Jeremy Benton v. Commonwealth of Kentucky ( 2021 )


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  •             RENDERED: DECEMBER 3, 2021; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2019-CA-1901-MR
    JEREMY BENTON                                        APPELLANT
    APPEAL FROM CAMPBELL CIRCUIT COURT
    v.        HONORABLE JULIE REINHARDT WARD, JUDGE
    ACTION NO. 19-CR-00298
    COMMONWEALTH OF KENTUCKY                              APPELLEE
    AND
    NO. 2019-CA-1902-MR
    RONALD J. HARTIG, JR.                                APPELLANT
    APPEAL FROM CAMPBELL CIRCUIT COURT
    v.        HONORABLE JULIE REINHARDT WARD, JUDGE
    ACTION NO. 19-CR-00300
    COMMONWEALTH OF KENTUCKY                              APPELLEE
    AND
    NO. 2020-CA-0015-MR
    BILLY TURNER                                         APPELLANT
    APPEAL FROM CAMPBELL CIRCUIT COURT
    v.      HONORABLE JULIE REINHARDT WARD, JUDGE
    ACTION NO. 19-CR-00296
    COMMONWEALTH OF KENTUCKY                        APPELLEE
    AND
    NO. 2020-CA-0016-MR
    ANDREW KLUG                                 APPELLANT
    APPEAL FROM CAMPBELL CIRCUIT COURT
    v.      HONORABLE JULIE REINHARDT WARD, JUDGE
    ACTION NO. 19-CR-00305
    COMMONWEALTH OF KENTUCKY                        APPELLEE
    AND
    NO. 2020-CA-0092-MR
    JEFFREY GAMBLE                              APPELLANT
    APPEAL FROM CAMPBELL CIRCUIT COURT
    v.      HONORABLE JULIE REINHARDT WARD, JUDGE
    ACTION NO. 19-CR-00289
    COMMONWEALTH OF KENTUCKY                        APPELLEE
    AND
    -2-
    NO. 2020-CA-0094-MR
    CHRISTOPHER MCGOVNEY                         APPELLANT
    APPEAL FROM CAMPBELL CIRCUIT COURT
    v.       HONORABLE JULIE REINHARDT WARD, JUDGE
    ACTION NO. 19-CR-00287
    COMMONWEALTH OF KENTUCKY                         APPELLEE
    AND
    NO. 2020-CA-0162-MR
    ROBERT YOUNG                                 APPELLANT
    APPEAL FROM CAMPBELL CIRCUIT COURT
    v.       HONORABLE JULIE REINHARDT WARD, JUDGE
    ACTION NO. 19-CR-00304
    COMMONWEALTH OF KENTUCKY                         APPELLEE
    AND
    NO. 2020-CA-0237-MR
    HAROLD MAGGARD, JR.                          APPELLANT
    APPEAL FROM CAMPBELL CIRCUIT COURT
    v.       HONORABLE JULIE REINHARDT WARD, JUDGE
    ACTION NO. 19-CR-00288
    COMMONWEALTH OF KENTUCKY                         APPELLEE
    -3-
    AND
    NO. 2020-CA-0316-MR
    JAMES RILEY                                                         APPELLANT
    APPEAL FROM CAMPBELL CIRCUIT COURT
    v.           HONORABLE JULIE REINHARDT WARD, JUDGE
    ACTION NO. 19-CR-00297
    COMMONWEALTH OF KENTUCKY                                              APPELLEE
    AND
    NO. 2020-CA-0852-MR
    CARVEL WALTERS                                                      APPELLANT
    APPEAL FROM CAMPBELL CIRCUIT COURT
    v.           HONORABLE JULIE REINHARDT WARD, JUDGE
    ACTION NO. 19-CR-00301
    COMMONWEALTH OF KENTUCKY                                              APPELLEE
    OPINION
    REVERSING AND REMANDING
    ** ** ** ** **
    BEFORE: MAZE, TAYLOR, AND K. THOMPSON, JUDGES.
