Commonwealth of Kentucky Court of Appeals

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1 RENDERED: MARCH 28, 2008; 2:00 P.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR DARRELL CARNES APPELLANT v. APPEAL FROM GRAYSON CIRCUIT COURT HONORABLE SAM H. MONARCH, JUDGE ACTION NO. 05-CR COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE AND NICKELL, JUDGES; BUCKINGHAM, 1 SENIOR JUDGE. BUCKINGHAM, SENIOR JUDGE: Darrell Carnes appeals from a judgment of the Grayson Circuit Court following a jury trial wherein he was convicted of possession of anhydrous ammonia in an unapproved container and second-degree persistent felony offender and was sentenced to seven and one-half years in prison. The sole issue is whether the evidence against him was sufficient to overcome his motion for a directed verdict. We affirm. 1 Senior Judge David C. Buckingham sitting as a Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS

2 On the afternoon of July 2, 2005, the Leitchfield City Police Department received a call from an apartment building owner that there was a chemical smell coming from the parking lot area of the building. An officer responded to the scene and immediately noticed the smell. Upon determining that the smell was emanating from the bed of a pickup truck parked in the building's parking lot and suspecting that the smell was from anhydrous ammonia, the officer called Detective Denny Payne of the Greater Hardin County Narcotics Task Force. Detective Payne had been trained in taking precautionary measures when dealing with materials, including anhydrous ammonia, used to manufacture methamphetamine. Detective Payne used a Drager pump to determine that the smell coming from the air tank in the truck's bed was that of anhydrous ammonia. He then procured the keys to the truck from Carnes and Carnes's girlfriend, Sheila Dennis, who lived in the apartment building, and drove the truck to a safe area. Once there, he removed the cover that was over the truck's bed, lifted the air tank out of the bed, placed the tank in a safe area, and shot it to release the ammonia gas. It was later discovered that the truck belonged to James D. Combs. Combs told the police that he was separated from his wife and had been staying with Carnes and Dennis. Combs stated that he had allowed Carnes to drive the truck and that he (Combs) had driven Dennis's car on that day to move personal belongings from his marital residence. Carnes and Dennis acknowledged to Detective Payne that Carnes had been using Combs's truck for a couple of weeks, and Dennis testified that she and Carnes had used the truck that day to drive to a lake to go swimming. Carnes's box of tools were found in the bed of the truck, which had a cover over it. Both Combs and Carnes stood trial in connection with the possession of the tank. At the close of the evidence, a directed verdict was entered in favor of Combs 2

3 and Carnes on the charge of possession of anhydrous ammonia in an unapproved container with intent to manufacture methamphetamine. However, the trial court denied their motion for a directed verdict to the extent that it allowed the lesser-included charge of possession of anhydrous ammonia to go to the jury. Combs was acquitted of the charge, but the jury found Carnes guilty of the offense and of being a second-degree persistent felony offender. It fixed his sentence at seven and one-half years, and the court thereafter sentenced him accordingly. Carnes's appeal herein followed. Carnes argues on appeal that the trial court erred in not granting him a directed verdict and dismissing the charge. He asserts that the evidence against him was insufficient and that the Commonwealth failed to prove its case. Specifically, he maintains that the Commonwealth failed to prove: 1) that he knew there was a tank containing anhydrous ammonia in the back of the pickup truck; 2) that the substance in the tank was actually anhydrous ammonia; and 3) that he actually or constructively possessed the tank at any time. The standard on a directed verdict motion was restated in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991), as follows: Id. at 187. 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. 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, then the defendant is entitled to a directed verdict of acquittal. 3

4 Kentucky Revised Statutes (KRS) (1) makes it unlawful for any person to knowingly possess anhydrous ammonia in any other container than an approved container. Carnes first argues that the Commonwealth failed to prove that he knowingly possessed the tank of anhydrous ammonia. He contends that the only evidence was that he drove the truck on the day it was discovered. Knowledge may be inferred from circumstantial evidence. Beaty v. Commonwealth, 125 S.W.3d 196, 203 (Ky. 2003). Carnes had been driving the pickup truck for two weeks and drove it on the day the tank was discovered in the truck bed. Further, his tools were also in the truck bed, which had a cover over it. We conclude that this circumstantial evidence was sufficient for the jury to conclude that Carnes knowingly possessed the tank. Second, Carnes argues that the Commonwealth failed to prove that the tank contained anhydrous ammonia. However, on page 5 of his brief, he acknowledges that the Commonwealth did provide some evidence that at some point the tank did contain anhydrous ammonia. Further, Detective Payne testified that he used a Drager pump to determine the substance was anhydrous ammonia. Carnes has not argued or cited to any authority that further testing was required. We conclude this argument likewise has no merit. Finally, Carnes argues that there was no evidence that he actually or constructively possessed the tank. To prove constructive possession, the Commonwealth must present evidence which establishes that the contraband was subject to the defendant's dominion and control. Burnett v. Commonwealth, 31 S.W.3d 878, 881 (Ky. 2000). [T]he jury may consider circumstances from which it may reasonably infer guilt. Barker v. Commonwealth, 304 Ky. 13, 17, 199 S.W.2d 713, 715 (1947). 4

5 As we have noted, Carnes had been driving the truck for two weeks prior to the date the tank was discovered. His tools were in the truck bed along with the tank. Carnes had driven the truck on the day the tank was discovered, and the keys to the truck were recovered from Carnes and Dennis by Detective Payne. Under these circumstances, we conclude the jury could have reasonably inferred, by circumstantial evidence, that the tank was within Carnes's dominion and control. Under the evidence as a whole, we do not believe it was clearly unreasonable for the jury to have found Carnes guilty. See Benham, supra. Thus, Carnes was not entitled to a directed verdict of acquittal. The judgment of the Grayson Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: Linda Roberts Horsman Frankfort, Kentucky BRIEF FOR APPELLEE: Gregory D. Stumbo Attorney General of Kentucky Clint E. Watson Assistant Attorney General of Kentucky 5