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Commonwealth Of Kentucky Court of Appeals
NO. 2004-CA-001670-MR

BEVERLY E. SIZEMORE

APPELLANT

v.

APPEAL FROM OWEN CIRCUIT COURT HONORABLE STEPHEN L. BATES, JUDGE ACTION NO. 04-CR-00023

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: ABRAMSON AND VANMETER, JUDGES; KNOPF,1 SENIOR JUDGE. Beverly Sizemore appeals from a judgment

VANMETER, JUDGE:

entered by the Owen Circuit Court after she and numerous codefendants were found guilty of multiple drug-related offenses including, in her case, engaging in organized crime and complicity to trafficking in five or more pounds of marijuana. For the reasons stated hereafter, we affirm.

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Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

Briefly, this matter arose from the operations of an alleged criminal drug syndicate in Owen County between January and April 25, 2004. Beverly and her husband, Scott Sizemore, Also indicted were Beverly's Scott and several

were indicted on multiple charges.

parents, her sister, and several others.

codefendants entered guilty pleas to the charges against them, while Beverly was tried jointly with her parents, her sister, and another codefendant. According to the detailed testimony,

members of the alleged syndicate imported massive quantities of marijuana from Mexico into the United States and then to Owen County for distribution. The jury found Beverly guilty of

engaging in organized crime, complicity to trafficking in five or more pounds of marijuana, first offense, and three misdemeanors. She was sentenced to concurrent terms of This appeal followed.

imprisonment which totaled fifteen years.

First, Beverly asserts that the trial court erred by failing to suppress evidence gleaned from a search of the trailer she shared with Scott, on the ground that he did not voluntarily consent to the search. We disagree.

The voluntariness of a person's consent to a warrantless search is a question of fact which must be determined based on the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). The prosecution bears the burden

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of showing, by a preponderance of the evidence, that consent was voluntarily given. Id., 412 U.S. at 222, 93 S.Ct. at 2045. See

also Talbott v. Commonwealth, 968 S.W.2d 76, 82 (Ky. 1998). Here, Officer Stigers testified during the suppression hearing that late on the evening of April 24, 2004, he and another officer went to the Sizemores' trailer after Scott was identified as having sold marijuana to another person earlier that day. Stigers stated that he could smell a strong marijuana

odor as he approached the trailer, and he could see Scott and a small child through the open door. Stigers knocked, identified

himself, and asked if he and the other officer could enter to talk with Scott. Scott responded "sure, come on in," and he Scott was asked to hold the

opened the door for the officers.

child so the officers wouldn't bump into him, and Scott was advised both of the allegations against him and of his Miranda rights. Before Scott was placed under arrest, he made

arrangements for his mother-in-law to take the child, and he advised the officers of two places in the trailer where marijuana was located. When he could not locate a third bag, he After Scott

indicated that Beverly probably had moved it.

invited the officers to look through the trailer and they confirmed that he was giving them permission to search, the officers located a third bag of marijuana in the kitchen freezer. A pipe and a total of 10.5 ounces of marijuana were

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seized.

Scott stated "that he and Beverly had only sold to When Beverly then pulled up in her car

friends and family."

Stigers went outside, identified himself, and advised her of her Miranda rights. Beverly, who refused to talk with the officers,

was placed under arrest for trafficking in marijuana. In her purse were found pills, a small bag of marijuana, rolling papers, and $2,464 in cash that Beverly identified as income tax refund money. Contrary to Beverly's assertions on appeal, the evidence adduced during the suppression hearing supports the trial court's denial of the motion to suppress. Regardless of

whether probable cause existed for the issuance of a search warrant, the record clearly shows that a warrant was not needed as Scott verbally consented to the search. The record indicates

that the trailer was well-lit when the officers arrived, and Scott was awake and on his feet. Stigers testified that

although it was obvious that Scott had been using marijuana, he did not appear to be unsteady on his feet. Scott invited the

officers into the trailer, he opened the door for them, his responses were polite and coherent, and he took steps to provide for his child. Scott was attentive to the officer's questions,

he understood and followed through on commands, he volunteered information, and he showed things to the officers. Although

Beverly suggests that Scott was incapable of giving consent

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because he was incapacitated by drugs or was coerced by the officers, there simply is nothing in the record to indicate that Scott verbally or physically expressed either intimidation or fear of the officers, or to otherwise support a finding that he was incapable of consent. Moreover, since it is undisputed that

the trailer was Beverly and Scott's joint residence at the time of the search, Beverly's own failure to consent did not render the search results inadmissible against her. Sebastian, 500 S.W.2d 417, 419 (Ky. 1973). Commonwealth v. Given the totality

of the circumstances, we cannot say that the trial court erred by finding that Scott voluntarily consented to the search and by denying Beverly's motion to suppress the evidence seized from the trailer. Next, Beverly asserts that the trial court erred by denying her motion for a directed verdict as to the charge of complicity to trafficking in five or more pounds of marijuana. An issue exists as to whether Beverly's motion was sufficiently specific to preserve this issue for review. However, even if we

assume without deciding that the sufficiency of the evidence issue was adequately preserved, we must conclude that Beverly is not entitled to relief. The Kentucky Supreme Court succinctly stated that when a party makes a motion for a directed verdict,

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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. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). 50.01. See CR

The test on appellate review is whether, "under the

evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]" Benham, 816 S.W.2d at 187 (citing

Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). Beverly was indicted for trafficking, alone or in complicity with another, pursuant to KRS 218A.1421 and KRS 502.020(1). Under KRS 218A.1421(4), a first offense of

trafficking in five or more pounds of marijuana is a Class C felony. "Traffic" is defined by KRS 218A.010(34)2 as meaning "to

manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance." complicity, stating: A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
2

KRS 502.020(1) addresses issues of

Formerly numbered as KRS 218A.010(28).

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(a)

Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or Aids, counsels, or attempts to aid such person in planning or committing the offense; or Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.

(b)

(c)

Here, as summarized in the jury instructions, the jurors could find that Beverly was guilty of marijuana trafficking under any one of three different scenarios. First,

the jurors could find that Beverly trafficked in five or more pounds of marijuana on a day or days between April 3 and April 25, 2004. Second, under the option of "Trafficking in Marijuana

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