Clint Collins v. Commonwealth of Kentucky ( 2021 )

RENDERED: JULY 30, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0720-MR
CLINT COLLINS APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
v. HONORABLE JAMES W. CRAFT, II, JUDGE
ACTION NO. 19-CR-00393
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES.
JONES, JUDGE: The Appellant, Clint Collins, was convicted by a Letcher
County jury of first-degree promoting contraband and first-degree possession of a
controlled substance. He was sentenced to the maximum sentence of eight years’
imprisonment. Collins appeals to this Court as a matter of right.
On appeal, Collins asserts that his convictions violate the prohibition
against double jeopardy requiring reversal of his conviction for first-degree
possession, the lesser conviction. He additionally argues that there was insufficient
evidence to convict him of first-degree promotion of contraband where the sole,
direct evidence to establish he possessed methamphetamine was a positive urine
screen.
The Commonwealth concedes Collins is entitled to reversal of the
first-degree possession conviction, and we agree with Collins that a positive drug
screen is insufficient to prove beyond a reasonable doubt that Collins knowingly
promoted/possessed dangerous contraband in the jail. Accordingly, having
reviewed the record and being otherwise sufficiently advised, we reverse the
Letcher Circuit Court’s sentence on plea of not guilty (jury trial) as to both of
Collins’s convictions.
I. BACKGROUND
Collins was placed in the Letcher County Jail (the “Jail”) in mid-
January 2019, and was still an inmate at the Jail in April of 2019 when the events
giving rise to the convictions at issue took place.1 Collins was housed in Cell 121
1
In the opening paragraph of his statement of the case, Collins states that “all offenses were
alleged to have occurred on November 19-20, 2018, in the Letcher County Jail.” While it is true
that the indictment cited November 2018 as the timeframe at issue, on or about March 6, 2020,
the Commonwealth filed a motion to amend indictment stating:
The date the offense occurred should be changed from 19th-20th
day of November 2018 to 18th-20th of April 2019 in order to
reflect the testimony of the Deputy Jailer presented to the Letcher
County Grand Jury on July 10, 2019, a copy of which was
provided to Defense counsel months ago. Further the Defense
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along with ten or eleven other inmates. On or about April 18-19, 2019, one of
Collins’s cellmates was taken to the hospital where he subsequently tested positive
for methamphetamine use. This particular inmate had been in the Jail for several
months, and once Jail officials learned of the positive test result from the hospital
they became concerned that methamphetamine was present in the Jail.
As a result, Jailer Bert Slone made the decision to have all the inmates
in Cell 121 transported to the hospital for x-rays to determine whether they were
hiding any drugs or contraband in any of their orifices. The inmates were strip-
searched before leaving the Jail, and Jailer Bert Slone searched Cell 121 after the
inmates were taken out of it. No drugs or contraband were found inside Cell 121
or on the inmates prior to transport. Letcher County Deputy Jailer Jason Eckles
was asked to assist with transporting the inmates to the hospital. Before doing so,
he searched the vehicles that were designated to transport the inmates to confirm
cannot assert that this change is in any way prejudicial as it merely
reflects the evidence presented to the Grand Jury, and all the
evidence contained in the previously provided discovery materials.
Record (“R.”) at 29. While there is no indication that the trial court ruled on the
Commonwealth’s motion, Collins did not object; and the evidence, argument, and jury
instructions all referred to the dates at issue as occurring in April 2019. See Howe v.
Commonwealth, 462 S.W.2d 935, 938 (Ky. 1971) (citing Kentucky Rules of Criminal Procedure
(“RCr”) 9.24) (“Dates were not in issue and the testimony referred to the correct date of the
crime. We are of the opinion that the error in the date did not affect the substantial rights of the
accused and that he was not prejudiced by this inadvertent mistake.”).
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that they did not contain any drugs or contraband. He did not locate anything
during his search.
After Deputy Eckles finished searching the vehicles, the inmates were
loaded into separate vehicles and taken to the hospital. Collins rode to the hospital
in a vehicle with two other inmates, Donald Shepherd and Johnathan Riley.
