RENDERED: JUNE 17, 2022; 10:00 A.M. TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2017

- CA

- 1665

- MR
STEVEN D. ROARK APPELLANT

v. APPEAL FROM KNOX CIRCUIT COURT

HONORABLE DAVID A. TAPP, SPECIAL JUDGE

ACTION NO. 15

- CR

- 00112

- 003

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

**   **  **
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: On remand f rom the Kentucky Supreme Court, we consider Steven D. Roark’s arguments that the Knox Circuit Court erred in providing two erroneous jury instruction s and failing to instruct the jury regarding a requested lesser included o ffense

. 1

1 The Kentucky Supreme Court reversed our prior O pinion in which we held that the trial court abused its discretion in excluding a co

- defendant’s plea hearing testimony where Roark subpoenaed his co

- defendant, who failed to appear at the trial , and the co - defendant stated during- 2

- The trial court erred in permitting a duplicitous instruction as to Roark’s manufacturing of methamphetamine charge , resulting in a jury unanimity problem as to whether all the jurors convicted him for the same separate instance of manufacture or on different instances based on actual manufacture or possession of chemicals or equipment with intent to manufacture. The trial court also committed palpable err or involving double jeopardy where Roark may have been convicted for possessing the same quantity of methamphetamine as he was convicted of manufacturing

. Therefore, we reverse and remand for a new trial on those charges. However, the trial court did not err in declining to instruct the jury on facilitation to manufacture methamphetamine as this was not a lesser included offense to manufacture of methamphetamine.

On February 25, 2015, Roark and four other adults , including Tonia Couch, were in a trailer which belonged to Couch, when Trooper Taylor Mills and Trooper Jason Partin arrived to do a welfare check at the residence based upon a report that there was a possible methamphetamine lab present along with a juvenile. 2 Couch let the police in, told the m no one else was present besides her

his plea hearing that he had manufactured the methamphetamine alone and reinstated Roark’s conviction and sentence

. See Commonwealth v. Roark , 641 S.W.3d 94 (Ky. 2021) (reversing Roark v. Commonwealth , No. 2017

- CA

- 001665

- MR, 202 0 WL 594129 (Ky.App. Feb. 7, 2020) (unpublished) ). The Court then granted a petition for rehearing allowing consideration of these remaining issues.

2 It is well established that the active production of methamphetamine poses a danger of explosion and ot her potential harm to persons present nearby. See Pate v. Commonwealth , 243- 3

-

child and friend who were with her in the living room and then consented to a search after the police heard a sound in the back of the trailer.

The police found Roark , Couch’s husband , and another man in the bedroom lying on a mattress and feigning sleep. On the floor next to the mattress, the police discovered a small plastic baggie containing white powder stored in a cellophane wrapper.

In the attached bathroom, the police found a funnel with a white, powdery s ubstance inside, a used coffee filter , and a large bag of salt. Inside the toilet they found a plastic baggie with clear liquid and a spoon. The police also found needles in the bathroom cabinet. Inside the bathroom floor vent police found a modified Mo untain Dew bottle with green tubing attached, another plastic bottle which contained a clear liquid substance, and a plastic bag containing coffee filters. The police arrested all the adults in the trailer. As no one admitted that the drugs and paraphern alia were theirs, five people, including Roark , were indicted for: (1) manufacturing methamphetamine, first offense; (2) possession of a controlled substance, first degree; (3) controlled substance endangerment to a

S.W.3d 327, 331 (Ky. 2007) as modified on denial of reh’g (Nov. 1, 2007), as corrected (Jan. 23, 2008)

.- 4

-

child, fourth degree; 3 (4) tampering with physical evidence; and (5) possession of drug paraphernalia.

Before Roark went to trial, Couch and another person pled guilty to reduced charges in exchange for truthful testimony against Roark and another defendant

. A third defendant , Couch’s husband, entered an open plea of guilty to all the indicted charges against his counsel ’ s advice and stated that he acted alone in manufacturing the methamphetamine

.

On May 15, 2017, Roark was jointly tried with the remaining defendant. During this trial the jury heard testimony for the Commonwealth from Trooper Mills, Trooper Partin, Jamie Hibbard of the Kentucky State Police (KSP) Lab, Detective Jason Browning of the KSP Drug Enforcement Special Investigations Unit , and Couch

. The troopers t estified about what they found when they searched as detailed above. Hibbard testified as to the analysis that the baggie of white powder in the bedroom was methamphetamine and the clear liquid in the plastic bottle from the vent was methamphetamine. Det ective Browning testified about how people manufacturing methamphetamine acted, including that they burned their trash to conceal evidence of the manufacture of methamphetamine. He also testified as to the purpose of the items found in making methamphetam ine

3 Couch had custody of multiple children, but only one child was present when the police searched and discovered the contraband.- 5

-

and that the plastic bottles in the bathroom vent were a one

- step methamphetamine lab and a hydrogen chloride ( HC l) generator.

Although there was a lot of testimony from law enforcement about the manufacture of methamphetamine , the presence of drugs and paraphernalia , and the hidden location of the lab, this testimony did not tie Roark to these things beyond his mere presence in the trailer. Only Couch’s testimony connected Roark with the manufacture of methamphetamine.

Couch testified that Roark lived in the trailer with her and her husband and was in the process of moving out when they were arrested. Couch claimed Roark was staying in the master bedroom by the back door (which was where the drugs were found), while she chose to occupy a smaller bedroom to be closer to the bedroom where her children slept.

Couch testified that when the police knocked, Roark yelled from the back, “Don ’ t open the door,” but she disregarded his command, opened the door , and granted the police consent to search. Cou ch testified that Roark burned the trash every day. She also testified that Roark called her in May or June of 2015 and “apologized for bringing it into my house.”

At the close of the Commonwealth ’ s case, Roark moved for a directed verdict on the felony charges, which was denied except as to controlled substance- 6

-

endangerment to a child, which was granted as there was no evidence that Roark knew the child was present.

Roark testified in his own defe nse. He testified that on the morning when the police searched, Couch’s friend drove him and his co

- defendant to Couch’s trailer at about 8:30 or 9:00 a.m. as Couch wanted a ride to go pick up her
other children . Roark explained that when they arrived vi a the back door they went into the back bedroom ; Couch was in the back bedroom and was putting on her make

- up and fixing her hair. Later, Couch left the bedroom and closed the door behind her.

Roark testified he , Couch’s husband, and a third man sat down on the mattress on the floor in the bedroom and they were playing on their phones and listening to music. Roark admitted to using methamphetamine at that point

.

Roark admitted he would have recognized methamphetamine manufacturing if he had seen it, but denied going into the bathroom, seeing the lab, and seeing any components of methamphetamine manufacturing except maybe salt sitting on a shelf

. Roark denied having drugs on him or that the bag of methamphetamine belonged to him. Roark denied bringing a ny of the contraband items into the house and denied destroying or concealing anything.

Roark also denied living in the trailer. He claimed Couch moved in a couple of months after she separated from her husband, and he helped her move in- 7

-

her furniture and get rid of items in the trailer left by the previous occupant. Roark admitted he stayed overnight a couple of times when he was working on this.
Roark stated he did not receive mail there; instead, he lived wi th his mother.

Roark denied calling and apologizing to Couch

. He testified she put some money on his phone account when he was in jail. Later, he called Couch because he heard she was sick. He testified that during this phone call Couch “was basically apologizing to me for me being locked up for this matter.”

Roark admitted he was a drug addict and used about 1/4 gram of methamphetamine a day, every day , or every other day when he could affo rd it. He testified he started using methamphetamine in 2013 or 2014, recognized a lot of the components for it , and had seen recipes for making it. He also admitted he was a convicted felon.

