Brewer v. Com., No. 2004-SC-000741-MR.
| Decision Date | 22 November 2006 |
| Docket Number | No. 2004-SC-001106-TG.,No. 2004-SC-000741-MR. |
| Citation | 206 S.W.3d 313 |
| Parties | Rosalee BREWER, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
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.1 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. § 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 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.
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.410(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.2
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.
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 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.
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.1421(1) provides that "[a]...
To continue reading
Request your trial
-
King v. Commonwealth
...the province of the jury. Appellate courts may not substitute their own judgment of the facts for that of the jury. Brewer v. Commonwealth, 206 S.W.3d 313, 319 (Ky.2006) (citing Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky.1994) ). "Determining the proper weight to assign to conflicting e......
-
Stacy v. Commonwealth
...be without merit because he has not established that he suffered any prejudice as a result of the alleged violation. Brewer v. Commonwealth, 206 S.W.3d 313, 323 (Ky.2006) ( “[F]ailure to comply with RCr 8.30 is harmless error when the record does not show even a possibility of prejudice res......
-
Hilton v. Commonwealth
...to admit evidence under an abuse of discretion standard. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (citing Brewer v. Commonwealth , 206 S.W.3d 313, 320 (Ky. 2006) ).In support of his argument that it was improper for the victim and victims' families to suggest what would constitut......
-
Commonwealth v. Doebler
...but rather was acknowledging that officers found a significant quantity of drugs in the room.2 See also Brewer v. Commonwealth , 206 S.W.3d 313, 327 (Ky. 2006) ; Hill v. Commonwealth , 308 S.W.3d 227 (Ky. App. 2010) ; Cf. Sexton v. Sexton , 125 S.W.3d 258 (Ky. 2004) (finding family court's ......