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RENDERED : MAY 24, 2007
NOT TO BE PUBLISHED
~suyrrnw Courf of
2005-SC-000883-MR
2005-SC-000952-TG [Dacr
RICKY FULCHER APPELLANT
APPEAL FROM LOGAN CIRCUIT COURT
HON . TYLER L. GILL, JUDGE
V NO . 01-CR-00179 & 01-CR-00157
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
Affirming
Appellant, Ricky Lee Fulcher, was granted a retrial by this Court in Fulcher
v. Commonwealth , 149 S.W.3d 363 (Ky. 2004). At retrial, Appellant was
convicted of complicity to manufacture methamphetamine, manufacturing
methamphetamine, possession of anhydrous ammonia in an improper container
with intent to manufacture methamphetamine, and possession of drug
paraphernalia, second offense . For these crimes, and the crime which was
affirmed previously by this Court in Fulcher, supra, Appellant was sentenced to a
total of forty-nine years' imprisonment . Appellant now appeals to this Court as a
matter of right. Ky. Const . § 110(2)(b) . For the reasons set forth herein, we
affirm Appellant's convictions upon retrial .
Our previous opinion summarized the facts in this case as follows:
A. Indictment No. 01-CR-157.
On July 24, 2001, an unidentified caller reported to the Russellville
Police Department that two Caucasian males had robbed a boy and
fired a weapon at him in the vicinity of Cave Springs Road in Logan
County, Kentucky. Law enforcement units from the Kentucky State
Police, the Logan County Sheriff's Office, and the Auburn Police
Department began searching for the two men. While driving down
Gasper River Road, some of the officers passed Appellant's
residence and noticed a number of people standing in the yard, all
of whom, upon observing the marked police vehicles, immediately
ran into the woods behind the residence . While giving chase, the
officers noticed two marijuana plants growing in Appellant's back
yard and the scent of ammonia emanating from an open window in
the residence . Unable to obtain a response to knocks on the door
of the residence, the officers sought and obtained a search warrant
for the residence and surrounding property .
While the officers were awaiting arrival of the search warrant,
Appellant emerged from the residence claiming to have been
asleep. The officers ordered him to remain outside until after the
warrant was executed. One of the persons who had run into the
woods, David Harrison, was apprehended but not charged. Six
others, C.J. Anderson, Johnnie Finn, Kandi Finn, Andrea Freeman,
Jody Cherry, and Matthew Jones, voluntarily returned to the
residence and were subsequently arrested .
The July 24, 2001, search of Appellant's property was conducted by
four Kentucky State Police officers . Outside Appellant's residence
they found (1) the two marijuana plants ; (2) two plastic containers
containing "pill dough ;" [(3)] a "burn pile" containing [] several empty
punctured Prestone starting fluid cans (the ether is removed by
puncturing the bottom of the can), (4) several empty Coleman Fuel
cans ; (5) two boxes filled with used coffee filters; (6) a glass
container containing used coffee filters and three layers of liquid
attached by plastic tubing to a sealed ketchup bottle which was
"cooking" the liquid in the glass container, i .e ., gas was then
passing from the ketchup bottle through the plastic tubing into the
glass container causing the liquid contents of the container to
bubble; and (7) an altered propane tank fitted with a copper valve
that had turned a bluish-green color (often caused by a chemical
reaction with anhydrous ammonia) and containing a small amount
of liquid that field-tested positive for anhydrous ammonia. After
field-testing the contents of the propane tank, the officers disabled
the tank from future use by puncturing it with bullet holes . The
officers concluded that the ketchup bottle attached to the bubbling
2
glass jar was a hydrogen chloride "generator" that was "cooking"
the coffee filters in the jar in order to extract the methamphetamine
residue remaining from an earlier filtering process . The three layers
in the bubbling jar consisted of a powdery substance at the bottom,
a salty liquid substance in the middle, and a clear substance at the
top. The contents of all three layers subsequently tested positive for
methamphetamine .
Inside the residence, the officers found (1) a bottle of denatured
alcohol on the bar in the living room and (2) an aluminum foil "boat,"
a device commonly used in smoking methamphetamine, in the
bedroom . The "boat" contained burn marks (the methamphetamine
is placed on the "boat," which is then heated so that the fumes can
be inhaled) . In the kitchen, the officers found (3) two funnels and (4)
a Mason jar, as well as [(5)] cans of [] Liquid Fire and (6) Coleman
Fuel, and (7) a glass jar in the refrigerator containing ether. They
also found what they believed to be (8) a bowl of liquid anhydrous
ammonia in the deep freeze[r] . The odor emanating from this bowl
was the odor that had first attracted their attention and prompted
them to obtain the search warrant. The officers diluted the
substance in the bowl and poured it onto the ground without testing
it.
Following the search, Appellant was arrested and charged with
manufacturing methamphetamine, possession of anhydrous
ammonia in an unapproved container with intent to manufacture
methamphetamine, possession of drug paraphernalia, and
possession of marijuana . He posted bond and was released .
B. Indictment No. 01-CR-179 .
On August 1, 2001, Jody Cherry, one of the persons arrested on
Appellant's property on July 24, 2001, signed a criminal complaint
accusing Appellant of twice threatening to kill him . On August 3,
2001, Captain Wallace Whitaker and Deputy Steve Stratton of the
Logan County Sheriff's Office proceeded to Appellant's residence to
serve him with arrest warrants for terroristic threatening . Upon their
arrival, they saw the same altered propane tank that the state
police officers had disabled on July 24, 2001 . They also detected a
strong odor that Stratton believed was "ammonia or ether." Based
on the presence of this odor and the altered propane tank, the
officers obtained a warrant to search Appellant's residence and
property.
During the search inside the residence, the officers discovered (1)
two plastic containers with powder in the bottom that were still
3
smoking, and two empty plastic liquid dishwasher bottles that had
been fitted with tubing and that were still emanating gas . Stratton
opined that these items had recently been used as homemade
generators to separate methamphetamine from ether during the
last stage of the manufacturing process. They also found (2) a
rubber hose; (3) salt ; and (4) a glass jar containing fluid that later
tested positive for the presence of methamphetamine; as well as
(5) rolling papers ; (6) a piece of burnt aluminum foil ; (7) a Berez
torch that could be used to heat the foil for smoking
methamphetamine or to cook the denatured alcohol off of the
powdered ephedrine or pseudoephedrine; and (8) pipes and
syringes with burn residue . In addition, they found (9) a glass jar
containing a liquid substance that was emanating an odor that
Stratton identified as the odor of anhydrous ammonia, as opposed
to, e .g., diluted (aqueous) household ammonia. He also testified
that anhydrous ammonia is a hazardous material and that law
enforcement procedures in place at that time prohibited its storage
or transport to a laboratory. Because the sheriff's office did not
possess equipment to field-test the substance, Stratton diluted it
with water and poured it onto the ground .
Outside the residence, the officers located a burn pile containing (1)
punctured Prestone starting fluid cans and (2) rubber hose . Under
the hood of a junked car, they located (3) a bag full of lithium strips .
Based on these findings, they charged Appellant with
manufacturing methamphetamine, possession of anhydrous
ammonia in an unapproved container with intent to manufacture
methamphetamine, and possession of drug paraphernalia .
Fulcher, 149 S.W.3d at 367-371 . Other facts will be developed as necessary in
the opinion .
Based on the evidence, Appellant was convicted of several drug-related
crimes, a portion of which were overturned in Fulcher , supra . At retrial, Appellant
was once again convicted of several drug-related crimes, which he appeals once
again as a matter of right to this Court. For the reasons set forth herein, we
affirm.