Even though Couch’s husband had already pled guilty to manufa cturing the methamphetamine in the bathroom, the Commonwealth sought to convict Roark as a principal rather than an accomplice and did not request a complicity instruction. Roark objected to the manufacture of methamphetamine instruction as he believed th e Commonwealth had to pick one method of manufacture or another, or else there would be a problem with jury unanimity. The trial court commented that Roark was objecting to there being an A or B in the instructions, but stated it believed that giving the unanimous instruction solved that- 8

-

problem and determined the Commonwealth’s proposed instructions were appropriate . Roark later presented his own proposed jury instructions in which he requested that the manufacture of methamphetamine state th at Roark “ac ting alone or in concert with others, knowingly had in [his] possession with the intent to manufacture methamphetamine two or more chemicals and/or two or more items of equipment for the manufacture of methamphetamine

. ”

Roark also requested an instructi on for facilitation to manufacture methamphetamine as a lesser included offense of manufacturing methamphetamine

. The trial court declined to give such an instruction because it determined that facilitation was not a lesser included offense. Roark did no t request any other instructions for lesser included offenses, such as unlawful possession of a methamphetamine precursor.

After the jury was instructed, Roark was found guilty of manufacturing methamphetamine, possession of a controlled substance, tampering with physical evidence , and possession of drug paraphernalia. The jury recommended ten years of incarceration for the manufacturing offense, one year for possession, one year for tampering, and twelve months on the drug paraphernalia charge, to run concurrently for a total of ten

- years’ imprisonment. These were the minimum sentences the jury could recommend on the felony charges.- 9

- The trial court dismissed the possession of drug paraphernalia charge based on a defect in the paraphernal ia instruction. The trial court sentenced Roark in accordance with these recommendations on the remaining charges to a total of ten years of incarceration.

We now consider Roark’s arguments regarding errors within his jury instructions. “ Alleged errors regarding jury instructions are considered questions of law that we examine under a de novo standard of review. ” Hamilton v. CSX Transp., Inc. , 208 S.W.3d 272, 275 (Ky.App. 2006)

.

Roark first argues he received a non

- unanimous and unreliable verdict
as t o the manufacturing of methamphetamine charge because the jury could have convicted him on manufacturing in two different ways but was not required to have unanimity on either of the two method s . The relevant jury instruction reads as follows: INSTRUCTION NO. 2 COUNT 1 MANUFACTURING METHAMPHETAMINE You will find the Defendant, Steve Roark, guilty of Manufacturing Methamphetamine under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt that in this county on or about February 25, 2015 and before the finding of the Indictment herein ; A. He knowingly manufactured methamphetamine;
OR- 10

- B. He knowingly had in his possession with the intent to manufacture methamphetamine two or more chemicals, or two or more of the items of equipment for its manufacture. Roark explains that certain members of the jury might have convicted him based on hi s manufactur e of the methamphetamine that was discovered in the bathroom (the plastic bottles in the bathroom vent which were a one - step me thamphetamine lab and an HC l generator ) , while other members of the jury might have convicted him based on hi s having the chemicals and equipment needed for future manufacture in the bathroom ( such as the funnel, coffee filters , and bag of salt).
Roark ar gues that the standard, general unanimity instruction the trial court gave the jury could not cure this error.

The Commonwealth argues that Roark could properly have been convicted under two alternat ive theories, explaining under the first theory Roark

co uld be convicted based on “the fact that he was found in a trailer, with an active methamphetamine lab, and a bottle connected to the lab which contained methamphetamine” and under the second theory he could be convicted for “possessing two items of equipm ent or chemicals with intent to manufacture methamphetamine.” The Commonwealth relies almost exclusively on an unpublished opinion , Marshall v. Commonwealth , No. 2016

- SC

- 000302

- MR, 2017 WL 3634482, at *5 (Ky. Aug. 24, 2017) (unpublished), f or its assertio n that it need- 11

-

only establish that there was sufficient evidence to support Roark’s conviction under either basis provided by the jury instructions.

“Section 7 of the Kentucky Constitution requires a unanimous
verdict [

. ] ” Wells v. Commonwealth , 561 S.W.2d 85, 87 (Ky. 1978). A unanimous verdict is also required by statute and rule. Kentucky Revised Statutes ( KRS ) 29A.280 (3) ; Kentucky Rules of Criminal Procedure ( RCr ) 9.82 (1). “ A violation of this provision may occur in several way s; however it may be stated as a general principle that a violation occurs when a verdict is returned based upon jury instructions and verdict forms that provide no assurance that all of the jurors based their finding of guilt on the same event. ” Elam v. Commonwealth , 500 S.W.3d 818, 826 (Ky. 2016)

.

In Johnson v. Commonwealth , 405 S.W.3d 439 (Ky. 2013) , a mother was convicted of f

irst

- degree criminal abuse of her son, but this verdict was supported by evidence about two different fractures he received a t two different times. The Court “[held] that such a scenario

– a general jury verdict based on an instruction including two or more separate instances of a criminal offense, whether explicitly stated in the instruction or based on the proof

– violates th e requirement of a unanimous verdict. ” Id. at 449.

Similarly, in Kingrey v. Commonwealth , 396 S.W.3d 824 (Ky. 2013) (which was decided alongside Johnson ) , the Commonwealth presented evidence- 12

-

that the defendant committed the crime of use of a minor under the age of 18 in a sexual performance through certain actions at a party and the separate action of having the minor model underwear sets. The Commonwealth argued the jury instructions , which did not require the jury to specify the acts of which it found the defendant guilty, were proper because

the jury instruction simply allowed the jury to convict [the defendant] of one crime under two theories, and his right to a unanimous verdict was not violated because sufficient evidence existed for a reason able juror to believe that [the defendant] committed the crime of use of a minor under the age of 18 in a sexual performance as to [the victim] under both factual theories. Id. at 831

. While the Court acknowledged that “[i]n the past, this Court has
t ypically analyzed combination instructions like the one here as though they allowed the jury to find the defendant guilty under either of two theories[,]” and noted that “[t]he Commonwealth contends that this analysis applies here[,]” the
Court rejected th e Commonwealth’s reasoning

. Id. at 830

- 31 (footnote omitted). The Court explain ed that “ it is not enough that sufficient evidence existed to support a jury finding that [the defendant] committed both criminal acts ” and determined jury instructions which did not distinguish the acts violated the defendant’s right to a unanimous verdict. Id. at 831.- 13

- The Court in Johnson explained the difficulty in understanding this kind of error , (which has been “referred to as the ‘ multiple acts ’ error, or . . . the

‘ duplicitous instruction ’ error [,]” as noted in King v. Commonwealth , 554 S.W.3d 343, 352 (Ky. 2018) ), as follows :

The biggest hurdle is in understanding that cases like this one do not present multiple theories of a crime, but instead multiple distinc t crimes under a single count. Thus, unlike the case where two theories

– such as two means or mental states

– of a single crime are presented in an instruction, we have an instruction that includes multiple crimes but directs only one conviction. Recentl y, we have been allowing the latter type of conviction, though not always, saying that different crimes are simply different theories of a defendant ’ s single offense. But that is like giving directions to a McDonald ’ s on the east side of town to half a gr oup of travelers, and directions to one on the west side of town to the other half, despite a rule that requires all the travelers to go to the same restaurant. Both groups arrive at a McDonald ’ s, but not all the travelers are in the same place. The unan imity requirement mandates that jurors end up in the same place. When we give the kind of instruction in this case to juries, they are forced by its language to appear to end up in the same place in order to convict. But that appearance is illusory becau se we can never know whether the jurors are indeed in the same place. Such instructions make it possible that some of the jurors may vote for the first crime, and some may vote for the second, with all agreeing that the defendant committed a crime. In ot her words, all of the jurors end up convicting (i.e., arriving at a McDonald ’ s), but some of the jurors voted for one instance of the offense (i.e.,- 14

- the east

- side McDonald ’ s) and some voted for the other (i.e., the west

- side McDonald ’ s). We have no certai nty that twelve people found the defendant guilty of the same instance of the crime. Johnson , 405 S.W.3d at 455

. See King , 554 S.W.3d at 35 2 (explaining there is consensus among many states, which Kentucky had joined, that “ juror unanimity means that jurors must agree upon the specific instance of criminal behavior committed by the defendant but they need not agree upon his means or method of committing the act or causing the prohibited result. ”).

