A Kentucky Court of Appeals has upheld two jury trial convictions that were appealed from Clinton Circuit Court, one involving charges of manufacturing methamphetamine and another involving theft by unlawful taking. A three-panel appeals court was unanimous in each decision, with both being rendered last Friday, July 20.

One case involved a methamphetamine conviction that began in the spring of 2010 when a Clinton County Grand Jury indicted Kenneth J. Neal with manufacturing meth, possession of a meth precursor, possession of marijuana and drug paraphernalia.

The charges arose from events that began March 11, 2012 when Officer Travis Neal of the Kentucky Department of Fish and Wildlife Resources observed a car parked near the ramp at Carter’s Dock Landing in Wayne County. As the officer pulled up to the car, it sped away. The officer pursued the vehicle into Clinton County and came upon the vehicle crashed into an embankment. The driver, Neal, attempted to flee but became entangled in a barb-wire fence. Officer Neal then caught up to him and placed him under arrest.

From that point, then Deputy Sheriff James Guffey and another officer took over the investigation and discovered the vehicle wasn’t registered to Neal, who stated he had either borrowed or bought it. However, he did give a consent to search the car.

Upon searching the car, several items found inside was consistent with the manufacture of methamphetamine.

According to the six-page ruling upholding Neal’s conviction, KSP Detective Scott Hammond testified at trial that the items found were consistent with the one-step method of manufacturing meth, although no actual meth was found at the scene.

In his own defense, Neal admitted the marijuana and rolling papers were his, but stated the car that he had stolen from a family friend was sitting in an empty field and denied any knowledge of the items in the front seat or in the trunk.

The defendant moved for a directed verdict at the close of the Commonwealth’s case and at the close of his trial, with both motions being denied by Circuit Judge Eddie C. Lovelace.

The jury found Neal guilty of manufacturing methamphetamine, possession of marijuana and possession of drug paraphernalia and fixed his sentence at 18 years. The court also denied the defendant’s motion for a new trial and imposed the jury sentence.

Neal argued in his appeal he was entitled to a directed verdict, but the appeals court judge who wrote the opinion cited case law stating, “On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.”

Neal also contended the Commonwealth failed to prove the elements set for in a KRS to find him guilty of manufacturing methamphetamine, arguing he could not have knowingly possessed the chemicals and equipment because he had stolen the car, but the court wrote, “However, knowledge can be inferred from circumstantial evidence, including control over the location in which the items were found…and the jury could also infer Neal’s knowledge of the items based on his flight from law enforcement.”

Second, he argued the Commonwealth failed to provide that he intended to manufacture meth because police did not find all the chemicals and equipment required to manufacture it. However, the trial court instructed the jury that under KRS 218A.1432(1)(b), which requires proof that a person knowingly and unlawfully, “(w)ith intent to manufacture…possesses two or more chemicals or items of equipment to manufacture meth.”

The court wrote, “The police found considerably more than two chemicals and two items of equipment necessary for the manufacture of methamphetamine.”

The decision to uphold the lower court’s conviction was unanimous among the three-judge panel.

Another appeal from the Clinton Circuit Court was also upheld, involving a conviction of theft by unlawful taking over $500, in the case of Commonwealth vs. Joey Rhule.

In that case the Commonwealth alleged the charges were a result of attempted insurance fraud on the behalf of the defendant.

In the appeals court decision upholding the conviction, it noted the circumstances began in July of 2007 then Rhule purchased a new Ford New Holland tractor, but the following summer, defaulted on his payments to the financing company, which hired an agent to repossess the tractor. However, when the agent attempted to take possession, the Appellant (Rhule) claimed the tractor had been stolen and the local sheriff’s department filed such a report in October of 2008 with the defendant insurance carrier subsequently paying proceeds of $16,575 to the finance company for the remaining balance of the purchase.

Several months later, Michael Craig observed the tractor at the home of his cousin, Joey Craig, a co-defendant in the case, and unaware that his cousin was not the rightful owner, bought the tractor and stored it at his mother’s, (Dean Craig) home.

In February of 2010, she noticed a pickup truck repeatedly driving by her home and when she returned from running an errand, noticed the tractor was gone and reported such to police. Meanwhile, several witnesses, including a police officer, observed the defendant driving a red truck with the lettering “Rhule Farms” and pulling a New Holland tractor. When police officers located Rhule, the lettering had been removed and he (defendant) eventually took police to another property where the tractor was located, claiming the tractor was once stolen from him and he had gone to retrieve it after seeing it parked at the Craig home.

In March, a Clinton County Grand Jury indicted the defendant for theft by unlawful taking over $10,000 and following a jury trial in June 2011, the defendant was convicted of theft by unlawful taking over $500 with a one-year sentence imposed.

The defendant first argued he was entitled to a directed verdict because the Commonwealth did not prove the market value of the tractor at the time of its alleged theft from the Craig home in 2011 and also contended Commonwealth failed to establish the worth was over $500 at the time the tractor was taken in 2011.

The appeals court disagreed with that argument, citing various preceding court rulings.

The defendant was initially indicted for theft of property over $10,000. However, at the conclusion of the Commonwealth’s case, Rhule, through his attorney, moved for a directed verdict, arguing that the value of the tractor on the date of the February 2011 theft from Craig had not been proven. The trial court denied the motion, but did rule the Commonwealth had not presented evidence that the tractor was worth $10,000, thus the prosecution amended the indictment to conform to the proof and the jury was instructed on theft by unlawful taking over $500.

The appeals court also rejected the appellant claim that he was entitled to a directed verdict because he should have been charged under KRS 514.050 rather than 514.030, the latter which states a person is guilty of theft by unlawful taking or disposition when he unlawfully: (a) Takes or exercises control over moveable property of another with intent to deprive him thereof; or (b) Obtains moveable property of another or any interest therein with intent to benefit himself or another not entitled thereto.

The court wrote, “The Commonwealth’s general theory at trial was that the entire series of events beginning with the tractor’s disappearance in 2008 was orchestrated by Rhule, with help from Joey Craig, to defraud the insurance company. In support thereof, the Commonwealth presented evidence that the tractor disappeared only after Rhule learned that it was going to be repossessed, and the ensuring insurance claim released the defendant from a debt that he had defaulted on. Thereafter, appellant unlawfully entered the (Dean) Craig property and took possession of a tractor that no longer belonged to him.

The court further wrote, “…we conclude that viewing the evidence in the light most favorable to the Commonwealth, appellant’s actions of taking the tractor and hiding it on another piece of property, as well as his attempt to alter the appearance of his truck after doing so, support the charged offense under KRS 415.030.”

Finally, the appellant claimed the Commonwealth engaged in prosecutorial misconduct during closing argument, specifically by commenting that Michael Craig suffered severe economic loss as a result of both defendant’s actions, claiming it prejudiced the jury against him.

The appeals court again disagreed, stating, “Kentucky courts have consistently held that opening and closing arguments are not evidence and prosecutors are afforded wide latitude during both. In fact, “to justify reversal, the misconduct of the prosecutor must be so serious as to render the entire trial fundamentally unfair.’”

(Michael) Craig had testified at trial and the jury was aware that he lost several thousand dollars as a result of the criminal actions of the appellant and co-defendant. As such, the court wrote, “we cannot conclude that the prosecutor’s reference to Michael’s economic loss rendered the trial fundamentally unfair.”

Also in this case, the majority of the three-judge panel voted to uphold the lower court conclusion.