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April 3, 2026 Get Citation Alerts Download PDF Add Note

David Martin v. Commonwealth of Kentucky

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2024-CA-0375
• Precedential Status: Non-Precedential
• Judges: L. Jones

• Disposition: OPINION AFFIRMING

• Opinion

• Authorities (3)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

OPINION AFFIRMING

Combined Opinion

                        by [Allison Jones](https://www.courtlistener.com/person/7333/allison-jones/)

RENDERED: APRIL 3, 2026; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-0375-MR

DAVID MARTIN APPELLANT

APPEAL FROM BATH CIRCUIT COURT
v. HONORABLE ELIZABETH H. DAVIS, JUDGE
ACTION NO. 21-CR-00103

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
AFFIRMING

---

BEFORE: COMBS, L. JONES, AND TAYLOR, JUDGES.

JONES, L., JUDGE: David Martin brings this appeal from a February 20, 2024

Order Denying Defendant’s Motion for Return of Property and Reinstating Prior

Order of Forfeiture and Destruction entered in the Bath Circuit Court. We affirm.

On August 5, 2021, Martin was indicted by a Bath County Grand Jury

upon one count of Trafficking in a Controlled Substance, First Degree,
Methamphetamine (KRS1 218A.1412) While in Possession of a Firearm (KRS

218A.992); one count of Trafficking in a Controlled Substance, First Degree,

Hydrocodone (KRS 218A.1412) While in Possession of a Firearm (KRS

218A.992); and one count of Possession of Drug Paraphernalia (KRS 218A.500(2).

On October 21, 2021, Martin accepted the Commonwealth’s Offer on

a Plea of Guilty. Pursuant to the Commonwealth’s Offer, the firearm enhancement

pursuant to KRS 218A.500(2) was removed from both counts of First-Degree

Trafficking in a Controlled Substance. Martin entered a plea of guilty to the

amended counts of Trafficking in a Controlled Substance, First Degree,

Methamphetamine (TICS 1st – Meth); Trafficking in a Controlled Substance, First

Degree, Hydrocodone (TICS 1st – Hydrocodone); and Possession of Drug

Paraphernalia. The Commonwealth’s Offer also recommended six-years’

imprisonment on the TICS 1st – Meth; five-years’ imprisonment on the TICS 1st –

Hydrocodone; and twelve months on the Possession of Drug Paraphernalia.

Particularly relevant to this appeal, the Commonwealth’s Offer further provided for

“forfeiture of all money seized; guns to be returned to named family members by

separate order and tools to be returned to [Martin].” By Order entered October 25,

2021, the circuit court accepted Martin’s guilty plea to the amended charges and

sentencing was set for November 18, 2021. Sentencing was continued on a few

1
Kentucky Revised Statutes.

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occasions pursuant to various requests by Martin’s counsel and was eventually

scheduled for March 17, 2022. On that date, counsel for Martin informed the court

that Martin was having doubts regarding his guilty plea and requested that

sentencing be continued until April 21, 2022. The circuit court agreed to continue

the case until April 21, 2022, and ordered Martin to have a drug test that day;

Martin failed to do so. The circuit court issued a warrant of arrest for Martin and

he was subsequently arrested on September 18, 2023.

Martin appeared before the circuit court September 21, 2023, and

sentencing was set for October 19, 2023. The court pointed out that “Martin had

new charges in Bath County, including multiple counts of trafficking in a

controlled substance, two counts of being a convicted felon in possession of a

handgun, and nine counts of being a convicted felon in possession of a firearm.”

Appellee’s Brief at 1-2. Martin appeared before the circuit court for sentencing on

October 19, 2023. Counsel for Martin informed the court that Martin wished to

withdraw his guilty plea. Counsel also informed the court she had not represented

Martin when he entered his guilty plea, and she needed more time to familiarize

herself with the case so she could adequately advise Martin regarding the

withdrawal of his guilty plea. Despite counsel’s objection, the court proceeded and

sentenced Martin as follows: six-years’ imprisonment upon TICS 1st – Meth;

five-years’ imprisonment upon TICS 1st – Hydrocodone; and twelve-months’

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incarceration upon Possession of Drug Paraphernalia. The sentences were to run

concurrently for a total of six-years’ imprisonment.

On November 9, 2023, an order of forfeiture and destruction

(Forfeiture Order) was entered. Relevant to this appeal, the Forfeiture Order

provided:

1. All firearms seized shall be returned to family members by separate order;

...

1. All tools shall be returned to [Martin]. He or his family member must pick up the items from the Owingsville Police Department within 30 days or items will be destroyed by the Owingsville Police Department;

...

1. Large bank box with knife collection shall be
   forfeited to the Owingsville Police Department.

2. LED smart TV shall be forfeited to the Owingsville
   Police Department.

Record (R.) at 88-89.