Shepherd and Riley were two of the Jail’s newest inmates, having just entered the
Jail a few days prior. No testimony was offered to show where Collins was seated
in the vehicle in relation to the other two inmates. Likewise, there was no
testimony concerning the inmates’ movements or actions during transport.
Once at the hospital, Deputy Eckles escorted his charges into a
waiting room area with the other inmates. Deputy Jailer Brian Perry stayed with
the inmates inside the hospital, and Deputy Eckles went back outside to search the
vehicles. While searching the vehicle used to transport Collins, Shepherd, and
Riley, Deputy Eckles discovered a small glass nitroglycerine bottle/vial with an
opened lid under the back-right-seat area. The vial contained what Deputy Eckles
believed to be methamphetamine residue, and scattered under the seat from the
center to the right Deputy Eckles observed what he believed to be small fragments
of methamphetamine. Deputy Eckles photographed his findings and placed the
vial and pieces of suspected methamphetamine in an evidence bag. The inmates
were transported back to the Jail in a different vehicle.
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Thereafter, Jail officials sought and obtained search warrants to
collect urine samples from the inmates in Cell 121. In total, ten urine samples
were collected from the inmates. Eight urine samples, including a sample from
Collins, were collected on Monday, April 22, 2019, and two samples were
collected on Friday, April 26, 2019. All of the inmates in Cell 121, including
Collins, tested positive for methamphetamine. Kentucky State Police Crime Lab
Technician Jason Berry testified that methamphetamine is usually detected in urine
for two to three days after consumption. However, a positive result might be
possible after an additional couple of days if the person is a chronic user and/or
consumed a large amount. No testimony was offered regarding the substances
removed from the vehicle or contained within the vial.
Jailer Slone charged each inmate with a positive test result with
possession and promoting contraband. On July 11, 2019, the Letcher County
Grand Jury indicted Collins on four charges: (1) illegal possession of a controlled
substance (methamphetamine) in the first degree in violation of KRS2 218A.1415;
(2) criminal use or possession of drug paraphernalia, a plastic baggie3 containing a
quantity of crystal-like methamphetamine, in violation of KRS 218A.500(2); (3)
2
Kentucky Revised Statutes.
3
There was never any evidence presented concerning “a plastic baggie” being found. We
presume the indictment meant to refer to the glass vial Deputy Eckles found in the transport
vehicle.
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promoting contraband in the first degree by introducing or possessing
methamphetamine and drug paraphernalia into the Jail in violation of KRS
520.050; and (4) of being a persistent felony offender in the second degree in
violation of KRS 532.080(2).
Collins was arraigned on or about July 17, 2019, and the trial court
appointed counsel to represent him. With the assistance of counsel, Collins
entered a plea of not guilty to all the charges. Prior to trial, the Commonwealth
dismissed the persistent felony offender count. A one-day jury trial was held on
March 9, 2020. The Commonwealth called four witnesses: Deputy Eckles,
Deputy Perry, Jailer Slone, and Lab Technician Berry. Collins did not testify or
call any of his own witnesses; he presented his defense through cross-examination
of the Commonwealth’s witnesses. At the close of the Commonwealth’s case,
Collins moved for a directed verdict on all remaining counts arguing that there was
no evidence to show if the methamphetamine was consumed before April 18,
2019, or April 20, 2019. The court denied the motion.
The jury found Collins guilty of first-degree promoting contraband
and first-degree possession of a controlled substance and not guilty of possession
of drug paraphernalia. Thereafter, the penalty phase commenced. The jury
recommended Collins serve a three-year-consecutive sentence for first-degree
possession of a controlled substance and a five-year-consecutive sentence for the
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offense of first-degree promoting contraband for a total of eight years. The trial
court sentenced Collins consistent with the jury’s recommendations, and a final
judgment was entered on May 11, 2020. This appeal followed.
II. ANALYSIS
On appeal, Collins argues: (1) his convictions for both first-degree
possession and first-degree promoting contraband violate the prohibition against
double jeopardy; and (2) there was insufficient evidence that Collins committed the
offenses of first-degree possession of a controlled substance and first-degree
promoting of contraband.
