RENDERED: OCTOBER 23, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2018-CA-0794-MR
DARYL COUCH APPELLANT
APPEAL FROM LIVINGSTON CIRCUIT COURT v. HONORABLE C.A. WOODALL, III, JUDGE ACTION NO. 16-CR-00025
COMMONWEALTH OF KENTUCKY APPELLEE
AND NO. 2018-CA-0795-MR
HAROLD SMITH APPELLANT
APPEAL FROM LIVINGSTON CIRCUIT COURT v. HONORABLE C.A. WOODALL, III, JUDGE ACTION NOS. 16-CR-00026 & 16-CR-00027
COMMONWEALTH OF KENTUCKY APPELLEE AND NO. 2018-CA-1642-MR
APPEAL FROM LIVINGSTON CIRCUIT COURT v. HONORABLE C.A. WOODALL, III, JUDGE ACTION NOS. 16-CR-00026 & 16-CR-00027
OPINION VACATING & REMANDING AS TO APPEAL NOS. 2018-CA-0794 & 2018-CA-1642 AND AFFIRMING IN PART, VACATING IN PART, & REMANDING AS TO APPEAL NO. 2018-CA-0795
** ** ** ** **
BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
JONES, JUDGE: In April of 2018, Harold Smith and Daryl Couch were tried
together on drug-related charges before a single jury in the Livingston Circuit
Court following their arrests on October 14, 2015. The jury found Smith guilty of
the cultivation of marijuana, five or more plants, subsequent offense, in violation
of KRS1 218A.1423, and guilty of trafficking in marijuana, less than eight ounces,
1 Kentucky Revised Statutes. -2- subsequent offense, in violation of KRS 218A.1421; it found Couch guilty of
cultivation of marijuana, five or more plants, first offense, in violation of KRS
218A.1423. The trial court sentenced Smith to ten years’ imprisonment for the
cultivation conviction and five years’ imprisonment for the trafficking conviction
with the sentences to be served consecutively for a total of fifteen years’
imprisonment. Couch was sentenced to five years’ imprisonment.2 Acting with
the assistance of separate counsel, Smith and Couch each filed a direct appeal with
this Court: (1) Couch v. Commonwealth, No. 2018-CA-0794-MR; and (2) Smith v.
Commonwealth, No. 2018-CA-0795-MR. Smith then filed a pro se appeal
attacking a subsequent forfeiture order entered by the trial court: Smith v.
Commonwealth, No. 2018-CA-1642-MR.3
In their main appeals, Smith and Couch both argue that the trial court
erred when it refused to include a jury instruction on possession of marijuana as a
lesser-included offense of cultivation of marijuana and/or trafficking in marijuana.
Smith also makes the additional argument that the trial court erred when it refused
2 Couch’s cultivation conviction was a Class D felony as he had not previously been convicted of that offense, whereas Smith was a subsequent offender making Smith’s conviction a Class C felony. This difference accounts for the discrepancy in the length of the sentences Couch and Smith received for their cultivation convictions. 3 In 2019, Smith filed another pro se appeal, No. 2019-CA-0426-MR, asking this Court to order the trial judge, the Hon. C.A. Woodall, III, to be recused from all further matters affecting his criminal cases. That appeal was also assigned to this panel for decision. That appeal has been dismissed for lack of jurisdiction by separate order. -3- to declare a mistrial after a witness testified that Smith was known to be a “large
grower [of marijuana] in the area from eastern Kentucky.” Smith’s separate, pro
se appeal asserts the trial court denied him due process when it ordered certain
property forfeited following his convictions.4 While we disagree with respect to
the mistrial and trafficking conviction, we agree with Smith and Couch that the
trial court erred when it failed to instruct the jury on possession of marijuana as a
lesser-included offense of cultivating marijuana. Accordingly, we must vacate and
remand the judgments entered against Couch and Smith with respect to their
individual cultivation of marijuana convictions. Because the order of criminal
forfeiture arose out of the cultivation conviction, we must vacate and remand that
order as well.
I. BACKGROUND
Smith and Couch were arrested on October 14, 2015, after a large
amount of marijuana was seized from a camper where they were staying in
Livingston County, Kentucky. Smith was indicted for cultivating marijuana, more
than five plants, subsequent offense, and trafficking in marijuana, less than eight
ounces, subsequent offense. Couch was indicted for cultivation of marijuana, more
4 The three appeals share a record, arise out of a common set of facts, and involve similar legal issues. In the interests of judicial economy, each appeal was assigned to this panel for decision, and we have likewise determined that the most efficient manner to adjudicate these appeals is through a combined opinion addressing all three appeals.
-4- than five plants, first offense. Both men pleaded not guilty and a joint trial was
conducted on April 19, 2018. The Commonwealth’s two primary witnesses were
Morgan Crayne,5 a confidential informant, and Detective Mike Lantrip, a state law
enforcement official assigned to the Pennyrile Narcotics Task Force, who headed
up the investigation that led to the arrests of Couch and Smith. The
Commonwealth also called Terry Nunely, the Assistant Director of the Pennyrile
Narcotics Task Force, and David Hack, the laboratory director for the Kentucky
State Police. Couch testified on behalf of Appellants.
The Commonwealth’s first witness was Morgan Crayne. In late 2014
or early 2015, Crayne reached out to law enforcement officers about the possibility
of working as a confidential informant. After a preliminary meeting, the Pennyrile
Narcotics Task Force decided to take Crayne on as one of its confidential
informants. At the time of trial, Crayne had worked for the Commonwealth on
numerous drug-related cases. He was paid in cash, generally after a successful
arrest was made by the Commonwealth. The amount varied from case to case. He
estimated that he had received over $30,000.00 for his work over the last four
years; he was paid $1,000.00 for his work leading to the arrests of Couch and
Smith.
5 The Appellants use two different spellings of Morgan’s surname throughout their briefs: “Crayn” and “Crayne.” Morgan testified at trial that his surname is spelled “Crayne” and that is the spelling we use throughout this opinion.
-5- Crayne testified that he had known Smith since the two were
incarcerated together several years earlier. They kept in contact with one another
after they were released. Crayne suspected Smith of being involved with
marijuana. He informed Detective Lantrip about his suspicions after he began
working as an informant, prompting the Pennyrile Narcotics Task Force to begin
investigating Smith and his activities. Sometime in the spring of 2015, Crayne
asked Smith to accompany him on a trip to look at a house Crayne was thinking
about renting. Smith brought Couch along with him on the trip. This was the first
time Crayne had met Couch. Crayne wore a recording device on this trip but
nothing of substance appears to have been recorded.
In early October of 2015, Smith called Crayne and told him that he
and Couch were on a racoon hunting trip in Livingston County and were staying at
the Birdsville Campground in Smithland, Kentucky. Crayne relayed this
information to Detective Mike Lantrip. Detective Lantrip asked Crayne to visit the
campsite to ascertain whether there were any drugs there. Detective Lantrip also
secured a warrant to place a GPS tracking device on Smith’s truck as he suspected
that Smith and Couch were in the area to harvest marijuana. The device was
placed on Smith’s truck by local law enforcement officials in the parking lot of a
convenience store where Smith and Couch had stopped to get supplies.
-6- Per the instructions of law enforcement, Crayne planned to visit the
Birdsville campsite where Smith and Couch were staying on October 14, 2015.
Prior to driving to the campsite, Crayne met with law enforcement officials who
searched him to make sure he did not have any drugs or contraband on his person.
Detective Lantrip could not recall whether law enforcement also searched Crayne’s
vehicle. Crayne arrived at the campsite sometime around noon or one o’clock in
the afternoon. He observed a small camper where the men were staying and a
truck with a metal dog kennel in the back. There were also one or two dogs on
site. Crayne testified that when he arrived, Smith had just woken up for the day.
Smith invited Crayne into the camper. The men talked for about forty-five
minutes, mostly about racoon hunting. Before Crayne departed, Smith retrieved a
small bag of marijuana from a cabinet under or near the camper’s sink area and
gave it Crayne. No money was exchanged. It was not entirely clear from the
testimony whether Crayne had asked Smith for marijuana or whether it was an
unprompted, gratuitous act.
Crayne then left the campsite and met back up with law enforcement
officers. Crayne gave the marijuana, which he testified appeared to him to be
freshly cut, to Detective Lantrip. Crayne told Detective Lantrip that he thought he
saw a few small bags of marijuana in the cabinet where Smith retrieved the bag he
-7- gave to Crayne, but he was not certain of the overall quantity. He did not see any
other marijuana or drugs in the camper.
Crayne returned to the campsite a second time later that day to see if
Smith and Couch were onsite. Crayne testified that as he was making his way to
the camper, he observed Couch remove something from the back of the truck and
take it inside the camper. He was unable to ascertain what Couch removed; he did
not see Smith. Crayne left without making contact with either Smith or Couch.
As he was leaving the campsite, Crayne called Detective Lantrip and
reported what he had seen. Detective Lantrip asked Crayne to return to the
campsite to determine whether there was additional marijuana inside the camper.
Crayne was not searched prior to this third trip, but he did wear a recording device.
Crayne testified that as he approached, he startled Couch who was in the process of
exiting the camper. Crayne said Couch acted nervous and scared as he went back
inside the camper to get Smith. Smith exited the camper and had a short
conversation with Crayne. The audio of the conversation was played at trial;
however, the sound quality is extremely poor, making it nearly impossible to make
out the nature of the men’s conversation. As a result, the Commonwealth asked
Crayne to tell the jury what Smith said to him. Crayne testified that Smith told him
that it was not a good time for him to be there because they were cleaning “pot” in
-8- the camper. Smith did not invite Crayne inside the camper, so he was not able to
actually observe any marijuana himself.
Crayne left the campsite with plans to meet back up with law
enforcement. He testified that he had not gotten very far away when he received a
call from Smith, who asked him to return and help them clean the marijuana.
Crayne called Detective Lantrip and asked if he should return to the campsite.
Detective Lantrip told him not to go back because he was already in the process of
obtaining a warrant that law enforcement would be executing later that evening.
Detective Lantrip testified that after receiving the initial information
from Crayne, he began monitoring the GPS tracking device that was placed on
Smith’s truck. Based on the movements, he believed Smith and Couch were likely
moving marijuana. He testified that at some point that evening, law enforcement
began following Smith’s truck, but it kept turning around without stopping. He
believed that whoever was driving the truck had likely surmised that it was being
followed by someone; this prompted law enforcement to stop following the truck
so as not to blow their cover.
Based on the GPS movements and Crayne’s information, law
enforcement secured a warrant for the campsite, truck, and camper. At
approximately 10:50 p.m., detectives and several deputies executed the warrant.
Both Smith and Couch were at the camper. Smith came to the door with a box
-9- cutter in his hand. Couch was located inside the camper. Detective Lantrip
testified that marijuana was all over the camper. In total, 22.4 pounds of marijuana
was seized from inside the camper, in addition to several smaller bags of marijuana
that were found in the cabinet under the sink where Crayne said Smith retrieved
the bag given to him. Detective Lantrip testified that the 22.4 pounds was
equivalent to approximately twenty-two marijuana plants, and that in his
professional experience this quantity of marijuana would not be consistent with
personal use. Officers also located ceramic heaters in the camper that had been
purchased the previous day and a GPS dog tracking system. Detective Lantrip
testified that the heaters were most likely being used to speed up the drying
process. He believed the GPS dog tracking system was being used to mark and
then locate where the marijuana was hidden so that it could be picked up under the
cover of darkness.
Smith’s cellular telephone was also seized and searched by police. A
series of text messages between Smith and his son were introduced by the
Commonwealth. In one text, Smith’s son asked, “What are you doing[?]” Smith
responded, “Cutting hell down[.]” Smith also stated he got “all that cut across the
road[.]” Later in the evening Smith told his son that he was sitting on the side of
the road waiting for Couch to pick him up, but that Couch was having problems
because someone was after him.
-10- Couch testified on behalf of Appellants. His version of events was
markedly different from Crayne’s version. Couch testified that he had known
Smith his whole life and that the two regularly racoon hunted together throughout
the year. Couch explained that he took his dogs hunting year-round, even though it
was only legal to kill racoons at certain times of the year. Couch explained that he
breeds and trains hunting dogs, and the off-season trips are necessary to properly
teach the dogs how to hunt. He testified that he liked to hunt in the Livingston
County area because there were more racoons in western Kentucky and the terrain
was flatter and easier to navigate on foot than it was in eastern Kentucky.
Couch admitted that he was a regular marijuana smoker. He testified
that he was abused as a child and suffers from PTSD. He believes that smoking
marijuana helps alleviate his PTSD symptoms. Couch testified that he had a small
bit of marijuana on his person during the hunting trip, which he planned to smoke
himself. He denied knowing about the marijuana in the cabinet under the sink and
denied that either he or Smith were cultivating marijuana during their trip. He
testified that Crayne visited the two around noon on October 14, 2015, as he and
Smith were waking up. Later in the day, he testified that he went raccoon hunting
with Smith but that the dogs wandered onto private property and Smith went
looking for them. He said that as he was driving around looking for Smith, he
noticed that someone was following him. He said he was scared because he
-11- thought it was a landowner who was upset about their dogs going onto private
property. He believes this is what Smith was referring to when he texted his son
that someone was after Couch. He denied that he was picking up any marijuana or
that he had any knowledge that Smith had been harvesting marijuana earlier that
day.
Couch testified that later in the evening after he and Smith had
returned to the camper, Crayne showed up in his truck. He said that Crayne called
him and Smith over to his truck and said that he had something to show them.
Couch testified that Crayne pulled back something to reveal garbage bags
containing marijuana. At this point, Couch said he walked away, and Smith took
the marijuana inside the camper. Couch said he does not know what transpired
between Crayne and Smith after he walked away. Couch admitted that he helped
to clean the marijuana, which was fresh cut, but denied that he and Smith had
helped Crayne cut down the marijuana. Couch testified that he planned to keep
whatever he could of the marijuana for personal consumption; he had no plans to
sell it. He thought that it would take him a year to smoke that much marijuana, and
he was willing to try to smoke it all.
Couch denied that they were using the GPS dog tracking system to
locate hidden marijuana. He said the system only held a charge for eight to twelve
hours and was used to locate the dogs while they were hunting.
-12- Following the conclusion of testimony, Couch and Smith requested
the trial court to instruct the jury on possession of marijuana as a lesser-included
offense of cultivation and trafficking. Defense counsel pointed out that the
testimony at trial created a factual issue with respect to whether Crayne transferred
the marijuana found in the camper to Smith and Couch. Counsel noted that if the
jury believed Couch, the Commonwealth could not prove that Smith and Couch
had cultivated the marijuana earlier in the day. The trial court ultimately refused to
give the requested instruction for possession, stating it agreed with the
Commonwealth’s argument that the quantity of marijuana found in the camper was
inconsistent with possession.
The jury found Smith guilty of the cultivation of marijuana, five or
more plants, subsequent offense, in violation of KRS 218A.1423, and guilty of
trafficking in marijuana, subsequent offense, less than eight ounces, in violation of
KRS 218A.1421; it found Couch guilty of the cultivation of marijuana, five or
more plants, first offense, in violation of KRS 218A.1423. The trial court
sentenced Smith to ten years’ imprisonment for the cultivation conviction and five
years’ imprisonment for the trafficking conviction with the sentences to be served
consecutively for a total of fifteen years’ imprisonment. Couch was sentenced to
five years’ imprisonment.
These appeals followed.
-13- II. ANALYSIS
A. Smith’s Motion for a Mistrial
As noted, Crayne was the first witness called to testify. As the
Commonwealth was attempting to lay a foundation, it asked Crayne what he had
previously told Detective Lantrip about Smith that caused law enforcement to
launch their investigation. Crayne responded that he told Detective Lantrip that
Smith was “a large grower in the area from eastern Kentucky.” Smith’s counsel
immediately objected to this testimony. During a short bench conference, the trial
court sustained the objection, which the Commonwealth conceded was proper.
The Commonwealth added that it was not trying to illicit improper testimony of
prior bad acts but was simply trying to lay a foundation. The Commonwealth
agreed not to pursue that line of questioning any further.
Defense counsel then moved for a mistrial. The trial court denied the
motion for a mistrial stating that it believed that an admonition could cure any
prejudicial effect from the statement, and that it would give one if defense counsel
so desired. Defense counsel responded that while it did not believe an admonition
could sufficiently cure the prejudice, it nonetheless wanted the trial court to
admonish the jury if the trial court was not going to declare a mistrial. The trial
court then admonished the jury as follows:
Ladies and gentlemen on the testimony that Mr. Crayne has just given you about what he told Detective Lantrip, -14- you’re not to regard that. You’re to disregard that, and not consider that as any evidence of guilt on either defendant’s part as far as the crime that they are on trial here for today. So disregard that last testimony.
On appeal, Smith argues that Crayne’s testimony that Smith was a
“large grower” created a manifest necessity for a mistrial because the statement
was of such magnitude that it could not be cured by an admonition. Smith
contends that the trial court’s failure to grant a mistrial denied him due process.
Mistrials are highly disfavored. As recently explained by the
Kentucky Supreme Court, a mistrial is proper only in cases of the most extreme
prejudice.
“[A] mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings and there is a ‘manifest necessity for such an action.’” Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) (citing Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002)). “The occurrence complained of must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way.” Woodard, 147 S.W.3d at 68 (quoting Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996)). A trial court’s decision to grant a mistrial must be supported by a “manifest necessity” for that decision in the record. Wiley [v. Commonwealth,] 575 S.W.2d [166, 168 (Ky. App. 1978)] (citations omitted). This necessity must be “an urgent and real necessity.” Id. (quoting Baker v. Commonwealth, 280 Ky. 165, 132 S.W.2d 766 (1939)).
A mistrial is reserved for unique circumstances in which the prejudice is so great that a trial cannot continue fairly for both parties. “[T]he power to grant a mistrial -15- ought to be used sparingly and only with the utmost caution, under urgent circumstances, and for very plain and obvious causes.” Cardine v. Commonwealth, 283 S.W.3d 641, 647 (Ky. 2009) (quoting Commonwealth v. Scott, 12 S.W.3d 682, 685 (Ky. 2000) (citing Glover v. McMackin, 950 F.2d 1236, 1240 (6th Cir. 1991))).
Commonwealth v. Padgett, 563 S.W.3d 639, 646 (Ky. 2018).
This high standard results from the presumption that an admonition
can cure a defect in testimony. Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky.
2001). “The presumption that a jury will follow a curative admonition is overcome
only when there is an overwhelming likelihood that the jury will be incapable of
following the admonition and the impermissible testimony would be devastating to
the appellant.” St. Clair v. Commonwealth, 455 S.W.3d 869, 892 (Ky. 2015). The
trial court has broad discretion in deciding whether an admonition is sufficient, and
its decision to deny a motion for a mistrial should not be disturbed absent an abuse
of discretion. Id.
Crayne’s statement was isolated, discrete, and brief. The
Commonwealth did not purposefully illicit the statement and did not request
Crayne to elaborate on it. Smith’s counsel immediately objected to the statement,
and the Commonwealth agreed not to probe further. Additionally, the jury could
have easily surmised on its own that Crayne believed Smith to be involved in
marijuana cultivation and/or trafficking by virtue of the fact that Crayne alerted
law enforcement to Smith’s presence in the area. “This Court cannot say that the -16- testimony that [Smith] now complains of was so devastating that it could not be
overcome by an admonition. Thus, the trial court’s choice of that remedy over
granting a mistrial was not an abuse of discretion, and does not require reversal.”
Id.
B. Lesser-included Offense Instructions
“It is well established in this Commonwealth that a trial court has a
duty to instruct based on the facts in evidence before it.” Roberts v.
Commonwealth, 599 S.W.3d 841, 854 (Ky. 2020). “Each party to an action is
entitled to an instruction upon his theory of the case if there is evidence to sustain
it.” Beard v. Commonwealth, 581 S.W.3d 537, 541 (Ky. 2019) (quoting Sargent
v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015)). “In a criminal case it is the duty of
the court to prepare and give instructions on the whole law and this rule requires
instructions applicable to every state of case deducible or supported to any extent
by the testimony.” Kelly v. Commonwealth, 267 S.W.2d 536, 539 (Ky. 1954)
(citations omitted). “This obligation extends to lesser-included offenses and
affirmative defenses, but is dependent upon there being sufficient evidence to
warrant the giving of an instruction.” Roberts, 599 S.W.3d at 854 (citing Grimes v.
McAnulty, 957 S.W.2d 223, 226 (Ky. 1997)). “The trial court has no duty to
instruct on theories of the case that are unsupported by the evidence.” Driver v.
Commonwealth, 361 S.W.3d 877, 888 (Ky. 2012).
