RENDERED: JUNE 17, 2021

TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0025-DG

COMMONWEALTH OF KENTUCKY APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. NO. 2019-CA-0130

JEFFERSON CIRCUIT COURT NO. 17-CR-1411-001

ALISHA DOEBLER APPELLEE

OPINION OF THE COURT BY JUSTICE KELLER

REVERSING

The Commonwealth appeals the Court of Appeals' reversal of the 

Jefferson Circuit Court’s order that Appellee, Alisha J. Doebler, forfeit $3,759 

in cash that law enforcement officials seized the day Doebler and her codefendant, Jason Lankford, were arrested. The Court of Appeals held that the 

Commonwealth failed to establish slight traceability of the funds to the drug 

trafficking activities. Therefore, the trial court’s forfeiture order was erroneous. 

Having reviewed the record in conjunction with all applicable legal authority, 

we reverse the Court of Appeals and reinstate the Jefferson Circuit Court’s 

forfeiture order.
2

I. FACTS

The Jefferson County Grand Jury indicted Doebler and Lankford for 

complicity to traffic in a controlled substance, first degree, schedule II 

methamphetamine two grams or more; complicity to illegal possession of a 

controlled substance, first degree, schedule I heroin; and complicity to illegal 

use or possession of drug paraphernalia. The indictments resulted from officers 

responding to a motel fire alarm on March 14, 2017. Upon arrival, a motel 

employee informed the officers that a female had been reported stealing 

clothing from motel guests and was in room 226. Officers went to room 226, 

encountered Doebler and Lankford, and discovered drugs in the room. Upon 

their arrest, officers seized drugs, various cellular telephones, a digital scale, a 

"loaded syringe," and $3,759 in cash from Doebler’s purse. The subject of this 

appeal is the forfeiture order regarding the $3,759 seized from Doebler’s purse. 

Lankford eventually entered a guilty plea to trafficking 

methamphetamine, less than two grams; possession of heroin; and possession 

of drug paraphernalia. In his plea colloquy, Lankford admitted to the following 

facts regarding his arrest:

On March 14, 2017 in Jefferson County, Kentucky, officers were 

dispatched on a fire alarm issue at a motel. While on scene, a 

motel employee stated a female had been seen stealing clothes 

from tenants and was at Room 226. Upon contact, officers found 

[Lankford] with less than 2 grams of methamphetamine packaged 

for sale, a baggie of heroin, and a digital scale.

Lankford did not mention Doebler in the plea, nor did he testify at Doebler’s 

subsequent forfeiture hearing. Additionally, when the court accepted 
3

Lankford’s plea in this case, it accepted his plea in a separate, unrelated

indictment for trafficking in controlled substances. 

Doebler entered a guilty plea to the charge of possession of drug 

paraphernalia for the syringe, and the Commonwealth dismissed her remaining 

charges. Doebler's plea acknowledged her rights and agreed to the following 

facts: 

On March 14, 2017, officers were dispatched on a fire alarm issue 

at a motel. While on scene, a motel employee stated a female had 

been seen stealing clothes from tenants and was at Room 226. 

Upon contact, officers found [Doebler] was in possession of a 

syringe.

The trial court accepted Doebler's plea and sentenced her to twelve months' 

imprisonment, conditionally discharged for two years. The guilty plea did not 

include an agreement as to the disposition of the cash recovered from Doebler’s 

purse at the time of her arrest. The Commonwealth requested a forfeiture 

hearing pursuant to Kentucky Revised Statute ("KRS") 218A.410(1)(j) seeking 

forfeiture of all the cash recovered from Doebler. 

At the conclusion of Doebler’s plea, and after a short recess, the trial 

court reconvened to conduct the forfeiture hearing. The forfeiture hearing 

began with the trial court directing Doebler's counsel to begin the defendant's 

presentation of evidence. Without objection, defense counsel called Doebler to 

the stand as its first witness. Doebler testified that the money in question 

resulted from the closure of her late father’s PNC bank account the day before 

her arrest. Her father’s account had approximately $8,000 in it, which she and 
4

her brother split. Defense counsel then introduced into evidence certified bank 

and probate records supporting Doebler’s statements.

Doebler explained that she had spent approximately $200 of the money 

the previous day on jewelry shortly after receiving it. This explanation 

addressed the discrepancy between the sum received from PNC and the 

balance confiscated in the motel room. The confiscated cash consisted of 

mostly $100-dollar bills, still in a bank envelope inside Doebler's purse. She 

testified that she intended to deposit the balance in her account on the day of 

her arrest. Doebler asserted that the money had nothing to do with any drug 

trafficking activity.

