Varble v. Commonwealth , 2004 Ky. LEXIS 9 ( 2004 )

Concurring opinion by

Chief Justice

LAMBERT.

I concur with the result achieved by the majority in this case, but write separately to highlight what I believe to be a desirable modification of the holding of Kotila v. Commonwealth.¹ In Kotila, the majority held that the conviction must be reversed because the defendant did not possess “all of the chemicals or all of the equipment necessary to manufacture methamphetamine.”² Such a statement would normally compel the conclusion that the failure to possess the necessary chemical anhydrous ammonia would preclude the conviction. But in this case, the majority has held that “the odor of anhydrous ammonia”³ is sufficient circumstantial evidence to prove that at some point in time Appellant possessed anhydrous ammonia. Thus, in future prosecutions it will not be necessary to prove actual possession of anhydrous ammonia, but merely former possession based on proof of odor.

Similarly in this case, there was no evidence of coffee filters or another commonly used filtration device. The majority addresses this fact by presuming that a “filter of an unspecified nature and a dust filter mask”⁴ could be used as the necessary filtration device. The foregoing represents a significant departure from the bright line rule announced in Kotila.

I wrote a dissenting opinion in Kotila expressing the view that the statute need not have been interpreted as it was and that the burden on the prosecution had been unnecessarily elevated. While I still hold that view, the instant case represents a moderation of what I believe to be undesirable aspects of Kotila.

GRAVES and WINTERSHEIMER, JJ., join this concurring opinion.

1 . Ky., 114 S.W.3d 226 (2003).

2 . Id. at 240-41 (emphasis in original).

3 . Varble v. Commonwealth, Ky., 125 S.W.3d 246, 254 (majority opinion).

4 . Maj. op. at 254.