Steven D. Roark v. Commonwealth of Kentucky

RENDERED: JUNE 17, 2022; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2017-CA-1665-MR

STEVEN D. ROARK APPELLANT

APPEAL FROM KNOX CIRCUIT COURT
v. HONORABLE DAVID A. TAPP, SPECIAL JUDGE
ACTION NO. 15-CR-00112-003

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
REVERSING AND REMANDING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND K. THOMPSON,
JUDGES.

THOMPSON, K., JUDGE: On remand from the Kentucky Supreme Court, we

consider Steven D. Roark’s arguments that the Knox Circuit Court erred in

providing two erroneous jury instructions and failing to instruct the jury regarding

a requested lesser included offense.1

1
The Kentucky Supreme Court reversed our prior Opinion in which we held that the trial court
abused its discretion in excluding a co-defendant’s plea hearing testimony where Roark
subpoenaed his co-defendant, who failed to appear at the trial, and the co-defendant stated during
 The trial court erred in permitting a duplicitous instruction as to

Roark’s manufacturing of methamphetamine charge, resulting in a jury unanimity

problem as to whether all the jurors convicted him for the same separate instance

of manufacture or on different instances based on actual manufacture or possession

of chemicals or equipment with intent to manufacture. The trial court also

committed palpable error involving double jeopardy where Roark may have been

convicted for possessing the same quantity of methamphetamine as he was

convicted of manufacturing. Therefore, we reverse and remand for a new trial on

those charges. However, the trial court did not err in declining to instruct the jury

on facilitation to manufacture methamphetamine as this was not a lesser included

offense to manufacture of methamphetamine.

On February 25, 2015, Roark and four other adults, including Tonia

Couch, were in a trailer which belonged to Couch, when Trooper Taylor Mills and

Trooper Jason Partin arrived to do a welfare check at the residence based upon a

report that there was a possible methamphetamine lab present along with a

juvenile.2 Couch let the police in, told them no one else was present besides her

his plea hearing that he had manufactured the methamphetamine alone and reinstated Roark’s
conviction and sentence. See Commonwealth v. Roark, 641 S.W.3d 94 (Ky. 2021) (reversing
Roark v. Commonwealth, No. 2017-CA-001665-MR, 2020 WL 594129 (Ky.App. Feb. 7, 2020)
(unpublished)). The Court then granted a petition for rehearing allowing consideration of these
remaining issues.

2
It is well established that the active production of methamphetamine poses a danger of
explosion and other potential harm to persons present nearby. See Pate v. Commonwealth, 243

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child and friend who were with her in the living room and then consented to a

search after the police heard a sound in the back of the trailer.

The police found Roark, Couch’s husband, and another man in the

bedroom lying on a mattress and feigning sleep. On the floor next to the mattress,

the police discovered a small plastic baggie containing white powder stored in a

cellophane wrapper.

In the attached bathroom, the police found a funnel with a white,

powdery substance inside, a used coffee filter, and a large bag of salt. Inside the

toilet they found a plastic baggie with clear liquid and a spoon. The police also

found needles in the bathroom cabinet. Inside the bathroom floor vent police

found a modified Mountain Dew bottle with green tubing attached, another plastic

bottle which contained a clear liquid substance, and a plastic bag containing coffee

filters.

The police arrested all the adults in the trailer. As no one admitted

that the drugs and paraphernalia were theirs, five people, including Roark, were

indicted for: (1) manufacturing methamphetamine, first offense; (2) possession of

a controlled substance, first degree; (3) controlled substance endangerment to a

S.W.3d 327, 331 (Ky. 2007) as modified on denial of reh’g (Nov. 1, 2007), as corrected (Jan. 23,
2008).

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child, fourth degree;3 (4) tampering with physical evidence; and (5) possession of

drug paraphernalia.

Before Roark went to trial, Couch and another person pled guilty to

reduced charges in exchange for truthful testimony against Roark and another

defendant. A third defendant, Couch’s husband, entered an open plea of guilty to

all the indicted charges against his counsel’s advice and stated that he acted alone

in manufacturing the methamphetamine.

On May 15, 2017, Roark was jointly tried with the remaining

defendant. During this trial the jury heard testimony for the Commonwealth from

Trooper Mills, Trooper Partin, Jamie Hibbard of the Kentucky State Police (KSP)

Lab, Detective Jason Browning of the KSP Drug Enforcement Special

Investigations Unit, and Couch. The troopers testified about what they found when

they searched as detailed above. Hibbard testified as to the analysis that the baggie

of white powder in the bedroom was methamphetamine and the clear liquid in the

plastic bottle from the vent was methamphetamine. Detective Browning testified

about how people manufacturing methamphetamine acted, including that they

burned their trash to conceal evidence of the manufacture of methamphetamine.

He also testified as to the purpose of the items found in making methamphetamine

3
Couch had custody of multiple children, but only one child was present when the police
searched and discovered the contraband.

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and that the plastic bottles in the bathroom vent were a one-step methamphetamine

lab and a hydrogen chloride (HCl) generator.

Although there was a lot of testimony from law enforcement about the

manufacture of methamphetamine, the presence of drugs and paraphernalia, and

the hidden location of the lab, this testimony did not tie Roark to these things

beyond his mere presence in the trailer. Only Couch’s testimony connected Roark

with the manufacture of methamphetamine.

Couch testified that Roark lived in the trailer with her and her husband

and was in the process of moving out when they were arrested. Couch claimed

Roark was staying in the master bedroom by the back door (which was where the

drugs were found), while she chose to occupy a smaller bedroom to be closer to the

bedroom where her children slept.

Couch testified that when the police knocked, Roark yelled from the

back, “Don’t open the door,” but she disregarded his command, opened the door,

and granted the police consent to search. Couch testified that Roark burned the

trash every day. She also testified that Roark called her in May or June of 2015

and “apologized for bringing it into my house.”

At the close of the Commonwealth’s case, Roark moved for a directed

verdict on the felony charges, which was denied except as to controlled substance

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endangerment to a child, which was granted as there was no evidence that Roark

knew the child was present.

Roark testified in his own defense. He testified that on the morning

when the police searched, Couch’s friend drove him and his co-defendant to

Couch’s trailer at about 8:30 or 9:00 a.m. as Couch wanted a ride to go pick up her

other children. Roark explained that when they arrived via the back door they

went into the back bedroom; Couch was in the back bedroom and was putting on

her make-up and fixing her hair. Later, Couch left the bedroom and closed the

door behind her.

Roark testified he, Couch’s husband, and a third man sat down on the

mattress on the floor in the bedroom and they were playing on their phones and

listening to music. Roark admitted to using methamphetamine at that point.

Roark admitted he would have recognized methamphetamine

manufacturing if he had seen it, but denied going into the bathroom, seeing the lab,

and seeing any components of methamphetamine manufacturing except maybe salt

sitting on a shelf. Roark denied having drugs on him or that the bag of

methamphetamine belonged to him. Roark denied bringing any of the contraband

items into the house and denied destroying or concealing anything.

Roark also denied living in the trailer. He claimed Couch moved in a

couple of months after she separated from her husband, and he helped her move in

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her furniture and get rid of items in the trailer left by the previous occupant. Roark

admitted he stayed overnight a couple of times when he was working on this.

Roark stated he did not receive mail there; instead, he lived with his mother.

Roark denied calling and apologizing to Couch. He testified she put

some money on his phone account when he was in jail. Later, he called Couch

because he heard she was sick. He testified that during this phone call Couch “was

basically apologizing to me for me being locked up for this matter.”

Roark admitted he was a drug addict and used about 1/4 gram of

methamphetamine a day, every day, or every other day when he could afford it.

He testified he started using methamphetamine in 2013 or 2014, recognized a lot of

the components for it, and had seen recipes for making it. He also admitted he was

a convicted felon.

Even though Couch’s husband had already pled guilty to

manufacturing the methamphetamine in the bathroom, the Commonwealth sought

to convict Roark as a principal rather than an accomplice and did not request a

complicity instruction. Roark objected to the manufacture of methamphetamine

instruction as he believed the Commonwealth had to pick one method of

manufacture or another, or else there would be a problem with jury unanimity.

