Not to Be Published
OPINION
CLAYTON, JUDGE:
This is an appeal of a criminal conviction for Manufacturing Methamphetamine and Possession of a Controlled Substance I. The Appellant, Reva Ann Roeder, contends that the trial court erred in allowing her to answer questions regarding her knowledge of methamphetamines as well as instructing the jury during deliberations. We find as follows:
BACKGROUND INFORMATION
Roeder was charged with two (2) criminal felony counts of Manufacturing Methamphetamine and Possession of Controlled Substance I. These charges resulted from the police responding to a domestic call to the residence of Tim Shemwell. Roeder was visiting the Shemwell residence after having received a call from Shemwell that the house had caught fire. A search of the Shemwell property revealed items used in the manufacturing of methamphetamine.
On November 8, 2007, a jury found Roeder guilty of manufacturing methamphetamine. She was sentenced to fifteen (15) years in prison. Roeder now appeals the jury verdict. She argues that during her trial, the trial court allowed the Commonwealth to inquire as to whether she had past dealings with law enforcement and whether she had ever seen methamphetamine. She contends that these questions violate Kentucky Rules of Evidence (KRE) 404.
Roeder also argues that during jury deliberations, the jury informed the trial court of a question that if they believed Roeder was present at the codefendant's residence and knew that methamphetamine was being manufactured, could she be convicted of manufacturing? The court responded that the jury had the evidence and the law and that it was up to them to make a decision regarding that question.
STANDARD OF REVIEW
We review allegations of jury instruction errors de novo as they are questions of law. Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006). In reviewing alleged errors involving evidentiary rulings by the trial court, we use the abuse of discretion standard of review. Tumey v. Richardson, 437 S.W.2d 201, 205 (Ky. 1969). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Com. v. English, 993 S.W.2d 941, 945 (Ky. 1999).
We these standards in mind, we will examine the alleged errors.
DISCUSSION
As set forth above, Roeder's first argument in her appeal is that the trial court erred in permitting evidence which did not satisfy any exception of, and without proper notice pursuant to KRE 404. The rule provides as follows:
(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character or of general moral character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;
. . . .
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
(c) Notice requirement. In a criminal case, if the prosecution intends to introduce evidence pursuant to subdivision (b) of this rule as a part of its case in chief, it shall give reasonable pretrial notice to the defendant of its intention to offer such evidence. Upon failure of the prosecution to give such notice the court may exclude the evidence offered under subdivision (b) or for good cause shown may excuse the failure to give such notice and grant the defendant a continuance or such other remedy as is necessary to avoid unfair prejudice caused by such failure.
Any alleged error in the admission or exclusion of testimony is not reversible unless a substantial right of a party is affected and the objecting party has made either an objection or offer of proof. KRE 103. Roeder asserts that during her cross-examination, the Assistant Commonwealth's Attorney asked whether Detective Payton or Detective Gregory Clark had been to her home at any time prior to her being charged with the offenses for which she was on trial. Roeder's counsel objected, but the court allowed the Commonwealth to continue the line of questioning. Roeder was then asked whether she had ever "seen" methamphetamine. When Roeder answered the question in the negative, the court sua sponte asked for a bench conference with her counsel and the Assistant Commonwealth Attorney. During the conference, the court reminded Roeder's counsel that it was the court's recollection that she had tested positive for methamphetamine during the pendency of the action and that perhaps she should be advised not to perjure herself. The Commonwealth was allowed by the court to continue to question Roeder about her past history with drugs and law enforcement. Thus, there was no preservation of error regarding the Appellant's testimony. We, therefore, review for palpable error.
The Commonwealth contends that Roeder's testimony that on her way into Shemwell's residence she had spotted something white laying on the ground and that she had picked it up and brought it into the house intending to burn it in the fireplace was an opening for further questioning. The Commonwealth began its line of questioning after Roeder testified that she had picked up some trash on her way into the residence and that this was how the coffee filters with methamphetamine in them had wound up in her purse. It was at this time that the Commonwealth began to inquire about Roeder's history of contact and/or knowledge of methamphetamine. The Commonwealth argues that the information was used for impeachment purposes. We agree.
KRE 608(b) provides that:
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry.
The trial court did not err in allowing the Commonwealth to question Roeder about her prior exposure to methamphetamine when her testimony was that she was unaware of that substance on the coffee filters she had picked up in Shemwell's yard and there was a factual basis under KRE 608(b) for the questioning. There was no palpable error committed by the court.
Roeder next contends that the trial court erred in denying her motion for Judgment Notwithstanding the Verdict (JNOV), and Motion for Judgment of Acquittal. Specifically, Roeder points to an incident during the deliberation of the jury during the guilt phase of her trial. The jury informed the bailiff that it had a question and the trial court read the question into the record. Roeder contends that the question the jury posed indicated that it did not believe she was manufacturing methamphetamine.
Kentucky Revised Statutes (KRS) 218A.1432 defines Manufacturing Methamphetamine as:
(1) A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully:
(a) Manufactures methamphetamine; or
(b) With intent to manufacture methamphetamine possess two (2) or more chemicals or two (2) or more items of equipment for the manufacture of methamphetamine.
In this case, Roeder was at the Shemwell residence when the police arrived on a domestic disturbance run. The police officers lawfully searched the premises and found many items used in manufacturing methamphetamine including wet coffee filters with methamphetamine residue on them in Roeder's purse. Kentucky State Police Detective William Weber testified that in his experience, when there is methamphetamine in a coffee filter, the filter was used during the manufacturing process. Thus, it was not clearly unreasonable for the jury to find Roeder guilty of manufacturing methamphetamine given the evidence presented at her trial. We affirm the decision of the trial court.
ACREE, JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS AND FILES SEPARATE OPINION.
CAPERTON, JUDGE, CONCURRING:
I write only to explain my reasoning in affirming the trial court's ruling on the issue of questioning by the Commonwealth concerning Roeder's prior involvement with methamphetamine and law enforcement.
First and foremost, any alleged error in the admission or exclusion of evidence is not reversible unless there is a substantial right of a party affected and the objecting party has made either an objection or offer of proof. KRE 103. In reviewing the Appellant's brief, I see no statement concerning the preservation of error. In reviewing the Appellee's brief, I note that Appellee states that there was no objection to the testimony by Appellant's counsel. Therefore, our review should be for palpable error.
In the cross-examination of Roeder by the Commonwealth concerning the coffee filters allegedly found by Roeder on the ground outside the home, Roeder explained that she had never seen methamphetamine. To the contrary, the Commonwealth knew of Roeder's prior history wherein Detective Payton had, pursuant to a search, discovered methamphetamine at Roeder's home. The Commonwealth then had, as required by KRE 608(b), a "factual basis" for inquiring of Roeder about Detective Payton contacting her, searching her home, and finding methamphetamine. However, merely because the Commonwealth had a factual basis for the inquiry does not make the evidence admissible under the remainder of the rule, discussed infra.
First, the inquiry sought evidences of other crimes, the admission of which is controlled by KRE 404(b).1 Under that rule, the testimony would not have been admitted. However, the trial court allowed the inquiry under KRE 608(b). That rule does allow inquiry into specific instances of conduct but is limited and does not extend the inquiry to illegal drug activities; i.e., Roeder's prior possession of methamphetamine. See Lawson, 4th ed. 2003, Sec. 4.20[5] citing Gust v. Jones, 162 F.3d 587 (10th Cir. 1998)(introducing drugs into prison) and States v. Seller, 906 F.2d 597 (11th Cir. 1990)(cocaine and marijuana usage).2 Thus, the trial court's decision to allow inquiry into Roeder's illegal drug activities was error.
The question before our Court is not whether there was error but whether the error was palpable error. Under the circumstances, because of the lack of objection to the testimony by counsel combined with other substantial evidence upon which the conviction could be based, I do not believe there to be palpable error. Therefore, I concur in affirming the trial court.