In its appellate brief, the Commonwealth “concedes that Collins is
correct” that his convictions for first-degree promoting contraband and first-degree
possession of a controlled substance violate double jeopardy because both crimes
did not require proof of an additional fact that the other did not. Stewart v.
Commonwealth, 306 S.W.3d 502, 505 (Ky. 2010) (“Possession of a controlled
substance does not require proof of an additional fact that promoting contraband
does.”). The Commonwealth further acknowledges that “[t]he remedy for this type
of statutory double jeopardy violation is to vacate the lesser conviction, and only
allow sentencing on the greater conviction.” Taylor v. Commonwealth, 611
S.W.3d 730, 739-40 (Ky. 2020). Based on the Commonwealth’s concession,
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Collins’s conviction for possession and the corresponding three-year sentence must
be reversed.
This leaves only Collins’s conviction for first-degree promoting
contraband. Before us, Collins argues that there was insufficient evidence to
convict him of first-degree promoting contraband where the Commonwealth
showed only that his urine screen tested positive for methamphetamine. While
Collins moved the trial court to enter a directed verdict on this charge, his
argument focused on the fact that the ingestion of methamphetamine could have
been before April 18, 2019, or after April 20, 2019; he did not argue that the
Commonwealth could not prove possession based on the urine test. Therefore, we
must review this claim for palpable error.
To prevail, Collins must show that this error resulted in “manifest
injustice.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). “[T]he
required showing is probability of a different result or error so fundamental as to
threaten a defendant’s entitlement to due process of law.” Id. “The
Commonwealth’s failure to prove an essential element of a crime is necessarily
palpable because the Due Process Clause protects a criminal defendant against
conviction except upon proof beyond a reasonable doubt of each fact necessary to
prove all the elements of a crime.” Lisle v. Commonwealth, 290 S.W.3d 675, 680
(Ky. App. 2009).
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Thus, we will review Collins’s claim for the purpose of determining
whether the Commonwealth presented sufficient proof of each fact necessary to
sustain a conviction for first-degree promoting contraband. KRS 520.050
provides:
(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.
(2) Promoting contraband in the first degree is a Class D
felony.
Our Supreme Court has held that “[p]romoting contraband in the first degree
requires possession of dangerous contraband[.]” Tyler v. Commonwealth, 805
S.W.2d 126, 127 (Ky. 1991). Therefore, we must determine whether the presence
of methamphetamine in Collins’s urine is sufficient proof that he knowingly
possessed methamphetamine while in the Jail.
In Nethercutt v. Commonwealth, 241 Ky. 47, 47, 43 S.W.2d 330, 330
(1931), a prohibition era case, the Court held that the presence of “liquor in one’s
stomach does not constitute possession within the meaning of the law[.]” The
Court then determined that the appellant’s motion for a directed verdict on the
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charge of the unlawful possession of intoxicating liquor should have been
sustained where the evidence consisted solely of an empty bottle of rubbing
alcohol and the appellant’s statement that he was drunk on some moonshine liquor
which he had found. The Commonwealth portrays Nethercutt as an aberration of
the law which defies common sense.
While Nethercutt is not a recent case, its logic continues to be
followed by a majority of jurisdictions.
[W]here a narcotic or dangerous drug is ingested and
assimilated into the taker’s bodily system, most authority
provides that the substance is no longer within the taker’s
control, and by itself does not constitute possession in the
legal sense of the term. Evidence of being under the
influence of a contraband substance, or other evidence of
having introduced it into one’s body, is thus not by itself
proof of present or past possession.
28A C.J.S. Drugs and Narcotics § 280 (2021) (citations omitted) (emphasis
added).4
4
In various other contexts, our sister courts across the country have reached similar conclusions.
See State v. Thronsen, 809 P.2d 941, 943 (Alaska App. 1991) (“[A] person who has cocaine in
his or her body has no control over the cocaine and therefore does not have possession.”); State
v. Daline, 30 P.3d 426, 430 (Or. Ct. App. 2001) (“[C]onsumption of a controlled substance does
not constitute possession of a controlled substance because once it is in the bloodstream a person
can no longer exercise dominion or control over it[.]”); State v. Hornaday, 713 P.2d 71, 76
(Wash. 1986), superseded by statute on other grounds by State v. Ortega, 297 P.3d 57 (Wash.
