ROSALEE BREWER V. COMMONWEALTH OF KENTUCKY
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2004-SC-000741-M R & 2004-SC-001106-TG
ROSALEE BREWER
V.
APPEAL FROM OWEN CIRCUIT COURT
HON . STEPHEN L. BATES, JUDGE
NO. 04-CR-00017
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING
Appellant, Rosalee Brewer, was convicted by the Owen Circuit Court of
one count of engaging in organized crime, KRS 506 .120, four counts of
trafficking in five or more pounds of marijuana, KRS 218A.1421(4), and four
counts of trafficking in eight or more ounces but less than five pounds of
marijuana.' KRS 218A.1421(3) . Appellant was then sentenced to an aggregate
term of imprisonment of sixty years . Appellant now appeals her conviction and
sentence as a matter of right pursuant to Ky. Const. ยง 110(2)(b), alleging that the
trial court committed several errors, viz. : (1) that the trial court erroneously
denied her motion for directed verdict of acquittal with respect to the four counts
of trafficking in eight or more ounces but less than five pounds of marijuana; (2)
that the trial court denied her due process of law when it allowed the
' The original indictment also contained firearms enhancement charges, which
were later dropped by the Commonwealth, as well as one count for cultivation of
marijuana, for which the jury found Appellant and her husband not guilty .
Commonwealth to introduce a spiral notebook kept by her co-indictees as such
was allegedly hearsay evidence; (3) that she was denied effective assistance of
counsel and that her trial counsel labored under an actual conflict of interest by
representing her and her co-defendant husband ; (4) that the trial court erred by
admitting evidence of numerous firearms that were never connected to the
underlying offenses ; and, (5) that the trial court erred in ordering forfeiture of
Appellant's real property, money, firearms, and pickup truck and in denying
Appellant's motion to return all firearms seized from the home . For the reasons
set forth herein, we affirm Appellant's conviction and sentence.
FACTS .
Acting on information received during an unrelated domestic violence call,
Owenton police visited the home of Scott and Beverly Sizemore. There, officers
noticed the strong odor of marijuana, and, after confronting Scott Sizemore
(Sizemore) on allegations of selling marijuana and with his consent, the officers
conducted a search of the residence. As a result, the officers uncovered several
bags of marijuana. Sizemore confessed that he and his wife, Beverly, who is
also Appellant's daughter, sold marijuana to family and friends . Sizemore also
agreed to cooperate with the officers and told them that the marijuana found at
his home had been obtained from his father-in-law, Lee Roy Brewer. Sizemore
also mentioned Dale Masden (Masden) as another associate involved in the
alleged drug trafficking scheme and who would be returning soon from Mexico
with a large shipment of marijuana .
Armed with this information, police then visited Masden's home, which he
shared with Jacqueline Sims (Sims). Sims was the only one there when police
arrived, and she consented to a search of the residence . This search revealed
eighteen to nineteen pounds of bricked marijuana as well as several marijuana
plants on the back porch of the home and a small quantity of marijuana in a tin,
which Sims said was for "personal use." Detective Boyd of the Owenton Police
Department also uncovered a spiral notebook and a calendar .
During questioning, Sims disclosed an ongoing operation whereby a
woman named Deborah Gibbs would drive a late 1980s model Oldsmobile into
Mexico, where another individual would load up to sixty pounds of marijuana into
the modified gas tank of the vehicle so as to avoid detection by United States
Customs agents. Masden would accompany her and would usually drive the
vehicle containing the drugs back to Kentucky. Allegedly, a Mexican army official
would aid the group as they entered back into the United States by helping them
through the border checkpoint . After obtaining this information, police contacted
United States Customs, which arranged to intercept Gibbs at the border and
issued an arrest warrant for Masden, who was later arrested upon his return to
Kentucky.
Sims further cooperated with police by wearing a wire to the home of Lee
Roy and Rosalee Brewer. Once there, they discussed the arrests of Scott and
Beverly Sizemore and the police visit to Sims' home. Sims told the Brewers that
the police had confiscated her personal marijuana stash and the plants, but did
not tell them that the police had also found the bricked marijuana. The Brewers
then gave Sims an ammunition box in which to place the remaining marijuana
and gave her directions to bury it off her property .
Based on this information, the police obtained search and arrest warrants
for Appellant and her husband. Upon execution of those warrants, the police did
not find marijuana or money in the Appellant's home, but did find numerous
firearms and a scale and confiscated these items.
When police finally interviewed Masden, he disclosed more information
concerning the Brewers and the trafficking operation, prompting a second search
warrant to be issued for the Brewers' residence . As a result of this second
search, police found two bricks of marijuana and $8100 in cash in a field adjacent
to the Appellant's property, as well as a few ounces of marijuana in plastic bags.
On May 5, 2004, the Commonwealth filed a notice that it intended to bring
a forfeiture action against certain real and personal property belonging to
Appellant. In response, on July 12, 2004, Appellant sought to have the firearms
returned to family members . Then on July 19, 2004, the Commonwealth filed a
response that intended to seek forfeiture of the firearms pursuant to KRS
218A.41 0(1)(f), (h), and (j). At an ancillary hearing on September 28, 2004,
following Appellant's conviction, the trial court ordered forfeiture of certain real
and personal property, including the firearms, as well as cash obtained from
Appellant's residence.
Prior to trial, Sizemore, Sims, Masden and Gibbs entered into plea
agreements with the Commonwealth . In exchange for their testimony against
Appellant and her husband, Beverly Sizemore and two other witnesses, Linda
Chadwell and Rick Swan, the Commonwealth offered to reduce the charges and
sentences pending against them. Also, Appellant and her husband signed a
waiver of dual representation .
Based on the testimony from the several co-indictees and from evidence
obtained during the various searches, Appellant was subsequently convicted on
all counts and sentenced to serve sixty years in prison . It is from this conviction
and sentence and the court's order of forfeiture of real and personal property that
she now appeals .
ANALYSIS
1 . Appellant's motion for directed verdict of acquittal .
In her first assignment of error, Appellant alleges the trial court
erroneously denied her motion for directed verdict of acquittal . Appellant alleges
that the Commonwealth's evidence was insufficient for a jury finding of guilt with
regard to the four counts of trafficking in more than eight ounces but less than
five pounds of marijuana. Specifically, Appellant contends that she was not at
home on the four dates in question when the marijuana was delivered to her
residence and that there was no evidence linking her to the four charges for
trafficking in more than eight ounces but less than five pounds of marijuana.
A . Standard of Review
In ruling on a defendant's motion for directed verdict of acquittal, "the trial
court must draw all fair and reasonable inferences from the evidence in favor of
the Commonwealth ." Commonwealth v. Benham, 816 S .W .2d 186,187-88 (Ky.
1991) . Similarly, the trial court is to assume that all the evidence presented by
the Commonwealth is, in fact, true . Baker v. Commonwealth , 973 S.W.2d 54
(Ky. 1998) . Questions of credibility and the weight to be given to evidence and
2 The forfeiture issue had initially been appealed to the Court of Appeals .
However, the case involving that issue was transferred to this Court for final
resolution with Appellant's criminal appeal .
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testimony are issues reserved for determination by the jury. However, if the trial
court finds that 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." Benham , 816 S.W.2d at 187.
This standard applies whether the evidence is direct or circumstantial .
"The rule is that if from the totality of the evidence the [court] can conclude that
reasonable minds might fairly find guilt beyond a reasonable doubt, then the
evidence is sufficient to allow the case to go to the jury even though it is
circumstantial ." Commonwealth v. Sawhill, 660 S .W .2d 3,4 (Ky. 1983) . See
also Trowel v. Commonwealth , 550 S.W.2d 530 (Ky. 1977) . "On appellate
review, the test of a directed verdict is, if under the evidence as a whole, it would
be clearly unreasonable for a jury to find guilt, only then the defendant is entitled
to a directed verdict of acquittal ." Benham, 816 S.W.2d at 187 (citation omitted) .
As a reviewing court, we do not reevaluate the evidence but rather
consider the trial court's decision "in light of the proof presented." Id . at 187.
Thus, this Court is prohibited from considering these matters on appeal de novo.
Commonwealth v. Jones, 880 S .W .2d 544, 545 (Ky. 1994). "The court acting as
an appellate court cannot . . . substitute its judgment as to credibility of a witness
for that of the trial court and the
jury."
Id.
B. Sufficiency of the evidence for a jury determination of guilt.
Appellant argues that there was insufficient evidence for a jury to
reasonably find she was involved in any way with the drug trafficking charges set
forth in the four counts of the indictment for trafficking in more than eight ounces
but less than five pounds of marijuana. We disagree .
KRS 218A .142(1) provides that "[a] person is guilty of trafficking in
marijuana when [she] knowingly and unlawfully traffics in marijuana ." KRS
218A.010(28) defines "traffic" to include manufacturing, distributing, dispensing,
selling, transferring, or possessing with intent to manufacture, distribute,
dispense, or sell a controlled substance.
In this case, Sims testified that on four different days, April 20-23, 2004,
she delivered anywhere from one pound to three and half pounds of marijuana to
the Brewers, utilizing the same method each time - a cooler packed with the
drugs, which was exchanged for an empty cooler upon arriving at the Brewers'
residence . Further testimony elicited at trial described how Appellant would
sometimes receive the profits from the drug sales when her husband, Lee Roy,
was not at home, and Appellant would on many occasions count the proceeds
from various transactions.
There was also ample evidence that Appellant was more than just a
spectator of the alleged scheme, as Sims also testified that Appellant instructed
her on how to bury the drugs in containers off her own property. Sims' testimony
also revealed that Appellant knew the others involved in the scheme, especially
Masden and Gibbs as Appellant speculated that Gibbs was the "snitch" since
Gibbs was jealous that Masden was taking over the Mexican importation route.
It could hardly be said that Appellant was ignorant of the trafficking
scheme or was not involved in the actual trafficking of the drugs in this case .
Drawing all reasonable inferences from the evidence and testimony, Appellant
was as involved in the four counts at issue here as she was in the other counts
for which the jury also found her guilty and which she does not dispute in this
appeal . Considering the evidence in the light most favorable to the
Commonwealth, Benham , 816 S.W.2d at 187-88, it was not unreasonable for the
jury to infer that Appellant was involved in the receipt and distribution of the
marijuana that is the subject of the four counts at issue. Thus the trial court did
not err in denying Appellant's motion for directed verdict of acquittal with regard
to the four counts for trafficking in more than eight ounces but less than five
pounds of marijuana. Appellant's conviction with regard to this issue is affirmed .
2. Admission of co-conspirator's notebook.
Appellant next alleges that the trial court abused its discretion when it
allowed the Commonwealth to introduce a notebook that had been kept by Sims
and Masden . Appellant characterizes this evidence as hearsay and argues that
its admission denied her due process and confrontation rights. We disagree .
Here, the Commonwealth sought to introduce the notebook as a coconspirator statement pursuant to KRE 801 A(b)(5). Appellant then joined the
objection of her co-defendants ; however, the Commonwealth contends that the
issue is unpreserved for review by this Court because Appellant failed to state
with particularity the basis for her objection . The trial court overruled the
objection and admitted the notebook into evidence.
The notebook was authenticated by Sims, who testified and verified the
information in the notebook as being her handwriting and that of Masden . Sims
also testified that the information related to individual shipments of marijuana and
identified such by notations indicating weight, quality, and price, as well as the
initials of the person receiving each shipment. Masden later testified that he
began keeping the "ledger" only after he and Lee Roy Brewer had a
disagreement over money.
Initially, we must address the Commonwealth's contention that Appellant's
arguments regarding the alleged hearsay are unpreserved. In reviewing the
record, it becomes clear that the Appellant made her objections known to the
court, and the trial court responded by overruling the objection and stating that
such would be noted in the record . Although Appellant never stated grounds for
her objection, we note that such was not necessary in this case because the trial
judge never requested those grounds. RCr 9.22; KRE 103(a) . Finding the
matter preserved, we must determine whether it was properly admitted .
In order to fall within the co-conspirator exception to the hearsay rules, the
proponent of the statement must show (1) there was a conspiracy ; (2) the
defendant was a part of that conspiracy ; and (3) the statement was made in
furtherance of the conspiracy . Marshall v. Commonwealth , 60 S.W.3d 513, 520
(Ky. 2001) (citing United States v. Clark, 18 F .3d 1337, 1341 (6th Cir. 1994), cert.
denied, 513 U.S . 852, 115 S.Ct. 152, 130 L.Ed.2d 91 (1994)) . It is important to
note here that Appellant was also convicted on charges of engaging in organized
crime pursuant to KRS 506.120, which requires a conspiracy of five or more
persons. "KRS 506.040 [regarding criminal conspiracy] is distinguishable from
KRS 506 .120, the criminal syndicate offense, because the former does not
require the involvement of five or more persons as does the latter. A conspiracy
can result from an agreement between one or more persons, KRS 506.040, or
otherwise ." Dishman v. Commonwealth , 906 S.W.2d 335, 342 (Ky. 1995).
An appellate court's standard of review for admission of evidence is
whether the trial court abused its discretion . Commonwealth v. English , 993
S .W.2d 941, 945 (Ky. 1999) . "The test for abuse of discretion is whether the trial
judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles ." Id. Applying this test, we find that the trial court did not abuse
its discretion in admitting the notebook or the accompanying testimony, as the
Commonwealth produced sufficient evidence to show there was a conspiracy,
that Appellant was a part of that conspiracy, and that the information documented
in the notebook was made in furtherance of the conspiracy.
3. Joint representation of Appellant and her co-defendant husband .
Appellant claims that she was denied her right to conflict-free counsel
when the same attorney represented both Appellant and her husband . Appellant
concedes that this issue is not preserved for review, but requests this Court to
review the issue because of the trial court's alleged failure to comply with RCr
8.30 and because trial counsel's joint representation resulted in manifest
injustice . RCr 10.26; KRE 103(e). Appellant likewise notes that this issue may
be raised for the first time on appeal under Commonwealth v. Holder, 705
S .W.2d 907, 909 (Ky. 1986) . While we agree that Appellant may raise this issue
for the first time on appeal, we do not believe that she was prejudiced by being
jointly represented in this case.
This issue has been given much treatment over the last twenty-five years.
For example, in Trulock v. Commonwealth , 620 S.W.2d 329 (Ky. App. 1981), the
Kentucky Court of Appeals held that RCr 8 .30 was structured to eliminate a case
by case determination of prejudice resulting from a violation of the rule and that
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compliance with RCr 8.30 was mandatory . This Court reversed course in Smith
v. Commonwealth , 669 S.W.2d 527 (Ky. 1984), cited in Holder, 705 S .W .2d at
908, wherein our predecessors held that an alleged violation of RCr 8.30 may be
subject to harmless error review where the record does not support a finding of
prejudice or a possibility of prejudice resulting from joint representation .
In Pevton v. Commonwealth , 931 S .W .2d 451, 453 (Ky. 1996)
(Wintersheimer, J ., dissenting), this Court again reversed course and held that
noncompliance with RCr 8.30 is "presumptively prejudicial ." However, five years
later in Murr)hv v. Commonwealth, 50 S.W.3d 173 (Ky. 2001), this Court
reinstated its previous holdings in Smith and Holder, supra, and held that "the
bright line rule established in Pe on, supra , `replaces the proper and thoughtful
exercise by the trial court of discretion based on contemporaneous or on-the-spot
supervision of the legal situation with a kind of automatic robotic system handed
down from on high."' Id . at 183 (quoting Pe on, 931 S.W .2d at 456). Further,
this Court opined that "a questionable violation, which does not result in any
prejudice to the defendant, should not mandate automatic reversal . Such a result
defies logic and ignores the principles of judicial economy ." Id.
Accordingly, we must determine on the facts of this case whether a
violation of RCr 8.30 actually occurred, and if so, whether Appellant suffered
prejudice as a result.
Here, Appellant and her husband were arrested on or about April 26,
2004. On April 30, 2004, both defendants signed a waiver of dual representation
in Owen District Court. Then on May 4, 2004, the grand jury indicted Appellant
and her husband, charging them with the same offenses . At arraignment, the
circuit judge instructed joint defense counsel that Appellant and her husband
would have to sign a new waiver of dual representation now that their case was
in circuit court. The circuit court judge engaged in a short colloquy, first with
Appellant's husband, then with her:
CT: [Y]ou all went over this in District Court. You have now gone
back over it with Mr. Smith here today, and what these cases
are about, it may be sometime in cases where you have two
defendants involved in a case that they have something about
the case about where they disagree, particularly where you
might be wanting to point the finger at her or her point it at
you . Now, you know a lot more about your case or what's
going on with it than I do or anybody else in this room, and
what I need to know is are you comfortable having Mr. Smith
represent both you and Mrs . Brewer as well?
Lee Roy: Yes sir.
CT: No problem at all in your mind?
Lee Roy: No.
CT: Thank you . And ma'am, Mrs . Brewer, you understand also,
you heard what I just said about this and understand the
problem might be where you would feel one way about
something or want to point a finger at him or he want to point it
at you, and knowing what you know about your case, do you
see any problem at all with Mr. Smith representing both you
and Mr. Brewer?
App: None whatsoever. None whatsoever.
CT : Are you all husband and wife?
Lee Roy: Yes .
CT: Okay, that's fine. Based on the statements you have made
here today then I will approve the waiver of dual
representation and we will proceed from there.
RCr 8.30(1) requires the trial judge to explain the possibility of a conflict of
interest to the extent that what may be in the interests of one defendant may not
be in the interest of the other. The rule also requires a written waiver, which
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states that the possibility of a conflict of interest is understood and that the
defendant still desires joint representation, to be signed by the defendants to be
jointly represented .
This Court succinctly explained RCr 8.30 in Jackson v. Commonwealth , 3
S.W.3d 718, 721 (Ky. 1999) :
[T]he purpose of the rule . . . is to protect a criminal defendant's
right to separate representation . The rule effectuates this purpose
by requiring that the trial court inform jointly-represented
defendants about the potential for prejudice to their cases that may
arise from the conflict of interest inherent in dual representation .
The rule further protects a defendant by requiring him to waive his
right to separate representation in writing .
RCr. 8 .30 prohibits dual representation of criminal defendants "unless the
defendant executes a waiver indicating that the possibility and problems of
conflicts of interest have been explained to him by the court and that he
nevertheless desires to be represented by the same attorney ." Brock v.
Commonwealth , 627 S.W.2d 42, 44 (Ky. App. 1981) ; see also White v.
Commonwealth , 671 S.W.2d 241, 243 (Ky . 1983). In Brock, the court articulates
that an accused "must' be able to waive the problem of dual representation so
long as the waiver is done "knowingly." Brock, 627 S.W .2d at 44 . However, the
court goes on to caution that trial courts "should all but insist on separate
counsel, especially where counsel is appointed ." Id. In the instance at bar,
however, Appellant and her husband employed private counsel throughout the
proceedings .
The Kentucky Court of Appeals has recently articulated the current
understanding of RCr. 8 .30 as it pertains to joint representation .
If a criminal defendant is represented by a lawyer who also
represents a codefendant, that criminal defendant must be
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informed of the possible conflict of interest by the trial judge and
must sign a waiver of the possible conflict of interest. The failure to
do so, however, does not necessitate reversal, but requires a
defendant to demonstrate an actual conflict of interest .
Donatelli v. Commonwealth , 175 S .W .3d 103,104 (Ky. App. 2005) .
Much as in Brock, supra , Appellant here asserts that her cause was
prejudiced by conflicts of interest, which arose during the course of the trial. We
disagree that any such conflict of interest arose or was present at any time
throughout the proceedings and find that Appellant received adequate and
capable representation from trial counsel . "A defendant must show a real conflict
of interest in order to obtain reversal ." Kirkland v. Commonwealth , 53 S.W .3d 71,
75 (Ky. 2001) .
Appellant was informed of her right to separate counsel under RCr. 8 .30
both in the district and circuit court pursuant to RCr. 8.30(2), and did both
knowingly and intelligently waive this right on both occasions, doing so with her
"eyes open." Adams v. United States, 317 U.S. 269, 279, 63 S .Ct. 236, 242, 87
L.Ed . 268 (1942) ; Hill v. Commonwealth , 125 S.W.3d 221, 226 (Ky. 2004) .
Moreover, Appellant was duly informed at both levels of the potential for conflicts
of interest arising and of her right to receive separate representation . Cognizant
of these potentialities and duly informed by both the judge and in separate
conference with counsel, Appellant signed a waiver of dual representation at
arraignment . See Holder, 705 S.W.2d at 909.
Appellant asserts that the colloquy which took place between the trial
court judge and Appellant was insufficient to comply with the requirements of RCr
8.30. However, RCr 8.30 does not fashion a requirement of length or word count
as to what justifies sufficiency . RCr 8.30(1)(a) simply indicates that the trial court
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judge should explain to the defendant the possibility of conflicts of interest and
that what may be in the best interests for one defendant may not be in the best
interest of the other. The manner in which this is to be accomplished is not
indicated in the statute . While this Court has previously indicated that a knowing
and intelligent waiver has occurred and that a defendant was sufficiently
informed of possible conflicts when a colloquy between the judge and codefendants covered twenty-five (25) pages in the transcript, we are not inclined
to make such arbitrary or cumbersome requirements here . See White, 671
S.W.2d at 243 . We are inclined, however, to restate the rule that whether a trial
court judge has upheld his obligations in ensuring that a defendant is informed of
possible conflicts of interest under RCr 8 .30 will turn on the specific facts and
circumstances of the individual case.
Here, Appellant and her husband had previously been informed of the
implications of joint representation in district court. Appellant and her husband
thereupon signed a waiver. Again at circuit court, Appellant and her husband
were brought before the judge and questioned as to whether they were
comfortable with joint representation bearing in mind what they had gone over in
district court and what they had gone over with their attorney, as well as receiving
additional words of caution from the judge at that time . Appellant answered
unequivocally that she had no reservations regarding dual representation, and
the judge properly approved the waiver. The fact that Appellant signed and
attested on the record a waiver of her rights should be given due effect. "If we
took all waivers lightly, we would open the flood gates for reversal ." Brock, 627
S.W.2d at 44.
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Clearly, Appellant waived her right of joint representation in full
compliance with RCr 8.30. However, even if the requirements of RCr 8.30 had
not been satisfied, "failure to comply with RCr 8.30 is harmless error when the
record does not show even a possibility of prejudice resulting from joint
representation of the accused ." Holder, 705 S .W.2d at 908. Thus finding no
violation, Appellant's conviction is affirmed .
4. Admission of testimony and photographs regarding firearms seized
from members of syndicate .
During the course of the investigation into the alleged drug trafficking
syndicate, police seized numerous firearms from the homes of the various
members of the syndicate . At trial, photographs of the firearms, accompanied by
testimony from the owners of those firearms, were presented. Appellant objected
on grounds that the evidence was highly prejudicial since the Commonwealth
was no longer seeking firearms enhancements on the charges . The trial court
overruled the objection, finding that the testimony was "admissible for the
purpose for which [the prosecutor will] ask later . . . . [T]hey're relative to the
entire scenario that was going on over there, particularly with regard to this
residence."
Appellant now argues that the evidence and testimony was not only highly
prejudicial but also irrelevant, although she presents the relevancy argument for
the first time on appeal. Despite the Commonwealth's contention that the issue
is unpreserved for appellate review, we note our previous discussion regarding
evidentiary issues and preservation, and we find that Appellant has preserved
this issue for review.
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Again, the test on appellate review is whether the trial court's decision to
admit the photographs and testimony regarding the firearms was an abuse of
discretion. English , 993 S.W.2d at 945. In determining whether the trial court
abused its discretion, we must find that "the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles ." Id.
This Court has held that "weapons, which have no relation to the crime,
are inadmissible." Major v. Commonwealth , 177 S .W.3d 700, 710-11 (Ky. 2005)
(citing Gerlau_gh v. Commonwealth , 156 S.W.3d 747, 756 (Ky. 2005)) . In Major,
the defendant was charged with the murder of his wife. At his trial, the
Commonwealth sought to introduce several firearms owned by the defendant
around the time of the murder, but had no evidence actually linking the firearms
to the crime . In that case, this Court held that the introduction of weapons
without connection to the crime was error. Id. at 711 .
Here, we have several defendants charged with trafficking marijuana who
also happen to own firearms and had those in their residences at the time the
police searched the premises. Initially, the Commonwealth sought firearms
enhancements on all trafficking charges, but later dropped those charges, stating
that "the Commonwealth is dismissing the contention that these crimes were
committed while in possession of a firearm ." The most logical reason for this
would be that the Commonwealth had no evidence to prove the firearms were
used in the facilitation of the drug trafficking scheme . When photographs of the
firearms seized from the Sims/Masden residence were introduced at trial, Det.
Boyd testified on behalf of the Commonwealth that, in his experience, 'when
inspections or searches are done of residences that involve drug traffickers,
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weapons are found within the residence[ .]" At no point, however, did the
Commonwealth show any connection between the firearms seized from the
residences and the alleged drug trafficking scheme . Thus, we find it was an
abuse of discretion for the trial court to admit evidence of firearms for which no
connection to the drug trafficking scheme was shown.
Although the trial court erred in admitting the testimony and photographs
of the firearms, any error in this circumstance was harmless, and this Court will
not reverse a judgment based on harmless error. RCr 9.24. Rather, "[o]ur
harmless error standard requires `that if upon a consideration of the whole case
this court does not believe there is a substantial possibility that the result would
have been any different, the irregularity will be held nonprejudicial ."' Matthews v.
Commonwealth , 163 S.W.3d 11, 27 (Ky. 2005) (quoting Abernathy v.
Commonwealth , 439 S.W.2d 949, 952 (Ky. 1969), overruled on other grounds by
Blake v. Commonwealth , 646 S.W.2d 718 (Ky. 1983)).
The Commonwealth introduced ample other evidence from which a
reasonable jury could find guilt. We find there is no "substantial possibility that
the result would have been any different," id ., thus any error in this case was
nonprejudicial and harmless.
5. Forfeiture of Appellant's real and personal property.
Appellant's final assignment of error concerns the ancillary hearing
following her conviction during which the trial court ordered the forfeiture of
Appellant's real estate consisting of approximately 3/4 acre, and personal
property, including firearms, a 1993 Toyota Tacoma pickup truck, and all money
confiscated from her residence, which she shared with her co-defendant
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husband, Lee Roy Brewer. Appellant contends that the Commonwealth failed to
trace the real and personal property to any exchange pursuant to KRS
218A.410(1) .
Initially, we note that the forfeiture concerning Appellant's firearms was
considered and disposed of in her co-defendant husband's appeal, and thus we
will not address that issue here . There we determined that the trial court's order
of forfeiture was in error as the Commonwealth failed to meet its initial burden of
showing that the firearms were traceable to the exchange for controlled
substances. This leaves for consideration whether the forfeiture of Appellant's
real estate, vehicle, and money was proper and appropriate under the
circumstances of this case .
Furthermore, because KRS 218A.410 states that the enumerated items
therein are only "subject to forfeiture," there is an element of discretion on the
part of the trial court in ordering those things to be forfeited . To be subject to
forfeiture, the Commonwealth has the initial burden of showing by even the
slightest of evidence that the property is subject to forfeiture . The trial court has
discretion in determining whether the burdens contained in KRS 218A .410 are
met as well as discretion in ordering the ultimate forfeiture, under the terms of the
statute . Commonwealth v . Shirley, 140 S.W.3d 593, 598 (Ky. App . 2004) .
A. Forfeiture of Appellant's Real Estate
KRS 218A.41 0(1)(j) provides that "[e]verything of value furnished, or
intended to be furnished, in exchange for a controlled substance in violation of
this chapter, all proceeds, including real and personal property, traceable to the
exchange" is subject to forfeiture. KRS 218A.41 0(1)(k) provides that "[a]ll real
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property, including any right, title, and interest in the whole of any lot or tract of
land and any appurtenances or improvements, which is used or intended to be
used, in any manner or part, to commit, or to facilitate the commission of, a
violation of this chapter' is also subject to forfeiture. Inherent in both of these
provisions is a threshold requirement that the Commonwealth must show that the
real property was either used to facilitate the drug trafficking scheme or that the
real property was a proceed of a drug exchange and traceable to the drug
trafficking scheme .
In this case, the Commonwealth produced sufficient evidence to support a
claim that the real property in question, a 3/4 acre tract of land in Monterey,
Kentucky, was used to facilitate the drug trafficking scheme. Appellant's home
acted as a base of operations for the directing and financing of the syndicate's
activities, including the distribution of marijuana to street level dealers . Although
an initial search of Appellant's home revealed no evidence of drug possession or
trafficking, a subsequent search of the real property, and property adjacent to
Appellant's property, resulted in the discovery of several pounds of marijuana as
well as $8100 in currency . Thus, the trial court did not abuse its discretion in
finding the real property to be subject to forfeiture and in ordering the ultimate
.forfeiture
of that real property . Finding no error, the forfeiture of Appellant's real
property is affirmed .
