Couch v. Commonwealth

Decision Date23 October 2020
Docket NumberNO. 2018-CA-0794-MR,NO. 2018-CA-0795-MR,NO. 2018-CA-1642-MR,2018-CA-0794-MR,2018-CA-0795-MR,2018-CA-1642-MR
CourtKentucky Court of Appeals




ACTION NO. 16-CR-00025



ACTION NOS. 16-CR-00026 & 16-CR-00027





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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,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 refusedto 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.


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, morethan 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.

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.

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 hegave 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" inthe 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...

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