NOT TO BE PUBLISHED
OPINION
TAYLOR, CHIEF JUDGE.
Angela Cornette brings this appeal from a September 16, 2010, judgment of the Martin Circuit Court upon a jury verdict finding her guilty of manufacturing methamphetamine and possession of a controlled substance and sentencing her to ten-years' imprisonment. We affirm.
The facts relative to our disposition of the appeal are as follows. On September 23, 2009, Angela Cornette went to the Sheriff's Office in Martin County, Kentucky. With the aid of a social worker, Angela filed a Petition for an Emergency Protective Order (EPO) against her husband, Lindsey Cornette. The EPO was granted. Angela was subsequently escorted to the marital residence by the Martin County Sheriff (sheriff) to retrieve her personal belongings. While at the marital residence, Angela consented to a search of the premises. The search revealed a "shake and bake lab" in the bedroom used to manufacture methamphetamine. As a result of the September 23, 2009, search, Lindsey was charged with manufacturing methamphetamine.
Some three weeks later, on October 15, 2009, Lindsey and another man, Christopher Mollette, appeared on a "meth check" list provided by the Wal-Mart pharmacy in Louisa, Kentucky. The two men appeared on the list based upon their purchases of pseudoephedrine. Video surveillance revealed that both men arrived at the store together, and both men purchased pseudoephedrine from the pharmacy. Lindsey also purchased Coleman fuel, which is a known precursor for the manufacture of methamphetamine.
Based upon the information gathered, the sheriff's department secured a search warrant for the residence of Lindsey and Angela. On October 16, 2009, the day after the pseudoephedrine was purchased, the sheriff's department executed the search warrant for the residence. Officers found Lindsey and Angela at the residence. In the master bedroom, the sheriff discovered a cigarette pack under a pile of dirty clothes in the closet. The pack contained an off-white substance later proved to be methamphetamine and a piece of burned aluminum foil. The sheriff's department also found several precursors for the manufacture of methamphetamine including: iodized salt, an open cold pack, aluminum foil, and a propane torch.
Angela was subsequently indicted by a Martin County Grand Jury upon one count of manufacturing methamphetamine or complicity to manufacture methamphetamine (Kentucky Revised Statutes (KRS) 218A.1432; KRS 502.020) and one count of possession of a controlled substance in the first degree or complicity to possess a controlled substance (KRS 218A.1415; KRS 502.020).1 Angela, Lindsey and Christopher were tried jointly. Ultimately, Angela was convicted of complicity/manufacture of methamphetamine and complicity/possession of a controlled substance. She was sentenced to ten-years' imprisonment. This appeal follows.
Angela initially contends that the circuit court erred by admitting evidence of the methamphetamine lab previously discovered at her and Lindsey's residence on September 23, 2009. The record indicates that the Commonwealth introduced evidence of the prior methamphetamine lab through the testimony of the sheriff. The sheriff testified that he located a methamphetamine lab at the residence on September 23, 2009, while accompanying Angela to the residence to retrieve her personal belongings and after she had consented to the search. The Commonwealth introduced such evidence to show "intent" to manufacture methamphetamine on October 16, 2009, and cited to Kentucky Rules of Evidence (KRE) 404(b). Angela argues that the admission of such testimony constituted reversible error. She further submits that she was never charged in connection with the methamphetamine lab found on September 23, 2009; thus, the evidence could not be admissible to show her "intent" to manufacture methamphetamine on October 16, 2009.
Under KRE 404(b), evidence of prior "bad acts" is generally inadmissible; there are specific exceptions, such as if offered to prove "intent." Pate v. Com., 243 S.W.3d 327 (Ky. 2007). And, evidence of a defendant's prior possession of items/chemicals used in the manufacture of methamphetamine is admissible under KRE 404(b) to prove defendant's intent to presently manufacture methamphetamine. Id.
In the indictment, Angela was charged with manufacturing methamphetamine or complicity to manufacture methamphetamine. The jury was given alternative instructions as to both charges. To be found guilty of manufacturing methamphetamine, it must be proved that a person either: (1) knowingly manufactured methamphetamine, or (2) with intent to manufacture methamphetamine possessed two or more chemicals or two or more items of equipment for the manufacture of methamphetamine. KRS 218A.1432(1); Cantrell v. Com., 288 S.W.3d 291 (Ky. 2009). And, to be found guilty of complicity, it must be proved that (1) another person committed a criminal offense, and (2) defendant intentionally participated in the commission of the offense. KRS 502.020; Cantrell, 288 S.W.3d 291.
