RENDERED: MAY 10, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-0317-MR
HOWARD GROSS APPELLANT
APPEAL FROM CASEY CIRCUIT COURT v. HONORABLE JUDY VANCE MURPHY, JUDGE ACTION NO. 15-CR-00033
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND KAREM, JUDGES.
ECKERLE, JUDGE: A jury convicted Appellant, Howard Gross (“Gross”), of
multiple drug-trafficking offenses stemming from undercover marijuana buys at
his residence. The Trial Judge sentenced him to imprisonment for seven years. He
appeals the judgment and sentence as a matter of right. Finding no error, we
affirm. BACKGROUND
The Casey County Grand Jury indicted Gross with three counts of
trafficking in marijuana, first offense, over eight ounces but less than five pounds,
and one count of trafficking in marijuana, first offense, five pounds or more. The
three lesser trafficking charges arose from a confidential informant’s controlled
buys of approximately one-pound quantities of marijuana. Three of the four
charges also included a firearm enhancement, as Gross allegedly showed and
cocked a gun toward the undercover informant during a buy, had a gun in his chair
during a buy, and had guns at his residence where marijuana was found during the
execution of the search warrant. However, the jury rejected the gun enhancements.
Each controlled buy occurred at Gross’s residence in 2015 and was
video recorded via an undercover camera carried by Glen Caldwell (“Caldwell”),
the confidential informant. Caldwell, who previously had been found with
marijuana on his own property but was never charged with any crimes relating
thereto, operated pursuant to an agreement with the police for payment for each
undercover buy. The videos of the buys, which show Caldwell purchasing bags of
marijuana from Gross, were shown to the jury. Gross handed over bags of
marijuana, took cash from Caldwell, counted the cash, and told Caldwell about the
quality of the marijuana. Gross also informed Caldwell that purchasing three or
four pounds at a time would not result in a discount. Each buy resulted in almost a
-2- pound of marijuana being exchanged for over $2,000.00 in buy money. The buy
money’s serial numbers were tracked, and some of it was discovered in the purse
of Kim Allen (“Allen”), Gross’s girlfriend, while other bills were found in Gross’s
residence, including in one of his medicine cabinets, and in Gross’s safety deposit
box.
After these three buys, police executed a search warrant on Gross’s
residence. Officers discovered over 20 pounds of marijuana in large bags,
numerous guns, numerous vehicles, marijuana seeds, scales, bags, and tens of
thousands of dollars, including over $40,000.00 in cash hidden in a lampshade.
Police also discovered that Gross had over $100,000.00 in his bank accounts and
safety deposit box. In total, Gross had over $260,000.00 in cash and assets. These
assets are in stark contrast with Gross’s tax returns showing adjusted gross
incomes of $1,497.00 in 2011 and $3,419.00 in 2013. The greater trafficking
charge related to the large stash of marijuana discovered during the execution of
the search warrant.
Allen, who obtained pre-trial diversion in exchange for her testimony,
served as a witness at Gross’s trial. Allen explained that after she began dating and
living with Gross, she learned that he was selling marijuana. He showed her how
to “clean” marijuana, and she claimed that removing of impurities was the extent
of her involvement in the marijuana trafficking.
-3- Gross’s counsel thoroughly cross-examined Allen, attempting to paint
her as the principal trafficker, one of his two defenses. To that end, Gross testified
and initially explained that his substantial cash assets were derived from funds that
he had received from a company with which he contracted to harvest timber from
his farm. Gross proffered documentation and checks showing that he had received
tens of thousands of dollars from this contract. Gross claimed that he hid in a
lampshade over $40,000.00 that he had recently received from the timber contract,
as he was allegedly afraid of Allen taking it from him. Gross claimed that Allen
was the trafficker, and he only participated in the sales to “protect” Allen’s
interests.
For his second defense, Gross proffered that the Commonwealth had
not proven that the drugs met the definition of marijuana. Gross cross-examined
the Commonwealth’s crime-lab scientist who had tested the drugs to see if she had
determined the percentage of tetrahydrocannabinol (“THC”). She conceded that
she had not conducted a percentage test and could confirm only that the drugs
contained THC. With a later witness, a narcotics officer with decades of
experience, the Commonwealth established that based on the officer’s extensive
prior experience, the plants and the seeds appeared to be marijuana.
As stated above, the jury found Gross guilty of the four trafficking
charges, but they rejected the firearm enhancements. They recommended a
-4- sentence of seven years in total; the Trial Court entered a judgment and sentence
accordingly. Gross appealed as a matter of right and raises four issues on appeal.
ANALYSIS
I. Did the Trial Court err by not excluding Allen’s testimony due to a
failure to comply with RCr1 8.30?
Gross first argues that Allen’s testimony should have been excluded
due to an RCr 8.30 violation, which occurs when written waivers of conflict of
counsel are not obtained from co-defendants (or defendants charged with similar
offenses arising out of the same incident) who are represented by the same counsel,
and the resulting violation of the right to counsel under the Sixth Amendment to
the United States Constitution. See generally Beard v. Commonwealth, 302
S.W.3d 643, 646 (Ky. 2010) (“This is because such a conflict of interests has the
effect of denying the defendant the Sixth Amendment right to counsel . . . .”)
(citation omitted). The Commonwealth seemingly concedes that RCr 8.30 was not
followed, but it nonetheless argues that no prejudice can be shown from the dual
representation.
Having considered both parties’ arguments, we hold that no reversible
error occurred here, as neither the rule violation nor the alleged Sixth Amendment
violation requires suppression of evidence at Gross’s trial. Accordingly, we agree
1 Kentucky Rules of Criminal Procedure.
-5- with the Trial Court that Gross’s motion to exclude Allen’s testimony should have
been denied.
RCr 8.30 requires separate counsel for co-defendants or defendants
accused of the same offense or offenses arising out of the same incident or series of
related incidents. This rule may be waived if the Trial Court explains the potential
conflict to the defendants,2 each of whom orally waives the potential conflict.
Each then executes and causes to be placed in the record a written statement that
the defendants are aware of a potential conflict and desire to waive any potential
conflict and proceed with the same counsel.
In the case sub judice, the Grand Jury separately indicted Gross and
Allen for offenses arising from the same nucleus of operative facts. They were
represented by the same attorney.
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RENDERED: MAY 10, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-0317-MR
HOWARD GROSS APPELLANT
APPEAL FROM CASEY CIRCUIT COURT v. HONORABLE JUDY VANCE MURPHY, JUDGE ACTION NO. 15-CR-00033
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND KAREM, JUDGES.
ECKERLE, JUDGE: A jury convicted Appellant, Howard Gross (“Gross”), of
multiple drug-trafficking offenses stemming from undercover marijuana buys at
his residence. The Trial Judge sentenced him to imprisonment for seven years. He
appeals the judgment and sentence as a matter of right. Finding no error, we
affirm. BACKGROUND
The Casey County Grand Jury indicted Gross with three counts of
trafficking in marijuana, first offense, over eight ounces but less than five pounds,
and one count of trafficking in marijuana, first offense, five pounds or more. The
three lesser trafficking charges arose from a confidential informant’s controlled
buys of approximately one-pound quantities of marijuana. Three of the four
charges also included a firearm enhancement, as Gross allegedly showed and
cocked a gun toward the undercover informant during a buy, had a gun in his chair
during a buy, and had guns at his residence where marijuana was found during the
execution of the search warrant. However, the jury rejected the gun enhancements.
Each controlled buy occurred at Gross’s residence in 2015 and was
video recorded via an undercover camera carried by Glen Caldwell (“Caldwell”),
the confidential informant. Caldwell, who previously had been found with
marijuana on his own property but was never charged with any crimes relating
thereto, operated pursuant to an agreement with the police for payment for each
undercover buy. The videos of the buys, which show Caldwell purchasing bags of
marijuana from Gross, were shown to the jury. Gross handed over bags of
marijuana, took cash from Caldwell, counted the cash, and told Caldwell about the
quality of the marijuana. Gross also informed Caldwell that purchasing three or
four pounds at a time would not result in a discount. Each buy resulted in almost a
-2- pound of marijuana being exchanged for over $2,000.00 in buy money. The buy
money’s serial numbers were tracked, and some of it was discovered in the purse
of Kim Allen (“Allen”), Gross’s girlfriend, while other bills were found in Gross’s
residence, including in one of his medicine cabinets, and in Gross’s safety deposit
box.