In his first assignment of error, Appellant claims there was not probable
cause to support the search warrant issued on August 3, 2001 .' Pursuant to that
search warrant, police recovered several incriminating items which were used
against Appellant in relation to the crimes set forth in Indictment No. 01-CR-179 .
"A magistrate's determination of probable cause is entitled to 'great
deference' and should be upheld so long as the magistrate had a 'substantial
basis for concluding that a search would uncover evidence of wrongdoing ."'
Ragland v. Commonwealth , 191 S .W.3d 569, 583 (Ky . 2006) (quoting Illinois v.
Gates , 462 U .S. 213, 236,103 S .Ct. 2317, 2331, 76 L.Ed .2d 527 (1983)) . In this
case, the search warrant was supported by an affidavit from Deputy Stratton who
stated that he and his partner: (1) observed an altered propane tank in
Appellant's front yard ; (2) smelled a strong odor of ether coming from inside
Appellant's home ; and (3) observed through an open doorway several mason
jars sitting on a kitchen counter with one jar containing a clear liquid .
Appellant complains that these facts do not form a substantial basis for
probable cause because : (1) Deputy Stratton's mention of the propane tank was
misleading since it was left over from the search conducted on July 24, 2001 ;
and (2) it is not illegal to possess ether or mason jars containing clear liquid. We
agree that Deputy Stratton's mention of the propane tank in his affidavit could
have been misleading since he failed to explain that the tank was observed and
disabled at the July 24, 2001 search . However, the trial court made a specific
finding that there was no bad faith on the part of Deputy Stratton when he
' Appellant does not challenge the search warrant issued on July 24, 2001 .
5
completed his affidavit. See Commonwealth v. Smith, 898 S.W.2d 496, 503 (Ky .
App. 1995) ("To attack a facially sufficient affidavit, it must be shown that (1) the
affidavit contains intentionally or recklessly false statements, and (2) the affidavit,
purged of its falsities, would not be sufficient to support a finding of probable
cause.") . Although Deputy Stratton's affidavit should have been more accurate
and clear, we nonetheless find evidentiary value in the propane tank's presence
on Appellant's property since it shows that Appellant possessed other items,
besides the ether, that were strongly associated with the manufacture of
methamphetamine .
In any event, even if the propane tank is completely discounted, the
remaining facts supporting Deputy Stratton's affidavit are sufficient, in and of
themselves, to form a substantial basis for probable cause. See id . While it is
not illegal to possess ether, it is simply not a chemical that is typically emanating
from or found in most residential households . Moreover, ether is widely known to
be a key ingredient in methamphetamine manufacture. When this extremely
incriminating fact is coupled with the officer's observation of other items known to
be associated with methamphetamine manufacture, i .e . several mason jars on a
kitchen counter with one containing clear liquid, we find that a "substantial basis"
did exist, even without consideration of the altered propane tank, to support the
warrant issued on August 3, 2001 .3
2
Deputy Stratton testified that at the time he completed the affidavit used to
obtain the August 3, 2001 search warrant, he did not realize that the propane
tank in the front yard was the same tank that was observed and disabled at the
July 24, 2001 search .
3 Appellant argues in the alternative that he is entitled to a new suppression
hearing because the trial court applied the incorrect standard of review in
upholding the August 3, 2001, search warrant. Even if the trial court did apply
6
Appellant next argues that since the jury was instructed on complicity, the
trial court erred in refusing to also instruct on the lesser included offense of
facilitation . Based on the evidence presented to the jury, Appellant claims that
"a reasonable juror could entertain reasonable doubt of [Appellant's] guilt of the
greater charge, but believe beyond a reasonable doubt that [Appellant was] guilty
of the lesser offense ." White v. Commonwealth , 178 S.W.3d 470, 490 (Ky.
2005). The Commonwealth counters that pursuant to the reasoning set forth in
White, supra, a facilitation instruction was not warranted in this case. For the
reasons set forth herein, we agree with the Commonwealth that the evidence did
not support a facilitation instruction .