Angela is correct that evidence of the methamphetamine lab found on September 23, 2009, did not directly prove her intent to manufacture methamphetamine in October 2009. However, the record demonstrates that Lindsey was charged with manufacturing methamphetamine as a result of the methamphetamine lab discovered on September 23, 2009. Consequently, evidence of the prior methamphetamine lab was relevant to prove Lindsey's "intent" to manufacture methamphetamine on October 16, 2009. And, as Angela was charged with complicity to manufacture methamphetamine, it was incumbent upon the Commonwealth to prove that either Lindsey or Christopher committed the offense of manufacturing methamphetamine and that Angela intentionally participated in said offense. Simply put, evidence of the methamphetamine lab discovered September 23, 2009, was admissible against Angela under KRE 404(b) because it was relevant to the charge of complicity to manufacture methamphetamine. See Pate, 243 S.W.3d 327. Hence, we conclude that the circuit court properly admitted evidence of the prior methamphetamine lab.
Angela also asserts that her conviction for manufacturing methamphetamine and for possession of a controlled substance constitutes double jeopardy and violates her Fifth Amendment constitutional protections. At oral argument conducted December 15, 2011, the Commonwealth conceded to Angela's argument on this issue. However, after thoroughly reviewing the record, we find the Commonwealth's concession was not warranted and otherwise insufficient as a matter of law to overturn Angela's conviction on the possession charge.
It is well-established that double jeopardy is violated when an individual is convicted of possessing the same methamphetamine that also supports the charge of manufacturing methamphetamine. Beaty v. Com., 125 S.W.3d 196 (Ky. 2003). As hereinbefore stated, an individual is guilty of manufacturing methamphetamine when he either (1) manufactures methamphetamine or (2) with the intent to manufacture possesses two or more chemicals or two or more items of equipment to manufacture methamphetamine. And, an individual is guilty of possession of a controlled substance when he knowingly and unlawfully possesses same. KRS 218A.1514.
Angela argues that her convictions for both manufacturing and possessing methamphetamine violate the double jeopardy clause because both convictions were dependant on the methamphetamine found in the cigarette pack in Angela's bedroom. The evidence introduced at trial and the jury instructions refute this argument. Jury Instruction No. 5 addressed the manufacturing of methamphetamine charge and clearly looks to whether Angela possessed or conspired with others who possessed two or more chemicals or two or more items of equipment with the intent to manufacture methamphetamine. No reference to the methamphetamine found in the cigarette pack was made in this Instruction. As for the possession charge, Jury Instruction No. 6 was expressly limited to the methamphetamine found in the cigarette pack in Angela's bedroom. The Commonwealth's willingness to concede this issue apparently is premised on the belief that the jury instructions did not comply with the requirements in Beaty, 125 S.W.3d 196, specifically that there be some type of "distinguishing proviso" that would allow the jury to understand that Angela could not be convicted for possessing the methamphetamine that was a product of the manufacturing process for which she was convicted under the manufacturing instruction. Beaty, at 212. Contrary to Angela's arguments, Beaty provides that a defendant can be properly convicted of both possessing methamphetamine and manufacturing methamphetamine if the methamphetamine that the person was convicted of possessing is not the same methamphetamine that he was convicted of manufacturing. Id. Our review of the jury instructions in this case reveals that a sufficient distinction was made by the trial court in its respective jury instructions on the two charges to avoid a double jeopardy conviction and which otherwise satisfied the Supreme Court's directive in Beaty.2
In this case, the record discloses evidence that more than two items of equipment/chemicals used in the manufacture of methamphetamine were seized from the home. Thus, Angela's conviction for manufacturing methamphetamine was supported by items seized from her home; whereas, her conviction for possession of methamphetamine was supported by the methamphetamine found in the cigarette pack located in the bedroom, which was specifically referenced in the jury instruction on the possession charge only. Consequently, we conclude that Angela's convictions of possession and manufacturing methamphetamine did not violate the double jeopardy clause of the Fifth Amendment to the United States Constitution, or Section 13 of the Kentucky Constitution or KRS 505.020.
Angela next contends that she was entitled to a directed verdict of acquittal upon the offenses of manufacturing methamphetamine and possession of a controlled substance. A directed verdict is proper if upon viewing the evidence most favorable to the Commonwealth a reasonable juror could not believe that defendant was guilty beyond a reasonable doubt. CR 50.01; Com. v. Benham, 816 S.W.2d 186 (Ky. 1991). We have previously set forth the elements necessary to support a conviction of complicity, manufacturing methamphetamine, and possession of a controlled substance; thus, we will not restate them here.
In support of her argument, Angela specifically maintains:
Under any fair interpretation of the evidence in this case, there is simply no suggestion that Angela manufactured the meth found in the cigarette pack or that she possessed it. The prosecution's case against Angela depended on two points. The first involved the cold "shake and bake" lab found on September 23. As argued above in the first issue, this evidence never should have been introduced. Therefore, it should not be considered here.
The second point involved her presence in the home when the warrant was served. Her presence in the home does not rise to the level of proof beyond a reasonable doubt. She had moved out three weeks earlier. She went to live with her parents. She never moved out of their house. Lindsey testified that Angela "didn't have nothing to do with this. It's all about me. She didn't know nothing about it." He also told the jury that "[s]he didn't know nothing about it. I was the one that done it all." (Citations omitted.)
Angela's above recitation of the evidence is only partially complete. There was also evidence introduced that Angela initially moved out of the residence on September 23 because of the threat of domestic violence and that she secured an EPO against Lindsey. However, it was also established that the EPO was dismissed on September 30 and that Angela was free to move back into the residence thereafter. Also, the sheriff testified that he spotted Angela leaving the master bedroom during the search on October 16, 2009, and shortly thereafter, methamphetamine was discovered in that bedroom. Upon the whole, the direct and circumstantial evidence presented was sufficient to support a conviction of complicity to manufacture methamphetamine, or manufacturing methamphetamine and complicity to possess a controlled substance or possession of a controlled substance.
Angela finally maintains that the jury instructions erroneously denied her right to a unanimous verdict. In support thereof, Angela argues:
The manufacturing instruction included three theories of Angela acting as a principal: possession of two or more chemicals with the intent to manufacture, possession of two or more items of equipment with the intent to manufacture, or the actual manufacture of meth. (Citations omitted.)
Absolutely no evidence supports a finding under the theory of Angela acting as a principal. She brought nothing from Wal-mart. She did not buy pseudoephedrine. She did not buy Coleman fuel. The prosecution simply offered no evidence that she ever possessed two chemicals or two items of equipment with the intent to manufacture meth.
As argued above, the evidence that Angela actually manufactured meth depended wholly on her presence in a house where meth was found even though she had moved out of[sic] three weeks earlier. In reality, this is not proof of manufacturing meth. At best, the argument can be made for constructive possession, but even that is weak. Because the prosecution introduced insufficient evidence to prove these three theories of Angela acting as a principal, reversible error occurred.
The same manufacturing instruction also included an alternative theory of Angela acting in complicity with Lindsey Cornette and Christopher Mollette. This complicity portion included three theories: possession of two or more chemicals with the intent to manufacture, possession of two or more items of equipment with the intent to manufacture, or the actual manufacture of meth.
The prosecution introduced insufficient evidence to prove beyond a reasonable doubt that Angela was complicit with Lindsey and Christopher in the manufacturing of meth. Christopher Mollette was acquitted — even though he bought pseudoephedrine. The prosecution offered no evidence that Lindsey and Angela ever spoke, let alone talked about making meth. Angela had moved out of the home three weeks prior. She never moved back in. Lindsey testified during the sentencing that "she didn't have nothing to do with this." Because the prosecution introduced insufficient evidence to prove that Angela acted in complicity with Lindsey, reversible error occurred. (Citations and footnote omitted.)
Section 7 of the Kentucky Constitution mandates that a unanimous verdict be reached by a jury of twelve individuals in a criminal trial. Wells v. Com., 561 S.W.2d 85 (Ky. 1978). Where jury instructions allow a finding of guilt upon alternative theories, the Commonwealth must introduce evidence sufficient to find defendant guilty upon each alternative theory beyond a reasonable doubt. If there is insufficient evidence of guilt upon one or more alternative theories, the jury instruction violates the constitutional unanimity mandate only "if it is reasonably likely that some members of the jury actually followed the erroneously inserted theory in reaching their verdict." Travis v. Com., 327 S.W.3d 456 (Ky. 2010). Thus, there must exist "a reasonable possibility" that the jury was misled for unanimity to be violated, thus requiring reversal of the jury's verdict. Id. at 463.
In this case, Angela admits that this issue was unpreserved and requests that our review proceed under the palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26. Thereunder, an alleged error must prejudice the substantial rights of the defendant and result in manifest injustice. Nichols v. Com., 142 S.W.3d 683 (Ky. 2004).
The evidence introduced at trial was sufficient to support a conviction upon all three theories of manufacturing methamphetamine set forth in the jury instructions. As hereinbefore stated, Angela was found in her home where the methamphetamine lab was seized; she was seen by the sheriff exiting the master bedroom where the methamphetamine was found; the EPO had previously been dismissed freeing her to move back into the residence; and equipment/chemicals utilized to manufacture methamphetamine were seized from the residence where Angela was found. Taken together with all reasonable inferences therefrom, we conclude that the Commonwealth introduced sufficient evidence to support a jury finding of guilt upon all three alternative theories set forth in the jury instruction. Additionally, Angela failed to demonstrate that this alleged error was prejudicial to her substantial rights and resulted in manifest injustice. RCr 10.26; Travis, 327 S.W.3d 456.
For the foregoing reasons, the judgment of the Martin Circuit Court is affirmed.
NICKELL, JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
COMBS, JUDGE, DISSENTING.
I cannot fathom how Beaty does not apply in this case — regardless of the concession of the Commonwealth at oral argument. Beaty squarely addresses the violation of double jeopardy when a conviction for manufacturing and a conviction for possession both arise from the same nexus of facts and acts. Such is the case here. Therefore, I am persuaded that double jeopardy is implicated, mandating reversal pursuant to the precedent of Beaty.