This problem o f the duplicitous instruction error oft en arises regarding sexual and similar type crimes where there are multiple criminal acts involving the same victim which occurred over a lengthy period of time

. See , e.g. , id. at 35 1

- 5 2 ; Gullett v. Commonwealth , 514 S.W.3d 518, 529

- 30 (Ky. 2017) ; Ruiz v. Commonwealth , 471 S.W.3d 675, 679 (Ky. 2015) ; Martin v. Commonwealth , 456 S.W.3d 1, 6

- 8 (Ky. 2015)

. However, as Johnson demonstrates, it is not limited to this kind of crime.

We are not convinced, based on th e overwhelming published authority, that we should consider, let alone follow, the unpublished opinion of Marshall , 2017 WL 3634482, at *5 , which forms the basis for the Commonwealth ’s den ial of there being any jury unanimity problem

. Marshall relied exclusively on Wells , 561 S.W.2d at 8 8 , a Kentucky Supreme Court case from 1978, for the proposition that “a verdict cannot be successfully attacked upon- 15

-

the ground that the jurors could have believed either of the two theories of the case where both interpretations are supported by the evidence and the proof of either beyond a reasonable doubt constitutes the same offence” in determining that because there was evidence of both actual manufacturing of methamphet amine and possession of two or more pieces of equipment or chemicals with the intent to
manufacture methamphetamine , the verdict was proper . Wells was consistent with
our pre - Johnson / Kingrey jurisprudence which allowed unanimity from reaching separate McD onald’s restaurants.

Marshall is an outlier and fails to discuss Johnson , Kingrey , or any of the other substantive published case law on this issue , all of which distinguish between different theories about how a single operative crime was committed as compared to allowing the jury to convict for one crime based on two or more
instances of the same type of criminal activity which constituted separate crimes

. Furthermore, Mar

shall does not appropriately qualify for consideration pursuant to Kentucky Rules of Civil Procedure (CR) 76.28(4)(c) because there are myriad published opinions which adequately address the general issue being considered.

Additionally, w hile there are no published cases discussing whether the duplicitous instruction error can arise from providing jury instructions which contain two different statutory methods by which defendants may be convicted for manufacturing methamphetamine, KRS 218A.1432(1)(a)

- (b), two other- 16

-

unpublished Kentucky Supreme Court cases follow the same general method of addressing the problem that a defendant does not receive a unanimous verdict if the evidence provides two bases for manufacturing : (1) completed methamphetamine manufact ure; and (2) future production of manufacture

. 4 Therefore, Marshall is not even consistent with other unpublished methamphetamine manufacturing

cases. While the Commonwealth speaks of two theories for one crime, it in fact confirmed that there was evide nce to support two different instances of manufacturing methamphetamine via each statutory option, KRS 218A.1432(1)(a) and (b). Because the jury did not necessarily agree on which instance of

4 In Anderson v. Commonwealth , No. 2014

- SC

- 000153

- MR, 2015 WL 6560442, at *3 (Ky. Oct. 29, 2015) (unpublished) , the Court explain ed there was a duplicitous instruction error as “ some jurors could have believed Appellant was guilty of manufacturing methamphetamine by making meth at Drury ’ s on June 30, while other jurors believed Appellant was guilty of manufacturing methamphetamine only because he possessed at his home on July 1 two or more of the chemicals or items of equipment needed for making meth. ” In Bauer v. Commonwealth , No. 2012

- SC

000241

- MR, 2014 WL 4113110, at *4 (Ky. Aug. 21, 2014) (unpublished) , the Cour t e xplain ed that while the appellant’s “ possession of the pseudoephedrine and other items with intent to manufacture merged with the actual manufacture of methamphetamine using those items to create a single offense of manufacturing methamphetamine ” there could still be a “ separate, second instance of the offense when [the defendant] had chemicals and equipment for the manufacture of methamphetamine in her possession after she and her husband had successfully manufactured and used th e methamphetamine on June 23