    THOMPSON, K., JUDGE: Jeremy Benton, Ronald Hartig, Jr., Billy Turner,
    Andrew Klug, Jeffrey Gamble, Christopher McGovney, Robert Young, Harold
    Maggard, Jr., James Riley, and Carvel Walters appeal their convictions in the
    Campbell Circuit Court, entered upon their conditional guilty pleas, to promoting
    -4-
    contraband in the first degree, Kentucky Revised Statutes (KRS) 520.050. Where
    appropriate, these convictions also caused appellants’ sentences to be enhanced for
    being persistent felony offenders. Due to the commonality of all material issues of
    fact and issues of law, these appeals have been consolidated.
    All ten of the appellants were inmates at the Campbell County
    Detention Center (jail) and each tested positive, via urine sample, for
    methamphetamine while they were incarcerated. Each of the inmates was
    convicted of promoting contraband in the first degree following a bench trial. In
    the trial, unrebutted testimony was offered for the allegation that, due to the date of
    the urine testing and the length of time each inmate had been in custody prior to
    testing, each of the inmates must have consumed or otherwise ingested
    methamphetamine while in custody at the jail. The only factual matters
    distinguishing the appellants regard their physical locations within the jail.
    Three of the appellants (Maggard, McGovney, and Gamble) were
    housed in Cell 204. Seven of the appellants (Benton, Hartig, Klug, Riley, Turner,
    Walters, and Young) were housed within an area known as DS1.
    Cell 204 held ten inmates. One inmate, Joshua Young, who is not a
    party to this appeal, admitted to bringing methamphetamine into the jail via his
    rectum and supplying it to unnamed cell mates. Surveillance video corroborated
    Young’s statements to jail staff. However, staff could not positively identify the
    -5-
    persons in the video recording who appeared to be passing around unknown items
    on a bunk bed, or those appearing to snort an unknown substance. Urine samples
    were taken from all ten inmates in Cell 204 and McGovney, Gamble, and Maggard
    all tested positive.
    DS1 held approximately seventy inmates. An anonymous tip led jail
    personnel to clear DS1, and in the process methamphetamine was recovered by jail
    staff from inmates Campbell and Hill, who are not appellants in this matter. A
    series of videos appeared to show exchanges, consistent with drug transfers, at
    Campbell’s bunk. Again, neither the items exchanged, nor the identities of the
    inmates, could be discerned in the videos. Three inmates within DS1 were willing
    to identify fellow inmates who they believed used methamphetamine. Urine
    samples were taken from twenty DS1 inmates and eighteen of those twenty tested
    positive. Two of those eighteen had only recently been incarcerated so they were
    not charged with promoting contraband.
    At trial, the director of pathology for the University of Kentucky
    testified that following consumption of methamphetamine, urine will test positive
    for both methamphetamine and amphetamine as the human body breaks
    methamphetamine down into amphetamine. Furthermore, urine can test positive
    for these substances for only three, to at most five, days following ingestion.
    -6-
    Therefore, only those inmates that had been inside the jail for more than five days
    were charged with possession of the drug while incarcerated.
    Each of the appellants waived their right to a jury trial. The trial court
    conducted a bench trial for all appellants. At the close of the Commonwealth’s
    proof, the appellants moved for directed verdicts of acquittal which were denied as
    explained within a written order of the court. The trial court treated the appellants’
    motion as a motion to dismiss under Kentucky Rules of Civil Procedure (CR)
    41.02(2). Such denial is the subject of these appeals. The appellants thereafter
    entered conditional guilty pleas, pursuant to an agreement with the
    Commonwealth, to promoting contraband in the first degree (KRS 520.050) and
    were sentenced.
    The appellants assert that the trial court erred by denying their motion
    for a directed verdict of acquittal insofar as the Commonwealth had failed to
    present sufficient and suitable evidence to sustain their convictions.
    On appeal, “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, only then the
    defendant is entitled to a directed verdict of acquittal.” Ray v. Commonwealth, 
    611 S.W.3d 250
    , 266 (Ky. 2020). However, in circumstances where the trial is
    conducted without a jury, our Supreme Court has stated that “[t]he language of CR
    41.02(2) makes clear the ‘considerations of a trial court on a motion to dismiss in a
    -7-
    bench trial are quite different from those on a motion for directed verdict in a jury
    trial.’ The trial court ‘must weigh and evaluate the evidence’ rather than, with
    regard to directed verdict, ‘indulge every inference in the [Commonwealth’s]
    favor.’” R.S. v. Commonwealth, 
    423 S.W.3d 178
    , 184 (Ky. 2014) (citations
    omitted).