On cross-examination, Doebler reiterated that the money was her share 

of her father's estate settlement. She emphasized that she had received the 

money the prior afternoon, and after accompanying her brother to deposit his 

portion in his bank, had spent approximately $200 to purchase jewelry the 

prior evening. The Commonwealth asked Doebler whether at 6:30 in the 

morning she was in a motel room with Jason Lankford and whether in that 

room were approximately thirty-nine grams of methamphetamine and some 

small bindles of heroin. In response, Doebler stated, “I reckon. But I didn’t even 

know.”1 The Commonwealth pressed Doebler about the nature and quantity of 

drugs discovered in the motel room and asked whether she remembered the 

 

1 We note that this is the only exchange that attempts to identify the specific 

quantity of drugs in the motel room. In reviewing the exchange, we do not find that 

Doebler was agreeing to the specific quantity of thirty-nine grams of 

methamphetamine, but rather was acknowledging that officers found a significant 

quantity of drugs in the room. 
5

officer finding the baggie of methamphetamine on a table next to the bed. 

Doebler responded, “I reckon, yeah.” 

The Commonwealth then inquired about the scale with drug residue. 

Doebler continued to deny knowledge of the nature of the drugs or whether 

Lankford was packaging them for sale and maintained that the room was not 

her room and that the drugs were not her drugs. She generally acknowledged 

that police found drugs in the room and a scale with residue on it but stated 

she did not know whether the residue was drugs. When asked, Doebler 

admitted she pled guilty to possession of drug paraphernalia based on the 

syringe officers discovered on a table in the room. However, she denied that she 

was in Lankford's room to traffic drugs or that she planned to use the money in 

her possession to buy drugs. The Commonwealth asked, “[s]o you just ended 

up in a motel room with a bunch of drugs, syringe, and digital scale?” Doebler 

responded that she was there to purchase a cellular phone with some of the 

money and planned to go from there to her bank to deposit the rest.

The next witness to testify was Joshua, Doebler's brother. Prior to 

Joshua’s testimony the Commonwealth told the court they were willing to 

stipulate to the fact that Doebler and her brother received an inheritance. 

Despite the Commonwealth’s stipulation, defense counsel asked to be 

permitted to present Joshua’s brief testimony which the court permitted. 

Joshua corroborated Doebler’s testimony that they had received funds from 

closing their father’s bank account on March 13, 2017. He confirmed that he 

and Doebler split the funds amounting to a little less than $4,000 each. The 
6

Commonwealth did not cross-examine Joshua. The court asked counsel if 

Doebler had any other evidence to present, to which counsel indicated they had 

no further witnesses or evidence, only final argument. The Commonwealth 

never called any witnesses.

Defense counsel summarized Doebler’s argument, stating it was the 

defense’s understanding that KRS 218A.410 creates a rebuttable presumption 

that when money is found in close proximity to drugs, the money is forfeitable. 

Counsel believed Doebler had successfully rebutted the statutory presumption 

that the money was in any way tied to drug trafficking. He argued that nothing 

in Doebler’s plea indicated a tie to trafficking, that Lankford’s plea never 

implicated Doebler in any way to his trafficking, and that the money was in 

crisp hundred-dollar bills, denominations not typically associated with 

trafficking activities. Defense counsel stated, “[i]t was a fantastic coincidence 

no doubt,” but that Doebler had presented exactly the type of evidence the 

statute envisions to rebut any presumption.

The Commonwealth argued the proximity of the money to Lankford’s 

drugs, combined with Doebler’s plea regarding the paraphernalia, entitled it to 

the statute’s presumption of forfeiture. The Commonwealth contended Doebler 

had failed to rebut the presumption by clear and convincing evidence. 

Notwithstanding the evidence that Doebler presented as to where the money 

originated from, it becomes forfeitable once it becomes connected to drug 

trafficking. 
7

Again, defense counsel countered that the Commonwealth had failed to 

proffer any evidence tying Doebler’s money to drug trafficking. Lankford’s plea 

did not implicate Doebler. Her plea was to possession of paraphernalia, not to 

any trafficking offense. Defense counsel emphasized the Commonwealth’s 

failure to call witnesses or introduce any evidence supporting traceability 

between the money and the drug trafficking activity in question. Counsel 

contended that the Commonwealth asked the court to speculate why Doebler 

was in the room without offering any evidence.

Before adjourning, the court summarized the parties’ arguments. The 

court stated that its understanding of Doebler’s argument was that the source 

of the funds was the primary determiner of forfeitability and the evidence 

presented showed the money was not the proceeds of any drug activity. The 

defense also argued that the Commonwealth had failed to adequately tie the 

cash to drug transactions. On the other hand, the court summarized the 

Commonwealth’s position as conceding the origin of the money but focusing on 

the statute’s provisions that permitted forfeiture of funds intended to purchase 

drugs or facilitate such transactions.

After the hearing, the court entered an order directing Doebler to forfeit 

the cash. The trial court's order stated:

The matter came before the Court on December 14, 2018, for 

hearing on the [Commonwealth's] motion for forfeiture....The Court 

heard proof and argument. The Court finds that the source of the 

disputed funds was [Doebler's] inheritance from her late father's 

estate. However, that is not the central inquiry here. KRS 

218A.410 states that all proceeds intended to be used to facilitate 

a drug transaction are forfeitable, and the burden of proof to rebut 

the presumption is on the defendant. Given the nature of 
8

[Doebler's] conviction herein and the proximity of the cash 

proceeds to the drugs when they were discovered by the police, the 

Court finds [Doebler] has not carried her burden of proof.

IT IS HEREBY ORDERED that the cash proceeds in this matter are 

forfeited to the Commonwealth.

On appeal, the Court of Appeals reversed, holding the proximity to illegal 

drug activity is insufficient where the defendant has convinced the court she 

obtained the funds legally. The Court of Appeals held the Commonwealth failed 

to meet its admittedly minimal burden to justify forfeiture. Citing Osborne v. 

Commonwealth, 839 S.W.2d 281 (Ky. 1992), the Court of Appeals stated

forfeiture required proximity and traceability, and the Commonwealth had 

failed to adequately present evidence of traceability. The Commonwealth 

appealed.

II. ANALYSIS

A. The trial court did not clearly err in determining sufficient facts 

existed to establish slight traceability of the money to drug activity, 

raising the presumption of forfeiture, and did not abuse its 

discretion in determining Doebler failed to rebut the statutory 

presumption of forfeiture.

We begin by citing the applicable law and standard of review. KRS 

218A.410(1)(j) allows for the following to be subject to forfeiture:

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 knowledge or consent. It 

shall be a rebuttable presumption that all moneys, coin, and 

currency found in close proximity to controlled substances, to drug 
9

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. The burden of proof 

shall be upon the law enforcement agency to prove by clear and 

convincing evidence that real property is forfeitable under this 

paragraph.

“[T]he Commonwealth bears the initial burden of producing some evidence, 

however slight, to link the [property] it seeks to forfeit to the alleged violations 

of KRS 218A. The burden only shifts to the opponent of the forfeiture if the 

Commonwealth meets its initial tracing burden.” Brewer v. Commonwealth, 206 

S.W.3d 343, 348 (Ky. 2006). If the Commonwealth establishes its prima facie

case, the burden is then on the defendant to rebut this presumption by clear 

and convincing evidence. Osborne, 839 S.W.2d at 284. The trial court’s factual 

findings are reviewed for clear error, while its conclusions of law are reviewed 

de novo. Commonwealth v. Coffey, 247 S.W.3d 908, 910 (Ky. 2008). Whether 

property is in close proximity to controlled substances, to drug manufacturing 

or distributing paraphernalia, or to records of the importation, manufacture, or 

distribution of controlled substances and whether there is traceability between 

the property and drug activities in question are both questions of fact. A factual 

finding is not clearly erroneous if it is supported by substantial evidence, that 

is, “evidence of substance and relevant consequence having the fitness to 

induce conviction in the minds of reasonable men.” Owens–Corning Fiberglas 

Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted). Whether 

a defendant has rebutted the presumption by clear and convincing evidence is 
10

reviewed for abuse of discretion. Robbins v. Commonwealth, 336 S.W.3d 60, 65

(Ky. 2011) (citing Johnson v. Commonwealth, 277 S.W.3d 635, 641 (Ky. App. 

2009)).2

As the Court of Appeals noted, both parties rely heavily on our decision 

in Osborne3 which addressed the same statutory provision at issue in this case.

In Osborne, we began by noting that KRS 218A.410(1)(j) permits forfeiture of

“[e]verything of value furnished . . . in exchange for a controlled substance in 

violation of this chapter, all proceeds . . . traceable to the exchange, and all 

moneys ... used, or intended to be used to facilitate any violation of this 

 

2 See also Brewer v. Commonwealth, 206 S.W.3d 313, 327 (Ky. 2006); Hill v. 

Commonwealth, 308 S.W.3d 227 (Ky. App. 2010); Cf. Sexton v. Sexton, 125 S.W.3d 258 

(Ky. 2004) (finding family court’s determination that marital property presumption was 

successfully rebutted was not clearly erroneous); Bjelland v. Bjelland, 408 S.W.3d 86 

(Ky. App. 2013) (applying abuse of discretion standard to family court’s deviation from 

statutorily presumed child support guidelines). 