The trial court commented that Roark was objecting to there being an A or B in the

instructions, but stated it believed that giving the unanimous instruction solved that

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problem and determined the Commonwealth’s proposed instructions were

appropriate. Roark later presented his own proposed jury instructions in which he

requested that the manufacture of methamphetamine state that Roark “acting alone

or in concert with others, knowingly had in [his] possession with the intent to

manufacture methamphetamine two or more chemicals and/or two or more items

of equipment for the manufacture of methamphetamine.”

Roark also requested an instruction for facilitation to manufacture

methamphetamine as a lesser included offense of manufacturing

methamphetamine. The trial court declined to give such an instruction because it

determined that facilitation was not a lesser included offense. Roark did not

request any other instructions for lesser included offenses, such as unlawful

possession of a methamphetamine precursor.

After the jury was instructed, Roark was found guilty of

manufacturing methamphetamine, possession of a controlled substance, tampering

with physical evidence, and possession of drug paraphernalia. The jury

recommended ten years of incarceration for the manufacturing offense, one year

for possession, one year for tampering, and twelve months on the drug

paraphernalia charge, to run concurrently for a total of ten-years’ imprisonment.

These were the minimum sentences the jury could recommend on the felony

charges.

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 The trial court dismissed the possession of drug paraphernalia charge

based on a defect in the paraphernalia instruction. The trial court sentenced Roark

in accordance with these recommendations on the remaining charges to a total of

ten years of incarceration.

We now consider Roark’s arguments regarding errors within his jury

instructions. “Alleged errors regarding jury instructions are considered questions

of law that we examine under a de novo standard of review.” Hamilton v. CSX

Transp., Inc., 208 S.W.3d 272, 275 (Ky.App. 2006).

Roark first argues he received a non-unanimous and unreliable verdict

as to the manufacturing of methamphetamine charge because the jury could have

convicted him on manufacturing in two different ways but was not required to have

unanimity on either of the two methods. The relevant jury instruction reads as

follows:

INSTRUCTION NO. 2

COUNT 1
MANUFACTURING METHAMPHETAMINE

You will find the Defendant, Steve Roark, guilty of
Manufacturing Methamphetamine under this Instruction
if, and only if, you believe from the evidence beyond a
reasonable doubt that in this county on or about February
25, 2015 and before the finding of the Indictment herein;

A. He knowingly manufactured methamphetamine;

OR

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 B. He knowingly had in his possession with the intent to
manufacture methamphetamine two or more
chemicals, or two or more of the items of equipment
for its manufacture.

Roark explains that certain members of the jury might have convicted him based

on his manufacture of the methamphetamine that was discovered in the bathroom

(the plastic bottles in the bathroom vent which were a one-step methamphetamine

lab and an HCl generator), while other members of the jury might have convicted

him based on his having the chemicals and equipment needed for future

manufacture in the bathroom (such as the funnel, coffee filters, and bag of salt).

Roark argues that the standard, general unanimity instruction the trial court gave

the jury could not cure this error.

The Commonwealth argues that Roark could properly have been

convicted under two alternative theories, explaining under the first theory Roark

could be convicted based on “the fact that he was found in a trailer, with an active

methamphetamine lab, and a bottle connected to the lab which contained

methamphetamine” and under the second theory he could be convicted for

“possessing two items of equipment or chemicals with intent to manufacture

methamphetamine.” The Commonwealth relies almost exclusively on an

unpublished opinion, Marshall v. Commonwealth, No. 2016-SC-000302-MR, 2017

WL 3634482, at *5 (Ky. Aug. 24, 2017) (unpublished), for its assertion that it need

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only establish that there was sufficient evidence to support Roark’s conviction

under either basis provided by the jury instructions.