The White Court reiterated that a facilitation instruction is not required in
every case where a defendant is charged with complicity. Id. In White, we held
that the evidence did not support a facilitation instruction . Id . In so holding, we
explained :
Appellant's theory would require the jury to split the difference
between his testimony and that of [the Commonwealth's witnesses]
to find the existence of a mental state for which there was no
affirmative evidence . Such an approach would require that a
facilitation instruction be given in every case where the defendant is
charged with complicity. But such an approach is improper and a
lesser-included offense instruction is available only when supported
by the evidence. The evidence presented at trial supported only two
theories : that Appellant was an active participant in planning the
crime and intended that it be carried out, or that he was an innocent
bystander who happened to be present when some of the
instruments used in the crime were acquired . There was no
evidence of a middle-ground violation of the facilitation statute .
the wrong standard, it is of no consequence since "[t]he issue of probable cause
is one of law and appellate courts may review the sufficiency of the information
before the magistrate independent of the trial court's determination ."
Commonwealth v . Smith, 898 S.W.2d 496, 504 n.2 (Ky. App. 1995) .
4 Appellant notes that facilitation was instructed upon in the first trial.
7
Id. at 490-491 (internal quotations and citations omitted) .
This case is similar to White in that there were only two theories of the
case presented at trial. The Commonwealth's theory was that Appellant was
either a principal or an accomplice to manufacturing methamphetamine, and its
case consisted of physical evidence of active methamphetamine manufacture on
Appellant's property and a witness who testified that she saw Appellant making
and selling methamphetamine on his premises. Appellant's case consisted of
testimony from himself and other witnesses, totally disclaiming any knowledge
whatsoever of the crime and suggesting that other people tried to "set Appellant
up" by manufacturing the drug at his premises during times when Appellant was
either sleeping or in jail .
Appellant argues that while "a middle-ground violation of the facilitation
statute" was totally inconsistent with his defense at trial, the jury could have
discounted the testimony of all the witnesses and inferred from the physical
evidence alone that while Appellant knew that other people were manufacturing
methamphetamine on his property, he was "wholly indifferent" to the actual
completion of the crime . This argument, of course, is without merit for the
reasons set forth in Thompkins v. Commonwealth , 54 S.W .3d 147, 150 (Ky.
2001).
In Thompkins , the defendant was observed meeting another co-defendant
at a Holiday inn, receiving a suitcase from that co-defendant, and driving to
another residence where the defendant and others inspected the contents, which
happened to be cocaine . Thereafter, the cocaine was removed from the suitcase
and placed in a grocery bag on the floorboard of defendant's vehicle . The
defendant then transported prospective buyers of the cocaine in the vehicle prior
to the vehicle being stopped by police . Id. at 151 . The Thompkins defendant
argued that the jury could reasonably infer from these undisputed facts that while
he knew about the cocaine and the trafficking that was about to occur, he was
"without the intent that the crime be committed ." Id. In writing for the Thompkins
Court, Justice Cooper rejected this argument, holding as follows :
Appellant's tendered facilitation instruction embodied a theory that
Appellant knew [his co-defendants] were engaged in a drug
transaction, but that he was transporting these two strangers from
California to the location of their intended drug deal out of the
goodness of his heart, wholly indifferent to the actual completion of
the crime, i .e., without the intent that the crime be committed .
Nothing in the evidence supports such a theory . If Appellant was
not involved in the drug transaction or did not intend for [his co-
defendants] to consummate it, why were they and the cocaine in
his vehicle instead of in [another co-defendant's] vehicle? The duty
to instruct on any lesser included offenses supported by the
evidence does not require an instruction on a theory with no
evidentiary foundation . The jury is required to decide a criminal
case on the evidence as presented or reasonably deducible there
from, not on imaginary scenarios. Appellant was not entitled to a
facilitation instruction in this case .
Id . (internal citation omitted) .
Likewise, based on the evidence presented to the jury, it is simply not
plausible or reasonably deducible from the evidence that Appellant would have
knowingly allowed methamphetamine to be manufactured at his house "out of the
goodness of his heart, wholly indifferent to the actual completion of the crime ."
Id. Since this case lacks any affirmative defense claiming otherwise or some
rational evidentiary foundation supporting such a theory, Appellant was not
entitled to a facilitation instruction in this case . See Smith v. Commonwealth , 722
S .W.2d 892, 896-897 (Ky. 1987) (where defendant admitted being at the scene
of the crime but disclaimed any knowledge of his companion's intention to
9
commit rape and murder, defendant was not entitled to a facilitation instruction) ;
Neal v. Commonwealth, 95 S .W.3d 843, 851 (Ky. 2003) (facilitation instruction
not warranted where defendant "failed to offer any credible evidence that would
allow the inference that he knowingly assisted the robbery and murder but was
indifferent to its success") . Cf. Webb v. Commonwealth , 904 S.W.2d 226 (Ky.
1995) (defendant entitled to a facilitation instruction because his affirmative
testimony supported such a theory) .
Appellant next alleges it was error to admit testimony from a
Commonwealth's witness who testified that the weekend prior to Appellant's first
arrest in this case, she was at Appellant's residence . While there, she saw
people leave Appellant's residence with the "product" and then return a short
time later with "big bills" which were handed over to Appellant . While Appellant
acknowledges that "evidence of sales of methamphetamine might tend to prove a
motive to manufacture it," see KRE 404(b)(1), he claims the testimony was not
credible and thus, its prejudicial effect outweighed its probative value . We
disagree .
"A trial judge's decision with respect to relevancy of evidence under KRE
401 and 403 is reviewed under an abuse of discretion standard ." Love v.
Commonwealth , 55 S.W .3d 816, 822 (Ky. 2001). In this case, the testimony was
clearly probative since it tended to: (1) provide a motive ; and (2) disprove
Appellant's defense that he was "framed." Moreover, it is well-established that
questions of credibility are reserved for the jury's consideration . Commonwealth
v. Benham, 816 S .W .2d 186, 187 (Ky. 1991) . In view of the totality of these
circumstances, the trial court did not abuse its discretion when it admitted the
testimony.
In his final assignments of error, Appellant claims he was entitled to
directed verdicts on the charges of complicity to manufacture methamphetamine
on July 24, 2001, manufacturing methamphetamine on August 3, 2001, and
possessing anhydrous ammonia in an improper container with intent to
manufacture methamphetamine on August 3, 2001 . However, these claims were
not preserved since Appellant failed to renew his motion for a directed verdict at
the close of the entire case . See Baker v. Commonwealth , 973 S.W .2d 54, 55
(Ky . 1998) (" a 'motion for a directed verdict made at the close of the plaintiff's . . .
case is not sufficient to preserve error unless renewed at the close of all the
evidence"') (quoting Kimbrough v. Commonwealth , 550 S.W.2d 525, 529 (Ky.
1977)) . And in any event, Appellant's arguments are without merit; the
Commonwealth produced sufficient evidence to withstand directed verdict
motions on all of the above charges.
The jury instructions regarding the charge of complicity to manufacture
methamphetamine on July 24, 2001, required the jury to find beyond a
reasonable doubt the following:
Other persons manufactured methamphetamine in or around the
residence of [Appellant] and that [Appellant], with the intention of
promoting or facilitating the manufacture of that methamphetamine,
commanded or engaged in a conspiracy with such other persons to
manufacture that methamphetamine or aided or counseled such
other persons in manufacturing that methamphetamine .
A directed verdict shall not be granted "[i]f the evidence is sufficient to
induce a reasonable juror to believe beyond a reasonable doubt that the
defendant is guilty . . . ." Commonwealth v. Benham , 816 S.W.2d 186, 187 (Ky.
11
1991) . Appellant alleges that he was asleep inside the residence at the time an
"active cook" was discovered approximately fifty (50) feet from his house . He
concludes that since he was asleep, he could not have had knowledge that
methamphetamine was being manufactured on his property that night. He
contends that his claim is further proved by the fact that he did not destroy any of
the incriminating evidence eventually discovered inside the house prior to the
police knocking on his door and obtaining a search warrant. Based on these
inferences, Appellant argues that a reasonable juror could not have believed that
he was complicit in the manufacture of methamphetamine on July 24, 2001 . We
find Appellant's argument to be without merit.
The Commonwealth submitted more than enough evidence for a
reasonable juror to infer that Appellant was complicit in the manufacture of
methamphetamine on the night of July 24, 2001 . The fact that Appellant might
have been asleep during a portion of the manufacturing process or that he did
not destroy evidence prior to the search of his residence does not render the
Commonwealth's case insufficient or entitle him to a directed verdict .
Regarding the charge of manufacturing methamphetamine on August 3,
2001, Appellant contends that his claim of being set up was dispositively proved
by the following facts and inferences : (1) it is simply not plausible that Appellant
would invite officers into his home if he was in the process of making
methamphetamine at the moment the officers knocked on the door; (2) police
transported Appellant to jail and left the home unsecured with others still present
inside the residence for approximately two hours prior to their actual search of
the home; and (3) since gas generators were still "smoking" at the time police
12
searched the home, it must be inferred that the manufacturing process took place
immediately prior to the officer's search when Appellant was absent and in jail.
We disagree that these facts and inferences are dispositive or that it was
unreasonable for the jury to find Appellant guilty of manufacturing
methamphetamine on August 3, 2001 . Appellant's argument does nothing more
than challenge the weight and credibility of the evidence presented by the
Commonwealth, and of course, such questions are ultimately reserved for the
jury. Benham , 816 S.W.2d at 187 . Appellant was not entitled to a directed
verdict on the charge of manufacturing methamphetamine on August 3, 2001 .
Finally, Appellant claims he was entitled to a directed verdict on the
charge of possessing anhydrous ammonia in an improper container with intent to
manufacture methamphetamine on August 3, 2001 . A search of Appellant's
home on that date produced a glass jar filled with a substance which police
testified was anhydrous ammonia . Deputy Stratton and Deputy Bibb testified that
their experience enabled them to identify the substance based on smell alone .
Deputy Stratton explained that the substance was discarded at the scene without
field-testing or the taking of a sample for inspection by a laboratory because he
believed that such tests were unavailable .5
5 Of course, as noted by Appellant, this assumption is at least partially incorrect
since police were able to field-test the contents of the propane tank discovered
on July 24, 2001 and send a sample of the tank's contents to Kentucky State
Police for laboratory analysis . The' laboratory analysis was able to confirm that
the substance in the tank was ammonia, but it could not confirm whether the
ammonia was household or anhydrous .
13
Appellant complains that police opinion regarding the identity of the
substance found in Appellant's house based on smell alone6 is not sufficient to
support a jury finding that Appellant possessed anhydrous ammonia . He argues
that in order for the evidence to be sufficient to support such a finding, police in
this case should have been required to verify the substance's identity through
either: (1) field-testing ; or (2) laboratory testing. Appellant's complaints may be
valid, but are not sufficient to render the Commonwealth's evidence insufficient .
As explained above, his complaints address the weight and credibility of the
Commonwealth's evidence and thus, are reserved for the jury. Id.
For the reasons set forth herein, the judgments and sentences of the
Logan Circuit Court are affirmed .
All sitting. All concur .
6 Appellant does not challenge, and therefore, we do not address, the
admissibility of this testimony. Rather, the only issue before us is whether the
testimony was sufficient to support a finding that Appellant possessed anhydrous
ammonia .
14
ATTORNEY FOR APPELLANT
Emily Holt Rhorer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
ATTORNEY FOR APPELLEE
Gregory D . Stumbo
Attorney General
George G. Seelig
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601