Daryl Couch v. Commonwealth of Kentucky

RENDERED: OCTOBER 23, 2020; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2018-CA-0794-MR

DARYL COUCH APPELLANT

APPEAL FROM LIVINGSTON CIRCUIT COURT
v. HONORABLE C.A. WOODALL, III, JUDGE
ACTION NO. 16-CR-00025

COMMONWEALTH OF KENTUCKY APPELLEE

AND NO. 2018-CA-0795-MR

HAROLD SMITH APPELLANT

APPEAL FROM LIVINGSTON CIRCUIT COURT
v. HONORABLE C.A. WOODALL, III, JUDGE
ACTION NOS. 16-CR-00026 & 16-CR-00027

COMMONWEALTH OF KENTUCKY APPELLEE
AND NO. 2018-CA-1642-MR

HAROLD SMITH APPELLANT

APPEAL FROM LIVINGSTON CIRCUIT COURT
v. HONORABLE C.A. WOODALL, III, JUDGE
ACTION NOS. 16-CR-00026 & 16-CR-00027

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
VACATING & REMANDING
AS TO APPEAL NOS. 2018-CA-0794 & 2018-CA-1642
AND
AFFIRMING IN PART, VACATING IN PART, & REMANDING
AS TO APPEAL NO. 2018-CA-0795

** ** ** ** **

BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.

JONES, JUDGE: In April of 2018, Harold Smith and Daryl Couch were tried

together on drug-related charges before a single jury in the Livingston Circuit

Court following their arrests on October 14, 2015. The jury found Smith guilty of

the cultivation of marijuana, five or more plants, subsequent offense, in violation

of KRS1 218A.1423, and guilty of trafficking in marijuana, less than eight ounces,

1
Kentucky Revised Statutes.
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subsequent offense, in violation of KRS 218A.1421; it found Couch guilty of

cultivation of marijuana, five or more plants, first offense, in violation of KRS

218A.1423. The trial court sentenced Smith to ten years’ imprisonment for the

cultivation conviction and five years’ imprisonment for the trafficking conviction

with the sentences to be served consecutively for a total of fifteen years’

imprisonment. Couch was sentenced to five years’ imprisonment.2 Acting with

the assistance of separate counsel, Smith and Couch each filed a direct appeal with

this Court: (1) Couch v. Commonwealth, No. 2018-CA-0794-MR; and (2) Smith v.

Commonwealth, No. 2018-CA-0795-MR. Smith then filed a pro se appeal

attacking a subsequent forfeiture order entered by the trial court: Smith v.

Commonwealth, No. 2018-CA-1642-MR.3

In their main appeals, Smith and Couch both argue that the trial court

erred when it refused to include a jury instruction on possession of marijuana as a

lesser-included offense of cultivation of marijuana and/or trafficking in marijuana.

Smith also makes the additional argument that the trial court erred when it refused

2
Couch’s cultivation conviction was a Class D felony as he had not previously been convicted of
that offense, whereas Smith was a subsequent offender making Smith’s conviction a Class C
felony. This difference accounts for the discrepancy in the length of the sentences Couch and
Smith received for their cultivation convictions.
3
In 2019, Smith filed another pro se appeal, No. 2019-CA-0426-MR, asking this Court to order
the trial judge, the Hon. C.A. Woodall, III, to be recused from all further matters affecting his
criminal cases. That appeal was also assigned to this panel for decision. That appeal has been
dismissed for lack of jurisdiction by separate order.
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to declare a mistrial after a witness testified that Smith was known to be a “large

grower [of marijuana] in the area from eastern Kentucky.” Smith’s separate, pro

se appeal asserts the trial court denied him due process when it ordered certain

property forfeited following his convictions.4 While we disagree with respect to

the mistrial and trafficking conviction, we agree with Smith and Couch that the

trial court erred when it failed to instruct the jury on possession of marijuana as a

lesser-included offense of cultivating marijuana. Accordingly, we must vacate and

remand the judgments entered against Couch and Smith with respect to their

individual cultivation of marijuana convictions. Because the order of criminal

forfeiture arose out of the cultivation conviction, we must vacate and remand that

order as well.

I. BACKGROUND

Smith and Couch were arrested on October 14, 2015, after a large

amount of marijuana was seized from a camper where they were staying in

Livingston County, Kentucky. Smith was indicted for cultivating marijuana, more

than five plants, subsequent offense, and trafficking in marijuana, less than eight

ounces, subsequent offense. Couch was indicted for cultivation of marijuana, more

4
The three appeals share a record, arise out of a common set of facts, and involve similar legal
issues. In the interests of judicial economy, each appeal was assigned to this panel for decision,
and we have likewise determined that the most efficient manner to adjudicate these appeals is
through a combined opinion addressing all three appeals.

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than five plants, first offense. Both men pleaded not guilty and a joint trial was

conducted on April 19, 2018. The Commonwealth’s two primary witnesses were

Morgan Crayne,5 a confidential informant, and Detective Mike Lantrip, a state law

enforcement official assigned to the Pennyrile Narcotics Task Force, who headed

up the investigation that led to the arrests of Couch and Smith. The

Commonwealth also called Terry Nunely, the Assistant Director of the Pennyrile

Narcotics Task Force, and David Hack, the laboratory director for the Kentucky

State Police. Couch testified on behalf of Appellants.

The Commonwealth’s first witness was Morgan Crayne. In late 2014

or early 2015, Crayne reached out to law enforcement officers about the possibility

of working as a confidential informant. After a preliminary meeting, the Pennyrile

Narcotics Task Force decided to take Crayne on as one of its confidential

informants. At the time of trial, Crayne had worked for the Commonwealth on

numerous drug-related cases. He was paid in cash, generally after a successful

arrest was made by the Commonwealth. The amount varied from case to case. He

estimated that he had received over $30,000.00 for his work over the last four

years; he was paid $1,000.00 for his work leading to the arrests of Couch and

Smith.

5
The Appellants use two different spellings of Morgan’s surname throughout their briefs:
“Crayn” and “Crayne.” Morgan testified at trial that his surname is spelled “Crayne” and that is
the spelling we use throughout this opinion.

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 Crayne testified that he had known Smith since the two were

incarcerated together several years earlier. They kept in contact with one another

after they were released. Crayne suspected Smith of being involved with

marijuana. He informed Detective Lantrip about his suspicions after he began

working as an informant, prompting the Pennyrile Narcotics Task Force to begin

investigating Smith and his activities. Sometime in the spring of 2015, Crayne

asked Smith to accompany him on a trip to look at a house Crayne was thinking

about renting. Smith brought Couch along with him on the trip. This was the first

time Crayne had met Couch. Crayne wore a recording device on this trip but

nothing of substance appears to have been recorded.

In early October of 2015, Smith called Crayne and told him that he

and Couch were on a racoon hunting trip in Livingston County and were staying at

the Birdsville Campground in Smithland, Kentucky. Crayne relayed this

information to Detective Mike Lantrip. Detective Lantrip asked Crayne to visit the

campsite to ascertain whether there were any drugs there. Detective Lantrip also

secured a warrant to place a GPS tracking device on Smith’s truck as he suspected

that Smith and Couch were in the area to harvest marijuana. The device was

placed on Smith’s truck by local law enforcement officials in the parking lot of a

convenience store where Smith and Couch had stopped to get supplies.

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 Per the instructions of law enforcement, Crayne planned to visit the

Birdsville campsite where Smith and Couch were staying on October 14, 2015.

Prior to driving to the campsite, Crayne met with law enforcement officials who

searched him to make sure he did not have any drugs or contraband on his person.

Detective Lantrip could not recall whether law enforcement also searched Crayne’s

vehicle. Crayne arrived at the campsite sometime around noon or one o’clock in

the afternoon. He observed a small camper where the men were staying and a

truck with a metal dog kennel in the back. There were also one or two dogs on

site. Crayne testified that when he arrived, Smith had just woken up for the day.

Smith invited Crayne into the camper. The men talked for about forty-five

minutes, mostly about racoon hunting. Before Crayne departed, Smith retrieved a

small bag of marijuana from a cabinet under or near the camper’s sink area and

gave it Crayne. No money was exchanged. It was not entirely clear from the

testimony whether Crayne had asked Smith for marijuana or whether it was an

unprompted, gratuitous act.

Crayne then left the campsite and met back up with law enforcement

officers. Crayne gave the marijuana, which he testified appeared to him to be

freshly cut, to Detective Lantrip. Crayne told Detective Lantrip that he thought he

saw a few small bags of marijuana in the cabinet where Smith retrieved the bag he

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gave to Crayne, but he was not certain of the overall quantity. He did not see any

other marijuana or drugs in the camper.

Crayne returned to the campsite a second time later that day to see if

Smith and Couch were onsite. Crayne testified that as he was making his way to

the camper, he observed Couch remove something from the back of the truck and

take it inside the camper. He was unable to ascertain what Couch removed; he did

not see Smith. Crayne left without making contact with either Smith or Couch.

As he was leaving the campsite, Crayne called Detective Lantrip and

reported what he had seen. Detective Lantrip asked Crayne to return to the

campsite to determine whether there was additional marijuana inside the camper.

Crayne was not searched prior to this third trip, but he did wear a recording device.

Crayne testified that as he approached, he startled Couch who was in the process of

exiting the camper. Crayne said Couch acted nervous and scared as he went back

inside the camper to get Smith. Smith exited the camper and had a short

conversation with Crayne. The audio of the conversation was played at trial;

however, the sound quality is extremely poor, making it nearly impossible to make

out the nature of the men’s conversation. As a result, the Commonwealth asked

Crayne to tell the jury what Smith said to him. Crayne testified that Smith told him

that it was not a good time for him to be there because they were cleaning “pot” in

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the camper. Smith did not invite Crayne inside the camper, so he was not able to

actually observe any marijuana himself.

Crayne left the campsite with plans to meet back up with law

enforcement. He testified that he had not gotten very far away when he received a

call from Smith, who asked him to return and help them clean the marijuana.

Crayne called Detective Lantrip and asked if he should return to the campsite.

Detective Lantrip told him not to go back because he was already in the process of

obtaining a warrant that law enforcement would be executing later that evening.

Detective Lantrip testified that after receiving the initial information

from Crayne, he began monitoring the GPS tracking device that was placed on

Smith’s truck. Based on the movements, he believed Smith and Couch were likely

moving marijuana. He testified that at some point that evening, law enforcement

began following Smith’s truck, but it kept turning around without stopping. He

believed that whoever was driving the truck had likely surmised that it was being

followed by someone; this prompted law enforcement to stop following the truck

so as not to blow their cover.

Based on the GPS movements and Crayne’s information, law

enforcement secured a warrant for the campsite, truck, and camper. At

approximately 10:50 p.m., detectives and several deputies executed the warrant.

Both Smith and Couch were at the camper. Smith came to the door with a box

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cutter in his hand. Couch was located inside the camper. Detective Lantrip

testified that marijuana was all over the camper. In total, 22.4 pounds of marijuana

was seized from inside the camper, in addition to several smaller bags of marijuana

that were found in the cabinet under the sink where Crayne said Smith retrieved

the bag given to him. Detective Lantrip testified that the 22.4 pounds was

equivalent to approximately twenty-two marijuana plants, and that in his

professional experience this quantity of marijuana would not be consistent with

personal use. Officers also located ceramic heaters in the camper that had been

purchased the previous day and a GPS dog tracking system. Detective Lantrip

testified that the heaters were most likely being used to speed up the drying

process. He believed the GPS dog tracking system was being used to mark and

then locate where the marijuana was hidden so that it could be picked up under the

cover of darkness.

Smith’s cellular telephone was also seized and searched by police. A

series of text messages between Smith and his son were introduced by the

Commonwealth. In one text, Smith’s son asked, “What are you doing[?]” Smith

responded, “Cutting hell down[.]” Smith also stated he got “all that cut across the

road[.]” Later in the evening Smith told his son that he was sitting on the side of

the road waiting for Couch to pick him up, but that Couch was having problems

because someone was after him.

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 Couch testified on behalf of Appellants. His version of events was

markedly different from Crayne’s version. Couch testified that he had known

Smith his whole life and that the two regularly racoon hunted together throughout

the year. Couch explained that he took his dogs hunting year-round, even though it

was only legal to kill racoons at certain times of the year. Couch explained that he

breeds and trains hunting dogs, and the off-season trips are necessary to properly

teach the dogs how to hunt. He testified that he liked to hunt in the Livingston

County area because there were more racoons in western Kentucky and the terrain

was flatter and easier to navigate on foot than it was in eastern Kentucky.

Couch admitted that he was a regular marijuana smoker. He testified

that he was abused as a child and suffers from PTSD. He believes that smoking

marijuana helps alleviate his PTSD symptoms. Couch testified that he had a small

bit of marijuana on his person during the hunting trip, which he planned to smoke

himself. He denied knowing about the marijuana in the cabinet under the sink and

denied that either he or Smith were cultivating marijuana during their trip. He

testified that Crayne visited the two around noon on October 14, 2015, as he and

Smith were waking up. Later in the day, he testified that he went raccoon hunting

with Smith but that the dogs wandered onto private property and Smith went

looking for them. He said that as he was driving around looking for Smith, he

noticed that someone was following him. He said he was scared because he

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thought it was a landowner who was upset about their dogs going onto private

property. He believes this is what Smith was referring to when he texted his son

that someone was after Couch. He denied that he was picking up any marijuana or

that he had any knowledge that Smith had been harvesting marijuana earlier that

day.

