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Ray v. Commonwealth3/28/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Mark Anthony Ray appeals a judgment from the Knox Circuit Court convicting him of trafficking in marijuana over five pounds while in possession of a firearm and other, misdemeanor charges and sentencing him to fifteen years in prison. We affirm.
On June 5, 1999, while on patrol, Trooper Jason O'Bannon of the Kentucky State Police responded to a complaint regarding a possible DUI suspect in a white vehicle with North Carolina temporary tags. At around 6:15 p.m., Trooper O'Bannon located the vehicle on Highway 25E around Bailey's Switch in Knox County. After the trooper observed the vehicle cross over the center line, he initiated a traffic stop. At the time the trooper turned on his blue lights, the video was triggered so the entire stop was preserved on videotape. The trooper placed Appellant under arrest after Appellant failed all the field sobriety tests. The trooper also arrested the passenger in Appellant's car. The trooper conducted a pat down search of Appellant and found several tablets of suspected Xanax in appellant's pocket.
After the trooper placed Appellant in the police car, he and a deputy sheriff conducted a search of Appellant's vehicle. They discovered several bricks of marijuana weighing 11 pounds in a black plastic bag in the back seat of the car. Under the plastic bag in the back seat, they found six rifles. The trooper could not remember whether the rifles were loaded or not. The rifles did not belong to Appellant, and they were returned to their rightful owner prior to the trial.
Appellant did not testify at trial. At the close of the Commonwealth's case, Appellant made a motion for directed verdict on the basis of insufficient evidence that Appellant was in possession of any guns at the time the trooper pulled him over. Moreover, Appellant argued that if there was any evidence of the guns, there was not any evidence that the guns were workable. Finding the video and the testimony of the officer enough to take the possession of firearms charge to the jury, the trial court denied the motion.
A jury found Appellant guilty on the charge of trafficking in marijuana over 5 pounds (KRS 218A.1421), possession of a controlled substance third degree (KRS 218A.1417), and operating a motor vehicle while under the influence of intoxicants (KRS 189A.010). Additionally, the jury found Appellant guilty of being in possession of a firearm at the time of the commission of these offenses which subjected him to an enhanced penalty pursuant to KRS 218A.992.
Appellant presents three arguments on appeal. First, Appellant argues that the Commonwealth produced insufficient evidence to convict Appellant of trafficking in marijuana over five pounds while in possession of a firearm when the weapons found were unloaded rifles, and the officers found no ammunition on Appellant, his passenger or in the car. Second, Appellant argues that the trial court erred in failing to instruct the jury that under KRS 218A.992, more than mere possession of a firearm is necessary for enhancing the offense. Finally, Appellant argues that the trial court erred in failing to sustain Appellant's objection to improper argument during the sentencing phase after the prosecutor asked the jury to consider that Appellant had exercised his right to a trial in imposing the maximum sentence on Appellant. Because we find that Appellant did not properly preserve the first two issues for appeal and we find that the trial court did not err in overruling Appellant's objection to the Commonwealth's argument in the sentencing phase, we affirm.
Before we can reach the merits of Appellant's claims, we must find that
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