RENDERED: AUGUST 2, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0754-MR

DAWAYNE A. DIXON APPELLANT 

v. 

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE KATHLEEN S. LAPE, JUDGE

ACTION NO. 22-CR-00168

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.

ACREE, JUDGE: Dawayne Dixon, Appellant, was convicted in the Kenton 

Circuit court of possession of a controlled substance in the first degree and 

resisting arrest. Dixon asserts the circuit court coerced a guilty verdict as a result 

of giving successive Allen1charges to the jury. He also argues the evidence did not 

1 Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
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support his conviction and he was therefore entitled to a directed verdict. We 

disagree with both arguments and affirm.

While driving, Detective Adkisson and Detective Lindeman of the 

Covington Police Department stopped behind a vehicle driven by Aprille Nicholas. 

Dixon was the passenger. The detectives noticed something thrown from the 

passenger side window of the vehicle. They also observed Nicholas and Dixon 

shoving each other inside the car. 

Based on these observations, the detectives activated their lights. 

Nicholas drove off, initiating a low-speed chase. Before Nicholas finally came to a 

stop, the detectives noticed two syringes had been thrown from the passenger 

window. Though they did not see who threw the syringes, Detective Adkisson did 

observe Dixon reach over to Nicholas during the chase and did not see Nicholas do 

anything other than drive; Detective Lindeman noticed both Nicholas and Dixon 

moving around in the car, but mostly noticed Dixon. The detectives were ten to 

twenty feet behind the car and its rear window was not tinted.

Officers recovered the two syringes and Nicholas and Dixon were 

arrested. At trial, the parties stipulated the syringes contained methamphetamine.

Dixon was charged with first-degree possession of a controlled 

substance and, based on other conduct not relevant to this appeal, resisting arrest. 

The case proceeded to trial. Following the close of the Commonwealth’s case in 
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chief, Dixon moved for a directed verdict. The circuit court denied the motion. 

Dixon put on no evidence, and the jury began its deliberations. The jury asked to 

rewatch Detective Adkisson’s body-worn camera footage and submitted three 

questions to the court. 

Approximately two hours after beginning deliberations, the jury told 

the circuit court that it was deadlocked as to the possession charge. The court 

adjourned for the evening, and the next morning the circuit court read the jury the 

following Allen charge:

In order to return a verdict each juror must agree thereto. 

Jurors have a duty to consult one another and to deliberate 

with a view toward reaching an agreement if it can be done 

without violence to individual judgment. Each juror must 

decide the case in their own mind but only after an 

impartial consideration of the evidence with the other 

jurors. In the course of deliberations, a juror should not 

hesitate to reexamine their own views and change an 

opinion if the juror is convinced it’s erroneous, and no 

juror should surrender their honest conviction as to the 

weight of effect on the evidence solely because of the 

opinion of the other jurors or for the mere purpose of 

returning a verdict. And with those comments I’m going 

to send you back to deliberate.

Video Record (VR) 10/26/22 at 9:06:04-9:06:50.

The jury again resumed deliberations. A mere ten minutes later, the 

jury informed the court it would not be able to reach a verdict as to the possession 

charge but had reached a verdict on the resisting arrest charge.
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Prior to bringing the jury back into the courtroom, the circuit court 

judge addressed the parties. She stated that in the short time since resuming 

deliberations the jury could not have discussed the charges sufficiently. The judge 

then brought the jury back into the room, told them that she did not believe the jury 

had carried out the first Allen charge, and gave the jury a second Allen charge; the 

second Allen charge was a recitation of the first. The jury resumed deliberations 

and, after approximately forty minutes, returned a guilty verdict.

Dixon now appeals. He raises two issues, both related to his 

possession conviction. First, he argues the trial court’s successive Allen charges 

coerced the jury into reaching a guilty verdict on the possession charge. Second, 

he argues the circuit court erred in denying his directed verdict motion because the 

Commonwealth did not prove beyond a reasonable doubt that Dixon possessed the 

syringes.

As Dixon concedes, the Allen charge issue is unpreserved. Under our 

rules of criminal procedure, if a “palpable error which affects the substantial rights 

of a party” is unpreserved, our appellate courts may consider the issue on appeal 

“and appropriate relief may be granted upon a determination that manifest injustice 

has resulted from the error.” RCr2 10.26. “To discover manifest injustice, a 

reviewing court must plumb the depths of the proceeding . . . to determine whether 

2 Kentucky Rules of Criminal Procedure.
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the defect in the proceeding was shocking or jurisprudentially intolerable.” Martin 

v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). Pursuant to RCr 10.26, we elect to 

review this issue and apply the manifest injustice standard.

At the end of the 19th century, the Supreme Court of the United States 

affirmed a trial court’s instruction to a deadlocked jury which instructed it to 

continue deliberating. Allen, 164 U.S. at 501, 17 S. Ct. at 157. Kentucky codified 

the Allen charge principle by adopting RCr 9.57(1), as follows:

If a jury reports to a court that it is unable to reach a verdict 

and the court determines further deliberations may be 

useful, the court shall not give any instruction regarding 

the desirability of reaching a verdict other than one which 

contains only the following elements:

(a) in order to return a verdict, each juror must agree 

to that verdict;

(b) jurors have a duty to consult with one another 

and to deliberate with a view to reaching an 

agreement, if it can be done without violence to 

individual judgment;

(c) each juror must decide the case, but only after an 

impartial consideration of the evidence with the 

other jurors;

(d) in the course of deliberations, a juror should not 

hesitate to reexamine his or her own views and 

change his or her opinion if convinced it is 

erroneous; and

(e) no juror should surrender his or her honest 

conviction as to the weight or effect of the evidence 
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solely because of the opinion of other jurors, or for 

the mere purpose of returning a verdict.

RCr 9.57(1). “Prior to the adoption of RCr 9.57, . . . the trial judges of this 

Commonwealth were afforded substantial discretion as to how to instruct a 

deadlocked jury, so long as the instruction did not attempt to coerce the jury or 

indicate the judge’s own opinion as to the verdict.” Commonwealth v. Mitchell, 

943 S.W.2d 625, 626 (Ky. 1997) (citations omitted). This discretion has been

substantially tempered considering RCr 9.57.

To determine whether an Allen charge coerced the jury to reach a 

verdict, “[o]ur test always has been to look at the language of the statement or 

instruction itself to determine whether it actually forced an agreement or whether it 

merely forced deliberations resulting in an agreement.” Mitchell, 943 S.W.2d at 

628 (citations omitted). Therefore, it has long been the rule “that statements which 

merely impress upon the jury the propriety and importance of coming to an 

agreement do not rise to the level of reversible error.” Id. (citations omitted).

In Wright v. Commonwealth, the Kentucky Supreme Court rejected an 

appellant’s proposal that the Supreme Court adopt a rule which would rule 

multiple Allen charges as per se coercive. 590 S.W.3d 255, 264 (Ky. 2019). 

Rather, “our appellate courts should address the issue of whether giving multiple 

Allen charges in any given case was coercive, and therefore reversible error, based 

on the totality of the circumstances surrounding the instructions given.” Id. 
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Therefore, the mere fact that multiple Allen charges were issued here does not 

automatically mean the charges were coercive.

The circuit court’s first Allen charge in Wright was remarkably similar 

to the Allen charge at issue in the present appeal. See id. at 263. However, when 

the jury in Wright informed the circuit court that it was deadlocked a second time, 

the court asked the jury foreperson if additional deliberations would be helpful. Id. 

The foreperson answered in the affirmative, the court reread its Allen charge, and 

the jury resumed deliberations. Id. When reading its second Allen charge, the 

circuit court stated that “[n]one of us is asking for an arm twisting” and that it was 

not demanding a certain amount of time for deliberations. Id. at 263-64. For these 

reasons, the Supreme Court determined that the circuit court’s statements and the 

circumstances surrounding them did not demonstrate that the jury had been forced 

to reach a verdict. Id. at 264. 

Time is a relevant circumstance to consider when determining 

whether a jury verdict was coerced. In Elders v. Commonwealth, a panel of this 

Court discussed whether a verdict had been coerced. See 395 S.W.3d 495, 503-

505 (Ky. App. 2012). In discussing the legal standard for determining whether 

coercion exists, we noted “[t]he time lapse between the alleged coercive comment 

and the verdict may be relevant as part of the totality of circumstances, though not 

decisive.” Id. at 504 (quoting Bell v. Commonwealth, 245 S.W.3d 738, 742-43 
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(Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 

813 (Ky. 2008)). 

These circumstances present a closer question than those in Wright. 

One distinction is that the jury in the instant case did not inform the circuit court 

that additional deliberations would be useful. The circuit court provided no 

assurances that it was not demanding a verdict as were provided in Wright; the 

circuit court did not state explicitly that it was not trying to force a verdict or that 

the court did not expect the jurors to deliberate for a certain amount of time. 

Instead, after the first Allen charge, the jury returned ten minutes later and 

informed the court it was still unable to reach a verdict. 

However, RCr 9.57(1) permits circuit courts to order further 

deliberations if the court believes they would be useful, not if the jury believes they 

would be. Simply, the circuit court did not believe the jury could have carried out 

the Allen charge based on the short period of time between the initial charge and 

the jury again relaying that it had been deadlocked; therefore, the circuit court 

obviously believed further deliberations would be useful. And, none of the circuit 

court’s statements to the jury constituted a direct instruction regarding the 

desirability of reaching a verdict other than those statements permitted under RCr 

9.57(1). Otherwise, the circuit court made no statement to the jury regarding the 

desirability of the verdict. For these reasons, we believe the circuit court’s 
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successive Allen charges to the jury was not a shocking or jurisprudentially 

intolerable defect and, therefore, did not constitute palpable error.

Dixon next argues the circuit court erred in denying his directed 

verdict motion on his possession charge. The Constitution of the United States 

requires the government to prove “every element of the charged offense beyond a 

reasonable doubt” to obtain conviction in criminal cases. Anderson v. 

Commonwealth, 352 S.W.3d 577, 581 (Ky. 2011) (citing In re Winship, 397 U.S. 

358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Miller v. Commonwealth, 77 

S.W.3d 566, 576 (Ky. 2002); KRS3 500.070(1)). If this is not done, the accused’s 

right to due process is violated. Id. (citing Winship, 397 U.S. at 364, 90 S. Ct. at 

1072-73).

When considering a motion for directed verdict:

[T]he 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.

3 Kentucky Revised Statutes.
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Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “On appellate 

review, the test of a directed verdict is, if under the evidence as a whole, it would 

be clearly unreasonable for a jury to find guilt, only then the defendant is entitled 

to a directed verdict of acquittal.” Id. (citing Commonwealth v. Sawhill, 660 

S.W.2d 3 (Ky. 1983)). 

“A person is guilty of possession of a controlled substance in the first 

degree when he or she knowingly and unlawfully possesses[,]” among other drugs, 

methamphetamine. KRS 218A.1415(1)(c). A conviction under this statute may be 

supported by either actual or constructive possession. Commonwealth v. James, 

586 S.W.3d 717, 721 (Ky. 2019) (citing Hargrave v. Commonwealth, 724 S.W.2d 

202, 203-04 (Ky. 1986)). Further, “[i]t has long been the law that the 

Commonwealth can prove all the elements of a crime by circumstantial evidence.” 

Commonwealth v. Goss, 428 S.W.3d 619, 625 (Ky. 2014) (citing Commonwealth 

v. O’Conner, 372 S.W.3d 855, 857 (Ky. 2012)). 

When construing all evidence in a light most favorable to the 

Commonwealth and assuming all of the Commonwealth’s evidence is true as 

required, the circumstantial evidence presented to the jury would allow them to 

conclude Dixon either actually or constructively possessed the syringes containing

methamphetamine. The syringes were thrown from the passenger side of the 

vehicle, where Dixon sat. Detective Adkisson testified that he observed Dixon 
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moving around in the car and reaching over to the driver’s side of the car during 

the low-speed chase. Conversely, he did not see Nicholas do anything but drive 

the car. Detective Lindeman also observed Dixon’s furtive and suspicious 

movements in the car. The detectives were a mere twenty feet behind Dixon and 

Nicholas and their view inside the vehicle was not obstructed by window tinting. 

Based on this evidence, it would not be clearly unreasonable for a jury 

to find Dixon guilty of first-degree possession of methamphetamine. Therefore, it 

was not error for the circuit court to turn the case over to the jury by denying 

Dixon’s directed verdict motion.

Based on the foregoing, we affirm the Kenton Circuit Court’s 

judgment of conviction against Dixon.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Shannon Dupree

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Russell Coleman

Attorney General of Kentucky

Brystin Denguessi Kwin

Assistant Attorney General

Frankfort, Kentucky