, the issue was not broached during the suppression hearing. Because the court made no ruling on this issue, this Court has nothing to review. In the alternative, Wadlington argues in his reply brief that the issue should be addressed as palpable error under RCr 10.26. We first note that the reply brief is not the appropriate device for raising original arguments on appeal. CR 76.12(4)(c)(v); Milby v. Mears, 580 S.W.2d 724, 728 (Ky.App.1979). Moreover, in order to acquire a reversal based on palpable error, this Court must determine that manifest injustice has resulted from an error which affects the substantial rights of the parties. RCr 10.26; Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009). Wadlington has failed to show that the trial court committed palpable error. Accordingly, we find no error with the trial court's denial of Wadlington's suppression motion.
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure.
Wadlington next argues that he was denied due process when the trial court denied his motion for a directed verdict. In particular, Wadlington argues that insufficient evidence supports his conviction of marijuana possession, trafficking, and firearm possession. Not all of these arguments, however, were preserved for appellate review. Our review of the record reveals that Wadlington sought a directed verdict only on the charge of marijuana possession. As we have previously stated, a party may not raise an issue for the first time on appeal. Gabow, 34 S.W.3d at 75. Therefore, we will only address Wadlington's argument as it pertains to his marijuana possession charge.
Motions for directed verdict are governed by CR 50.01, which requires that the moving party state the specific grounds for the motion.
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. 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. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). When reviewing a trial court's denial of a motion for directed verdict, this Court must reverse if we determine that "under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt." Id.
"A person is guilty of possession of marijuana when he or she knowingly and unlawfully possesses marijuana." KRS 218A.1422(1). The word possession includes both actual possession and constructive possession. Rupard v. Commonwealth, 475 S.W.2d 473, 475 (Ky. 1971). Wadlington argued to the trial court that the Commonwealth had failed to prove its case beyond a reasonable doubt. Specifically, Wadlington argued that the police performed no test confirming that the substance found was marijuana, that no marijuana or paraphernalia was found on his person, and that the residence was not being rented to him. Testimony at trial indicated that officers smelled marijuana coming from the residence, that officers identified the substance inside a hollowed out cigar as marijuana, and that the marijuana was found within the residence. Additional testimony was heard from a third party, Courtney Edwards, who claimed that he rented the residence for Wadlington, that he had relinquished the key of the house to Wadlington, and that Wadlington exercised complete control over the residence. In addition, Edwards denied ownership of the drugs. Upon denying Wadlington's motion for a directed verdict, the trial court indicated that evidence, in the form of lay testimony, confirmed that the discovered substance was marijuana. The trial court further indicated that it would be the task of the jury to decide whether this evidence was persuasive. Given the totality of the evidence, we hold that it would not be clearly unreasonable for a jury to find Wadlington guilty of the crime of possession of marijuana. Accordingly, we find no error with the trial court's denial of Wadlington's motion for directed verdict.
Kentucky Revised Statutes.
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Wadlington's final argument on appeal is that the trial court erred when it convicted him of three charges of possession of a firearm by a convicted felon for a single act. Wadlington argues that receiving multiple charges for a single act is in violation of the prohibition of double jeopardy. We agree.
Both the U.S. Constitution and Kentucky Constitution prohibit multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Hourigan v. Commonwealth, 962 S.W.2d 860, 862 (Ky.1998). The crime of possession of a firearm by a convicted felon is governed by KRS 527.040. This Court has recently held that because KRS 527.040 "does not explicitly designate separate offenses for each firearm found in the possession of a convicted felon," that the possession of multiple firearms by a defendant constitutes a single course of conduct. Hinchey v. Commonwealth, 432 S.W.3d 710, 714 (Ky. App. 2014). The Commonwealth argues that Hinchey is poorly reasoned and should be reversed by this Court pursuant to Supreme Court Rules (SCR) 1.030(7)(d). We disagree and hold that the analysis of Hinchey is sound. Accordingly, the trial court erred when it convicted Wadlington of three counts of possession of a firearm by a convicted felon based on the same occurrence.
Still, in this case, with respect to the total sentence Wadlington is to serve, we believe the trial court's error was harmless. Harmless error is described as follows:
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.RCr 9.24. Here, Wadlington was sentenced to a total of ten years' incarceration for all of his convictions despite the fact that conviction of possession of a firearm by a convicted felon, when enhanced by Wadlington's PFO status, carries alone a minimum sentence of ten years. Since Wadlington was sentenced to the absolute minimum number of years permitted for his crimes, we believe the error of convicting him of three counts, instead of the proper single count, of possession of a firearm by a convicted felon neither adversely affected his rights nor constituted a miscarriage of justice. Thus we find it unnecessary to vacate the conviction and remand for a new sentencing phase. However, we remand this issue to the trial court with orders to correct the convictions as instructed for purposes of accuracy both in the record and in Wadlington's criminal history.
Wadlington further argues that the trial court erred when it used the presence of the firearms as both a charge under KRS 527.040 and as an enhancement for the drug-related charges under KRS 218A.992. We disagree. KRS 218A.992 directs the enhancement of convictions involving controlled substances when, "at the time of the commission of the offense and in furtherance of the offense," the convicted party was in possession of a firearm. KRS 218A.992(1). The statute clearly instructs the enhancement "other provisions of law notwithstanding." Id. Therefore, we hold that the presence of a firearm can be used both as an enhancement under KRS 218A.992 and as its own offense under KRS 527.040 without implicating double jeopardy.
For the foregoing reasons, the August 27, 2013, judgment and sentence of the Christian Circuit Court is affirmed in part, reversed in part, and remanded with instructions to adjust the record concerning Wadlington's convictions of possession of a firearm by a convicted felon as instructed by this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Roy A. Durham II
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky