RENDERED: MAY 8, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1235-MR
BRIAN MARCUM APPELLANT
APPEAL FROM CLINTON CIRCUIT COURT v. HONORABLE DAVID L. WILLIAMS, JUDGE ACTION NO. 23-CR-00050
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2024-CA-1236-MR
APPEAL FROM CLINTON CIRCUIT COURT v. HONORABLE DAVID L. WILLIAMS, JUDGE ACTION NO. 23-CR-00050
COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING APPEAL NO. 2024-CA-1235-MR AND AFFIRMING APPEAL NO. 2024-CA-1236-MR
** ** ** ** **
BEFORE: CETRULO, A. JONES, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Brian Marcum brings Appeal No. 2024-CA-1235-MR from a
June 18, 2024, judgment of the Clinton Circuit Court sentencing Marcum to a total
of ten-years’ imprisonment. Marcum also brings Appeal No. 2024-CA-1236-MR
from a September 4, 2024, order of the Clinton Circuit Court denying Marcum’s
motion for judgment of acquittal. We affirm in part, reverse in part, and remand
Appeal No. 2024-CA-1235-MR, and we affirm Appeal No. 2024-CA-1236-MR.
On July 30, 2023, the Clinton County Sheriff received a request for a
welfare check of a residence located at 55 Cecil Way, as the residence’s windows
and doors had been open for a day or more. A deputy was dispatched to perform
the check. Upon arrival, the deputy observed that the front door and a window
were open, so he proceeded to knock on the front door. No one responded.
Thereupon, the deputy entered the home and observed a large marijuana plant in
the shower, a grow light, and drug paraphernalia. He then exited the house, and
the next day, a warrant was obtained and executed to search the residence. At the
time of the search, Marcum was at the house. A search of the house yielded a
-2- marijuana plant in a shower, a marijuana plant on the back deck, a planting tray
with small seedlings, a large quantity of plastic bags, and liquid growth hormone
for plants.
On August 1, 2023, the Clinton County Grand Jury indicted Marcum
upon the offenses of marijuana cultivation, possession of drug paraphernalia,
trafficking in marijuana (more than eight ounces), and with being a second-degree
persistent felony offender. A jury trial ensued. The jury found Marcum guilty of
marijuana cultivation, possession of drug paraphernalia, and trafficking in
marijuana. However, the jury left the verdict form blank upon whether Marcum
was guilty of being a second-degree persistent felony offender. The jury then
recommended a sentence of five-years’ imprisonment for marijuana cultivation,
twelve months for trafficking in marijuana, and twelve months for possession of
drug paraphernalia. And, although the jury left a blank on the instruction
adjudicating the guilt/innocence of being a second-degree persistent felony
offender, the jury inexplicably recommended a sentence of ten years for being a
second-degree persistent felony offender. By Judgment and Sentence on Pleas of
Not Guilty (Judgment) entered June 18, 2024, the circuit court sentenced Marcum
to a total of ten-years’ imprisonment upon the offenses of cultivation of marijuana,
trafficking in marijuana, possession of drug paraphernalia, and with being a
second-degree persistent felony offender. Nonetheless, by another order entered
-3- the same day (June 18, 2024), the circuit court dismissed the charge of second-
degree felony offender “[p]ursuant to a jury trial.” Record at 111. Marcum then
filed a motion for judgment of acquittal, which was denied by order entered on
September 4, 2024.
Marcum filed the notice of appeal (Appeal No. 2024-CA-1235-MR)
from the June 18, 2024, judgment and later filed another notice of appeal (Appeal
No. 2024-CA-1236-MR) from the September 4, 2024, order. We have
consolidated the appeals for review.1
DIRECTED VERDICT – CULTIVATING MARIJUANA
1. Standard of Review
Our review of a directed verdict is succinctly set forth as follows:
On motion for directed verdict, 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). Our review shall
proceed accordingly.
1 The Court of Appeals consolidated for review Appeal Nos. 2024-CA-1235-MR and 2024-CA- 1236-MR by order entered February 24, 2025.
-4- 2. Analysis
Marcum contends the circuit court erred by denying his motion for
directed verdict upon the offense of cultivating marijuana. Marcum asserts that
only samples of two of the eight plants seized were sent to a laboratory for testing;
thus, no samples were taken for testing on six remaining plants. Although samples
from two plants were sent to the laboratory, Marcum further alleges that the
laboratory only tested one sample, and on that one sample, the laboratory failed to
perform a THC concentration test. Without such test, Marcum asserts that the
Commonwealth could not establish that the tested plant was actually a marijuana
plant as opposed to a hemp plant. At trial, Marcum points out that the
Commonwealth’s laboratory analyst was unable to testify that the test sample was
marijuana because testing was not performed to determine the level of THC in the
plant. Additionally, Marcum cites to the testimony of the Clinton County Sheriff
Ricky Marcum, who testified that marijuana plants must have a THC concentration
of at least 0.3%. Marcum maintains that the Commonwealth failed to establish
such THC concentration in any of the eight plants. Marcum also alleges that the
Commonwealth only introduced sufficient evidence of two viable plants seized
from his home, as the other six plants were mere saplings and were dead.
To be guilty of a Class D Felony for cultivating marijuana under
Kentucky Revised Statutes (KRS) 218A.1423(1), Marcum alleges that the
-5- Commonwealth must introduce evidence proving beyond a reasonable doubt that
he cultivated five or more plants. As six of the eight plants were mere saplings,
were clearly dead, and were not tested, Marcum urges this Court to conclude that
the Commonwealth failed to prove that he cultivated five plants or more per KRS
218A.1423, thus entitling him to a directed verdict of acquittal.
Under Kentucky’s penal statutes, marijuana is defined, in relevant
part:
“Marijuana” means all parts of the plant Cannabis sp., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin or any compound, mixture, or preparation which contains any quantity of these substances. The term “marijuana” does not include:
(a) Industrial hemp that is in the possession, custody, or control of a person who holds a license issued by the Department of Agriculture permitting that person to cultivate, handle, or process industrial hemp;
(b) Industrial hemp products that do not include any living plants, viable seeds, leaf materials, or floral materials[.]
KRS 218A.010(28). And cultivation of marijuana is criminalized by KRS
218A.1423, which provides in relevant part:
(1) A person is guilty of marijuana cultivation when he or she knowingly and unlawfully plants, cultivates, or harvests marijuana with the intent to sell or transfer it,
-6- and the cultivation is not in compliance with, or otherwise authorized by, KRS Chapter 218B.
(2) Unless authorized by KRS Chapter 218B, marijuana cultivation of five (5) or more plants of marijuana is:
(a) For a first offense a Class D felony.
(b) For a second or subsequent offense a Class C felony.
(3) Unless authorized by KRS Chapter 218B, marijuana cultivation of fewer than five (5) plants is:
(a) For a first offense a Class A misdemeanor.
(b) For a second or subsequent offense a Class D felony.
(4) Unless authorized by KRS Chapter 218B, the planting, cultivating, or harvesting of five (5) or more marijuana plants shall be prima facie evidence that the marijuana plants were planted, cultivated, or harvested for the purpose of sale or transfer.
Additionally, it is well-established that the Commonwealth is not
required to test a sample of each alleged marijuana plant to support a charge of
cultivating or possessing several marijuana plants. Taylor v. Commonwealth, 984
S.W.2d 482, 484-85 (Ky. 1998). When less than all marijuana plants are tested
that supports a criminal charge, the Kentucky Supreme Court has set forth the
following factors “to determine [whether] the government presented sufficient
reliable evidence to attribute the full quantity of marijuana seized to the
defendant”:
-7- [A] proper random selection procedure was employed; the tested and untested substances were contemporaneously seized at the search scene; the tested and untested substances were sufficiently similar in physical appearance; the scientific testing method conformed with an accepted methodology; all of the samples subjected to scientific analysis tested positive for the same substance; and the absence of evidence that the untested substance was different from the tested substance. . . .
Taylor, 984 S.W.2d at 485. Thus, when the Commonwealth tests less than all the
marijuana plants seized, the test results may be used to classify all the plants seized
as marijuana if the factors set forth in Taylor weigh in favor of the Commonwealth.
Id. If the factors do not, the Commonwealth may not rely upon the testing to prove
that the untested plants were marijuana and must otherwise prove that the untested
plants were marijuana.