“Section 7 of the Kentucky Constitution requires a unanimous

verdict[.]” Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978). A unanimous

verdict is also required by statute and rule. Kentucky Revised Statutes (KRS)

29A.280(3); Kentucky Rules of Criminal Procedure (RCr) 9.82(1). “A violation of

this provision may occur in several ways; however it may be stated as a general

principle that a violation occurs when a verdict is returned based upon jury

instructions and verdict forms that provide no assurance that all of the jurors based

their finding of guilt on the same event.” Elam v. Commonwealth, 500 S.W.3d

818, 826 (Ky. 2016).

In Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013), a mother

was convicted of first-degree criminal abuse of her son, but this verdict was

supported by evidence about two different fractures he received at two different

times. The Court “[held] that such a scenario – a general jury verdict based on an

instruction including two or more separate instances of a criminal offense, whether

explicitly stated in the instruction or based on the proof – violates the requirement

of a unanimous verdict.” Id. at 449.

Similarly, in Kingrey v. Commonwealth, 396 S.W.3d 824 (Ky. 2013)

(which was decided alongside Johnson), the Commonwealth presented evidence

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that the defendant committed the crime of use of a minor under the age of 18 in a

sexual performance through certain actions at a party and the separate action of

having the minor model underwear sets. The Commonwealth argued the jury

instructions, which did not require the jury to specify the acts of which it found the

defendant guilty, were proper because

the jury instruction simply allowed the jury to convict
[the defendant] of one crime under two theories, and his
right to a unanimous verdict was not violated because
sufficient evidence existed for a reasonable juror to
believe that [the defendant] committed the crime of use
of a minor under the age of 18 in a sexual performance as
to [the victim] under both factual theories.

Id. at 831.

While the Court acknowledged that “[i]n the past, this Court has

typically analyzed combination instructions like the one here as though they

allowed the jury to find the defendant guilty under either of two theories[,]” and

noted that “[t]he Commonwealth contends that this analysis applies here[,]” the

Court rejected the Commonwealth’s reasoning. Id. at 830-31 (footnote omitted).

The Court explained that “it is not enough that sufficient evidence existed to

support a jury finding that [the defendant] committed both criminal acts” and

determined jury instructions which did not distinguish the acts violated the

defendant’s right to a unanimous verdict. Id. at 831.

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 The Court in Johnson explained the difficulty in understanding this

kind of error, (which has been “referred to as the ‘multiple acts’ error, or . . . the

‘duplicitous instruction’ error[,]” as noted in King v. Commonwealth, 554 S.W.3d

343, 352 (Ky. 2018)), as follows:

The biggest hurdle is in understanding that cases like this
one do not present multiple theories of a crime, but
instead multiple distinct crimes under a single count.
Thus, unlike the case where two theories – such as two
means or mental states – of a single crime are presented
in an instruction, we have an instruction that includes
multiple crimes but directs only one conviction.
Recently, we have been allowing the latter type of
conviction, though not always, saying that different
crimes are simply different theories of a defendant’s
single offense.

But that is like giving directions to a McDonald’s
on the east side of town to half a group of travelers, and
directions to one on the west side of town to the other
half, despite a rule that requires all the travelers to go to
the same restaurant. Both groups arrive at a
McDonald’s, but not all the travelers are in the same
place.

The unanimity requirement mandates that jurors
end up in the same place. When we give the kind of
instruction in this case to juries, they are forced by its
language to appear to end up in the same place in order
to convict. But that appearance is illusory because we
can never know whether the jurors are indeed in the same
place. Such instructions make it possible that some of
the jurors may vote for the first crime, and some may
vote for the second, with all agreeing that the defendant
committed a crime. In other words, all of the jurors end
up convicting (i.e., arriving at a McDonald’s), but some
of the jurors voted for one instance of the offense (i.e.,

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 the east-side McDonald’s) and some voted for the other
(i.e., the west-side McDonald’s). We have no certainty
that twelve people found the defendant guilty of the same
instance of the crime.

Johnson, 405 S.W.3d at 455. See King, 554 S.W.3d at 352 (explaining there is

consensus among many states, which Kentucky had joined, that “juror unanimity

means that jurors must agree upon the specific instance of criminal behavior

committed by the defendant but they need not agree upon his means or method of

committing the act or causing the prohibited result.”).

This problem of the duplicitous instruction error often arises regarding

sexual and similar type crimes where there are multiple criminal acts involving the

same victim which occurred over a lengthy period of time. See, e.g., id. at 351-52;

Gullett v. Commonwealth, 514 S.W.3d 518, 529-30 (Ky. 2017); Ruiz v.

Commonwealth, 471 S.W.3d 675, 679 (Ky. 2015); Martin v. Commonwealth, 456

S.W.3d 1, 6-8 (Ky. 2015). However, as Johnson demonstrates, it is not limited to

this kind of crime.

We are not convinced, based on the overwhelming published

authority, that we should consider, let alone follow, the unpublished opinion of

Marshall, 2017 WL 3634482, at *5, which forms the basis for the

Commonwealth’s denial of there being any jury unanimity problem. Marshall

relied exclusively on Wells, 561 S.W.2d at 88, a Kentucky Supreme Court case

from 1978, for the proposition that “a verdict cannot be successfully attacked upon

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the ground that the jurors could have believed either of the two theories of the case

where both interpretations are supported by the evidence and the proof of either

beyond a reasonable doubt constitutes the same offence” in determining that

because there was evidence of both actual manufacturing of methamphetamine and

possession of two or more pieces of equipment or chemicals with the intent to

manufacture methamphetamine, the verdict was proper. Wells was consistent with

our pre-Johnson/Kingrey jurisprudence which allowed unanimity from reaching

separate McDonald’s restaurants.

Marshall is an outlier and fails to discuss Johnson, Kingrey, or any of

the other substantive published case law on this issue, all of which distinguish

between different theories about how a single operative crime was committed as

compared to allowing the jury to convict for one crime based on two or more

instances of the same type of criminal activity which constituted separate crimes.

Furthermore, Marshall does not appropriately qualify for consideration pursuant to

Kentucky Rules of Civil Procedure (CR) 76.28(4)(c) because there are myriad

published opinions which adequately address the general issue being considered.

Additionally, while there are no published cases discussing whether

the duplicitous instruction error can arise from providing jury instructions which

contain two different statutory methods by which defendants may be convicted for

manufacturing methamphetamine, KRS 218A.1432(1)(a)-(b), two other

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unpublished Kentucky Supreme Court cases follow the same general method of

addressing the problem that a defendant does not receive a unanimous verdict if the

evidence provides two bases for manufacturing: (1) completed methamphetamine

manufacture; and (2) future production of manufacture.4 Therefore, Marshall is

not even consistent with other unpublished methamphetamine manufacturing

cases.

While the Commonwealth speaks of two theories for one crime, it in

fact confirmed that there was evidence to support two different instances of

manufacturing methamphetamine via each statutory option, KRS 218A.1432(1)(a)

and (b). Because the jury did not necessarily agree on which instance of

4
In Anderson v. Commonwealth, No. 2014-SC-000153-MR, 2015 WL 6560442, at *3 (Ky. Oct.
29, 2015) (unpublished), the Court explained there was a duplicitous instruction error as “some
jurors could have believed Appellant was guilty of manufacturing methamphetamine by making
meth at Drury’s on June 30, while other jurors believed Appellant was guilty of manufacturing
methamphetamine only because he possessed at his home on July 1 two or more of the chemicals
or items of equipment needed for making meth.” In Bauer v. Commonwealth, No. 2012-SC-
000241-MR, 2014 WL 4113110, at *4 (Ky. Aug. 21, 2014) (unpublished), the Court explained
that while the appellant’s “possession of the pseudoephedrine and other items with intent to
manufacture merged with the actual manufacture of methamphetamine using those items to
create a single offense of manufacturing methamphetamine” there could still be a “separate,
second instance of the offense when [the defendant] had chemicals and equipment for the
manufacture of methamphetamine in her possession after she and her husband had successfully
manufactured and used the methamphetamine on June 23-24.” The Court concluded that
“[w]hen the indictment includes only one count, as it did here, then the Commonwealth should
elect which instance of the offense to try, and the judge is required to limit the instruction to one
of the offenses.” Id. at *5. These cases both relied on Johnson. We cite these cases not as
authority, but to show that continuing conduct does not appear to serve as an exception which
would prevent the duplicitous instruction error from applying to the two different methods by
which manufacturing of methamphetamine may take place, and to provide contrast with
Marshall.

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manufacturing methamphetamine it based its finding of guilt, its verdict cannot

stand and Roark is entitled to a new trial on the charge of manufacturing

methamphetamine.

To fix the problem of duplicitous instruction on remand, jury

instructions need to be “tailored to reflect the evidence and require a unanimous

verdict regarding a specific factual scenario[.]” Martin, 456 S.W.3d at 8. “[T]he

instructions and verdict forms must be couched in language that eliminates any

ambiguity regarding the jury’s consensus.” Ruiz, 471 S.W.3d at 678. To do this, a

trial court has three options:

(1) the jury instruction can simply identify which of the
particular criminal acts included in the evidence the jury
is asked to consider; (2) the verdict form can identify the
particular act upon which the jury determined guilt; or (3)
a special instruction, as held by some courts, informing
the jury that, in order to convict, all twelve jurors must
agree that the defendant committed the same act.

King, 554 S.W.3d at 353. See Gullett, 514 S.W.3d at 529-30 (providing examples

of how jury instructions could be rephrased with more specificity so to eliminate

the duplicitous instruction error where there were two incidents of both sodomy

and sexual abuse).

Roark’s second argument on appeal is that a palpable error exists

since the jury may have convicted him of possessing the same methamphetamine

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that he was convicted of manufacturing based on the following jury instruction that

did not specify what methamphetamine he was supposed to have possessed:

INSTRUCTION NO. 2

COUNT 2
FIRST-DEGREE POSSESSION OF A
CONTROLLED SUBSTANCE

You will find the Defendant, Steve Roark, guilty of First-
Degree Possession of a Controlled Substance under this
Instruction if, and only if, you believe from the evidence
beyond a reasonable doubt all of the following:

A. That in this county on or about February 25, 2015 and
before the finding of the Indictment herein, he had in
his possession a quantity of Methamphetamine;

AND

B. That he knew the substance so possessed by him was
Methamphetamine, a Schedule II Narcotic Controlled
Substance.

Roark points out that in the bathroom there was a glass vial of clear

liquid with white residue that tested positive for methamphetamine, and in the

bedroom there was a baggie of white powder, but the jury instruction did not

clarify which methamphetamine he was to have possessed.

The Commonwealth argues there was no palpable error as:

It was unmistakable that the methamphetamine in the
bathroom related to the manufacture and the baggie in the
bedroom related to the possession. There was proof of
separate acts upon which to base [Roark’s] convictions

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 for manufacturing methamphetamine and possession of
methamphetamine.

The Commonwealth notes that if there is a double-jeopardy violation, the

appropriate remedy would be for the Court to vacate or reverse the lesser included

charge.

“[A]n appellant’s failure to present a double-jeopardy argument to the

trial court should not result in allowing a conviction that violates double jeopardy

to stand.” Early v. Commonwealth, 470 S.W.3d 729, 737 (Ky. 2015). Therefore,

if we determine that a violation of double jeopardy occurred, this is a palpable

error that requires reversal.

The case of Beaty v. Commonwealth, 125 S.W.3d 196, 213-14 (Ky.

2003), abrogated on other grounds by Geary v. Commonwealth, 490 S.W.3d 354,

358 (Ky. 2016), is instructive on this matter. In Beaty, the Court explained that an

appellant could properly be convicted of both possessing methamphetamine and

manufacturing methamphetamine “if the methamphetamine that he was convicted

of possessing was not the same methamphetamine that he was convicted of

manufacturing[,]” but the Court could not “discern from the jury’s verdict . . .

which quantity of methamphetamine Appellant was convicted of possessing.” Id.

at 213. In Beaty, it was unclear whether the conviction of possession was based

upon methamphetamine in a jar, which had been part of the manufacturing process,

or based on methamphetamine residue found on a piece of burnt aluminum foil, as

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the jury instructions did not require the jury to make a distinction between the two

possible sources for the possession conviction in its verdict; thus, reversal was

required. Id. at 213-14. The Court suggested appropriate additional language

which could be added to the jury instructions to solve this issue. Id. at 213. See

Johnson v. Commonwealth, 134 S.W.3d 563, 568-69 (Ky. 2004) (reversing as

“seed jars” containing methamphetamine residue were part of the manufacturing

process and could not form the basis of a possession conviction on top of the

manufacturing conviction).

We note, additionally, because there were two quantities of

methamphetamine at issue, that this jury instruction is also problematic because it

is a duplicitous instruction. That type of error “violates a defendant’s right to a

unanimous verdict and also touches on the right to due process, is a fundamental

error that is jurisprudentially intolerable” and is thus “palpable[.]” Johnson, 405

S.W.3d at 457. See Ruiz, 471 S.W.3d at 679 (relying on Johnson in its reversal for

an unpreserved error); Martin, 456 S.W.3d at 8-10 (discussing the binding

precedent from Johnson and Kingrey that such an error is palpable resulting in

manifest injustice).

Even if we knew definitively that the jury convicted Roark of the

manufacture of methamphetamine based on Roark’s having the chemicals to

manufacture, we would have a unanimity problem as discussed in Roark’s first

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argument on appeal as we would not know whether all of the jurors convicted him

based on the powdered methamphetamine rather than the liquid methamphetamine.

Therefore, reversal on Roark’s conviction for possession of methamphetamine is

required, and he is entitled to a new trial on this charge.

Finally, Roark argues he was entitled to an instruction on facilitation

to manufacturing methamphetamine as a lesser included offense to manufacturing

methamphetamine. We address this issue as it may recur on retrial. However, we

disagree with Roark that any error occurred in the trial court’s denying his request.

“An instruction on a lesser included offense is required only if,

considering the totality of the evidence, the jury might have a reasonable doubt as

to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable

doubt that he is guilty of the lesser offense.” Houston v. Commonwealth, 975

S.W.2d 925, 929 (Ky. 1998). “The fact that the evidence would support a guilty

verdict on a lesser uncharged offense does not establish that it is a lesser included

offense of the charged offense.” Id.

KRS 505.020(2) states in relevant part as follows:

A defendant may be convicted of an offense that is
included in any offense with which he is formally
charged. An offense is so included when:

(a) It is established by proof of the same or less than all
the facts required to establish the commission of the
offense charged[.]

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 In Houston, in considering whether criminal facilitation could be a

lesser included offense of trafficking in or possession of a controlled substance, the

Court pointed out that the trafficking or possession offense each “require proof that

the defendant, himself, knowingly and unlawfully committed the charged offense”

while “[t]he offense of criminal facilitation requires proof that someone other than

the defendant committed the object offense and the defendant, knowing that such

person was committing or intended to commit that offense, provided that person

with the means or opportunity to do so.” 975 S.W.2d at 930 (emphasis added).

The Court explained that, consequentially, facilitation could not be a lesser

included offense because it required “proof of additional and completely different

facts.” Id.

In Roberts v. Commonwealth, 410 S.W.3d 606, 608-10 (Ky. 2013),

the Court followed Houston in holding that criminal facilitation was not a lesser

included offense of manufacturing methamphetamine, because it likewise required

proof of additional and completely different facts. The Court concluded that

because criminal facilitation was not a lesser included offense of manufacturing

methamphetamine, such an instruction was not required. Id. at 610.

Therefore, the trial court did not err in failing to instruct the jury on

criminal facilitation to commit manufacturing of methamphetamine.

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 Accordingly, we reverse and remand the Knox Circuit Court’s

judgment insofar as Roark is entitled to receive a new trial on the charges of

manufacturing methamphetamine and possession of methamphetamine based on

the unanimous verdict and double-jeopardy issues. As Roark did not challenge his

conviction for tampering with physical evidence, that conviction remains.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Shannon Dupree Andy Beshear
Frankfort, Kentucky Attorney General of Kentucky
(former)

Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky

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