B. Forfeiture ofAppellant's vehicle.
Pursuant to KRS 218A.41 0(1)(h), "vehicles . . . which are used, or
intended for use, to transport, or in any manner to facilitate the transportation, for
the purpose of sale or receipt of [controlled substances in violation of this
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chapter]" are subject to forfeiture. However, "[n]o conveyance is subject to
forfeiture under this section by reason of any act or omission established by the
owner thereof to have been committed or omitted without his knowledge or
consent." KRS 218A.410(1)(h)(2) .
"[T]he foregoing statute subjects the motor vehicle to forfeiture on proof
that it was used to facilitate the transportation for the purpose of sale or receipt of
controlled substances unless the owner . . . is able to establish that such use, if
any, was without her knowledge or consent." Osborne v. Commonwealth , 839
S .W .2d 281, 283 (Ky. 1992). In the case at bar, evidence was presented that Mr.
Brewer, Appellant's husband and co-defendant here, would utilize their 1993
Toyota Tacoma pick-up truck to pickup currency that were proceeds from the
sale of marijuana, and he would also bring currency to distribute to Gibbs and
another individual, Vascari, for their transport back to Mexico . The trial court thus
had ample evidence from which it could determine, in its discretion, that the
vehicle in question was used to facilitate the transportation of marijuana as part
of the overall scheme devised and employed by the various syndicate members.
From these facts, the trial court ultimately ordered forfeiture of Appellant's
vehicle, and finding no abuse of discretion or error otherwise, we affirm the trial
court's order of forfeiture of Appellant's vehicle .
C. Forfeiture of the currency.
KRS 218A.41 0(1)(j) permits the forfeiture of "[e]verything of value
furnished . . . in exchange for a controlled substance in violation of this chapter,
all proceeds . . . traceable to the exchange, and all moneys . . . used, or intended
to be used to facilitate any violation of this chapter." The statute further provides
in subsection (j) that
[i]t shall be a rebuttable presumption that all moneys, coin, and
currency found in close proximity to controlled substances, to drug
manufacturing or distributing paraphernalia, or to records of the
importation, manufacture, or distribution of controlled substances,
are presumed to be forfeitable under this paragraph. The burden of
proof shall be on the claimants of personal property to rebut this
presumption by clear and convincing evidence.
KRS 218A.41 0(1)(j) .
As we have stated in other cases, "any property subject to forfeiture under
(j) must be traceable to the exchange or intended violation ." Osborne , 839
S.W.2d at 284.
The Commonwealth may meet its initial burden by producing slight
evidence of traceability . Production of such evidence plus proof of
close proximity, the weight of which is enhanced by virtue of the
presumption, is sufficient to sustain the forfeiture in the absence of
clear and convincing evidence to the contrary .
In this case, the Commonwealth produced evidence that Appellant and
her husband offered advice to Sims on how she should go about hiding any
marijuana they believed she still had in her possession . They instructed her to
place the marijuana and any money in containers off her property . Through that
surreptitiously recorded conversation between Sims and the Brewers, police
were led to believe that the Brewers may have acted in a similar fashion, thereby
prompting the police to obtain a search warrant for a second time to search the
Brewer residence . As a result, the police uncovered marijuana wrapped in
cellophane, which was placed on the ground and covered by leaves. Several
ounces of marijuana were also found in an ammunition box nearby. The police
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also found $8100 in United States currency inside an Estee Lauder makeup
pouch not far from where the marijuana was uncovered .
We find that these facts, coupled with the fact that the Appellant and her
husband were both convicted of eight counts of trafficking in marijuana, were
sufficient to show that the currency in question was traceable to the exchange for
marijuana. The fact that the money was found in close proximity to the drugs "is
sufficient to make a prima facie case." Osborne , 839 S.W .2d at 284. Thus the
burden was then shifted to the Appellant to rebut the presumption that the
currency should not be forfeited . Appellant failed to convince the trial court
otherwise, and finding no abuse of discretion or error in ordering the forfeiture of
the currency, we thus affirm .
CONCLUSION
For the reasons contained herein, we affirm. Appellant's conviction and the
trial court's order of forfeiture of Appellant's real property, vehicle, and currency .
Based on this Court's decision in Appellant's co-defendant's case, however, the
forfeiture of Appellant's firearms has been reversed and remanded to the trial
court for a determination that the firearms are actually "traceable to the
exchange" for controlled substances .
All concur.
COUNSEL FOR APPELLANT :
Donna L. Boyce
Assistant Public Advocate
Department for Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
Michael Harned
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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