COMMONWEALTH OF KENTUCKY V. JAMES DAVID ADKINS
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COMMONWEALTH OF KENTUCKY
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2008-CA-000359-MR
OHIO CIRCUIT COURT NO . 07-CR-00033
APPELLEE
JAMES DAVID ADKINS
OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING
Following a jury trial in the Ohio Circuit Court, James David Adkins was
found guilty of first-degree trafficking in a controlled substance
(methamphetamine), in violation of Kentucky Revised Statute (KRS) 218A.1412,
and of possession of drug paraphernalia, in violation of KRS 218A.500 . He was
sentenced to concurrent terms of confinement of five years and twelve months,
respectively . At trial, Adkins presented an "innocent possession" defense, and
on appeal to the Court of Appeals, he argued that the trial court erred by
refusing a jury instruction that expressly addressed that defense . In a
unanimous Opinion, a panel of the Court of Appeals agreed with Adkins that
the jury instructions did not adequately address his defense and so reversed
his conviction and remanded for a new trial. We granted the Commonwealth's
motion for discretionary review to consider to what extent our statutes provide
for an innocent possession defense, and specifically we asked the parties to
address the issue in light of KRS 218A.220, which exempts certain persons
whose possession of controlled substances is incidental and temporary from
the criminal offense provisions of the KRS Controlled Substances chapter.
Agreeing with the Court of Appeals that Adkins was entitled to an instruction
embodying his innocent possession defense, we affirm .
RELEVANT FACTS
At trial the Commonwealth's proof included testimony to the effect that
on March 16, 2007 a member of the Ohio County Sheriff's Department arrested
Adkins on unrelated charges at Adkins's brother's home . That particular
house fronts Highway 69 in Dundee, Kentucky, and is close to and occupies
the same parcel of land as Adkins's own home. During the search of Adkins's
person incident to the arrest, .the officer removed from Adkins's pocket a small
sock containing several unused plastic baggies, two straw--like implements
suitable for snorting or smoking methamphetamine, and two baggies
containing what proved to be almost seventeen grams of that drug. Other
testimony was to the effect that methamphetamine is commonly packaged for
illegal sale in small baggies and that seventeen grams of methamphetamine is
considerably more than a person would ingest at any one time . Based on this
evidence the Commonwealth argued that Adkins had violated that portion of
the trafficking statutes which makes it unlawful to possess methamphetamine
"with the intent to . . . distribute, dispense, or sell" it. KRS 218A.010(34)
(2006) .]
Adkins conceded that he possessed the methamphetamine and other
items the officer found in his pocket, but he denied that he did so with the
intent to "distribute, dispense, or sell" the drug . He testified that a short time
before his arrest, he found the sock lying in the driveway that serves both his
and his brother's residences and placed it into his pocket to keep it away from
his young son. Also, because he believed it had been dropped by one of his
brother's acquaintances, a reputed drug dealer, Adkins attempted to report it
to the sheriff by phone . In support of this version of events, Adkins and two of
his friends testified that they had seen the acquaintance leaving from the
brother's driveway earlier that day, and both Adkins and one of those friends
testified that they saw a small object fall from the acquaintance's truck as he
was preparing to pull away . Adkins testified that when he was unable to
contact the sheriff by phone he intended to turn the drugs
in at the sheriff's
office and to report his suspicions about his brother's acquaintance. This
evidence of innocent or lawful possession entitled him, Adkins argued before
the trial court, to an instruction expressly recognizing innocent possession as a
defense to the charges against him.
KRS 218A.1412 establishes first-degree trafficking as the knowing and unlawful
trafficking in certain drugs, including methamphetamine . KRS 218A.010(34) (2006)
defines "traffic" as meaning, among other things, "to possess with intent to
manufacture, distribute, dispense, or sell a controlled substance ."
The trial court denied Adkins's request and instead, following the model
instruction found at ยง 9 .11 B of Cooper's Kentucky Instructions to Juries (2010),
instructed the jury as follows:
You will find the defendant, James David Adkins,
guilty of trafficking in a controlled substance in the
first degree under this instruction, if and only if, you
believe from the evidence beyond a reasonable doubt
all of the following :
1 .) That in this county on or about March 16, 2007,
and before the finding of the indictment herein, he had
in his possession a quantity of methamphetamine,
AND
2 .) That he knew the substance so possessed by him
was methamphetamine, AND
3.) That he had the methamphetamine in his
possession with the intent to sell, distribute or
dispense it to another person .
Adkins sought to have the word "unlawfully" inserted in subsection (1) of this
instruction so that it would read "he unlawfully had in his possession a
quantity of methamphetamine ." The trial court refused this insertion because
it was reluctant to alter the model instruction and because in its view
subsection (3) of the instruction gave Adkins an adequate avenue for arguing
his innocent possession defense .
The Court of Appeals disagreed . Relying on cases reiterating that the
trial court is to instruct on the whole law of the case and in particular is to
instruct on statutory defenses if the defense is reasonably deducible from the
evidence, Fredline v. Commonwealth, 241 S .W.3d 793 (Ky . 2007) (intoxication) ;
Mondie v. Commonwealth, 158 S .W.3d 203 (Ky. 2005) (protection against
burglary) ; Mishler v. Commonwealth, 556 S.W.2d 676 (Ky. 1977) (intoxication),
the Court of Appeals held that Adkins had presented sufficient evidence of an
innocent possession defense to entitle him to an affirmative instruction
encapsulating that defense . We granted discretionary review to consider
whether "innocent possession" is a defense with a statutory basis, and in
particular we asked the parties to consider KRS 218A.220 and to brief its
applicability to this case . Before addressing that specific question, however, we
consider Adkins's more general claim that the trafficking statute itself provides
him with the innocent possession defense he asserts .
ANALYSIS
I . The Court Of Appeals Correctly Determined That "Innocent Possession"
Is A Defense Implicit In The Controlled Substance Statutes.
The Commonwealth argues that the Court of Appeals opinion was wrong
for a couple of reasons. The Commonwealth's first contention is based on a
hypothetical inapplicable to this case . According to the Commonwealth,
because Adkins was not charged with illegal possession, but with trafficking,
Adkins's proposed instruction risked suggesting to the jury that if Adkins
acquired the drugs innocently he could not be guilty of trafficking, whereas, as
the Commonwealth points out, even a person who obtains drugs lawfully, such
as through a proper prescription, can be guilty of the form of trafficking alleged
against Adkins if he intends to provide the drugs to others and has no right to
do so. In that event, however, the possession itself, coupled with the unlawful
intent, becomes illegal, and we find ourselves back at Adkins's claim that his
particular possession, not merely his acquisition, of the drug was lawful .
Adkins clearly did not obtain the methamphetamine by prescription so that
part of Commonwealth's hypothetical is not germane to this case . We focus on
the facts before us in addressing whether Adkins was entitled to a more
specific jury instruction and leave for another day the proper instruction for
the Commonwealth's hypothetical prescription drug trafficker .
The Commonwealth primarily maintains that Adkins's defense was not
the sort of affirmative, statutory defense at issue in the cases upon which the
Court of Appeals relied, but is better understood, as the trial court understood
it, as simply the denial or converse of one of the elements of the actual offense,
and thus does not require its own express instruction . We disagree .
With the adoption of the Penal Code, of course, our criminal law became
exclusively statutory, KRS 500 .020, and since then, accordingly, our jury
instruction cases have focused on whether the evidence would permit the
finding of a statutory defense . If so, they have required an instruction
affirmatively reflecting that defense in some manner . See, e.g., Thomas v.
Commonwealth, 170 S .W.3d 343 (Ky. 2005) (extreme emotional disturbance) ;
Mondie, 158 S .W.3d at 209 (protection against burglary); Walker v.
Commonwealth, 127 S .W.3d 596 (Ky. 2004) (mistake of law) . The evidence in
this case similarly supports the giving of an instruction affirmatively reflecting
the defense of innocent possession of a controlled substance.
What constitutes innocent possession of acontrolled substance? As
courts in several sister states which have addressed the "innocent possession"
defense have noted, it is easy to imagine numerous circumstances in which a
person might take possession of a controlled substance without any unlawful
intent. See, e.g., State v. Miller, 193 P.3d 92 (Utah 2008) ; Ramsubhag v. State,
937 So.2d 1192 (Fla. App. 2006) ; People v. E .C., 761 N.Y .S .2d 443 (N.Y . Supr.
Ct. 2003) ; People v. Martin, 25 P.3d 1081 (Cal. 2001) ; Adams v. State, 706 P .2d
1183 (Alaska App. 1985) . A parent confiscating drugs from his or her child, a
teacher finding drugs in his or her classroom, a daughter picking up a
prescription for her bedridden parent, a homeowner finding medicine left
behind by a guest, all could be, deemed illegal possessors under strictly
construed possession statutes. Moreover, if the teacher transferred the drugs
to his or her principal, or the homeowner gave the drugs to the guest's spouse
who came by to pick them up, the teacher and homeowner could be deemed
guilty of trafficking as well. We are confident that the General Assembly did
not intend to criminalize the possession or transfer of controlled substances in
circumstances such as these, and it is for that reason, among others, that our
statutes prohibiting possession and trafficking all require that the possession
or trafficking be "knowing and unlawful ." See KRS 218A.1412 - KRS
218A.1417. We agree with Adkins, therefore, that these statutes implicitly
recognize an innocent possession or innocent trafficking defense, and whenever
the evidence reasonably supports such a defense-where there is evidence that
the possession was incidental and lasted no longer than reasonably necessary
to permit a return to the owner, a surrender to authorities, or other suitable
disposal-the instructions should reflect it.
We recognize that the form of trafficking with which Adkins was
charged-possession with the intent to sell, distribute, or dispense--is unlike
the other forms of trafficking and unlike the degrees of unlawful possession in
that it has as one of its elements a specific intent. If the jury believed Adkins's
testimony it could, by reference to that part of the general instruction reflecting
that element, (subsection (3)) have found him not guilty. For that reason, the
Commonwealth argues that, with this form of trafficking at least, a claim of
innocent possession amounts merely to the converse of the intent element and
thus does not require an express defensive instruction . As the Commonwealth
correctly notes, our pre-Penal Code cases attempted to distinguish between
defenses, such as alibi, that amounted to a simple denial of the act charged
and did not require an affirmative defensive instruction, e.g. Shavers v.
Commonwealth, 514 S .W.2d 883 (Ky. 1974) ; Stafford v. Commonwealth, 490
S.W.2d 738 (Ky. 1973) ; Owens v. Commonwealth, 487 S.W .2d 897 (Ky. 1972),
and defenses confessing the predicate act but asserting an excuse or
justification for it, which did require such an instruction . See, e.g. Kohler v.
Commonwealth, 492 S .W .2d 198 (Ky . 1973) ; Cooley v. Commonwealth, 459
S .W.2d 89 (Ky. 1970) ; Evitts v. Commonwealth, 257 Ky. 586, 78 S .W.2d 798
(Ky. 1935) . The Commonwealth maintains that this case is one of the former
kind, since Adkins's defense amounts to a denial of the intent element of the
offense, and thus that Adkins was not entitled to an affirmative defensive
instruction. Our pre-Penal Code case law suggests otherwise.
Kohler v. Commonwealth, supra, was a case like this one in which the
defendant was charged with trafficking in a controlled substance. Kohler, like
Adkins, claimed that he did so not with an illegal intent, but in an effort to aid
the police . This Court acknowledged, in Kohler, that the distinction between
denial and justification or excuse defenses was not always easy to apply, but
reasserted
that when a defendant confesses the doing of the act of
which he stands accused but asserts a legal excuse or
justification exonerating him from criminal intent the
court should submit his theory of defense in concrete
form . . . . The instant case in which appellant seeks to
avoid criminal liability upon the ground that the act
with which he is charged was done to assist law
enforcement officers is precisely the type of case in
which an affirmative instruction is necessary.
492 S .W.2d at 200 . Accordingly, the Court held that while the general
instruction requiring acquittal unless the jury found, among other things, that
the defendant "unlawfully and feloniously sold a narcotic drug," provided an
opportunity for the defendant to argue that his conduct had not been
"felonious," that opportunity was inadequate, and the defendant was entitled to
an affirmative instruction embodying his defense. To the extent that pre-Penal
Code precedent bears on the matter, therefore, . it supports the decision reached
by the Court of Appeals .
As the Court of Appeals correctly observed, moreover, our cases since the
adoption of the Penal Code have insisted that the instructions should expressly
reflect a statutory defense if there is evidence reasonably supporting it, and
this is so even where intent is an element of the alleged offense and the defense
purports to negate that element or in some other way to justify or mitigate it.
Fredline v. Commonwealth, 241 S .W.3d at 797 (intoxication) ; Mishler v.
Commonwealth, 556 S .W .2d at 680 (same); Thomas v. Commonwealth, 170
S .W .3d at 348-49 (extreme emotional disturbance) ; Hilbert v. Commonwealth,
162 S .W.3d 921 (Ky. 2005) (self defense) . In other words, where the defense is
not simply that the Commonwealth has failed to prove intent beyond a
reasonable doubt, but rather, as here, asserts facts which the General
Assembly has recognized as tending to disprove or to justify or to excuse the
offense, an instruction reflecting that defense is required. KRS 218A.1412, by
implicitly recognizing that in limited circumstances one might innocently and
without unlawful intent possess controlled substances that belong to another
person, creates such a defense. Thus, given the evidence adequately raising
that defense here, the Court of Appeals correctly determined that Adkins was
entitled to an instruction reflecting his alleged innocent possession .
II. KRS 218A.220 Creates A Specific "Innocent Possession" Defense For
Incidental Possession In Aid Of Public Officers.
Our conclusion regarding "innocent possession" is confirmed by KRS
218A.220 . That statute exempts from the controlled substance prohibitions
persons engaged in the lawful storing or transporting of such substances,
public officials and their employees and agents whose duties require
possession of them, and, as pertinent here, persons whose "temporary
incidental possession . . . is for the purpose of aiding public officers in
performing their official duties ." The question is whether a person who takes
possession of a controlled substance, as Adkins claims to have done, with the
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unilateral intention of turning it over to the police "aids" the officer in the
performance of his or her duties, or whether "aiding" requires some prior
arrangement between the officer and the person possessing the drugs .
As the parties note, our prior decisions do not resolve this question. In
Harris v. Commonwealth, 579 S .W.2d 111 (Ky. 1979), we addressed a different
portion of the statute and held that one who procured heroin for someone he
believed was an addict but who in fact was an undercover officer posing as
such was not acting as the officer's agent. In Coates v. Commonwealth, 469
S.W .2d 346 (Ky . 1971), we held that the exemption provided by an earlier
version of the statute did not extend to one who possessed marijuana
ostensibly to turn it over to the Commissioner of Corrections, since the
Commissioner's duties did not include investigating drug offenses .
Adkins does not claim to have acted as the agent of the sheriff. He
claims, rather, that citizens who take temporary possession of controlled
substances in order to turn them over to police officers aid the officers in the
performance of their drug interdiction duties. We agree with this principle .
Among the evident purposes of KRS 218A.220 is the facilitation of police
efforts to combat illegal drug activity . The statute makes clear not only that
the officers themselves do not violate the law when in the course of their duties
they possess controlled substances or buy and 'sell them, but exempts as well
agents of the officers, such as informants . It also, we believe, is meant to
encourage persons who find controlled substances or otherwise come
innocently into their possession to turn them in and give whatever information
they might have about them . The statute does so by providing assurance that
possession for that limited purpose is not a crime . As with innocent
possession in general, the defense this portion of KRS 218A .220 provides
requires that the possession be incidental and that the possessor notify the
appropriate authorities and turn in the controlled substance as soon as
reasonably possible .
III. Adkins Was Entitled to an Affirmative Instruction on Innocent
Possession.