    On appellate review of a ruling on a defendant’s CR 41.02 motion, a
    trial court’s determination will only be overturned for an abuse of discretion.
    Jaroszewski v. Flege, 
    297 S.W.3d 24
    , 31 (Ky. 2009). An abuse of discretion will
    be found when the trial court’s decision is “arbitrary, unreasonable, unfair, or
    unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v.
    Thompson, 
    11 S.W.3d 575
    , 581 (Ky. 2000).
    The trial court conscientiously considered all the evidence submitted
    in this matter and while its conclusion, that it could infer that the appellants had
    knowingly and intentionally consumed methamphetamine while in custody, might
    not be viewed as an abuse of discretion, the problem herein is whether or not
    testing positive for methamphetamine, together with the circumstantial evidence
    presented, supported a conviction for possessing or obtaining the drug in violation
    of KRS 520.050. Therefore, the legal question squarely before this Court concerns
    resolving the appropriate definitions to be given to those statutory terms. As the
    relevant material facts in this matter are not disputed, we must first focus on a de
    -8-
    novo review of the trial court’s legal conclusions with regard to the issue of at what
    point, or by what means, an inmate “possesses” or “obtains” contraband in
    violation of the statute.
    KRS 520.050, Promoting contraband in the first degree, states:
    (1) A person is guilty of promoting contraband in the first
    degree when:
    (a) He knowingly introduces dangerous contraband
    into a detention facility or a penitentiary; or
    (b) Being a person confined in a detention facility
    or a penitentiary, he knowingly makes, obtains,
    or possesses dangerous contraband.
    The definition of dangerous contraband includes controlled
    substances. KRS 520.010(3). KRS Chapter 520 (escape and other offenses
    relating to custody) does not define “possesses” or “obtains” but this chapter is
    found within the Kentucky Penal Code (KRS Chapters 500 to 534) which defines
    “possession” as, “[t]o have actual physical possession or otherwise to exercise
    actual dominion or control over a tangible object.” KRS 500.080(14). There is no
    statutory definition for “obtain” in Kentucky under our Penal Code. The trial court
    accepted the MERRIAM-WEBSTER ONLINE DICTIONARY definition of “obtain” as,
    “to gain or attain by planned action or effort.” Obtain, MERRIAM-WEBSTER,
    https://www.merriam-webster.com/dictionary/obtain (last visited Dec. 1, 2021).
    BLACK’S LAW DICTIONARY defines “obtain” as, “[t]o bring into one’s own
    -9-
    possession; to procure, esp. through effort[.]” Obtain, BLACK’S LAW DICTIONARY
    (11th ed. 2019).
    Distinguishing between the two terms under the factual circumstances
    of this matter is meritless. This Court does not need to hypothecate on any
    circumstance wherein someone might possess an item without first obtaining it.
    Here, if it were believed that each of the appellants knowingly received and then
    ingested methamphetamine, they would have obtained the drug and for some,
    perhaps short, period of time possessed it before ingesting it. The issue for this
    Court however is whether or not such possession of methamphetime, evidenced
    only by a urine sample, constitutes the type of possession criminalized by the
    statute.
    Kentucky caselaw has not discussed the specific standards for
    “possession” in a manner regarding consumption or usage since Prohibition.
    However, those precedents are quite clear that, as a matter of law, having a
    controlled substance in your body, in ingested form, is not possession.
    The ninety-year-old opinion in Nethercutt v. Commonwealth, 
    241 Ky. 47
    , 
    43 S.W.2d 330
     (1931), was the last of a series of Prohibition-era cases which
    were primarily concerned with the degree of possession necessary to evidence a
    defendant’s intent to control or distribute liquor. The Court in Nethercutt was
    faced with a defendant who had been arrested while obviously intoxicated and
    -10-
    ruled that alcohol consumed, and otherwise already in an accused’s stomach, did
    not constitute the unlawful possession of intoxicating liquor. The Nethercutt
    opinion relied upon Skidmore v. Commonwealth, 
    204 Ky. 451
    , 
    264 S.W. 1053
    (1924), where three members of “a drinking party” testified that Skidmore did not
    “own” the liquor, but only had it in his hands for purposes of taking a drink as a
    guest of one of the people who had provided the alcohol. The Skidmore opinion
    itself relied upon Sizemore v. Commonwealth, 
    202 Ky. 273
    , 
    259 S.W. 337
     (1924),
    wherein the Court held that the act of handling a bottle of whisky while taking a
    drink does not of itself constitute an unlawful possession within the meaning of the
    statute where the person handling the bottle returned the remainder without
    assuming any further control of the bottle or its contents. In Brooks and Minton v.