Couch testified that later in the evening after he and Smith had

returned to the camper, Crayne showed up in his truck. He said that Crayne called

him and Smith over to his truck and said that he had something to show them.

Couch testified that Crayne pulled back something to reveal garbage bags

containing marijuana. At this point, Couch said he walked away, and Smith took

the marijuana inside the camper. Couch said he does not know what transpired

between Crayne and Smith after he walked away. Couch admitted that he helped

to clean the marijuana, which was fresh cut, but denied that he and Smith had

helped Crayne cut down the marijuana. Couch testified that he planned to keep

whatever he could of the marijuana for personal consumption; he had no plans to

sell it. He thought that it would take him a year to smoke that much marijuana, and

he was willing to try to smoke it all.

Couch denied that they were using the GPS dog tracking system to

locate hidden marijuana. He said the system only held a charge for eight to twelve

hours and was used to locate the dogs while they were hunting.

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 Following the conclusion of testimony, Couch and Smith requested

the trial court to instruct the jury on possession of marijuana as a lesser-included

offense of cultivation and trafficking. Defense counsel pointed out that the

testimony at trial created a factual issue with respect to whether Crayne transferred

the marijuana found in the camper to Smith and Couch. Counsel noted that if the

jury believed Couch, the Commonwealth could not prove that Smith and Couch

had cultivated the marijuana earlier in the day. The trial court ultimately refused to

give the requested instruction for possession, stating it agreed with the

Commonwealth’s argument that the quantity of marijuana found in the camper was

inconsistent with possession.

The jury found Smith guilty of the cultivation of marijuana, five or

more plants, subsequent offense, in violation of KRS 218A.1423, and guilty of

trafficking in marijuana, subsequent offense, less than eight ounces, in violation of

KRS 218A.1421; it found Couch guilty of the cultivation of marijuana, five or

more plants, first offense, in violation of KRS 218A.1423. The trial court

sentenced Smith to ten years’ imprisonment for the cultivation conviction and five

years’ imprisonment for the trafficking conviction with the sentences to be served

consecutively for a total of fifteen years’ imprisonment. Couch was sentenced to

five years’ imprisonment.

These appeals followed.

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 II. ANALYSIS

A. Smith’s Motion for a Mistrial

As noted, Crayne was the first witness called to testify. As the

Commonwealth was attempting to lay a foundation, it asked Crayne what he had

previously told Detective Lantrip about Smith that caused law enforcement to

launch their investigation. Crayne responded that he told Detective Lantrip that

Smith was “a large grower in the area from eastern Kentucky.” Smith’s counsel

immediately objected to this testimony. During a short bench conference, the trial

court sustained the objection, which the Commonwealth conceded was proper.

The Commonwealth added that it was not trying to illicit improper testimony of

prior bad acts but was simply trying to lay a foundation. The Commonwealth

agreed not to pursue that line of questioning any further.

Defense counsel then moved for a mistrial. The trial court denied the

motion for a mistrial stating that it believed that an admonition could cure any

prejudicial effect from the statement, and that it would give one if defense counsel

so desired. Defense counsel responded that while it did not believe an admonition

could sufficiently cure the prejudice, it nonetheless wanted the trial court to

admonish the jury if the trial court was not going to declare a mistrial. The trial

court then admonished the jury as follows:

Ladies and gentlemen on the testimony that Mr. Crayne
has just given you about what he told Detective Lantrip,
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 you’re not to regard that. You’re to disregard that, and
not consider that as any evidence of guilt on either
defendant’s part as far as the crime that they are on trial
here for today. So disregard that last testimony.

On appeal, Smith argues that Crayne’s testimony that Smith was a

“large grower” created a manifest necessity for a mistrial because the statement

was of such magnitude that it could not be cured by an admonition. Smith

contends that the trial court’s failure to grant a mistrial denied him due process.

Mistrials are highly disfavored. As recently explained by the

Kentucky Supreme Court, a mistrial is proper only in cases of the most extreme

prejudice.

“[A] mistrial is an extreme remedy and should be
resorted to only when there is a fundamental defect in the
proceedings and there is a ‘manifest necessity for such an
action.’” Woodard v. Commonwealth, 147 S.W.3d 63,
68 (Ky. 2004) (citing Bray v. Commonwealth, 68 S.W.3d
375, 383 (Ky. 2002)). “The occurrence complained of
must be of such character and magnitude that a litigant
will be denied a fair and impartial trial and the prejudicial
effect can be removed in no other way.” Woodard, 147
S.W.3d at 68 (quoting Gould v. Charlton Co., Inc., 929
S.W.2d 734, 738 (Ky. 1996)). A trial court’s decision to
grant a mistrial must be supported by a “manifest
necessity” for that decision in the record. Wiley [v.
Commonwealth,] 575 S.W.2d [166, 168 (Ky. App. 1978)]
(citations omitted). This necessity must be “an urgent
and real necessity.” Id. (quoting Baker v.
Commonwealth, 280 Ky. 165, 132 S.W.2d 766 (1939)).

A mistrial is reserved for unique circumstances in
which the prejudice is so great that a trial cannot continue
fairly for both parties. “[T]he power to grant a mistrial
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 ought to be used sparingly and only with the utmost
caution, under urgent circumstances, and for very plain
and obvious causes.” Cardine v. Commonwealth, 283
S.W.3d 641, 647 (Ky. 2009) (quoting Commonwealth v.
Scott, 12 S.W.3d 682, 685 (Ky. 2000) (citing Glover v.
McMackin, 950 F.2d 1236, 1240 (6th Cir. 1991))).

Commonwealth v. Padgett, 563 S.W.3d 639, 646 (Ky. 2018).

This high standard results from the presumption that an admonition

can cure a defect in testimony. Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky.

2001). “The presumption that a jury will follow a curative admonition is overcome

only when there is an overwhelming likelihood that the jury will be incapable of

following the admonition and the impermissible testimony would be devastating to

the appellant.” St. Clair v. Commonwealth, 455 S.W.3d 869, 892 (Ky. 2015). The

trial court has broad discretion in deciding whether an admonition is sufficient, and

its decision to deny a motion for a mistrial should not be disturbed absent an abuse

of discretion. Id.

Crayne’s statement was isolated, discrete, and brief. The

Commonwealth did not purposefully illicit the statement and did not request

Crayne to elaborate on it. Smith’s counsel immediately objected to the statement,

and the Commonwealth agreed not to probe further. Additionally, the jury could

have easily surmised on its own that Crayne believed Smith to be involved in

marijuana cultivation and/or trafficking by virtue of the fact that Crayne alerted

law enforcement to Smith’s presence in the area. “This Court cannot say that the
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testimony that [Smith] now complains of was so devastating that it could not be

overcome by an admonition. Thus, the trial court’s choice of that remedy over

granting a mistrial was not an abuse of discretion, and does not require reversal.”

Id.

B. Lesser-included Offense Instructions

“It is well established in this Commonwealth that a trial court has a

duty to instruct based on the facts in evidence before it.” Roberts v.

Commonwealth, 599 S.W.3d 841, 854 (Ky. 2020). “Each party to an action is

entitled to an instruction upon his theory of the case if there is evidence to sustain

it.” Beard v. Commonwealth, 581 S.W.3d 537, 541 (Ky. 2019) (quoting Sargent

v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015)). “In a criminal case it is the duty of

the court to prepare and give instructions on the whole law and this rule requires

instructions applicable to every state of case deducible or supported to any extent

by the testimony.” Kelly v. Commonwealth, 267 S.W.2d 536, 539 (Ky. 1954)

(citations omitted). “This obligation extends to lesser-included offenses and

affirmative defenses, but is dependent upon there being sufficient evidence to

warrant the giving of an instruction.” Roberts, 599 S.W.3d at 854 (citing Grimes v.

McAnulty, 957 S.W.2d 223, 226 (Ky. 1997)). “The trial court has no duty to

instruct on theories of the case that are unsupported by the evidence.” Driver v.

Commonwealth, 361 S.W.3d 877, 888 (Ky. 2012).

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 “[T]he trial court’s standard for instructing on a lesser-included

offense is: unless the evidence is such that a reasonable juror could doubt that the

defendant is guilty of the crime charged but conclude that he is guilty of the lesser-

included offense, the lesser-included instruction should not be given.” Beard, 581

S.W.3d at 543. “Upon review, we likewise consider whether the trial court erred

by refusing to give a lesser-included offense instruction under the ‘reasonable juror

standard.’” Id. at 542 (citing Springfield v. Commonwealth, 410 S.W.3d 589, 594

(Ky. 2013)).6

6
Our Supreme Court has explained that assigning a precise label to this standard of review is
often imprecise and somewhat misleading. It can be labeled as de novo or abuse of discretion.
Regardless of the label, however, the appellate court must consider the propriety of a lesser-
included offense instruction based on the “reasonable juror standard.”
As noted, we review a trial court’s decision not to give a criminal
offense jury instruction under the same “reasonable juror” standard
we apply to the review of its decision to give such an instruction.
See Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991).
Construing the evidence favorably to the proponent of the
instruction, we ask whether the evidence would permit a
reasonable juror to make the finding the instruction authorizes.
We typically do not characterize our review under this standard as
either de novo or for abuse of discretion, but in some recent cases
we have and it may appear that we have done so inconsistently.
See Hunt v. Commonwealth, 304 S.W.3d 15, 31 (Ky. 2009) (“The
trial court’s decision not to give a jury instruction is reviewed for
abuse of discretion.”); Cecil v. Commonwealth, 297 S.W.3d 12, 18
(Ky. 2009) (“We review the trial court’s rulings with respect to
jury instructions for abuse of discretion.”); Morrow v.
Commonwealth, 286 S.W.3d 206, 209 (Ky. 2009) (“Because this
matter turns on the trial court’s determination as to whether to
tender a jury instruction, we will engage in a de novo review.”). In
this context, the characterization makes little difference and so the
inconsistency is more apparent than real. On the one hand, if the
evidence supports an instruction that is otherwise appropriate, the
proponent is entitled to the instruction as a matter of law, and to
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 In applying the reasonable juror standard, it is important not to

confuse the sufficiency of the evidence with its credibility. The trial court should

determine whether there is sufficient evidence to warrant giving the lesser-included

offense instruction; however, it should not invade the province of the jury by

weighing the believability of that evidence. “Deciding whose version to believe

and weighing witness credibility is entirely within the jury’s discretion.” Hall v.

Commonwealth, 337 S.W.3d 595, 610 n.52 (Ky. 2011) (quoting Robinson v.

Commonwealth, 325 S.W.3d 368, 371 (Ky. 2010)). Even if the testimony that

supports a defense theory is highly unlikely, the jury must nonetheless have the

opportunity to consider it. “[N]o matter how preposterous, any defense which is

supported by the evidence must be submitted to the jury.” Taylor v.

Commonwealth, 995 S.W.2d 355, 361 (Ky. 1999). “[I]t is the privilege of the jury

to believe the unbelievable if the jury so wishes.” Mishler v. Commonwealth, 556

S.W.2d 676, 680 (Ky. 1977).

emphasize that entitlement, as we did in Morrow, our review can
be characterized as de novo. On the other hand, to emphasize that
the sufficiency of the evidence is measured against a
reasonableness standard—the reasonable juror—as we did
in Cecil, our review can be characterized as for abuse of discretion.
Regardless of the characterization, however, the “reasonable juror”
is the operative standard, in the appellate court as well as in the
trial court.
Allen v. Commonwealth, 338 S.W.3d 252, 255 n.1 (Ky. 2011).

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 A lesser-included offense is one that is established by proof of the

same or less than all of the facts required to prove the primary offense. KRS

505.020(2)(a). Smith and Couch each assert that the trial court committed

reversible error when it failed to instruct the jury on possession of marijuana as a

lesser-included offense of cultivating marijuana.

KRS 218A.1423 provides:

(1) A person is guilty of marijuana cultivation when he
knowingly and unlawfully plants, cultivates, or harvests
marijuana with the intent to sell or transfer it.

...

(4) The planting, cultivating, or harvesting of five (5) or
more marijuana plants shall be prima facie evidence that
the marijuana plants were planted, cultivated, or
harvested for the purpose of sale or transfer.

KRS 218A.1423 (emphasis added). In contrast, KRS 218A.1422 provides that “(1)

A person is guilty of possession of marijuana when he or she knowingly and

unlawfully possesses marijuana.”

In Commonwealth v. Swift, 237 S.W.3d 193 (Ky. 2007), the

Kentucky Supreme Court held that possession of marijuana could, in some

circumstances, be a lesser-included offense of cultivation of marijuana. The

marijuana at issue in Swift was first discovered during the execution of a search

warrant at Swift’s home. The warrant was obtained after officers investigating a

domestic dispute at Swift’s house observed a marijuana cigarette in an ashtray.
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The warrant allowed law enforcement to search Swift’s home and yard, a travel

trailer parked in the yard, as well as any other vehicles or persons on the premises.

During the search, six bags of marijuana and some pipes were found inside the

house; thirty marijuana plants and 172 potted marijuana seeds were found in the

backyard; and almost two pounds of marijuana and some methamphetamine was

found inside the travel trailer. Swift was indicted on one count of cultivating

marijuana, more than five plants, while in possession of a firearm; one count of

possession of drug paraphernalia, while in possession of a firearm; one count of

trafficking in marijuana, more than eight ounces, while in possession of a firearm;

and one count of trafficking in a controlled substance (methamphetamine) in the

first degree.

At trial, Swift testified that he was a longtime marijuana user and that

the marijuana found in the house was his personal “smoke bag.” He testified that

his stepson lived in the travel trailer, and that he did not have any knowledge

regarding its contents. He admitted knowing about the plants and seeds found in

his backyard, but claimed that his stepson planted and tended to them without his

assistance. Swift unsuccessfully requested the trial court to give a jury instruction

on possession of marijuana as a lesser-included offense of cultivation of marijuana.

The jury convicted Swift of cultivating marijuana (over five plants), trafficking in

marijuana (over eight ounces), and possession of drug paraphernalia. On direct

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appeal, our Court held that the trial court erred by failing to give a jury instruction

on possession of marijuana as a lesser-included offense of cultivation of marijuana.

The Commonwealth petitioned the Kentucky Supreme Court for discretionary

review, which it granted.

Before the Supreme Court, the Commonwealth argued that there was

no evidence to support a finding that Swift was not guilty of cultivation of

marijuana but was guilty of possession of marijuana. The Supreme Court

disagreed. In doing so, it cited Swift’s testimony that while he knew about the

marijuana plants and seeds in his yard, he was indifferent to their existence and did

not actively participate in their cultivation. If the jury believed Swift’s version of

the facts, he could be found guilty of constructive possession but not guilty of

cultivation. The Court held that “[u]nder the evidence, a juror could have

reasonably concluded that Swift did not cultivate the marijuana plants and potted

seeds but did possess those items under the constructive possession doctrine.” Id.

at 196.

The Court contrasted Swift’s case with Commonwealth v. Collins, 821

S.W.2d 488 (Ky. 1991), an earlier case in which the Court had held that the

evidence did not support inclusion of a possession instruction as a lesser-included

offense of cultivation of marijuana. The Court noted that in Collins it had

“ultimately held that an instruction on possession of marijuana as a lesser-included

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offense of cultivation of marijuana was not warranted—not because possession of

marijuana was not a lesser-included offense of cultivation of marijuana—because

the defendant in Collins denied all knowledge of the marijuana’s existence,

meaning that there was no evidence to support a possession instruction.” Swift,

237 S.W.3d at 196.

The witnesses in this case presented two conflicting explanations

regarding how Couch and Smith came to be in possession of the twenty-two

pounds of marijuana inside the camper. The Commonwealth contended that Smith

and Couch had harvested the marijuana earlier that day and brought it back to the

camper. The Commonwealth pointed out that Crayne testified that the marijuana

was not in the camper when he visited it earlier, and the text messages retrieved

from Smith’s telephone indicated that Smith had been cutting the marijuana earlier

that day and with Couch’s assistance the two men transferred it to the camper for

processing.

In contrast, however, Couch testified that he and Smith had come to

Livingston County to racoon hunt with their dogs, which they had been out doing

shortly before Crayne arrived at their camper that evening. Couch testified that

Crayne brought the marijuana to their campsite in the back of his truck, and that

Smith brought it inside the camper where Couch agreed to help clean it. Couch

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testified that he planned to keep whatever he could of the marijuana to smoke for

himself, as he smoked marijuana several times a day.

Couch’s testimony certainly had some holes in it. It was not the most

believable. Weighing the credibility of the testimony, however, is the role of the

jury. For our purposes, we must ask only whether Couch’s testimony would have

been sufficient for a reasonable jury to convict Couch and Smith on possession, but

not cultivation, if they believed Couch’s testimony was true.

There was little to no direct evidence that Smith and Couch planted or

harvested any marijuana. The text messages and movement of Smith’s truck on

the night in question were ambiguous, and Couch explained that he was driving the

truck around looking for Smith after the dogs had gone onto someone’s private

property that evening. The other texts used the term “cut,” but there was no

affirmative proof that those texts referred to marijuana. To counter these points,

the Commonwealth argued that the jury could not reasonably believe possession

would be an appropriate verdict given the amount of marijuana seized from the

camper. However, the amount of marijuana found in the camper was less than the

thirty plants at issue in Swift. More importantly, as between cultivation and

possession, the distinguishing element is not the quantity of marijuana but rather

whether the defendants planted, cultivated, or harvested the marijuana themselves

or obtained it in some other fashion. If the jury believed Couch, they could find

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that Smith and Couch did not plant, cultivate, or harvest the marijuana, making

them not guilty of cultivation, but at the same time find that they knowingly took

possession of the marijuana from Crayne, making them guilty of possession.

Having reviewed the testimony, we must agree that the evidence was

sufficient to allow a reasonable jury to find that Smith and Couch were not guilty

of cultivation but were guilty of possession. As such, we hold the trial court erred

when it refused to include possession as a lesser-included offense of cultivation.

Because “[t]he trial court’s failure to give a necessary lesser-included offense

instruction cannot be deemed a harmless error,” we must vacate Smith’s and

Couch’s cultivation convictions and remand for further proceedings consistent with

this opinion. Swift, 237 S.W.3d at 196.7

Since the jury found Couch guilty of only cultivation, this disposes of

his appeal, No. 2018-CA-0794-MR, in its entirety. It likewise disposes of appeal

No. 2018-CA-1642-MR, since the forfeiture order at issue in that appeal arose in

large part out of Smith’s conviction for cultivation as much of the forfeiture was

7
We note that in the unpublished opinion of Luttrell v. Commonwealth, No. 2016-SC-000667-
MR, 2018 WL 898699, at *5 (Ky. Feb. 15, 2018), the Kentucky Supreme Court cited another
unpublished opinion, Bryan v. Commonwealth, No. 2015-SC-000467-MR, 2017 WL 1102825, at
*4 (Ky. Mar. 23, 2017), for the proposition that whether harmless error applied to the trial
court’s failure to provide a lesser-included offense instruction was possibly in question
notwithstanding the language in Swift. Swift is published and, therefore, binding on this Court.
We must follow published authority irrespective of the fact that more recent unpublished
authority might call it into question. Moreover, most recently, the Supreme Court applied Swift
without any citation to or mention of Luttrell or Bryan. See Miller v. Commonwealth, No. 2018-
SC-000648-MR, 2020 WL 1290350, at *7 (Ky. Feb. 20, 2020).
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predicated on the facts surrounding the cultivation conviction. Accordingly, we

must vacate and remand the order of forfeiture as well.

We now turn to Smith’s argument that the trial judge should have also

instructed the jury on possession as a lesser-included offense to trafficking. Smith

was convicted of trafficking in marijuana, less than eight ounces, in violation of

KRS 218A.1421. This conviction was based on the small bag of marijuana Crayne

testified he received after he first visited the trailer. In contrast to the cultivation

charge, Couch disclaimed all knowledge of this marijuana. However, he did not

affirmatively deny that Smith gave Crayne some marijuana. Crayne turned this

marijuana over to Detective Lantrip. There was no evidence it was found in

Smith’s possession when the search warrant was executed. Based on the evidence,

the jury had to either believe that Smith transferred the marijuana to Crayne,

making him guilty of trafficking, or that Crayne obtained the marijuana on his own

and lied to law enforcement about its origins, making Smith not guilty. There was

no evidence presented that would allow the jury to find Smith guilty of only

possession of this marijuana. Accordingly, the trial court properly refused to give

a possession instruction as a lesser-included offense of trafficking.

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 III. CONCLUSION

In conclusion, for the reasons set forth above: (1) as to appeal No.

2018-CA-0794-MR we vacate and remand the Livingston Circuit Court’s May 17,

2018 judgment and sentence against Daryl Couch; (2) as to appeal No. 2018-CA-

1642-MR, we vacate and remand the Livingston Circuit Court’s October 8, 2018

order of forfeiture; and (3) as to appeal No. 2018-CA-0795-MR, we affirm the

Livingston Circuit Court’s May 17, 2018 judgment and sentence against Harold

Smith with respect to Smith’s conviction and sentence for trafficking in marijuana,

less than eight ounces, subsequent offense, but we vacate and remand the judgment

and sentence with respect to Smith’s conviction and sentence for cultivation of

marijuana, five or more plants, subsequent offense.

ALL CONCUR.

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BRIEF FOR APPELLANT BRIEFS FOR APPELLEE:
DARYL COUCH,
APPEAL NO. 2018-CA-0794-MR: Andy Beshear
Attorney General of Kentucky
Janet L. Stumbo
Van Lear, Kentucky Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky
BRIEF FOR APPELLANT
HAROLD SMITH,
APPEAL NO. 2018-CA-0795-MR:

Ned Pillersdorf
Prestonburg, Kentucky

BRIEF FOR APPELLANT
HAROLD SMITH,
APPEAL NO. 2018-CA-1642-MR:

Harold Smith, pro se
Paducah, Kentucky

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