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[W] Kotila v. Commonwealth12/19/2002
als and equipment found in the vehicle to make methamphetamine, all of which will be inadmissible during the retrial.
V.
Next, we address Appellant's argument that evidence of possession of the handgun should not have been admitted during the guilt phase of the trial, but rather should have been reserved for the sentencing phase. KRS 218A.992 reads:
(1) Other provisions of the law notwithstanding, any person who is convicted of any violation of this chapter who was at the time of the commission of the offense in possession of a firearm, shall:
(a) Be penalized one (1) class more severely than provided in the penalty provision pertaining to that offense if it is a felony....
As Appellant's sentence was enhanced by the jury's finding that he possessed a firearm, Appellant alleges that it was prejudicial error to allow evidence related only to sentencing, during the guilt phase. The Court of Appeals in Adams v. Commonwealth, Ky. App., 931 S.W.2d 465, 468, (1996), explained,
The possession of a firearm... is not an element necessary to determine guilt of the substantive offense. Consequently, KRS 218A.992 is nothing more than a sentencing statute reflecting the dangerous nature of a crime perpetrated by an armed criminal . In this respect, the statute is somewhat analogous to both... the DUI and PFO statutes.
We agree that possession of a firearm was not an element of the charged crime, manufacturing methamphetamine. Likewise, we recognize the similarity between the firearm enhancement statute and other enhancement statutes insofar as they are merely sentencing factors. However, DUI and PFO enhancers are readily distinguished from firearm possession, especially in the case before us. DUI and PFO are not issues of fact to be decided by a jury. That is, either the convicted defendant has, for example, committed a prior felony or he has not. It is up to the jury to decide only whether a prior offense warrants more prison time. In the present case, however, firearm possession had to be determined by the jury on the evidence presented at trial.
It was very possible that the jury could have found no firearm possession, in which case there would be no enhancement issue for the sentencing phase. And if the issue had been reserved for the sentencing phase, virtually all of the witnesses from the guilt phase would have had to return for additional testimony about the handgun. As to the DUI and PFO enhancers, Appellant has taken the language of Adams out of context.
Adams appears to emphasize the fact that these enhancers are not elements whose proof is required for a finding of guilt on the substantive offense. And while firearm possession is merely a consideration for the enhancement of the penalty, it is still an issue of fact that must be determined by a jury.
Because the question of firearm possession had to be decided by a jury, it was correctly addressed during the guilt phase of the trial. Any prejudice was outweighed by the probative value of the evidence, and Appellant had ample opportunity to emphasize the fact that Appellant owned neither the gun nor the vehicle in which it was found.
Furthermore, the Commonwealth should find it more difficult to prove the firearm enhancement on remand. And as already noted, the Commonwealth will not be able to present testimony that Appellant had used the gun for target practice prior to his arrest, for those statements fall within the evidence to be suppressed in future proceedings. Appellant argues that the trial court erred in refusing to declare KRS 218A. 1432(1)(b) unconstitutional. Appellant contends that the statute is void for vag
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