COMMONWEALTH OF KENTUCKY V. ANTHONY WAYNE SWIFT
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RENDERED : NOVEMBER 1, 2007
TO BE PUBLISHED
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2006-SC-000155-DG
COMMONWEALTH OF KENTUCKY
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBERS 2003-CA-002033-MR AND 2004-CA-000336-MR
OHIO CIRCUIT COURT NO . 02-CR-00161
ANTHONY WAYNE SWIFT
APPELLEE
OPINION OF THE COURT BY JUSTICE MINTON
AFFIRMING
We granted discretionary review to determine the propriety of the Court of
Appeals' decision that Anthony Wayne Swift's cultivation of marijuana conviction must
be reversed because the trial court failed to give an instruction on the lesser-included
offense of possession of marijuana . Because we agree with the Court of Appeals that
the trial court erred by failing to give the possession of marijuana instruction, we affirm.
The facts essential to this appeal are uncontested . Two sheriff's deputies went
to Swift's house to investigate an alleged domestic dispute . When the deputies arrived,
Swift's wife and several others were having a heated argument in the front yard . At
some point, Mrs. Swift indicated that she needed to go inside the house. A deputy
accompanied Mrs. Swift into the house where he spotted a marijuana cigarette in an
ashtray . A search warrant was then obtained . That warrant permitted the authorities to
search Swift's home, a travel trailer parked in his yard, as well as any other vehicles or
persons on the premises .
Ultimately, the search yielded six bags of marijuana and some pipes in the
house; thirty marijuana plants and 172 potted marijuana seeds in the backyard; and
almost two pounds of marijuana, as well as some methamphetamine, in a travel trailer
located on Swift's property . 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 .
The charges against Swift proceeded to a jury trial . At trial, Swift testified that he
was a longtime marijuana user and that the marijuana found in the house was his
personal "smoke bag ." And he claimed that he knew of the marijuana plants and seeds
found in the yard, but he claimed that his stepson had placed the marijuana there . Swift
denied any knowledge of the contents of the travel trailer, claiming that his stepson had
been residing in it.
.
After the close of the evidence, the trial court instructed the jury on cultivation of
marijuana (five or more plants) ; trafficking in marijuana (over eight ounces), as well as
the lesser-included offense of trafficking in marijuana (less than eight ounces) and
possession of marijuana;' trafficking in a controlled substance (methamphetamine) and
the lesser-included offense of possession of a controlled substance
(methamphetamine) ; and possession of drug paraphernalia . The jury convicted Swift of
'
The instruction on possession of marijuana was only as a lesser-included offense to
trafficking in marijuana and bore no relationship to the cultivation of marijuana charge .
cultivating marijuana (over five plants), trafficking in marijuana (over eight ounces), and
possession of drug paraphernalia . But the jury acquitted Swift of possession of a
firearm while committing the offenses . And the jury acquitted Swift of all
methamphetamine-related charges.
In accordance with the jury's recommendations, the trial court sentenced Swift to
five years' imprisonment on the cultivation of marijuana conviction, five years'
imprisonment on the trafficking in marijuana conviction, and twelve months'
incarceration and a $500 fine on the possession of drug paraphernalia conviction .
Swift's cultivation and trafficking convictions were ordered to be served consecutively,
for a total sentence of ten years' imprisonment .
Swift then appealed to the Kentucky Court of Appeals. Swift also filed a second
appeal from a separate order forfeiting his property . The Court of Appeals denied Swift
relief on all of his claims, except his claim 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. Because that cultivation conviction could have affected the forfeiture order,
the Court of Appeals also reversed the forfeiture order. The Commonwealth petitioned
for discretionary review, raising as the only issue failure of the trial court to give a
possession of marijuana instruction as a lesser included offense of the marijuana
cultivation charge .
A court generally is required to instruct a jury on all offenses that are supported
by the evidence .2 But a trial court does not need to give an instruction on a lesser-
See, e.g., Taylor v. Commonwealth , 995 S.W.2d 355, 360 (Ky. 1999) .
included offense if there is no evidentiary foundation for the instruction . Rather, a trial
court must give a lesser-included offense instruction "only if, considering the totality of
the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the
greater offense, and yet believe beyond a reasonable doubt that he is guilty of the
lesser offense ."4.
The Commonwealth contends 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. According to the Commonwealth, the Court of Appeals erred by holding that
an instruction on possession of marijuana as a lesser-included offense of cultivation of
marijuana was required . Swift responds that a juror could have found that he
possessed the marijuana plants and potted seeds under a theory of constructive
possession . We agree with Swift .
Kentucky courts have frequently embraced the concept of "constructive
possession" of illegal narcotics, under which a defendant may be found to have
possessed the narcotics even if the narcotics were not on the defendant's person . In
this case, Swift testified that he knew about the marijuana plants and potted seeds
growing on his property . But Swift further testified that the plants and seeds were not
his and that he was indifferent to their existence . So under the constructive possession
theory, there was evidence from which a juror could have had a reasonable doubt that
Swift "knowingly and unlawfully plant[ed], cultivate[d], or harvest[ed] marijuana with the
Houston v. Commonwealth , 975 S.W .2d 925, 929 (Ky. 1998).
/d. at 927 ("Since as early as 1972, Kentucky courts have utilized the concept of
constructive possession to connect defendants to controlled substances .") ; Leavell v.
Commonwealth , 737 S.W .2d 695, 697 (Ky. 1987) (finding that defendant constructively
possessed marijuana found in the trunk of a vehicle to which the defendant had the key).
intent to sell or transfer it[,]" 6 as required to commit the offense of marijuana cultivation,
while simultaneously believing beyond a reasonable doubt that Swift "knowingly and
unlawfully possesse[d] marijuana[,]"' because it was growing on his property with his
knowledge, as required to commit the offense of possession of marijuana. Since one
may possess marijuana without having planted, cultivated, or harvested it, we reject the
Commonwealth's argument that "there could be no possession of the marijuana at issue
here except for that which relates to cultivation ."
Furthermore, in Commonwealth v. Collins, we implicitly held that possession of
marijuana might be a lesser-included offense of cultivation of marijuana.$ In Collins , we
ultimately held that an instruction on possession of marijuana as a lesser-included
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 .9 In the case at hand,
however, Swift openly admitted knowing about the marijuana plants and potted seeds .
So Coffins is readily distinguishable from the case at hand because, unlike Collins, the
defendant himself admitted knowing about the marijuana plants and potted seeds.
Under the evidence, a juror could have reasonably concluded that Swift did not cultivate
Kentucky Revised Statutes (KRS) 218A.1423(1).
KRS 218A.1422(1).
Commonwealth v. Collins , 821 S.W.2d 488,491 (Ky. 1991) . See also 1 Cooper Kentucky
Instructions to Juries (Criminal) § 9.23 (5th ed. 2006) (listing possession of marijuana as a
lesser-included offense of cultivation of marijuana).
Collins , 821 S.W.2d at 491 .
the marijuana plants and potted seeds but did possess those items under the
constructive possession doctrine .
Finally, we reject the Commonwealth's argument that the existence of evidence
that conflicts with Swift's testimony, such as Swift's stepson's testimony that he had no
knowledge of the marijuana, obviates the need for an instruction on marijuana
possession as a lesser-included offense of marijuana cultivation . The fact that other
evidence submitted to the jury could have undercut Swift's constructive possession
theory did not eliminate the need for a jury instruction on possession as a lesserincluded offense of cultivation because it is the jury's sole province and duty as the
finder of fact to sift through the conflicting evidence and to determine what evidence to
believe and what evidence to disbelieve .'°
In short, we find that the Court of Appeals correctly determined that the trial court
erred in not giving an instruction on possession of marijuana as a lesser-included
offense of cultivation of marijuana. Furthermore, the trial court's failure to give a
necessary lesser-included offense instruction cannot be deemed a harmless error."
For the foregoing reasons, the decision of the Court of Appeals is affirmed ; and
this case is remanded to the trial court for proceedings consistent with this opinion .
Lambert, C.J . ; Abramson, Cunningham, Noble, and Scott, JJ., concur.
Schroder, J ., not sitting .
See, e.g., Carr v. Commonwealth , 307 Ky. 207, 210 S.W.2d 778, 779 (1948).
See, e.g., Webb v. Commonwealth , 904 S.W.2d 226, 229 (Ky. 1995) (holding that a trial
court's "[r]efusal to allow such an instruction [on a lesser-included offense], when supported
by the evidence presented, constitutes reversible error."); 1 Cooper Kentucky Instructions to
Juries (Criminal) § 1 .058 ("Cases holding that if the defendant was convicted of the primary
offense, a failure to instruct on a lesser included offense, or giving an erroneous instruction
thereon, was harmless error probably have no present validity .") (internal footnote omitted).
COUNSEL FOR APPELLANT :
Gregory D. Stumbo
Attorney General of Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Office of Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204
COUNSEL FOR APPELLEE:
Albert William Barber, III
225 St. Ann Street
Owensboro, KY 42303
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