On December 8, 2023, Martin filed a Motion to Set Aside Order of

Forfeiture and Destruction (Motion to Set Aside). Martin pointed out that three of

the items listed to be destroyed or forfeited were not included in the

Commonwealth’s Offer which he accepted. More particularly, the knife collection

and an LED smart television were not specifically mentioned in the plea

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agreement. Martin asserted “that all items not included in the plea agreement

[should] be returned to the Defendant or a member of Defendant’s family.”

December 8, 2023, Motion To Set Aside at 2; R. at 91. The Commonwealth

responded to Martin’s motion stating all property seized was to be forfeited unless

it was specifically ordered to be returned to Martin or his family. The court set a

forfeiture hearing to determine disposition of the knife collection and television.

Following the hearing, the circuit court entered an Order Denying Defendant’s

Motion for Return of Property & Reinstating Prior Order of Forfeiture and

Destruction. This appeal follows.

Martin contends the circuit court erred by ordering the forfeiture of

the knife collection and the television. More particularly, Martin asserts that the

trial court made no findings regarding the traceability of the of the items as

required by KRS 218A.410(1)(j).

KRS 218A.410(1)(j) provides that the following are subject to

forfeiture:

(j) Everything of value furnished, or intended to be
furnished, in exchange for a controlled substance in
violation of this chapter, all proceeds, including real and
personal property, traceable to the exchange, and all
moneys, negotiable instruments, and securities used, or
intended to be used, to facilitate any violation of this
chapter; except that no property shall be forfeited under
this paragraph, to the extent of the interest of an owner,
by reason of any act or omission established by him or
her to have been committed or omitted without his or her

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knowledge or consent. It shall be a rebuttable
presumption that all moneys, coin, and currency found in
close proximity to controlled substances, to drug
manufacturing or distributing paraphernalia, or to records
of the importation, manufacture, or distribution of
controlled substances, are presumed to be forfeitable
under this paragraph. The burden of proof shall be upon
claimants of personal property to rebut this presumption
by clear and convincing evidence. . . .

And the burden of proof upon a forfeiture was set forth by the

Kentucky Supreme Court in Gray v. Commonwealth, 233 S.W.3d 715, 717 (Ky.

2007):

“The Commonwealth may meet its initial burden of proof
by producing slight evidence of traceability.” Id. at
326. The Commonwealth must prove that “the currency
or some portion of it had been used or was intended to be
used in a drug transaction.” Osborne v. Commonwealth,
839 S.W.2d 281, 284 (Ky.1992) (emphasis added). If the
Commonwealth provides additional proof that the
currency sought to be forfeited was found in close
proximity then it is deemed sufficient to make a prima
facie case. Id. “Thereafter, the burden is on the claimant
to convince the trier of fact that the currency was not
being used in the drug trade.” Id. Thus, the trial court is
vested with the discretion to determine whether the
burdens contained in KRS 218A.410 are met as well as
discretion in ordering the ultimate forfeiture.
Brewer, 206 S.W.3d at 325.[2]

2
See Brewer v. Commonwealth, 206 S.W.3d 343, 348 (Ky. 2006) (holding that although
“firearms are not specifically mentioned in the statute, they are ‘personal property’ and, thus, are
subject to forfeiture”). Likewise, the knife collection and television at issue in the case sub
judice are also personal property subject to forfeiture.

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In the case sub judice, the Commonwealth produced the required

slight evidence of traceability through Officer Southerland’s testimony. Officer

Southerland testified that both the knife collection and the television were found in

close proximity to the drugs that Martin was charged with trafficking. Southerland

further testified that law enforcement had been watching Martin’s residence and

had never seen him work in his shop and did not believe Martin had any other

source of income with which to purchase the knives or television. The television

had a pick-up tag with another individual’s name on it, suggesting that Martin did

not purchase the television; rather it was likely traded for drugs. Martin insists that

since Southerland testified to his belief that neither the knife collection nor

television had been used to prepare or distribute drugs, the items should be

returned to Martin or his family. This assertion is without merit. The

Commonwealth’s theory, which the testimony supported, was that the knives and

television were found in close proximity to the drugs, Martin had no other source

of income with which to purchase the knives and television, and as the television

pick-up tag contained another individual’s name, it was likely the television had

been traded for drugs. The Commonwealth’s evidence was sufficient to make the

prima facie case. Therefore, the burden shifted to Martin to rebut the presumption

that the knife collection and television should not be forfeited, and he failed to do

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so. See Gray, 233 S.W.3d at 717. Thus, the circuit court reasonably concluded

that the knife collection and television were properly forfeited. We agree.

We view any remaining contentions of error as moot or without merit.

For the foregoing reasons, the February 20, 2024 Order Denying

Defendant’s Motion for Return of Property & Reinstating Prior Order of Forfeiture

and Destruction is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Kathleen K. Schmidt Russell Coleman
Assistant Public Advocate Attorney General of Kentucky
Frankfort, Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky

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