After these three buys, police executed a search warrant on Gross’s
residence. Officers discovered over 20 pounds of marijuana in large bags,
numerous guns, numerous vehicles, marijuana seeds, scales, bags, and tens of
thousands of dollars, including over $40,000.00 in cash hidden in a lampshade.
Police also discovered that Gross had over $100,000.00 in his bank accounts and
safety deposit box. In total, Gross had over $260,000.00 in cash and assets. These
assets are in stark contrast with Gross’s tax returns showing adjusted gross
incomes of $1,497.00 in 2011 and $3,419.00 in 2013. The greater trafficking
charge related to the large stash of marijuana discovered during the execution of
the search warrant.
Allen, who obtained pre-trial diversion in exchange for her testimony,
served as a witness at Gross’s trial. Allen explained that after she began dating and
living with Gross, she learned that he was selling marijuana. He showed her how
to “clean” marijuana, and she claimed that removing of impurities was the extent
of her involvement in the marijuana trafficking.
-3- Gross’s counsel thoroughly cross-examined Allen, attempting to paint
her as the principal trafficker, one of his two defenses. To that end, Gross testified
and initially explained that his substantial cash assets were derived from funds that
he had received from a company with which he contracted to harvest timber from
his farm. Gross proffered documentation and checks showing that he had received
tens of thousands of dollars from this contract. Gross claimed that he hid in a
lampshade over $40,000.00 that he had recently received from the timber contract,
as he was allegedly afraid of Allen taking it from him. Gross claimed that Allen
was the trafficker, and he only participated in the sales to “protect” Allen’s
interests.
For his second defense, Gross proffered that the Commonwealth had
not proven that the drugs met the definition of marijuana. Gross cross-examined
the Commonwealth’s crime-lab scientist who had tested the drugs to see if she had
determined the percentage of tetrahydrocannabinol (“THC”). She conceded that
she had not conducted a percentage test and could confirm only that the drugs
contained THC. With a later witness, a narcotics officer with decades of
experience, the Commonwealth established that based on the officer’s extensive
prior experience, the plants and the seeds appeared to be marijuana.
As stated above, the jury found Gross guilty of the four trafficking
charges, but they rejected the firearm enhancements. They recommended a
-4- sentence of seven years in total; the Trial Court entered a judgment and sentence
accordingly. Gross appealed as a matter of right and raises four issues on appeal.
ANALYSIS
I. Did the Trial Court err by not excluding Allen’s testimony due to a
failure to comply with RCr1 8.30?
Gross first argues that Allen’s testimony should have been excluded
due to an RCr 8.30 violation, which occurs when written waivers of conflict of
counsel are not obtained from co-defendants (or defendants charged with similar
offenses arising out of the same incident) who are represented by the same counsel,
and the resulting violation of the right to counsel under the Sixth Amendment to
the United States Constitution. See generally Beard v. Commonwealth, 302
S.W.3d 643, 646 (Ky. 2010) (“This is because such a conflict of interests has the
effect of denying the defendant the Sixth Amendment right to counsel . . . .”)
(citation omitted). The Commonwealth seemingly concedes that RCr 8.30 was not
followed, but it nonetheless argues that no prejudice can be shown from the dual
representation.
Having considered both parties’ arguments, we hold that no reversible
error occurred here, as neither the rule violation nor the alleged Sixth Amendment
violation requires suppression of evidence at Gross’s trial. Accordingly, we agree
1 Kentucky Rules of Criminal Procedure.
-5- with the Trial Court that Gross’s motion to exclude Allen’s testimony should have
been denied.
RCr 8.30 requires separate counsel for co-defendants or defendants
accused of the same offense or offenses arising out of the same incident or series of
related incidents. This rule may be waived if the Trial Court explains the potential
conflict to the defendants,2 each of whom orally waives the potential conflict.
Each then executes and causes to be placed in the record a written statement that
the defendants are aware of a potential conflict and desire to waive any potential
conflict and proceed with the same counsel.
In the case sub judice, the Grand Jury separately indicted Gross and
Allen for offenses arising from the same nucleus of operative facts. They were
represented by the same attorney. The Commonwealth, in a lengthy and detailed
pleading noting all of the connections between Gross’s and Allen’s cases, moved
to consolidate. Allen appears to have accepted a plea agreement prior to the Trial
Court’s ruling on the motion; thus, her case was never consolidated.3 It does not
appear that any RCr 8.30 waiver was ever executed, although it appears necessary.
2 The Trial Court also typically explains the difference between a potential conflict and an actual conflict, the latter of which may not be waived. 3 However, the Trial Court consolidated the cases for Gross and Burress, but Burress never testified at Gross’s trial, and Gross raises no issues with Burress.
-6- Gross then attempted to accept a plea agreement, but the terms were
ultimately rejected by the Trial Court (in part because the police opposed it).
Gross’s attorney then withdrew from the case, and Gross proceeded with a newly-
retained, private counsel who did not appear to have ever represented Allen (or
Burress).
Newly-retained counsel later filed a motion to exclude any testimony
at trial of either Allen (or Burress, who ultimately never testified) due to the failure
to comply with RCr 8.30. The Commonwealth opposed the motion, noting that
suppression or exclusion of testimony is not a proper remedy for an RCr 8.30
violation. The Trial Court agreed. It denied the motion to exclude and found
Gross was not prejudiced by Allen’s plea, as Gross had not yet proceeded to trial
and, by implication, no longer had an attorney laboring under a potential or actual
conflict of interest.
On appeal, both Gross and the Commonwealth rely upon myriad
cases, all of which concern a denial of one’s Sixth Amendment right to counsel and
whether such a denial requires reversal and remand for a new trial. See, e.g.,
Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001); Mitchell v. Commonwealth,
323 S.W.3d 755 (Ky. App. 2010); and Commonwealth v. Holder, 705 S.W.2d 907
(Ky. 1986). Notably, these types of cases involve whether a defendant was denied
his or her Sixth Amendment right to counsel during the pre-trial or trial
-7- proceedings because his or her attorney was laboring under a potential or actual
conflict of interest. Samuels v. Commonwealth, 512 S.W.3d 709, 712-13 (Ky.
2017) (discussing when reversal and remand for a new trial in such circumstances
is automatic or requires a showing of prejudice). If a defendant is denied his or her
right to counsel, the remedy is reversal and remand for a new trial with conflict-
free counsel. See, e.g., Mitchell, 323 S.W.3d at 764 (“Accordingly, we reverse the
order denying the Appellants’ RCr 11.42 motions and remand this case to the
Jefferson Circuit Court for a new trial with directions that new counsel be
appointed.”); Banks v. Warden, Louisiana State Penitentiary, No. 1:09-CV-02101,
1:09-CV-02106, 2011 WL 5157764 (W.D. La. 2011) (recommending granting
petition for a writ of habeas corpus, releasing inmate from detention, and re-
arraigning defendant within 60 days).
Such is not the case here. The remedy permitted – reversal and
remand for a new trial with conflict-free counsel – would be a futile gesture
because Gross had conflict-free counsel when he went to trial. There is no known
or apparent conflict between Gross’s trial counsel and Allen or any other witness.
Gross’s counsel was free to represent Gross within the proper confines of his duties
as counsel (and his counsel continues to represent Gross on appeal), including the
cross-examination of Allen. Gross’s counsel provided a vigorous cross-
examination of Allen, depicting Allen as the mastermind of the trafficking
-8- operation. Because Gross’s trial counsel was not laboring under any conflict of
interest, Gross can neither demonstrate a Sixth Amendment violation that affected
his trial nor any prejudice resulting from any potential or actual Sixth Amendment
violation during Allen’s plea process. The Trial Court properly denied his motion
to exclude Allen’s testimony.
II. Did the Trial Court err by Refusing Gross’s Proposed Jury
Instructions?
Gross next argues that the Trial Court erred by refusing to give jury
instructions on conspiracy, facilitation, and a definition of marijuana.
“[I]t 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.” Taylor v. Commonwealth,
671 S.W.3d 36, 41 (Ky. 2003) (quoting Kelly v. Commonwealth, 267 S.W.2d 536,
539 (Ky. 1954)) (alterations in original). “Trial courts must construe the evidence
in favor of the party seeking the instruction.” Id. (citing Allen v. Commonwealth,
338 S.W.3d 252, 255 (Ky. 2011)). A Trial Court must review each trial’s
particular factual and evidentiary subtleties to determine what instructions are
warranted; thus, we review such decisions for an abuse of discretion. Sutton v.
Commonwealth, 627 S.W.3d 836, 847-48 (Ky. 2021). A Trial Court abuses its
-9- discretion when it acts arbitrarily, unreasonably, unfairly, or it applies the wrong
legal standard. Miller v. Eldridge, 146 S.W.3d 909 (Ky. 2004).
Gross first claims that the Trial Court abused its discretion by failing
to give a conspiracy instruction on the trafficking charges, as he claims the
evidence supported a theory that he and Allen conspired to commit the crimes.
Here, though the evidence may have supported a conspiracy instruction, any error
by failing to give an instruction on conspiracy was harmless because Gross would
have been subject to the same penalties. KRS4 218A.1402 (“Any person who
commits a criminal conspiracy as defined in KRS 506.040 to commit any offense
in this chapter shall be subject to the same penalties as provided for the underlying
offense as specified in this chapter.”). “[J]ury instructions may sometimes be ‘an
unfortunate, yet ultimately harmless error.’” Manery v. Commonwealth, 492
S.W.3d 140, 150 (Ky. 2016) (quoting Harp v. Commonwealth, 266 S.W.3d 813,
818 (Ky. 2008)). Harmless error exists “when the Commonwealth can show
‘affirmatively that no prejudice resulted from the error.’” Id. As Gross would
have received the same penalty under his conspiracy theory, any error in the failure
to give the instruction was harmless.
Gross next argues the Trial Court erred by failing to give a facilitation
instruction. Gross claims that his testimony and the other evidence supported a
4 Kentucky Revised Statutes.
-10- theory that Allen committed the crimes and Gross only facilitated the same.
Facilitation is not a fortiori a lesser-included offense of trafficking in a controlled
substance, as facilitation requires proof of an additional and completely different
fact than the principal offense. Houston v. Commonwealth, 975 S.W.2d 925, 930
(Ky. 1998). Namely, trafficking requires “proof that the defendant, himself,
knowingly and unlawfully committed the charged offense.” Id. However,
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.” Id. To that end, if a person is charged with complicity to
traffic in controlled substances, the person may be entitled to a criminal facilitation
instruction. Id. (citing Luttrell v. Commonwealth, 554 S.W.2d 75, 79 (Ky. 1977)).
Assuming, arguendo, that Gross was entitled to a complicity
instruction via Gross’s conspiracy theory, c.f. Beaumont v. Commonwealth, 295
S.W.3d 60, 69 (Ky. 2009) (“Complicit conduct can be shown through . . . the
existence of a basic conspiracy . . . .”), he was not also entitled to a facilitation
instruction because he was not “wholly indifferent to the actual completion of the
crime, i.e., without the intent that the crime be committed.” Thompkins v.
Commonwealth, 54 S.W.3d 147, 151 (Ky. 2001). The evidence showed that Gross
knew trafficking was occurring, either because he was trafficking or because Allen
-11- was trafficking, and he intended the crime to be committed for his own or Allen’s
profit. Video captured Gross exchanging drugs and counting cash, and he admitted
at trial that he did the same to protect Allen’s interests. Accordingly, Gross lacked
the necessary mental state for a facilitation instruction because he was admittedly
not indifferent to the crime’s commission. There being no evidentiary basis for a
facilitation instruction, we hold that the Trial Court did not err by denying Gross’s
request for the same.
Finally, Gross requested statutory definitions of marijuana, KRS
218A.010(28), and industrial hemp, KRS 260.850(5). Gross ostensibly wanted the
Trial Court to inform the jury that the THC level must be greater than 0.3 percent
for cannabis to be considered marijuana and not industrial hemp. A substantially
similar argument was rejected in a very thorough analysis by a panel of this Court
some seven years ago.5 Lundy v. Commonwealth, 511 S.W.3d 398, 404-07 (Ky.
App. 2017).6 There, it was held that the Commonwealth only had to prove the
THC content of suspected marijuana if the defendant was a licensed grower or
processor of industrial hemp. No evidence was introduced that Gross was a
5 Notably, two of the Judges on that panel are now Justices at the Kentucky Supreme Court. Also, the appellant in that case was represented by Gross’s current, appellate counsel. 6 The General Assembly recently modified the definition of “marijuana” in KRS 218A.010(28) to address this issue. The current definition specifically excludes “[i]ndustrial 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[.]” Id. The statutory definition essentially adopts the reasoning of Lundy.
-12- licensed grower or processor of industrial hemp. Accordingly, the Trial Court did
not abuse its discretion by declining to instruct the jury on these definitions.
Lundy, 511 S.W.3d at 407 (“Absent some evidentiary foundation that [the
defendant] was a licensed industrial hemp grower or a manufacturer of hemp
products, the trial court properly denied the requested instruction. We find no error
in the instructions.”). There likewise being no error with the jury instructions here,
we affirm the judgment and sentence on these grounds.
III. Did the Trial Court Err by Not Granting a Directed Verdict of
Acquittal?
Gross next argues that the Trial Court erred by not directing a verdict
of acquittal because the Commonwealth allegedly failed to prove an element of the
offense of trafficking in marijuana, namely, that the marijuana plants contained a
sufficient percentage of THC to constitute the legal definition of marijuana.
Again, this argument was rejected in Lundy, supra, which is controlling authority.
Entitlement to a directed verdict would require some evidence that Gross had a
license to grow or process industrial hemp. No such evidence was introduced.
Accordingly, the Trial Court did not err by denying Gross’s motion for a directed
verdict on this issue.
-13- IV. Is Gross’s Forfeiture Issue Before Our Court?
Finally, Gross argues multiple allegations of error relating to potential
forfeiture of his property. He claims that these issues are preserved through
motions he filed to release the lis pendens on his property and other such motions.
Yet, he directs us to no substantive rulings on any of those motions, and a review
of the record indicates that forfeiture issues were reserved until after the trial. The
Commonwealth argues that any forfeiture issues are not before us and attaches a
CourtNet 2.0 Docket Sheet showing that a forfeiture hearing was held months after
the record in the instant case was certified.
We need not address the CourtNet information. See Jackson v. Est. of
Day, 595 S.W.3d 117, 126 (Ky. 2020) (“CourtNet warns its users that it is not
intended to be an official court record.”). See also Garrett v. Commonwealth, 534
S.W.3d 217, 226 (Ky. 2017), and Finnell v. Commonwealth, 295 S.W.3d 829, 834
(Ky. 2009). Gross all but concedes there is no ruling for us to review by averring
in his brief that a forfeiture proceeding was held after the record was certified and
“is still pending a ruling[.]” Thus, we have no judgment to review. Klein v.
Flanery, 439 S.W.3d 107, 122 (Ky. 2014) (“As an appellate court, we review
judgments; we do not make them.”).
-14- CONCLUSION
Gross’s four allegations of error fail on appeal. Accordingly, we
AFFIRM the judgment and sentence entered against Gross.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
C. Thomas Hectus Russell Coleman Louisville, Kentucky Attorney General of Kentucky
Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
-15-