    Commonwealth, 
    206 Ky. 720
    , 
    268 S.W. 339
     (1925), which relied upon Skidmore
    and Sizemore, our then highest Court explained that, “[the liquor’s] momentary
    possession by another for the sole purpose of taking an offered drink is not a
    violation of the statute.” 
    Id. at 340
    .
    Many of our sister states subsequently agreed with the rationale of
    Nethercutt and its forebears and applied the same rationale in the era of narcotics.
    In the Maryland opinion in Franklin v. State, 
    258 A.2d 767
    , 769 (Md.Ct.Spec.App.
    1969), it was held that once a narcotic drug is injected into the vein, or swallowed
    orally, it is “apparent” that it is no longer in the individual’s control for purposes of
    -11-
    unlawful possession. Maryland’s Court of Appeals did however leave open the
    possibility that such evidence could be considered as one element of circumstantial
    evidence leading to a conviction:
    But evidence showing that a person has a prohibited
    narcotic drug within his system, while not per se
    constituting possession or control under Section 277,
    would tend to show circumstantially that he was in
    possession and/ or control of the drug prior to taking it.
    
    Id.
    In the Oregon opinion of State v. Downes, 
    572 P.2d 1328
     (Or.Ct.App.
    1977), superseded by statute as stated in Employment Div. v. Smith, 
    485 U.S. 660
    ,
    
    108 S.Ct. 1444
    , 
    99 L.Ed.2d 753
     (1988), an officer witnessed the defendant
    injecting a “controlled substance” into the defendant’s arm which was later
    identified as phencyclidine (PCP). Under those facts, the defendant was charged
    with not only use of the drug, but he was also charged with possession because the
    drug was in his bloodstream. The Oregon court held that under their statutory
    definition, the exercise of dominion or control over the property was necessary and
    that “obviously” after a drug is ingested or injected into the human body, the host
    body can no longer exercise dominion or control over it. Id. at 1330.
    Likewise in the Kansas opinion in State v. Flinchpaugh, 
    659 P.2d 208
    (Kan. 1983), the defendant was in a car wreck and consented to a blood sample at
    -12-
    the hospital. She tested positive for a metabolite of cocaine and was charged with
    possession. The Kansas Supreme Court determined that:
    Once a controlled substance is within a person’s system,
    the power of the person to control, possess, use, dispose
    of, or cause harm is at an end. The drug is assimilated by
    the body. The ability to control the drug is beyond
    human capabilities. The essential element of control is
    absent. Evidence of a controlled substance after it is
    assimilated in a person’s blood does not establish
    possession or control of that substance.
    Id. at 211.
    The Kansas court also noted that while a drug in a person’s blood is
    circumstantial evidence tending to prove prior possession of the drug, it is not
    sufficient evidence in and of itself to establish guilt beyond a reasonable doubt.
    Id. at 212. Kansas then distinguished this case from those where there was
    additional evidence of “possession” rather than only a blood sample, such as
    admissions or surveillance showing the prior drug deal.
    In State v. Lewis, 
    394 N.W.2d 212
     (Minn.Ct.App. 1986), the
    Minnesota Court of Appeals cited to the Nethercutt (Ky.), Flinchpaugh (Kan.), and
    Downes (Or.) opinions, supra. The issue presented in Lewis was whether or not
    the presence of a trace of morphine within a person’s system, without more
    evidence, is sufficient to sustain a conviction for unlawful possession of a
    controlled substance under the Minnesota law. The court found that the usual and
    ordinary meaning of the term “possession” did not include substances injected into
    -13-
    the body and assimilated into their system, explaining that after a controlled
    substance is within a person’s system, the power to exercise dominion and control
    necessary to establish possession no longer existed. This opinion is notable in our
    present analysis for the determination that the particular terms of the Minnesota
    statute suggested the legislative intention to regulate the physical movement and/or
    transfer of controlled substances between different persons. Consequently, once a
    controlled substance is within a person’s system the substance is beyond the scope
    of regulation contemplated by the statute. Id. at 217.
    In the opinion in State v. Hornaday, 
    713 P.2d 71
     (Wash. 1986),
    superseded by statute as stated in State v. Ortega, 
    177 Wash.2d 116
     (Wash. 2013),
    the Washington Supreme Court stated that a defendant could not be convicted for
    possession of alcohol merely because he had alcohol within his system
    because “[o]nce it is within a person’s system, the power of a person to control,
    possess, use or dispose of it is at an end.” Id. at 75. Further, “[a] defendant
    ‘possesses’ a controlled substance when the defendant knows of the substance’s
    presence, the substance is immediately accessible, and the defendant exercises
    ‘dominion or control’ over the substance.” Id. at 74.
    Turning back to the definition section of our Kentucky Penal Code,
    KRS 500.080(14), which currently defines the term “possession,” became effective
    as of January 1, 1975, well after the discussion of the term “possess” as used in the
    -14-
    criminal context by our highest Court in Nethercutt. Therefore, as a matter of
    statutory construction, we must accept that the legislature was fully aware of what
    was, and was not, sufficient “possession” for purposes of subsequent criminal
    statutes. As stated in Commonwealth v. Boarman, 
    610 S.W.2d 922
     (Ky.App.
    1980), “[i]t is to be presumed . . . that the legislature is acquainted with the law,
    that it has knowledge of the state of the law on subjects on which it legislates, and
    that it is informed of previous legislation and the construction that previous
    legislation has received.” 
    Id. at 924
    .
    A definition of “possesses” or “possession” which excludes the mere
    act of ingesting a controlled substance is further supported by the very title of this
    particular criminal statute which specifically concerns “[p]romoting contraband.”
    KRS 520.050. The term “promote” is not defined within the Kentucky Penal
    Code. BLACK’S LAW DICTIONARY defines it as, “[t]o contribute to growth,
    enlargement, or prosperity of; to forward; to further; to encourage; to advance.”
    Promote, BLACK’S LAW DICTIONARY (6th ed. 1990). By this definition, and by
    common usage, ingestion in and of itself does not serve to “promote” the item
    consumed. Consistent with the rules of statutory construction, we must address the
    intent of the General Assembly in enacting KRS 520.050. In the circumstances
    presented by this case, the title of this statute should be recognized as conveying
    the intent of the legislature as “the title of an enactment given to it by the
    -15-
    legislative body is a proper consideration in its construction[.]” American Premier
    Ins. Co. v. McBride, 
    159 S.W.3d 342
    , 349 (Ky.App. 2004). Clearly the legislative
    intention behind the promoting contraband statute was to regulate the physical
    movement of drugs and other dangerous items into our jails and prisons (KRS
    520.050(1)(a)), and the transfer, storage, sales, and creation of such contraband
    within our jails and prisons (KRS 520.050(1)(b)). Given the widespread incidence
    of addiction in the Commonwealth, and the high rate of such within our
    correctional facilities, it should be recognized that the appellants are actually
    within that class of persons who were to be protected by the statute from those
    persons who either smuggle drugs into our correctional facilities or traffic them
    once inside.
    Lastly, on the issue of statutory language, a significant point was
    made by the Washington Supreme Court in Hornady concerning construction of
    penal statutes:
    Even if we were to find the term “possession” to be
    ambiguous and the State’s argument a plausible
    interpretation of the term, among others,
    fundamental fairness requires that a penal statute be
    literally and strictly construed in favor of the accused
    although a possible but strained interpretation in favor of
    the State might be found.
    Hornady, 713 P.2d at 75-76.
    -16-
    Washington’s deference to “fundamental fairness” in construing
    ambiguities in criminal statutes is closely mirrored by the rule of lenity. This rule
    was described by the United States Supreme Court as requiring “ambiguous
    criminal laws to be interpreted in favor of the defendants subjected to them.”