-17- “[T]he trial court’s standard for instructing on a lesser-included
offense is: unless the evidence is such that a reasonable juror could doubt that the
defendant is guilty of the crime charged but conclude that he is guilty of the lesser-
included offense, the lesser-included instruction should not be given.” Beard, 581
S.W.3d at 543. “Upon review, we likewise consider whether the trial court erred
by refusing to give a lesser-included offense instruction under the ‘reasonable juror
standard.’” Id. at 542 (citing Springfield v. Commonwealth, 410 S.W.3d 589, 594
(Ky. 2013)).6
6 Our Supreme Court has explained that assigning a precise label to this standard of review is often imprecise and somewhat misleading. It can be labeled as de novo or abuse of discretion. Regardless of the label, however, the appellate court must consider the propriety of a lesser- included offense instruction based on the “reasonable juror standard.” As noted, we review a trial court’s decision not to give a criminal offense jury instruction under the same “reasonable juror” standard we apply to the review of its decision to give such an instruction. See Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). Construing the evidence favorably to the proponent of the instruction, we ask whether the evidence would permit a reasonable juror to make the finding the instruction authorizes. We typically do not characterize our review under this standard as either de novo or for abuse of discretion, but in some recent cases we have and it may appear that we have done so inconsistently. See Hunt v. Commonwealth, 304 S.W.3d 15, 31 (Ky. 2009) (“The trial court’s decision not to give a jury instruction is reviewed for abuse of discretion.”); Cecil v. Commonwealth, 297 S.W.3d 12, 18 (Ky. 2009) (“We review the trial court’s rulings with respect to jury instructions for abuse of discretion.”); Morrow v. Commonwealth, 286 S.W.3d 206, 209 (Ky. 2009) (“Because this matter turns on the trial court’s determination as to whether to tender a jury instruction, we will engage in a de novo review.”). In this context, the characterization makes little difference and so the inconsistency is more apparent than real. On the one hand, if the evidence supports an instruction that is otherwise appropriate, the proponent is entitled to the instruction as a matter of law, and to -18- In applying the reasonable juror standard, it is important not to
confuse the sufficiency of the evidence with its credibility. The trial court should
determine whether there is sufficient evidence to warrant giving the lesser-included
offense instruction; however, it should not invade the province of the jury by
weighing the believability of that evidence. “Deciding whose version to believe
and weighing witness credibility is entirely within the jury’s discretion.” Hall v.
Commonwealth, 337 S.W.3d 595, 610 n.52 (Ky. 2011) (quoting Robinson v.
Commonwealth, 325 S.W.3d 368, 371 (Ky. 2010)). Even if the testimony that
supports a defense theory is highly unlikely, the jury must nonetheless have the
opportunity to consider it. “[N]o matter how preposterous, any defense which is
supported by the evidence must be submitted to the jury.” Taylor v.
Commonwealth, 995 S.W.2d 355, 361 (Ky. 1999). “[I]t is the privilege of the jury
to believe the unbelievable if the jury so wishes.” Mishler v. Commonwealth, 556
S.W.2d 676, 680 (Ky. 1977).
emphasize that entitlement, as we did in Morrow, our review can be characterized as de novo. On the other hand, to emphasize that the sufficiency of the evidence is measured against a reasonableness standard—the reasonable juror—as we did in Cecil, our review can be characterized as for abuse of discretion. Regardless of the characterization, however, the “reasonable juror” is the operative standard, in the appellate court as well as in the trial court. Allen v. Commonwealth, 338 S.W.3d 252, 255 n.1 (Ky. 2011).
-19- A lesser-included offense is one that is established by proof of the
same or less than all of the facts required to prove the primary offense. KRS
505.020(2)(a). Smith and Couch each assert that the trial court committed
reversible error when it failed to instruct the jury on possession of marijuana as a
lesser-included offense of cultivating marijuana.
KRS 218A.1423 provides:
(1) A person is guilty of marijuana cultivation when he knowingly and unlawfully plants, cultivates, or harvests marijuana with the intent to sell or transfer it.
...
(4) 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.
KRS 218A.1423 (emphasis added). In contrast, KRS 218A.1422 provides that “(1)
A person is guilty of possession of marijuana when he or she knowingly and
unlawfully possesses marijuana.”
In Commonwealth v. Swift, 237 S.W.3d 193 (Ky. 2007), the
Kentucky Supreme Court held that possession of marijuana could, in some
circumstances, be a lesser-included offense of cultivation of marijuana. The
marijuana at issue in Swift was first discovered during the execution of a search
warrant at Swift’s home. The warrant was obtained after officers investigating a
domestic dispute at Swift’s house observed a marijuana cigarette in an ashtray. -20- The warrant allowed law enforcement to search Swift’s home and yard, a travel
trailer parked in the yard, as well as any other vehicles or persons on the premises.
During the search, six bags of marijuana and some pipes were found inside the
house; thirty marijuana plants and 172 potted marijuana seeds were found in the
backyard; and almost two pounds of marijuana and some methamphetamine was
found inside the travel trailer. Swift was indicted on one count of cultivating
marijuana, more than five plants, while in possession of a firearm; one count of
possession of drug paraphernalia, while in possession of a firearm; one count of
trafficking in marijuana, more than eight ounces, while in possession of a firearm;
and one count of trafficking in a controlled substance (methamphetamine) in the
first degree.
At trial, Swift testified that he was a longtime marijuana user and that
the marijuana found in the house was his personal “smoke bag.” He testified that
his stepson lived in the travel trailer, and that he did not have any knowledge
regarding its contents. He admitted knowing about the plants and seeds found in
his backyard, but claimed that his stepson planted and tended to them without his
assistance. Swift unsuccessfully requested the trial court to give a jury instruction
on possession of marijuana as a lesser-included offense of cultivation of marijuana.
The jury convicted Swift of cultivating marijuana (over five plants), trafficking in
marijuana (over eight ounces), and possession of drug paraphernalia. On direct
-21- appeal, our Court held that the trial court erred by failing to give a jury instruction
on possession of marijuana as a lesser-included offense of cultivation of marijuana.
The Commonwealth petitioned the Kentucky Supreme Court for discretionary
review, which it granted.
Before the Supreme Court, the Commonwealth argued that there was
no evidence to support a finding that Swift was not guilty of cultivation of
marijuana but was guilty of possession of marijuana. The Supreme Court
disagreed. In doing so, it cited Swift’s testimony that while he knew about the
marijuana plants and seeds in his yard, he was indifferent to their existence and did
not actively participate in their cultivation. If the jury believed Swift’s version of
the facts, he could be found guilty of constructive possession but not guilty of
cultivation. The Court held that “[u]nder the evidence, a juror could have
reasonably concluded that Swift did not cultivate the marijuana plants and potted
seeds but did possess those items under the constructive possession doctrine.” Id.
at 196.
The Court contrasted Swift’s case with Commonwealth v. Collins, 821
S.W.2d 488 (Ky. 1991), an earlier case in which the Court had held that the
evidence did not support inclusion of a possession instruction as a lesser-included
offense of cultivation of marijuana. The Court noted that in Collins it had
“ultimately held that an instruction on possession of marijuana as a lesser-included
-22- offense of cultivation of marijuana was not warranted—not because possession of
marijuana was not a lesser-included offense of cultivation of marijuana—because
the defendant in Collins denied all knowledge of the marijuana’s existence,
meaning that there was no evidence to support a possession instruction.” Swift,
237 S.W.3d at 196.
The witnesses in this case presented two conflicting explanations
regarding how Couch and Smith came to be in possession of the twenty-two
pounds of marijuana inside the camper. The Commonwealth contended that Smith
and Couch had harvested the marijuana earlier that day and brought it back to the
camper. The Commonwealth pointed out that Crayne testified that the marijuana
was not in the camper when he visited it earlier, and the text messages retrieved
from Smith’s telephone indicated that Smith had been cutting the marijuana earlier
that day and with Couch’s assistance the two men transferred it to the camper for
processing.
In contrast, however, Couch testified that he and Smith had come to
Livingston County to racoon hunt with their dogs, which they had been out doing
shortly before Crayne arrived at their camper that evening. Couch testified that
Crayne brought the marijuana to their campsite in the back of his truck, and that
Smith brought it inside the camper where Couch agreed to help clean it. Couch
-23- testified that he planned to keep whatever he could of the marijuana to smoke for
himself, as he smoked marijuana several times a day.
Couch’s testimony certainly had some holes in it. It was not the most
believable. Weighing the credibility of the testimony, however, is the role of the
jury. For our purposes, we must ask only whether Couch’s testimony would have
been sufficient for a reasonable jury to convict Couch and Smith on possession, but
not cultivation, if they believed Couch’s testimony was true.
There was little to no direct evidence that Smith and Couch planted or
harvested any marijuana. The text messages and movement of Smith’s truck on
the night in question were ambiguous, and Couch explained that he was driving the
truck around looking for Smith after the dogs had gone onto someone’s private
property that evening. The other texts used the term “cut,” but there was no
affirmative proof that those texts referred to marijuana. To counter these points,
the Commonwealth argued that the jury could not reasonably believe possession
would be an appropriate verdict given the amount of marijuana seized from the
camper. However, the amount of marijuana found in the camper was less than the
thirty plants at issue in Swift. More importantly, as between cultivation and
possession, the distinguishing element is not the quantity of marijuana but rather
whether the defendants planted, cultivated, or harvested the marijuana themselves
or obtained it in some other fashion. If the jury believed Couch, they could find
-24- that Smith and Couch did not plant, cultivate, or harvest the marijuana, making
them not guilty of cultivation, but at the same time find that they knowingly took
possession of the marijuana from Crayne, making them guilty of possession.
