Opinion
NO. 2017-CA-001580-MR
06-21-2019
SCOTT HACKWORTH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Samuel N. Potter Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ELLIOTT CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 16-CR-00040 OPINION
AFFIRMING
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BEFORE: ACREE, GOODWINE, AND KRAMER, JUDGES. KRAMER, JUDGE: Scott Hackworth was found guilty of marijuana cultivation, five or more plants, and sentenced to one-year imprisonment following a jury trial. He appeals to this Court as a matter of right. Having reviewed the arguments of the parties, the record and the applicable law, we find no reversible error and affirm.
On July 19, 2016, the Kentucky State Police ("KSP") marijuana eradication team was flying a Blackhawk helicopter over Elliott County. The team spotted a suspected patch of marijuana. Trooper Rick Rollins rappelled from the helicopter into the field, and KSP troopers on the ground began arriving at the site. The team located seventy-five marijuana plants growing on a hillside behind a fence. The plants were approximately five to six feet in height and had not yet flowered. The property belonged to Scott Hackworth.
Rollins began taking photographs of the property and plants. Other members of the marijuana eradication team began pulling the plants from the ground. Trooper Donnie McGraw was assigned to conduct the investigation of the marijuana plants. Upon arrival at the property, he spoke to Scott Hackworth, Jr., who was fifteen years old at the time. His father, Scott Hackworth, had driven to Morehead, Kentucky, to get groceries and was not at home. Hackworth did not return home during the time KSP was at his property. McGraw took samples from eight of the plants. McGraw left his contact information with Hackworth's son before departing. Hackworth did not contact McGraw, and KSP did not return to the property. Laboratory analysis revealed that the plants were marijuana. Hackworth was indicted on and convicted of cultivation of marijuana, five or more plants. This appeal followed. Further facts with be developed as necessary.
On appeal, Hackworth argues that the trial court erred when it denied his motion for directed verdict. Specifically, Hackworth argues the Commonwealth did not prove he knowingly planted or cultivated the marijuana. He also argues that the trial court erred in denying his motion for mistrial. We disagree with both arguments.
I. Directed Verdict
The standard for a directed verdict is outlined in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991):
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If 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. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.The appellate court is "to affirm . . . unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ." Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky. App. 2003) (citations omitted). With these standards in mind, we review whether the trial court erroneously denied Hackworth's motion for a directed verdict.
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.
KRS 218A.1423(1) states that "[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." KRS 218A.1423(4) states that "[t]he 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."
Kentucky Revised Statute.
When considered in the light most favorable to the Commonwealth, the jury was presented with sufficient evidence that Hackworth knowingly planted or cultivated the marijuana. "Guilt and knowledge can be established by circumstantial evidence." McRay v. Commonwealth, 675 S.W.2d 397, 399 (Ky. App. 1984). The marijuana plants were growing just twenty to twenty-five feet from Hackworth's back door. Although no photographs were taken of the plants from the vantage point of the back porch, other photographs admitted into evidence show Hackworth's home is clearly visible from the location of the marijuana plants. McGraw testified that Hackworth's son told him he knew the plants were there. Troopers Rollins and McGraw testified that the plants were easily accessible from Hackworth's home and they did not have to cut down brush to gain access. The plants were almost six feet tall and appeared to be healthy and well maintained. The photographs admitted into evidence by the Commonwealth show a watering can hanging from a shed near the location of the plants. Rollins testified that a hose was located in the same area. There was also an insecticide sprayer on Hackworth's back porch. The Commonwealth presented testimony from the Elliott County Property Valuation Administrator's Office that a survey Hackworth had completed and filed in a separate civil lawsuit in 2015, showed the marijuana plants were located on his property.
The survey was also admitted into evidence by the Commonwealth.
Hackworth testified that he had no knowledge of the plants and that they were not found on his property. His son testified that he did not remember telling McGraw that he knew the plants were there. Hackworth's neighbor testified that she had not seen the plants during any of the many times she had been on his back porch. However, witness credibility is a question for the jury. Cochran v. Downing, 247 S.W.2d 228, 229-30 (Ky. 1952). This court cannot substitute its judgment as to credibility of a witness for that of the trial court and the jury. Commonwealth v. Bivins, 740 S.W.2d 954, 956 (Ky. 1987). Considering the evidence as a whole, we cannot say it would be clearly unreasonable for a jury to find guilt based on the evidence presented.
II. Motion for Mistrial
Hackworth testified at trial. The first question the Commonwealth asked on cross-examination was whether he was a convicted felon. Hackworth did not answer the question, and defense counsel objected. The trial court dismissed the jury, and Hackworth made a motion for mistrial. He argued that, not only was the prior conviction inadmissible under KRE 609 as being too remote in time (Hackworth's only other felony conviction was in 1989), but also asserted that
Kentucky Rule of Evidence.
every juror in that box knows the answer to [the Commonwealth's] question. To say that, to think that they don't is absolutely naïve. We have been unbelievably prejudiced. . . . An admonition won't un-ring the bell that [the Commonwealth] rang. The only remedy that will work for us is a mistrial.The trial court agreed that the question was inappropriate under KRE 609(b) and excluded it. However, the trial court denied Hackworth's motion for mistrial because he had not answered the question. Instead, the trial court issued an admonition to the jury.
A trial court's decision to deny a motion for mistrial shall not be disturbed absent an abuse of discretion. Neal v. Commonwealth, 95 S.W.3d 843, 852 (Ky. 2003) (citation omitted).
In its admonition to the jury, the trial court stated, in relevant part, that
[q]uestions of counsel are not evidence . . . . There was a question on the floor that was not answered, and so you have no evidence in front of you as a result of that question. The question itself was not even proper to ask . . . . So you are to disregard the question and the fact that the question was even asked. You are not to consider it in any way, shape, or form[.]
"An admonition is usually sufficient to cure an erroneous admission of evidence, and there is a presumption that the jury will heed such an admonition. A trial court only declares a mistrial if a harmful event is of such magnitude that a litigant would be denied a fair and impartial trial and the prejudicial effect could be removed in no other way. Stated differently, the court must find a manifest, urgent, or real necessity for a mistrial." Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005) (citations omitted). Here, we agree with the trial court that the jury had no evidence before it because Hackworth did not answer the question. The trial court also ruled the Commonwealth could not ask the question because it violated KRE 609(b).
In Matthews, the Kentucky Supreme Court held that an admonition to the jury would have been the proper remedy to a witness's inadmissible statement. In Matthews, after the Commonwealth asked the witness how long she knew the defendant, she responded "When I moved here, we didn't know him. He hadn't been out of prison that long."
Hackworth argues that his presumption of innocence ended when the Commonwealth asked the question. He asks this Court to presume that the jurors did not heed the admonition of the trial court. We decline to do so. Hackworth did not answer the question and, therefore, the jury had no evidence before it regarding Hackworth's prior felony conviction. The mere fact that the question was asked is not evidence. We cannot say the trial court abused its discretion in determining there was no manifest, urgent, or real necessity for a mistrial.
Accordingly, we affirm the Elliott Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Samuel N. Potter
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky