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Major v. Commonwealth4/30/2004
AFFIRMING
Billy Jack Major brings this appeal from an April 7, 2003, judgment of the Fayette Circuit Court imposing a prison sentence. We affirm.
The facts are these: On September 13, 2002, Lexington Police Officer Tony Risen observed a vehicle swerving upon the road. Officer Risen's pursuit of the vehicle ended in what turned out to be appellant's driveway. Officer Risen had noticed two passengers in the vehicle, and upon arrival to appellant's driveway he observed both the driver and passenger doors open and appellant walking from the driver's side to the front of the vehicle. Officer Risen conducted a short interview of Eric Blake, the other passenger, who was exiting the passenger side of the vehicle when Officer Risen arrived. After interviewing Blake, he proceeded to speak with appellant. At this time he determined appellant was intoxicated, based on appellant's smell of alcohol, slurred speech, and unsteady behavior. Appellant admitted driving the vehicle. Upon asking for identification, appellant gave Officer Risen a Kentucky Identification Card (appellant's license was previously suspended for DUI) but failed to provide registration and proof of insurance. At this time, appellant changed his story and told Officer Risen he had not been driving the vehicle and could not tell him who had been driving.
Officer Risen called for another officer with a PBT (preliminary breath test machine) to assist him. Meanwhile, Officer Risen administered field sobriety tests, all of which appellant failed. Officer Dan McCracken arrived and administered the PBT. The results showed the presence of alcohol. Officer McCracken testified that appellant was confused, unsteady on his feet, and appeared intoxicated.
Officer Risen placed appellant under arrest and conducted a search of appellant's person. The search revealed a small clear straw, the type usually used to ingest narcotics, in appellant's front pants pocket. Appellant stated he used the tube to inhale prescription medications but could not specify what medical condition required such ingestion. Officer McCracken witnessed Officer Risen take the "straw" out of appellant's pants pocket. Officer Risen testified that a heavy white residue on the inside of the tube appeared to be either cocaine or methamphetamine. Jennifer Melton, Kentucky State Forensic Chemist, tested the residue and the substance was positive for both cocaine and methamphetamine.
Gloria Blake was called to the scene by her son, the vehicle's other passenger. Upon arrival, she witnessed Officer Risen take something from appellant's pocket. Ms. Blake said that she witnessed appellant driving the vehicle. Additionally, Eric Blake later testified that he had been the passenger and appellant was driving the vehicle.
Appellant was initially indicted upon first degree possession of a controlled substance (Kentucky Revised Statutes (KRS) 218A.1415), possession of drug paraphernalia (KRS 218A.500), driving under the influence , second offense with aggravator (KRS 189A.010), and operating on DUI suspended license, first offense (KRS 189A.090). Subsequently, he was further indicted for being a persistent felony offender in the second degree (KRS 532.080).
At trial, appellant moved for a directed verdict at the close of the Commonwealth's case and again at the close of all the evidence. Appellant was convicted of possession of a controlled substance in first degree, possession of drug paraphernalia, and of being a persistent felony offender in the second degree. He was sentenced to a maximum term of six years (one year for possession of a controlled substance, thirty days on possession of drug paraphernalia to run concu
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