- 24. ” The Court concluded that “[w] hen the indictment includes only one count, as it did here, then the Commonwealth should elect which instance of the offense to try, and the judge is required to limit the instruction to one o f the offenses. ” Id. at *5. These cases both relied on Johnson

. We cite these cases not as authority, but to show that continuing conduct does not appear to serve as an exception which would prevent the duplicitous instruction error from applying to the two different methods by which manufacturing of methamphetamine may take place , and to provide contrast with Marshall

.- 17

-

manufacturing methamphetamine it based its finding of guilt , it s verdict cannot stand and Roark is entitled to a new trial on the charge of manufacturing methamphetamine

.

To fix the problem of duplicitous instruction on remand , jury instructions need to be “ tailored to reflect the evidence and require a unanimous verdict regarding a specific factual scenario [.]” Martin , 456 S.W.3d at 8

. “[T] he instructions and verdict forms must be couched in language that eliminates any ambiguity regarding the jury ’ s consensus. ” Ruiz , 471 S.W.3d at 678

. To do this, a trial court has three options:

(1) the jury instruction can simply identify which of the particular criminal acts included in the evidence the jury is asked to consider; (2) the verdict form can identify the particular act upon which the jury determined g uilt; or (3) a special instruction, as held by some courts, informing the jury that, in order to convict, all twelve jurors must agree that the defendant committed the same act. King , 554 S.W.3d at 353

. See Gullett , 514 S.W.3d at 529

- 30 (providing exampl es of how jury instructions could be rephrased with more specificity so to eliminate the duplicitous instruction error where there were two incidents of both sodomy and sexual abuse ).

Roark’s second argument on appeal is that a palpable error exists
since the jury may have convicted him of possessing the same methamphetamine- 18

-

that he was convicted of manufacturing based on the following jury instruction that did not specify what methamphetamine he was supposed to have possessed : INSTRUCTION NO. 2 COUNT 2 FIRST
- DEGREE POSSESSION OF A CONTROLLED SUBSTANCE You will find the Defendant, Steve Roark, guilty of First

Degree Possession of a Controlled Substance under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about February 25, 2015 and before the finding of the Indictment herein, he had in his possession a quantity of Methamphetamine;
AND
B. That he knew the substance so possessed by him was Methamphetamine, a Schedule II Narcotic Controlled Substance. Roark points out that in the bathroom there was a glass vial of clear liquid with white residue that tested positive for methamphetamine, and in the bedroom there was a baggie of white powder, but the jury instr uction did not clarify which methamphetamine he was to have possessed.

The Commonwealth argues there was no palpable error as: It was unmistakable that the methamphetamine in the bathroom related to the manufacture and the baggie in the bedroom related to the possession. There was proof of separate acts upon which to base [Roark’s] convictions- 19

- for manufacturing methamphetamine and possession of methamphetamine. The Commonwealth notes that if there is a double

- jeopardy violation , the appropriate remedy would be for the Court to vacate or reverse the lesser included charge. “[A] n appellant ’ s failure to present a double

- jeopardy argument to the trial court should not result in allowing a conviction that violates double jeopardy to stand. ” Early v. Commonwealth , 470 S.W.3d 729, 737 (Ky. 2015) . Therefore, if we determine that a violation of double jeopardy occurred, this is a palpable error that requires reversal.

The case of Beaty v. Commonwealth , 125 S.W.3d 196, 213

- 14 (Ky. 2003) , abrogated on other grounds by Geary v. Commonwealth , 490 S.W.3d 354, 358 (Ky. 2016) , is instructive on this matter. In Beaty , the Court explained that an appella nt could properly be convicted of both posses sing methamphetamine and manufacturing methamphetamine “ if the methamphetamine that he was convicted of possessing was not the same methamphetamine that he was convicted of manufacturing [,] ” but the Court could not “ discern from the jury ’ s verdict

. . . wh ich quantity of methamphetamine Appellant was convicted of possessing

. ” Id

. at 213. In Beaty , it was unclear whether the conviction of possession was based upon methamphetamine in a jar, which had been part of the manufacturing process, or based on methamphetamine residue found on a piece of burnt aluminum foil, as- 20