    United States v. Santos, 
    553 U.S. 507
    , 514, 
    128 S.Ct. 2020
    , 2025, 
    170 L.Ed.2d 912
    (2008). In White v. Commonwealth, 
    178 S.W.3d 470
     (Ky. 2005), the Kentucky
    Supreme Court unanimously invoked the rule to construe the “intentional killing of
    a public official” statutory aggravator which renders a defendant eligible for the
    death penalty. See also Haymon v. Commonwealth, 
    657 S.W.2d 239
     (Ky. 1983)
    (applying rule in construing statute governing eligibility for probation for certain
    offenses involving use of a weapon); Commonwealth v. Stinnett, 
    144 S.W.3d 829
    (Ky. 2004) (applying rule in construing statute regarding jury determination of
    concurrent/consecutive service of felony sentences).
    In the majority of instances, it may be readily discerned whether or
    not a defendant “possesses” or “obtained” a controlled substance in either the
    actual or constructive legal sense. Here, however, the issue is more abstract. Once
    a drug enters the body and either is, or begins to be, metabolized, it is no longer in
    a form that can be held, controlled, sold, transferred, or used by the defendant or
    any another person. Our current penal statutes remain silent as to whether or not
    the legislature ever intended to expand the historic definition of possession so as to
    -17-
    obtain convictions based solely on blood, urine, or hair samples merely evidencing
    prior usage. If both precedent and the statutory definition of “possession” were not
    enough to compel this outcome, any inference that a metabolized drug remained in
    the “control” of an accused would invite an ambiguity that our rule of lenity
    otherwise prohibits. Consequently, we find that once a controlled substance is
    within a person’s system the substance is beyond the scope of regulation
    contemplated by the statute.
    Our holding in this case is narrow; evidence of a controlled substance
    in a person’s urine does not establish possession of or the obtaining of a controlled
    substance within the meaning of KRS 520.050, nor is it sufficient circumstantial
    evidence by itself to show prior possession by that person. However, other
    corroborating evidence combined with positive results of a urine test could be
    sufficient evidence to prove guilt beyond a reasonable doubt depending on the
    probative value of the corroborating evidence.
    Turning to the issue the existence of other evidence of guilt, while
    each of the appellants were housed within cells or units, along with others, where
    methamphetamine was obviously present, there existed no direct or circumstantial
    evidence of any of the appellants possessing or obtaining the methamphetamine
    other than the urine tests. Video surveillance was admittedly inconclusive as to
    either who had exchanged methamphetamine or even if methamphetamine was the
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    substance that was shown on video as being exchanged. Further, there was no
    testimony tying any of the appellants to the contraband. The only evidence
    presented against these inmates was the urine testing. While the trial court’s
    determination that the Commonwealth had “presented evidence that can convince a
    trier of fact that the Defendant[s] consumed illicit substances while in a detention
    facility,” is, given the positive urine test, not unsupported, it is not enough to
    support a finding of a violation of the statute which requires more than mere
    consumption. Although circumstantial evidence can support a conviction, the
    evidence must amount to more than conjecture and speculation, which cannot
    support a criminal conviction. Hibbard v. Commonwealth, 
    291 S.W.2d 574
    , 577
    (Ky. 1956). The totality of the circumstantial evidence against the appellants in this
    group is insufficient to support convictions of promoting contraband.
    It is this lack of “other” evidence that distinguishes the present matter
    from the unpublished opinion in Walters v. Commonwealth, No. 2014-CA-001341-
    MR, 
    2016 WL 3176788
     (Ky.App. 2016) (unpublished) (cited by the
    Commonwealth). A positive urine test was not the only evidence which supported
    inmate Walter’s conviction for promoting contraband. Walters had been observed
    going into a restroom with four other inmates. Upon investigation by a jailer, a
    discarded marijuana cigarette and an empty baggie which smelled of marijuana
    was found in the restroom. Additionally, another inmate testified that Walters
    -19-
    actually smoked the marijuana before the deputy entered the restroom. Similar
    evidence of guilt is wholly lacking in the case at hand.
    Lastly, the trial court referenced the potential application of our
    doctrine of constructive possession quoting Johnson v. Commonwealth, 90 S.W3d
    39, 42 (Ky. 2002), overruled on other grounds by McClanahan v. Commonwealth,
    
    308 S.W.3d 694
     (Ky. 2010), for the proposition that possession “may be proven
    through either actual possession or constructive possession.” Constructive
    possession allows for convictions in cases where the accused is physically remote
    from an item, yet as a matter of law still possesses the item. However, constructive
    possession still requires the accused to be able to exercise dominion and control
    over the object. Having determined that a person who has already consumed a
    drug does not control it, constructive possession is inapplicable in this matter.
    Having considered and rejected that these criminal convictions can
    properly be upheld, we feel obliged to mention that this does not mean these
    inmates should escape being subjected to any consequences for their positive urine
    tests. Instead, these matters could have been addressed internally by the jail as
    violations of institutional rules, with any subsequent findings supporting prison
    discipline only subject to review under the “some evidence” standard as adopted
    and explained in Smith v. O’Dea, 
    939 S.W.2d 353
     (Ky.App. 1997).
    -20-
    Accordingly, we reverse the Campbell Circuit Court’s orders which
    denied the appellants’ motions to dismiss and hereby vacate the conditional guilty
    pleas and judgments for promoting contraband in the first degree entered against
    these appellants. These matters are remanded to the Campbell Circuit Court for
    proceedings necessary and consistent with this Opinion to include vacating any
    persistent felony offender sentences associated with the underlying convictions
    which have been hereby vacated.
    MAZE, JUDGE, CONCURS AND FILES SEPARATE OPINION.
    TAYLOR, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
    MAZE, JUDGE, CONCURRING: To begin, I must state that I am
    uncomfortable with the result reached in the majority Opinion. The unauthorized
    presence of controlled substances presents serious security and health risks for
    prisons, jails, and other correctional facilities. Clearly, these facilities have a duty
    to prevent the introduction of illicit substances, and the Commonwealth has a
    direct interest in punishing those who attempt to do so. I would also point out that
    these facilities would face liability if they failed to protect the inmates from illicit
    substances being introduced into their populations.
    Nevertheless, the question in this case is whether the
    Commonwealth’s evidence meets the threshold to prove that each of these
    demandants committed the offense of promoting contraband in the first degree, as
    -21-
    defined by KRS 520.050. Unfortunately, the statute appears to be a poor fit with
    the facts of this case. As the majority opinion correctly holds, that issue is
    dependent upon the proof necessary to establish that each defendant “possessed” or
    “obtained” the methamphetamine at issue. I also agree with the majority that the
    holding of Nethercutt v. Commonwealth, 
    241 Ky. 47
    , 
    43 S.W.2d 330
     (1931),
    remains viable despite its age. As a result, the mere presence of methamphetamine
    in each defendant’s system is insufficient to establish that they possessed or
    obtained the methamphetamine within the Campbell County Detention Center.
    Moreover, the other evidence was insufficient as a matter of law to
    prove that any of the defendants possessed or obtained the methamphetamine while
    in the facility. The video surveillance lacked sufficient quality to identify specific
    individuals or even the materials exchanged. Joshua Young did not identify the
    cell mates with whom he admittedly supplied the methamphetamine. While it
    seems obvious that Young shared the methamphetamine with his cell mates, there
    is simply no definitive proof showing that any of these defendants possessed the
    methamphetamine as contemplated by the statute.
    Here, the evidence before the trial court was largely uncontested and
    was admitted by stipulation, rather than direct testimony. In its role as finder of
    fact, the trial court had discretion to weigh the weight and credibility of the
    Commonwealth’s evidence. But the Commonwealth still bore the burden of
    -22-
    proving beyond a reasonable doubt that each defendant committed all of the
    elements of the charged offense. Lisle v. Commonwealth, 
    290 S.W.3d 675
    , 680
    (Ky. App. 2009). And due process requires this Court to review the minimal
    sufficiency of the evidence supporting a conviction. I must reluctantly agree with
    the majority that the Commonwealth failed to meet that burden in these cases.1
    Consequently, I fully concur in the majority’s decision to vacate the convictions.
    TAYLOR, JUDGE, DISSENTING: Respectfully, I dissent. These
    cases represent perhaps the most unusual conditional plea bargains that I have
    encountered in my years on this Court. Rather than seeking to suppress evidence,
    the parties agreed to a bench trial on the merits, with all evidence, whether it be
    circumstantial or hearsay, being admitted before the trial court without objection.
    Thereupon, if the trial court denied the defendants’ motion to dismiss at the
    conclusion of the trial, the defendants agreed to enter into their respective
    conditional guilty pleas, prior to bringing these appeals.
    To begin, I believe our review is controlled by CR 52.01 as provided
    for by Kentucky Rule of Criminal Procedure 13.04. In accordance with CR 52.01,
    1
    I would also point out that this Court recently reached the same conclusion under very similar
    facts. Collins v. Commonwealth, No. 2020-CA-0720-MR, 
    2021 WL 3234276
     (Ky. App. Jul. 30,
    2021). The holding in Collins is not binding authority because there has been a motion for
    discretionary review filed with the Supreme Court in that case. No. 2021-SC-0478-D. But both
    cases demonstrate the need for a definitive holding by the Supreme Court on the proof necessary
    to prove the elements of the offense.
    -23-
    at trial, the judge became the finder of fact who also judged the credibility of the
    witnesses testifying at the trial. The trial judge made substantial findings based on
    the evidence which this Court may not set aside unless clearly erroneous. CR
    52.01. Findings of fact are not clearly erroneous if supported by substantial
    evidence. Saylor v. Commonwealth, 
    357 S.W.3d 567
    , 571 (Ky. App. 2012).
    While the court’s findings were made in response to a motion to
    dismiss at the end of the trial, they nonetheless are based on evidence presented at
    the bench trial which forms the basis for the judgments which were entered against
    each of the defendants and are now on appeal to this Court.
    Given these unique circumstances and the trial court having presided
    over a bench trial for each defendant on the merits of the claims against said
    defendants, I believe the record contains substantial evidence to support the
    findings and sustain the convictions. The evidence in each case, being mostly
    circumstantial and hearsay, included the admission of drug laboratory findings that
    each defendant had consumed illegal drugs while incarcerated in the jail. As
    noted, all of this evidence was admitted without objection by the defendants. This,
    coupled with the video footage of the inmates, was sufficient for the fact-finder to
    conclude that the defendants either obtained or possessed the drugs while prisoners
    in the jail, and thus supports a conviction of each defendant under KRS 520.050, in
    my opinion.
    -24-
    To conclude, the trial court’s findings of fact are not clearly erroneous
    and are supported by substantial evidence. I would affirm all of the defendants’
    judgments in these appeals.
    BRIEFS FOR APPELLANT,                 BRIEF FOR APPELLEE:
    BENTON:
    Daniel Cameron
    Roy Alyette Durham, II                Attorney General of Kentucky
    Frankfort, Kentucky
    Christopher Henry
    BRIEFS FOR APPELLANT,                 Assistant Attorney General
    HARTIG, JR.:                          Frankfort, Kentucky
    Molly Mattingly                       ORAL ARGUMENT FOR APPELLEE:
    Frankfort, Kentucky
    Christopher Henry
    BRIEFS FOR APPELLANT,                 Assistant Attorney General
    TURNER:                               Frankfort, Kentucky
    Shannon Renee Dupree
    Frankfort, Kentucky
    BRIEFS FOR APPELLANT,
    KLUG:
    Emily Holt Rhorer
    Frankfort, Kentucky
    BRIEFS FOR APPELLANT,
    GAMBLE:
    Steven Nathan Goens
    Frankfort, Kentucky
    -25-
    BRIEFS FOR APPELLANT,
    MCGOVNEY:
    Kayla D. Deatherage
    Frankfort, Kentucky
    BRIEFS FOR APPELLANT,
    YOUNG:
    Julia K. Pearson
    Frankfort, Kentucky
    BRIEFS FOR APPELLANT,
    MAGGARD, JR.:
    Travis Bewley
    Frankfort, Kentucky
    BRIEFS FOR APPELLANT,
    RILEY:
    Steven J. Buck
    Frankfort, Kentucky
    BRIEFS FOR APPELLANT,
    WALTERS:
    Kathleen K. Schmidt
    Frankfort, Kentucky
    ORAL ARGUMENT FOR
    APPELLANTS:
    Molly Mattingly
    Kayla D. Deatherage
    Frankfort, Kentucky
    -26-