2013) (“The term ‘possession’ of liquor should not be construed to include liquor which has been
assimilated by the body.”); State v. Letourneau, 106 P.3d 505, 510 (Kan. Ct. App. 2005) (“The
possibility of such confusion is particularly harmful to Letourneau given the fact that the
evidence of having ingested methamphetamine does not and cannot, by itself, establish
possession or control of the substance.”); State v. Lewis, 394 N.W.2d 212, 217 (Minn. Ct. App.
1986) (citation omitted) (“We find that evidence of a controlled substance in a person's urine
specimen does not establish possession . . . nor is it sufficient circumstantial evidence to prove
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Nethercutt has never been overruled, and its logic is sound. The fact
that Collins had methamphetamine in his urine is insufficient circumstantial
evidence to prove prior possession beyond a reasonable doubt absent probative
corroborating evidence of actual physical possession. As the Supreme Court of
North Carolina explained:
Without more, the presence of marijuana metabolites
found in defendant’s urine sample only raises a suspicion
or conjecture that defendant had the power and intent to
control the substance’s disposition. From this test result,
the jury can know that the metabolites were present, but
is left to speculate as to how the substance resulting in
those metabolites entered defendant’s system.
Accordingly, this evidence does not rise to the level of
“tending to prove the fact in issue” or “reasonably
conduc[ing] to [that] conclusion as a fairly logical and
legitimate deduction.”
State v. Harris, 646 S.E.2d 526, 528 (N.C. 2007) (citations omitted).
The Commonwealth argues that the glass vial and suspected
methamphetamine fragments located in the back of the vehicle supplies all the
corroborating evidence it needs. However, as noted above, there was no testimony
where Collins was seated in the vehicle and no testimony concerning any
movements either Collins or his two cellmates made during the drive to the
prior possession beyond a reasonable doubt absent probative corroborating evidence of actual
physical possession.”); People v. Spann, 187 Cal. App. 3d 400, 406, 232 Cal. Rptr. 31, 34 (Cal.
Ct. App. 1986) (“[T]he Legislature did not intend mere use to constitute possession. Nor . . .
may that result be achieved indirectly by transmuting the one into the other by circumstantial
reasoning.”).
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hospital. Given that all Collins’s cellmates also tested positive for
methamphetamines, it is just as likely the glass vial was hidden by one of the other
two passengers. “A defendant’s exclusive control over the premises is sufficient to
raise an inference of possession and knowledge. However, joint control of the
premises requires further evidence to prove the defendant knew the substance was
present and had it under his control.” Hayes v. Commonwealth, 175 S.W.3d 574,
594 (Ky. 2005) (citations omitted). “[P]hysical proximity to an area where drugs
are found is insufficient on its own to support a finding that an accused had
constructively possessed those drugs.” Haney v. Commonwealth, 500 S.W.3d 833,
835 (Ky. App. 2016). Additionally, the Commonwealth did not introduce any
evidence to establish that the substance in the vial was actually methamphetamine.
Based on the prevailing case law and the evidence as presented in this
case, we must reverse the promoting contraband count. We note, however, that
this was a criminal trial where Collins was entitled to the full due process rights
provided by the Constitution, including the right to require the Commonwealth to
produce evidence of his guilt beyond a reasonable doubt. Nothing in this Opinion
should be read as inferring that Collins would not be guilty of an infraction in a
prison disciplinary proceeding where the standard is “some evidence.”
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III. CONCLUSION
For the reasons set forth above, we reverse the Letcher Circuit Court’s
sentence on plea of not guilty (jury trial) on both Collins’s conviction for first-
degree possession and for first-degree promoting contraband.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Emily Holt Rhorer Daniel Cameron
Frankfort, Kentucky Attorney General
Aspen Roberts
Assistant Attorney General
Frankfort, Kentucky
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