-

the jury instructions did not r equire the jury to make a distinction between the two possible sources for the possession conviction in its verdict ; thus , reversal was required

. Id. at 213

- 14

. The Court suggested appropriate additional language which could be added to the jury instruct ions to solve this issue. Id. at 213. See Johnson v. Commonwealth , 134 S.W.3d 563, 568

- 69 (Ky. 2004) (reversing as “seed jars” containing methamphetamine residue were part of the manufacturing process and could not form the basis of a possession convicti on on top of the manufacturing conviction).

We note, additionally, because there were two quantities of methamphetamine at issue, that this jury instruction is also problematic because it is a duplicitous instruction. That type of error “violates a defendant ’ s right to a unanimous verdict and also touches on the right to due process, is a fundamental error that is jurisprudentially intolerable” and is thus “palpable [

. ] ” Johnson , 405 S.W.3d at 4 57

. See Ruiz , 471 S.W.3d at 679 (relying on Johnson in its reversal for an unpreserved error); Martin , 45 6 S.W.3d at 8

- 10 (discussing the binding precedent from Johnson and Kingrey that such an error is palpable resulting in manifest injustice).

Even if we knew definitively that the jury convicted Roark of the manufacture of methamphetamine based on Roark ’s having the chemicals to manufacture, we would have a unanimity problem as discussed in Roark’s first- 21

-

argument on appeal as we would not know whether all of the jurors convicted him based on the powdered methamphetamine rather than the liquid methamphetamin e. Therefore, reversal on Roark’s conviction for possession of methamphetamine is required , and he is entitled to a new trial on this charge

.

Finally, Roark argues he was entitled to an instruction on facilitation to manufacturing methamphetamine as a lesser included offense to manufacturing methamphetamine. We address this issue as it may recur on retrial. However, w e disagree with Roark that any error occurred in the trial court ’s denying his request

.

“ An instruction on a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant ’ s guilt of the greater of fense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense. ” Houston v. Commonwealth , 975 S.W.2d 925, 929 (Ky. 1998) . “ The fact that the evidence would support a guilty verdict on a lesser uncharged offense does not establis h that it is a lesser included offense of the charged offense. ” Id.

KRS 505.020 (2) states in relevant part as follows : A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when: (a) It is established by proof of the same or less than all the facts required to establish the commission of the of fense charged [.]- 22

- In Houston , in considering whether criminal facilitation could be a lesser included offense of trafficking in or possession of a controlled substance, the
Court pointed out that the trafficking or possession offense each “ require proof t hat the defendant, himself

, knowingly and unlawfully committed the charged offense ” while “[t] he offense of criminal facilitation requires proof that someone other than the defendant committed the object offense and the defendant , knowing that such
person was committing or intended to commit that offense, provided that person with the means or opportunity to do so

. ” 975 S.W.2d at 930 (emphasis added). The Court explained that, consequentially, facilitation could not be a lesser
included offense because it required “ proof of additional and completely different facts. ” Id.
In Roberts v. Commonwealth , 410 S.W.3d 606, 608

- 10 (Ky. 2013) , the Court followed Houston in holding that criminal facilitation was not a lesser included offense of manufacturing methamp hetamine, because it likewise required proof of additional and completely different facts. The Court concluded that because criminal facilitation was not a lesser included offense of manufacturing methamphetamine, such an instruction was not required. Id

. at 610.

Therefore, the trial court did not err in failing to instruct the jury on criminal facilitation to commit manufacturing of methamphetamine.- 23

- According ly , we reverse and remand the Knox Circuit Court’s judgment insofar as Roark is entitled to receive a new trial on the charges of manufacturing methamphetamine and possession of methamphetamine based on the unanimous verdict and double

- jeopardy issues

. As Roark did not challenge his conviction for tampering with physical evidence, that conviction remains.

ALL CONCUR

.

BRIEF S FOR APPELLANT: Shannon Dupree Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky (former) Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky