Johnson v. Commonwealth
2007-CA-002517
02/06/2009
2009 WL 276798
Opinion by Senior Judge Buckingham; Chief Judge Combs and Judge Wine concurred.

The Court affirmed in part and reversed and remanded a judgment of the circuit court wherein appellant was convicted and sentenced to ten years in prison for drug offenses and for being a first-degree persistent felony offender.

The Court held that the trial court erred by denying a motion to dismiss the PFO charge. In order for there to be a first-degree PFO prosecution based on convictions from a foreign jurisdiction, pursuant to KRS 532.080(3)(a), the sentences imposed for each conviction must be for one year or more or a sentence of death. Because one of appellant’s Florida convictions resulted in a sentence of only 60 days and the other two resulted in “drug offender” probation for a period of time, the Commonwealth lacked proof that the convictions qualified for PFO prosecution. The Court then held that the trial court did not err in denying appellant’s motion for a directed verdict on the charge of first-degree trafficking in a controlled substance (cocaine).

It was not necessary for the Commonwealth to prove a specific drug transaction but only possession with intent to sell. It was not clearly unreasonable for a jury to conclude appellant was guilty beyond a reasonable doubt basted on the facts that the police acted on a tip that a person was selling cocaine at Keeneland Racetrack and was staying at a specific room at a hotel; that appellant was staying in the particular room at the hotel and a search uncovered a quantity of cocaine; that appellant admitted the cocaine was his; and that a large amount of cash was also found in the hotel, which was admittedly appellants.

The Court finally held that the trial court did not err in ordering the forfeiture of cash seized when appellant failed to rebut by clear and convincing evidence the presumption of KRS 218A.410(j). The evidence indicated that the cash was found in close proximity to the cocaine and consisted primarily of denominations that represented the sale of specific amounts of crack cocaine, thus establishing the rebuttable presumption that the cash was forfeitable.