As Marcum was convicted of cultivating marijuana, five or more
plants, under KRS 218A.1423(2), it was incumbent upon the Commonwealth to
have introduced evidence proving beyond a reasonable doubt that at least five
plants seized were marijuana. The Commonwealth points to the testimony of the
laboratory analyst and Sheriff Marcum. The laboratory analyst did testify that one
sample was marijuana as it contained THC. Nonetheless, it was undisputed that a
total of eight alleged marijuana plants were seized, and the plants were seized at
the same time. From the evidence presented, only two of the marijuana plants
were grown beyond saplings, so the two samples were taken from each of the
-8- mature marijuana plants. However, only one sample was actually tested, and it
was not tested for its THC concentration. The laboratory analyst admitted at trial
that a THC concentration test was the only method to differentiate marijuana from
hemp. As only one sample was tested and it was not tested for its THC
concentration, no other samples tested positive for marijuana. Additionally, there
was a marked distinction between the two mature plants and the six samplings. At
trial, photos were introduced of the plants. The two mature plants were green and
bushy with numerous leaves, whereas, the six saplings were small and dried with a
brown appearance. The six saplings consisted of a thin stalk and small shriveled
leaves.2 The mature plants and saplings could not have been more dissimilar in
appearance. Under the factors set forth in Taylor, 984 S.W.2d at 485, we conclude
that the factors weigh against the Commonwealth, and the testing cannot be
utilized to prove that the six saplings were marijuana.
However, the Commonwealth also introduced the testimony of Sheriff
Marcum. Sheriff Marcum testified that he was trained to identify marijuana plants
and that it was his opinion that all the seized plants, including the saplings, were
marijuana. Marcum countered that during the Sheriff’s testimony, Sheriff Marcum
admitted that hemp plants and marijuana plants were indistinguishable in
2 Clinton County Sheriff Ricky Marcum testified that the some of the six saplings were alive when seized but later died.
-9- appearance; thus, Marcum contends that the sheriff’s testimony alone was
insufficient to prove that the saplings were, in fact, marijuana and not hemp.
This issue was addressed by the Court of Appeals in Lundy v.
Commonwealth, 511 S.W.3d 398 (Ky. App. 2017). Therein, defendant argued that
a directed verdict was proper as the Commonwealth could not prove that the seized
plants were marijuana and not hemp. Our Court rejected that argument by
reasoning:
While the level of THC distinguishes marijuana plants from hemp plants under federal and Kentucky law, that distinction is only relevant if Mark could legally possess industrial hemp. Under Kentucky law, he could do so only if properly licensed and engaged in growing hemp or possessing hemp for industrial use. No such evidence was presented. If the facts were different and Mark could legally possess industrial hemp plants or was in possession of a commercial hemp product containing THC, we would agree that the Commonwealth must establish the THC level in the plants or the product was more than .3 percent. That simply is not the case.
Moreover, there was more than sufficient circumstantial evidence that the plant material was marijuana. See Graves v. Commonwealth, 17 S.W.3d 858, 862 (Ky. 2000). Plants were found in an indoor grow operation in an outbuilding cellar, a highly unusual place to grow hemp but consistent with illegally growing marijuana. There was testimony that the bud from the marijuana plants was found in the freezer, a practice known to preserve the THC level. There was also testimony that while cloning solution was found in the outbuilding, hemp growers are not concerned with whether the plants are male or female. Based on the
-10- evidence, the trial court properly denied the motion for directed verdict.
Id. at 406-07.
In this case, the Commonwealth introduced evidence that all eight
plants were found in Marcum’s residence. One of the larger plants was located in
a bathroom, and the other large plant was located on the back deck of the
residence. The six saplings were located in the bathroom. The sheriff testified that
Marcum admitted to him that Marcum grew and sold marijuana to support his
methamphetamine addiction, and the sheriff testified that all eight plants were
marijuana. The sheriff also testified that the six saplings were alive at the time of
seizure. A grow light and growth hormone was found at the residence. Viewing
the evidence most favorable to the Commonwealth, we are of the opinion that the
circuit court properly denied Marcum’s motion for a directed verdict upon the
offense of cultivating marijuana. There was sufficient direct and circumstantial
evidence presented that a reasonable juror could believe beyond a reasonable doubt
that Marcum was growing eight marijuana plants. See Lundy, 511 S.W.3d at 406-
07. The trial court did not err in denying Marcum’s motion for directed verdict.
ACQUITTAL – PERSISTENT FELONY OFFENDER
As the acquittal issue was not preserved below, our review centers
upon Kentucky Rules of Criminal Procedure (RCr) 10.26, which reads:
-11- A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
The Kentucky Supreme Court has explained the palpable error rule under RCr
10.26:
The palpable error rule allows reversal for an unpreserved error only when “manifest injustice has resulted from the error.” RCr 10.26. This requires a “probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). “When an appellate court engages in a palpable error review, its focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.” Id. at 5.
Elery v. Commonwealth, 368 S.W.3d 78, 98 (Ky. 2012). Our review shall proceed
accordingly.
2. Analysis
Marcum asserts that the circuit court erred by sentencing him upon the
charge of being a second-degree persistent felony offender. Marcum points out
that the jury was instructed upon the charge of being a second-degree persistent
felony offender but failed to find him guilty thereof. According to Marcum, the
jury left blanks upon the questions of whether Marcum was guilty or not guilty of
being a second-degree persistent felony offender. Marcum also acknowledges that
-12- the jury, nonetheless, sentenced him to ten-years’ imprisonment for being a
second-degree felony offender. Marcum believes the circuit court committed error
by sentencing him to ten-years’ imprisonment for being a second-degree persistent
felony offender. Marcum admits that this error is unpreserved and requests review
for palpable error under RCr 10.26.
In Kentucky “[t]he legal operation and effect of a judgment must be
determined from a construction and interpretation of its terms.” Bruenger v.
Miller, 706 S.W.3d 247, 261 (Ky. 2024) (quoting Turner v. Begley, 39 S.W.2d
504, 506 (Ky. 1931)). When interpretating and construing a judgment, a court
generally intends its judgment to be valid; therefore, if the judgment is susceptible
of two possible interpretations, we will adopt the interpretation that renders the
judgment valid. Board of Educ. of Campbellsville Indep. Sch. Dist. v. Faulker, 433
S.W.2d 853, 855 (Ky. 1968).
The record reveals that in Form Verdict No. 2, the jury was instructed
to find Marcum either not guilty or guilty of being a persistent felony offender in
the second degree. The jury was particularly instructed that it must reach a verdict
thereunder before proceeding. Nonetheless, it is uncontroverted that the jury did
not return a verdict as to the guilt of Marcum upon the charge of second-degree
persistent felony offender. Rather, the jury simply left the instruction blank. In
contravention of the instruction, the jury proceeded to recommend a sentence of
-13- ten-years’ imprisonment for being a persistent felony offender in the second degree
in Form Verdict No. 3.
Subsequently, the circuit court rendered a judgment on June 18, 2024.
Therein, the circuit court recited that the jury found Marcum guilty of all offenses,
including being a persistent felony offender in the second degree. The circuit court
then sentenced Marcum to ten-years’ imprisonment based upon an enhanced
sentence consistent with Marcum being a second-degree persistent felony offender.
Nonetheless, on the same day (June 18, 2024), the circuit court rendered another
order. In this order, the circuit court dismissed the charge of being a second-
degree persistent felony offender “[p]ursuant to a jury trial.” June 18, 2024, order,
Record at 111.3
It is clear that the June 18, 2024, judgment and the June 18, 2024,
order are inherently antithetical. In the judgment, the court sentences Marcum to
an enhanced sentence based upon being a persistent felony offender in the second
degree, and in the order, the court dismisses the charge of being a second-degree
persistent felony offender pursuant to the jury trial. And, both the judgment and
order were signed (June 13, 2024) and entered (June 18, 2024) on the same days.
Additionally, the jury did not adjudicate Marcum to be guilty of being a second-
3 We observe that a court only speaks though its judgments and orders. Cumberland Valley Contractors, Inc., v. Bell County Coal Corp., 238 S.W.3d 644, 648 (Ky. 2007).
-14- degree persistent felony offender. As such, the circuit court could not properly
enhance Marcum’s sentence of imprisonment for being a persistent felony offender
as it did in the Judgment; conversely, the circuit court could properly dismiss the
charge of second-degree persistent felony offender as the jury failed to find
Marcum guilty thereof. We also view this error as resulting in manifest injustice to
Marcum. Although the jury did not adjudicate Marcum guilty of being a persistent
felony offender and the circuit court dismissed such charge, the circuit court,
nonetheless, erroneously enhanced Marcum’s sentence of imprisonment for being
a persistent felony offender in the second degree. Based on the record, we do not
believe the dismissal of the persistent felony offender charge was a clerical error as
argued by the Commonwealth.
Therefore, we reverse that part of the Judgment enhancing Marcum’s
sentence to ten-years’ imprisonment. Upon remand, the circuit shall resentence
Marcum consistent with its order dismissing the charge of second-degree persistent
felony offender. As a result, the circuit court may not impose an enhanced
sentence upon Marcum based upon being a second-degree persistent felony
offender.
-15- DOUBLE JEOPARDY
The double jeopardy argument raised by Marcum in this appeal looks
to the interpretation and application of applicable law. Accordingly, our review is
de novo. See Rushin v. Commonwealth, 701 S.W.3d 293, 298 (Ky. 2024).
Marcum argues that his conviction upon the offenses of cultivation of
marijuana and of trafficking in marijuana violated the prohibition against double
jeopardy. Marcum alleges that the Commonwealth improperly utilized the same
marijuana plants to convict him of cultivating marijuana and of trafficking in
marijuana. By utilizing the same marijuana plants, Marcum contends that double
jeopardy was offended.
Section 13 of the Kentucky Constitution provides that “[n]o person
shall, for the same offense, be twice put in jeopardy of his life or limb[.]” The
prohibition against double jeopardy is also found in the Fifth Amendment to the
United States Constitution. To determine if the constitutional prohibition against
double jeopardy has been violated, the Kentucky Supreme Court adopted a test
enunciated in Blockburger v. United States, 284 U.S. 299 (1932). In Blockburger,
the United States Supreme Court held that “where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
-16- determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.” Id. at 304. Thus, under this test,
the prohibition against double jeopardy is offended where defendant “is convicted
of two crimes with identical elements, or where one is simply a lesser-included
offense of the other.” Kiper v. Commonwealth, 399 S.W.3d 736, 742 (Ky. 2013)
(quoting Turner v. Commonwealth, 345 S.W.3d 844, 847 (Ky. 2011)).
Additionally, the Kentucky General Assembly enacted KRS 505.020
as a statutory prohibition against double jeopardy. It reads, in pertinent part:
(1) When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when:
(a) One offense is included in the other, as defined in subsection (2); or
(b) Inconsistent findings of fact are required to establish the commission of the offenses; or
(c) The offense is designed to prohibit a continuing course of conduct and the defendant’s course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.
(2) 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:
-17- (a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or
(c) It differs from the offense charged only in the respect that a lesser kind of culpability suffices to establish its commission; or
(d) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest suffices to establish its commission.
In this case, Marcum was convicted of trafficking in marijuana and
the cultivating of marijuana. The offenses of trafficking in marijuana and of
cultivating marijuana have different elements. To be guilty of trafficking
marijuana, a defendant must intentionally sell, dispense, or transfer marijuana or
possess marijuana with the intent to sell, dispense, or transfer it. KRS 218A.1421;
KRS 218A.010(56). By contrast, a defendant is guilty of cultivating marijuana if
he plants or harvests marijuana with intent to sell or distribute it. KRS 218A.1423.
Thus, unlike trafficking in marijuana, a defendant is only guilty of cultivating
marijuana if he plants or harvests same. Additionally, in this case, Marcum’s acts
of trafficking and cultivating marijuana did not constitute a single course of
conduct within the purview of KRS 505.020. Consequently, we conclude that
-18- Marcum’s conviction of trafficking in marijuana and cultivating of marijuana did
not offend the prohibition against double jeopardy.
We view any remaining contentions of error as moot or without merit.
SUMMMATION
In summation, we reverse that part of the Judgment enhancing
Marcum’s sentence to ten-years’ imprisonment for being a persistent felony
offender in the second degree. Upon remand, the trial court shall resentence
Marcum consistent with its order dismissing the charge of second-degree persistent
felony offender and may not impose an enhanced sentence upon Marcum based
upon being a second-degree persistent felony offender. In all other respects, we
affirm the circuit court’s Judgment and Sentence on Pleas of Not Guilty and the
court’s Order denying Marcum’s motion for judgment of acquittal.
For the foregoing reasons, we affirm in part, reverse in part, and
remand Appeal No. 2024-CA-1235-MR and affirm Appeal No. 2024-CA-1236-
MR.
ALL CONCUR.
-19- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert C. Yang Russell Coleman Assistant Public Advocate Attorney General of Kentucky Department of Public Advocacy Louisville, Kentucky J. Grant Burdette Assistant Solicitor General Office of the Solicitor General Frankfort, Kentucky
-20-