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Enhancement of Possession Charges with a Gun Present: How to Attack using the Montaque Case

Enhancement of Possession Charges with a Gun Present: How to Attack using the Montaque Case - Ron Aslam Law Office

Criminal defendants in Kentucky who are arrested for possession of a controlled substance can face enhanced charges if they are found to be in possession of a firearm at the time of the offense as well. According to KRS 218A.992:

Enhancement of penalty when in possession of a firearm at the time of commission of offense.

(1) Other provisions of law notwithstanding, any person who is convicted of any violation of this chapter who, at the time of the commission of the offense and in furtherance of the offense, was in possession of a firearm, shall:

(a) Be penalized one (1) class more severely than provided in the penalty provision pertaining to that offense if it is a felony; or

(b) Be penalized as a Class D felon if the offense would otherwise be a misdemeanor.

This means that even if you are pulled over for what may be a minor misdemeanor (such as possession of a small amount of marijuana), it could be upgraded to a felony charge if you are carrying and/or in possession of a weapon. Defendants are subject to enhanced penalties even if they are found to be in “constructive possession” of a firearm, meaning they are not necessarily in physical possession, but they have knowledge of the firearm being on their property and/or direct control or dominion over it.

Attacking Enhancement of Possession Charges with a Gun Present Using the Montaque Case

One potential defense strategy to have the enhanced charges dismissed when there is a gun present during a drug possession arrest is to attack the charge based on the precedent established by the Kentucky Supreme Court Case COMMONWEALTH of Kentucky, Appellant, v. Tamika M. MONTAQUE, Appellee, 2000. In this case, the defendant, Tamika M. Montaque, was convicted by a lower court of trafficking in a controlled substance (cocaine) in the first degree (KRS 218A.1412), and possession of drug paraphernalia (KRS 218A.500). She was sentenced to 10 years in prison for these offenses.

The defendant was also found guilty of possession of a firearm at the time she committed the other offenses. This subjected her to an enhanced penalty, which could have precluded her from the possibility of probation. The trial court had denied the defendant’s request for a directed verdict (a verdict of acquittal on the basis that the prosecution had not proven the charge) on the issue of the penalty enhancement. An appeals court held that the trial court had erred in failing to grant a directed verdict, and the Kentucky Supreme Court upheld the ruling by the Court of Appeals.

In this case, approximately 9 ounces of cocaine was discovered by police officers in the defendant’s apartment while executing a search warrant. The officers also found several other items in the apartment that contained cocaine residue, which suggested that the defendant intended to traffic the cocaine. The police also found an unloaded, semi-automatic handgun in the truck of a car (a 1985 Cadillac) owned by the mother of the defendant’s co-habitant that was parked in the parking lot of the apartment at the time of the arrest.

The defendant admitted to having received the cocaine from an out-of-state relative, and she further admitted that she intended to sell it. She also admitted knowledge of the gun found in the trunk of the car – she claimed that she was given the gun a few weeks earlier to store for a friend, and she had hidden it in the trunk of the Cadillac, which she was borrowing at the time she received the gun.

However, she denied that the gun the police found had played any role in her drug dealing. She further claimed that, by the time of the arrest, she was no longer using the Cadillac, and had purchased her own vehicle.

In her motion for a directed verdict and for a new trial, the defendant argued that the prosecution had failed to establish a nexus (a direct connection or link between things, persons, or events) between the gun and the other offenses she was convicted of.

The prosecution argued that:

  1. An adequate nexus had been established between the gun and the drug dealing; and
  2. Even if no adequate nexus had been established, Kentucky statutes did not require proof of a nexus, but only proof of possession of the firearm at the same time that the other offenses occurred, which the defendant had admitted to.

In denying the defendant’s request for a directed verdict, the trial court did not specify whether the denial was done as a matter of fact (that a nexus had been established), or as a matter of law (that no proof of a nexus was required by law).

The Supreme Court sided with the decision of the Court of Appeals to overrule the denial of a directed verdict by the trial court. In doing so, the Supreme Court wrote:

…we disagree with the Commonwealth’s interpretation of the statute and hold that the statute requires a nexus between the crime committed and the possession of a firearm. We further hold that mere contemporaneous possession of a firearm is not sufficient to satisfy the nexus requirement.

The Court went on to say:

Next, when it cannot be established that the defendant was in actual possession of a firearm or that a firearm was within his or her immediate control upon arrest, the Commonwealth must prove more than mere possession. It must prove some connection between the firearm possession and the crime.

It is important to note that the Court did not overturn the precedent set by Houston v. Commonwealth, Ky., 975 S.W.2d 925 (1998), which held that a drug violation penalty can be enhanced if the defendant is found to be in constructive possession of a firearm. The Court noted:

the firearms in question in Houston were fully loaded and in plain sight and, thus, were within the defendant’s immediate control… But in this case, there is nothing to connect the gun or the Cadillac to the possession or the trafficking of drugs. Nor was the gun in Montaque’s actual possession or within her immediate control when she was arrested.

The upshot of the Montaque case is that a defendant cannot be subjected to enhanced penalties for the simple existence of a firearm within the vicinity of the offense; even though, in this case, the defendant not only had knowledge of the firearm, she also admitted to having been given the firearm to store for a friend. Penalties can only be enhanced if the prosecution proves a nexus (direct connection) between the firearm and the offense the defendant is charged with.

The precedent set in the Montaque case is fairly limited and clearly not applicable to all firearm possession enhancement penalty cases. However, it does provide a strong potential defense for defendants for whom the connection between the firearm and the primary offense may be in question.

If you have any questions about a criminal matter contact Ron Aslam Law Office for a free consultation. Ron will help you better understand the charges against you and work with you to build a solid defense and to make sure your rights are protected. Contact Ron today at (502) 581-1676 or through the online contact form.