Brian Marcum v. Commonwealth of Kentucky

── Brian Marcum v. Commonwealth of Kentucky ── Court: Court of Appeals of Kentucky Date: May 08, 2026 Author: Taylor Category: General RENDERED: MAY 8, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1235-MR BRIAN MARCUM APPELLANT APPEAL FROM CLINTON CIRCUIT COURT v. HONORABLE DAVID L. WILLIAMS, JUDGE ACTION NO. 23-CR-00050 COMMONWEALTH OF KENTUCKY APPELLEE AND NO. 2024-CA-1236-MR BRIAN MARCUM APPELLANT APPEAL FROM CLINTON CIRCUIT COURT v. HONORABLE DAVID L. WILLIAMS, JUDGE ACTION NO. 23-CR-00050 COMMONWEALTH OF KENTUCKY APPELLEE  OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING APPEAL NO. 2024-CA-1235-MR AND AFFIRMING APPEAL NO. 2024-CA-1236-MR ** ** ** ** ** BEFORE: CETRULO, A. JONES, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Brian Marcum brings Appeal No. 2024-CA-1235-MR from a June 18, 2024, judgment of the Clinton Circuit Court sentencing Marcum to a total of ten-years’ imprisonment. Marcum also brings Appeal No. 2024-CA-1236-MR from a September 4, 2024, order of the Clinton Circuit Court denying Marcum’s motion for judgment of acquittal. We affirm in part, reverse in part, and remand Appeal No. 2024-CA-1235-MR, and we affirm Appeal No. 2024-CA-1236-MR. On July 30, 2023, the Clinton County Sheriff received a request for a welfare check of a residence located at 55 Cecil Way, as the residence’s windows and doors had been open for a day or more. A deputy was dispatched to perform the check. Upon arrival, the deputy observed that the front door and a window were open, so he proceeded to knock on the front door. No one responded. Thereupon, the deputy entered the home and observed a large marijuana plant in the shower, a grow light, and drug paraphernalia. He then exited the house, and the next day, a warrant was obtained and executed to search the residence. At the time of the search, Marcum was at the house. A search of the house yielded a -2- marijuana plant in a shower, a marijuana plant on the back deck, a planting tray with small seedlings, a large quantity of plastic bags, and liquid growth hormone for plants. On August 1, 2023, the Clinton County Grand Jury indicted Marcum upon the offenses of marijuana cultivation, possession of drug paraphernalia, trafficking in marijuana (more than eight ounces), and with being a second-degree persistent felony offender. A jury trial ensued. The jury found Marcum guilty of marijuana cultivation, possession of drug paraphernalia, and trafficking in marijuana. However, the jury left the verdict form blank upon whether Marcum was guilty of being a second-degree persistent felony offender. The jury then recommended a sentence of five-years’ imprisonment for marijuana cultivation, twelve months for trafficking in marijuana, and twelve months for possession of drug paraphernalia. And, although the jury left a blank on the instruction adjudicating the guilt/innocence of being a second-degree persistent felony offender, the jury inexplicably recommended a sentence of ten years for being a second-degree persistent felony offender. By Judgment and Sentence on Pleas of Not Guilty (Judgment) entered June 18, 2024, the circuit court sentenced Marcum to a total of ten-years’ imprisonment upon the offenses of cultivation of marijuana, trafficking in marijuana, possession of drug paraphernalia, and with being a second-degree persistent felony offender. Nonetheless, by another order entered -3- the same day (June 18, 2024), the circuit court dismissed the charge of second- degree felony offender “[p]ursuant to a ju