Having reviewed the testimony, we must agree that the evidence was
sufficient to allow a reasonable jury to find that Smith and Couch were not guilty
of cultivation but were guilty of possession. As such, we hold the trial court erred
when it refused to include possession as a lesser-included offense of cultivation.
Because “[t]he trial court’s failure to give a necessary lesser-included offense
instruction cannot be deemed a harmless error,” we must vacate Smith’s and
Couch’s cultivation convictions and remand for further proceedings consistent with
this opinion. Swift, 237 S.W.3d at 196.7
Since the jury found Couch guilty of only cultivation, this disposes of
his appeal, No. 2018-CA-0794-MR, in its entirety. It likewise disposes of appeal
No. 2018-CA-1642-MR, since the forfeiture order at issue in that appeal arose in
large part out of Smith’s conviction for cultivation as much of the forfeiture was
7 We note that in the unpublished opinion of Luttrell v. Commonwealth, No. 2016-SC-000667- MR, 2018 WL 898699, at *5 (Ky. Feb. 15, 2018), the Kentucky Supreme Court cited another unpublished opinion, Bryan v. Commonwealth, No. 2015-SC-000467-MR, 2017 WL 1102825, at *4 (Ky. Mar. 23, 2017), for the proposition that whether harmless error applied to the trial court’s failure to provide a lesser-included offense instruction was possibly in question notwithstanding the language in Swift. Swift is published and, therefore, binding on this Court. We must follow published authority irrespective of the fact that more recent unpublished authority might call it into question. Moreover, most recently, the Supreme Court applied Swift without any citation to or mention of Luttrell or Bryan. See Miller v. Commonwealth, No. 2018- SC-000648-MR, 2020 WL 1290350, at *7 (Ky. Feb. 20, 2020). -25- predicated on the facts surrounding the cultivation conviction. Accordingly, we
must vacate and remand the order of forfeiture as well.
We now turn to Smith’s argument that the trial judge should have also
instructed the jury on possession as a lesser-included offense to trafficking. Smith
was convicted of trafficking in marijuana, less than eight ounces, in violation of
KRS 218A.1421. This conviction was based on the small bag of marijuana Crayne
testified he received after he first visited the trailer. In contrast to the cultivation
charge, Couch disclaimed all knowledge of this marijuana. However, he did not
affirmatively deny that Smith gave Crayne some marijuana. Crayne turned this
marijuana over to Detective Lantrip. There was no evidence it was found in
Smith’s possession when the search warrant was executed. Based on the evidence,
the jury had to either believe that Smith transferred the marijuana to Crayne,
making him guilty of trafficking, or that Crayne obtained the marijuana on his own
and lied to law enforcement about its origins, making Smith not guilty. There was
no evidence presented that would allow the jury to find Smith guilty of only
possession of this marijuana. Accordingly, the trial court properly refused to give
a possession instruction as a lesser-included offense of trafficking.
-26- III. CONCLUSION
In conclusion, for the reasons set forth above: (1) as to appeal No.
2018-CA-0794-MR we vacate and remand the Livingston Circuit Court’s May 17,
2018 judgment and sentence against Daryl Couch; (2) as to appeal No. 2018-CA-
1642-MR, we vacate and remand the Livingston Circuit Court’s October 8, 2018
order of forfeiture; and (3) as to appeal No. 2018-CA-0795-MR, we affirm the
Livingston Circuit Court’s May 17, 2018 judgment and sentence against Harold
Smith with respect to Smith’s conviction and sentence for trafficking in marijuana,
less than eight ounces, subsequent offense, but we vacate and remand the judgment
and sentence with respect to Smith’s conviction and sentence for cultivation of
marijuana, five or more plants, subsequent offense.
ALL CONCUR.
-27- BRIEF FOR APPELLANT BRIEFS FOR APPELLEE: DARYL COUCH, APPEAL NO. 2018-CA-0794-MR: Andy Beshear Attorney General of Kentucky Janet L. Stumbo Van Lear, Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLANT HAROLD SMITH, APPEAL NO. 2018-CA-0795-MR:
Ned Pillersdorf Prestonburg, Kentucky
BRIEF FOR APPELLANT HAROLD SMITH, APPEAL NO. 2018-CA-1642-MR:
Harold Smith, pro se Paducah, Kentucky
-28-