Here, Adkins offered evidence that he came into incidental possession of
the methamphetamine when he found it lying in his brother's driveway . There
was evidence in addition to Adkins's own testimony that, a short time before, a
known drug dealer had dropped something in the driveway. There was also
Adkins's testimony that almost immediately after finding the drugs he
attempted to call the sheriff to report them. There were phone records lending
some support to that testimony. And there was Adkins's testimony that his
intent was to turn the drugs in at the sheriff's office and to report where he
believed they came from, but before he had an opportunity to do so, and within
about two hours of finding the drugs, he was arrested . We agree with the
Court of Appeals that this evidence was sufficient to raise an innocent
possession defense under either KRS 218A.1412 or KRS 218A .220, and
accordingly that Adkins was entitled to an instruction affirmatively embodying
that defense .
Adkins's request that the general instruction be modified to specify that
he could not be found guilty unless his possession of the drugs was unlawful,
12
while certainly not the only way the instructions could be made to embody his
innocent possession defense, was not improper under the facts of this case and
so should have been granted . A more complete instruction in these
circumstances would be to insert "unlawfully" before the phrase "had in his
possession" in subsection (1) of the instruction that was given and then to state
separately the concept of innocent or legal possession. That additional
instruction would provide :
A person who has temporary possession of a controlled
substance for the time reasonably necessary to return
the controlled substance to its owner or to turn over
the controlled substance to public officers performing
their official duties does not possess that controlled
substance unlawfully .
This affirmative explanation of lawful or innocent possession, coupled with the
addition of "unlawfully" to the possession element in subsection (1), properly
expresses the defense Adkins raised . On retrial, he is entitled to have the jury
so instructed.
CONCLUSION
In sum, our statutes prohibiting possession of and trafficking in
controlled substances specify that to justify punishment the possession or
trafficking must be "knowing and unlawful ." This requirement implicitly
recognizes the possibility of innocent, incidental possession or transfer, and
thus allows for a defense of innocent possession where there is evidence that
the possession came about incidentally and continued no longer than
reasonably necessary to allow for lawful and appropriate disposal. KRS
218A .220 more specifically exonerates-and so creates a defense based upon13
the temporary, incidental possession of controlled substances for the purpose
of aiding public officers in the performance of their duties, and includes, we
believe, incidental possession for the purpose of turning over the controlled
substance to the police . Because the evidence in this case was sufficient to
support a lawful possession defense, Adkins was entitled to his proffered jury
instruction affirmatively reflecting innocent possession. Accordingly, we affirm
the Opinion of the Court of Appeals and so remand the matter for additional
proceedings to the Ohio Circuit Court.
Minton, C .J . ; Noble, Schroder, Scott, and Venters, JJ ., concur.
Cunningham, J., concurs by separate opinion .
CUNNINGHAM, JUSTICE, CONCURRING : I concur with the majority;
however, I write separately to address the trial court's assertion that the last
paragraph of the instruction was "an adequate avenue for arguing his innocent
possession defense ." It does not. Had it been, I might have been persuaded
that it was harmless error.
The last paragraph of the instruction requires that Appellant possess the
illegal drug "with the intent to sell, distribute, or dispense it to another person ."
(emphasis added). There is no problem with criminal liability as to selling . Nor
is there a difficulty with dispensing being illegal since it is defined as delivery to
an "ultimate user." KRS 218A .010(8) . However, distribute means "to deliver
other than by administering or dispensing ." KRS 218A .010(10) . This would
include giving it to the law enforcement officer, which would be exempt of
criminal liability under KRS 218A.220 .
14
Therefore, on the face of the instructions themselves, Appellant could
have been convicted of something which was not illegal-that is, distribution .
This made the giving of the exemption instruction absolutely critical.
Therefore, it was not harmless, nor was there an "adequate avenue for arguing
his innocent possession defense."
COUNSEL FOR APPELLANT:
Jack Conway
Attorney General
Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capitol Center Drive
Frankfort, KY 40601-8204
COUNSEL FOR APPELLEE:
Jamesa J. Drake
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
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