Barry Morgan 139976 v. Commonwealth of Kentucky ( 2022 )

RENDERED: DECEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1039-MR
BARRY MORGAN APPELLANT
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
v. HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 19-CR-00169
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND L. THOMPSON, JUDGES.
ACREE, JUDGE: Barry Morgan appeals the Breckinridge Circuit Court’s August
13, 2021 order forfeiting money to Appellee, the Commonwealth of Kentucky. He
argues the circuit court erred by (1) determining sufficient evidence connected the
forfeited currency to drug trafficking, and (2) forfeiting additional cash in lieu of
forfeiting real property. Finding no error, we affirm.
BACKGROUND
On July 16, 2019, the Kentucky State Police received a tip that
Morgan cultivated marijuana at his residence. Detective Seth Lee visited
Morgan’s property and observed marijuana plants growing in pots in the yard. The
detective plainly observed these plants from the road. Detective Lee then knocked
on the front door of Morgan’s trailer home and asked permission to search the
residence. Morgan permitted him to enter.
Inside the home, Detective Lee discovered several additional
marijuana plants growing in pots. The home also contained two safes with cash,
additional cash in a tin can, firearms, boxes of sandwich bags, a digital scale, over
seventy sandwich bags containing marijuana, sixty unopened bags of potting soil,
and thirty-three containers of marijuana seeds. The detective also noticed that the
property was in poor condition.
Following the search, the police seized $82,142 in cash, 320
marijuana plants, and 2.5 pounds of processed marijuana. A grand jury
subsequently indicted Morgan for charges related to firearms possession,
marijuana cultivation, and marijuana trafficking. An allegation that Morgan
earned income from marijuana trafficking was dismissed – he insisted that he
traded marijuana with friends, but that he never sold marijuana – and Morgan
pleaded guilty to the following amended charges: cultivating marijuana, second
-2-
offense; trafficking in marijuana; possession of a firearm by a convicted felon; and
possession of drug paraphernalia.
The Commonwealth filed a motion for forfeiture of Morgan’s home
(both the residence and the four acres upon which it sits) and all cash found during
the search. At a hearing, Morgan insisted he only traded marijuana to friends and
that his cash was obtained by legal means. He presented an affidavit and a real
estate purchase contract showing he sold nine acres of land for $54,780 and
testified that he kept much of the proceeds in his home as cash. He also testified
he had recently withdrawn $15,131 from a savings account. Morgan also receives
$1,000 per month in social security. Though he claimed to make money salvaging
scrap metal, performing odd jobs for a neighbor, and reselling VHS tapes at the
flea market, he provided no evidence of income from these sources.
At a second hearing, the Commonwealth indicated it still intended to
forfeit and sell the real property but noted the property would require a significant
investment to restore it before it could be sold. The circuit court stated its
preference toward forfeiting additional cash instead of Morgan’s home. When
invited to provide his opinion on the matter, Morgan did not object to the circuit
court’s preference.
The circuit court determined the Commonwealth had made a prima
facie showing that Morgan’s cash was either the proceeds of marijuana trafficking
-3-
or would be used toward future marijuana cultivation and sale. However, the
circuit court also determined Morgan had offered credible evidence that most of
the money was not obtained through marijuana trafficking and ordered forfeiture of
$10,000 of the seized cash. The circuit court ordered an additional $29,000 – the
PVA valuation of Morgan’s real property – be forfeited in lieu of his home.
Morgan now appeals.
ANALYSIS
Upon appellate review of an order granting forfeiture, “[f]indings of
fact made by a trial court are reviewed under the clearly erroneous standard.”
Commonwealth v. Coffey, 247 S.W.3d 908, 910 (Ky. 2008); CR1 52.01. “Findings
of fact are clearly erroneous only if they are not supported by substantial
evidence.” Mays v. Porter, 398 S.W.3d 454, 458 (Ky. App. 2013) (citing Black
Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964)). Evidence is substantial
when “the evidence, when taken alone, or in the light of all the evidence, has
sufficient probative value to induce conviction in the minds of reasonable
persons.” Id. (citing Kentucky State Racing Comm’n v. Fuller, 481 S.W.2d 298,
308 (Ky. 1972)). Though we defer to a trial court’s factual findings, rulings of law
1
Kentucky Rules of Civil Procedure.
-4-
are reviewed de novo. Coffey, 247 S.W.3d at 910 (citing Jackson v.
Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006)).2
Kentucky’s controlled substances statute – KRS3 Chapter 218A –
provides a mechanism for forfeiture of money or other property connected to drug
offenses. As relevant to this appeal, KRS 218A.410 provides:
Everything 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, and all moneys, negotiable
instruments, and securities used, or intended to be used, to
facilitate any violation of this chapter[.]
....
It 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 upon claimants of personal
property to rebut this presumption by clear and convincing
evidence. The burden of proof shall be upon the law
enforcement agency to prove by clear and convincing
evidence that real property is forfeitable under this
paragraph[.]
2
We note that Appellant’s brief deviates significantly from the requirement of CR 76.12(4)(c)(v)
because it fails to demonstrate in its argument section that each argument presented therein was
properly preserved for appellate review. We choose not to strike Appellant’s brief, though
controlling precedent gives us the power to do so at our discretion. This decision should not be
interpreted in any way to demonstrate a policy of this Court regarding this and other similar
deficiencies.
3
Kentucky Revised Statutes.
-5-
KRS 218A.410(1)(j). To establish this presumption of forfeitability, “‘the
Commonwealth bears the initial burden of producing some evidence, however
slight, to link the [property] it seeks to forfeit to the alleged violations of KRS
218A.’” Commonwealth v. Doebler, 626 S.W.3d 611, 618 (Ky. 2021) (quoting
Brewer v. Commonwealth, 206 S.W.3d 343, 348 (Ky. 2006)).
The “slight evidence” threshold to establish a presumption of
forfeitability is exceeded when seized currency is found in close proximity to
evidence of drug trafficking. In Osborne v. Commonwealth, the police raided a
trailer home and seized over $6,000 in cash, two pounds of marijuana divided into
quarter-pound bags, a marijuana plant, and “a sophisticated set of scales of the type
used in the drug trade.” 839 S.W.2d 281, 282 (Ky. 1992). Osborne and a man
named Donald Kimberly inhabited the trailer home. Id. Police found currency and
packaged marijuana inside the domicile and found the scales and the marijuana
plant inside a vehicle located on the property. Id. Osborne had also sold a quarter
pound of marijuana prior to the raid and seizure. Id. While Kimberly was
convicted of trafficking in marijuana, Osborne was not. Id. Upon review of the
trial court’s grant of forfeiture of the currency seized during the raid of Osborne’s
home, the Supreme Court determined because the currency was found in the home
of Kimberly, a person convicted of trafficking in marijuana, that the
-6-
Commonwealth had provided the requisite slight evidence to establish a prima
facie case for forfeiture. Id. at 284.
In the case sub judice, the State Police found Morgan’s cash inside
two safes and a tin container within his trailer home. Just as in Osborne, the
discovery of cash inside the home of a person convicted of marijuana trafficking –
here, Morgan himself – exceeds the “slight evidence” threshold that KRS
218A.410(1)(j) and resultant jurisprudence require for the Commonwealth to
establish a rebuttable presumption of forfeitability. The proximity of the currency
to marijuana within Morgan’s home – in addition to the presence of several
marijuana plants, potting soil, containers of marijuana seeds, a digital scale, and
over seventy sandwich bags containing marijuana – supports the circuit court’s
determination that the Commonwealth had made its prima facie case. Proximity of
property to controlled substances and distribution paraphernalia is a question of
fact, Doebler, 626 S.W.3d at 618, and our review reveals no error in the circuit
court’s findings.
In his brief, Morgan argues that any currency seized could not have
been connected to his marijuana trafficking conviction because he did not
exchange marijuana for currency; he asserts his trafficking conviction instead is
based upon exchanging marijuana for labor. To this point, Morgan notes the
Commonwealth amended his charge to remove the allegation that he exchanged
-7-
marijuana for payment in cash. However, because “nothing in the forfeiture statute
requires criminal conviction of the person whose property is sought to be
forfeited[,]” Osborne, 839 S.W.2d at 283, it stands to reason it is irrelevant that
Morgan’s conviction as amended did not indicate an actual sale. “The inquiry is
whether the evidence and law, including statutory presumptions, permit a finding
that the subject property was used to facilitate violation of [KRS Chapter 218A].”
Id. (emphasis supplied). Though the allegation that Morgan was actually paid in
exchange for marijuana was dropped, this does not mean any currency seized is not
subject to forfeiture. The proximity of the money to equipment and paraphernalia
upon which Morgan’s charge and ultimate guilty plea were based – including over
three hundred marijuana plants – was sufficient evidence to presume the money
could be traced to marijuana trafficking, even if the money was not acquired from
marijuana sales. For instance, it is perfectly reasonable to presume Morgan would
use the money to purchase supplies for growing additional marijuana.
While Kentucky’s forfeiture statute provides the party opposing
forfeiture an opportunity to rebut the presumption of forfeitability, the circuit court
correctly determined Morgan failed to rebut this presumption as to the forfeited
currency. KRS 218A.410(1)(j) provides, once the Commonwealth has provided
the requisite proof, the burden then shifts to the party opposing forfeiture to rebut
the Commonwealth’s prima facie case upon clear and convincing evidence. KRS
-8-
218A.410(1)(j). “Clear and convincing proof does not necessarily mean
uncontradicted proof.” W.A. v. Cabinet for Health & Fam. Servs, 275 S.W.3d 214,
220 (Ky. App. 2008). Rather, “[i]t is sufficient if there is proof of a probative and
substantial nature carrying the weight of evidence sufficient to convince ordinarily
prudent-minded people.” Id. Whether the presumption has been rebutted by clear
and convincing evidence is reviewed on appeal for abuse of discretion. Doebler,
626 S.W.3d at 618 (citing Robbins v. Commonwealth, 336 S.W.3d 60, 65 (Ky.
2011)).
The circuit court plainly did not abuse its discretion when it
determined some, but not all, of the money seized from Morgan’s home was
forfeitable. As the parties acknowledge, the lion’s share of the seized money was
not subject to forfeiture because Morgan was able to provide documentation
proving he obtained the money through the sale of real estate, through social
security payments, and from a recent withdrawal from a savings account. In an
effort to rebut the presumption of forfeitability as to the money ultimately
forfeited, Morgan claimed to have sold scrap metal and VHS tapes, as well as
having performed work for his neighbor; however, Morgan provided no proof
thereof. Without such evidence, we cannot say the circuit court abused its
discretion when it chose not to take Morgan at his word. Because clear and
convincing evidence – in sum, the proximity of the seized cash to various indicia
-9-
of marijuana trafficking – supports the circuit court’s determination that Morgan
failed to rebut the presumption, we will not disturb it.
Finally, Morgan argues the circuit court erred when it granted
forfeiture of additional cash as a substitute for forfeiting his real property.
Apparently, this argument is presented for the first time before this court. As the
Commonwealth notes in its brief, Morgan did not object to the circuit court’s
suggestion that cash be substituted in lieu of his home, nor did he argue the circuit
court lacked such power. Following the circuit court’s order forfeiting the assessed
value of Morgan’s real estate rather than the real estate itself, Morgan did not file a
motion to alter, amend, or vacate pursuant to CR 59.05.
“‘[A]n appellant preserves for appellate review only those issues
fairly brought to the attention of the trial court.’” Owens v. Commonwealth, 512
S.W.3d 1, 15 (Ky. App. 2017) (citing Elery v. Commonwealth, 368 S.W.3d 78, 97
(Ky. 2012)). “Our jurisprudence will not permit an appellant to feed one kettle of
fish to the trial judge and another to the appellate court.” Id. Morgan failed to
present the issue to the trial judge in the first place. Because Morgan failed to
preserve this argument for review, we decline to address it.
CONCLUSION
For the foregoing reasons, we affirm the Breckinridge Circuit Court’s
August 13, 2021 order awarding forfeiture to the Commonwealth.
-10-
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Michael R. Mazzoli Daniel Cameron
Louisville, Kentucky Attorney General of Kentucky
Kenton Smith Robert Baldridge
Brandenburg, Kentucky Assistant Attorney General
Frankfort, Kentucky
-11-