3 As the Court of Appeals noted, Osborne was decided by a fractured Court, but 

we note it was not fractured as to a requirement the Commonwealth bear at least a 

minimal burden of establishing both proximity and traceability. Justice Joseph 

Lambert authored the opinion establishing the rule and remanding to the circuit court 

for further proceedings and fact-finding. While only Justice Reynolds concurred in full, 

Chief Justice Stephens concurred with the newly established rule but dissented as to 

the need to remand for further fact-finding, stating that “[f]rom the evidence presented 

to this Court, it is clear that it was established that the currency was not subject to 

forfeiture. The Commonwealth should not be given a second bite at the apple.” Justice 

Leibson, joined by Justice Combs, concurred as to reversal and remand regarding the 

money forfeiture but would have established an even more stringent “substantial 

connection” test to justify a forfeiture. Justice Wintersheimer, joined by Justice Spain, 

dissented regarding the money forfeiture. Their dissent would have held that the 

defendant had failed to rebut the presumption by clear and convincing evidence. The 

framework Osborne established has since been cited with favor (and agreement) 

numerous times. See Smith v. White, No. 3:11-CV-570-C, 2012 WL 3961233 (W.D. Ky. 

Aug. 7, 2012); Robbins, 336 S.W.3d 60; Gray v. Commonwealth, 233 S.W.3d 715 (Ky. 

2007); Brewer, 206 S.W.3d 313; Brewer, 206 S.W.3d 343; Harbin v. Commonwealth, 

121 S.W.3d 191 (Ky. 2003); Lee v. Commonwealth, 606 S.W.3d 95 (Ky. App. 2020); 

Jackson v. Commonwealth, No. 2018-CA-000598-MR, 2020 WL 4557711 (Ky. App.

July 17, 2020); Smith, 339 S.W.3d 485; Hill, 308 S.W.3d 227; Johnson, 277 S.W.3d 

635; Matter of U.S. Currency in the Amount of $315,900.00, 902 P.2d 351 (Ariz. Ct. 

App. 1995).
11

chapter.” 839 S.W.2d at 283. We went on to recognize that proving the 

connection between currency and drug transactions is difficult. To address this 

difficulty, the General Assembly created 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.” Id. at 283-84. We 

acknowledged that although the presumption appeared to eliminate the 

traceability requirement on its face, a mandated forfeiture would be “of dubious 

constitutional validity” without such a requirement. Id. at 284. We held that to 

construe the statute in a way that gives effect to the General Assembly's intent,

“[t]he Commonwealth may meet its initial burden by producing slight 

evidence of traceability.” Id. (emphasis added). “Production of such evidence 

plus proof of close proximity, the weight of which is enhanced by virtue of the 

presumption, is sufficient to sustain the forfeiture in the absence of clear and 

convincing evidence to the contrary.” Id.

Therefore, while proximity provides a presumption of forfeitability, the 

Commonwealth must still put forward some modicum of evidence tracing the 

funds to the drug transaction as either “proceeds,” money intended to be 

furnished in exchange for a drug transaction, or money intended to facilitate a 

violation of KRS Chapter 218A. KRS 218A.410(1)(j). We note that while 

proximity and traceability are both required, the same evidence that supports 

proximity may, in some circumstances, also support traceability. In the present 
12

case, the Commonwealth acknowledged that the cash did not represent the 

proceeds of drug sales, and the trial court’s order explicitly finds this. Rather 

the question here turns on whether there was slight traceability that Doebler 

intended to furnish the money in exchange for controlled substances or 

intended to use the money to facilitate any other violation of KRS Chapter 

218A. 

As Justice Liebson noted in his separate opinion in Osborne, whether 

property is traceable to a drug transaction may be inferred from the totality of 

the circumstances. Osborne, 839 S.W.2d at 285 (Liebson, J. concurring). As 

such, a trial court can draw inferences from the totality of the circumstances 

within its knowledge to determine whether the requirement of slight traceability 

has been met. In its forfeiture order, the trial court accepted Doebler’s 

explanation regarding the source of the funds but disbelieved her explanation 

for her presence in the room, saying: 

KRS 218A.410 states that all proceeds intended to be used to 

facilitate a drug transaction are forfeitable, and the burden of proof 

to rebut the presumption is on [Doebler]. Given the nature of 

[Doebler’s] conviction herein and the proximity of the cash 

proceeds to the drugs at the time they were discovered by the 

police, the court finds [Doebler] has not carried her burden of 

proof.

The trial court implicitly accepted the Commonwealth’s contention that it had 

established a prima facie case. Therefore, the Commonwealth was entitled to a 

presumption of forfeiture due to the connection between Doebler’s guilty plea 

for possession of drug paraphernalia, the presence of the cash, and the 

surrounding circumstances. 
13

We note, as a best practice, a forfeiture hearing would begin with the 

Commonwealth establishing a basis for forfeiture by putting forth affirmative 

proof. However, we acknowledge the timeline in this instance. The forfeiture 

hearing began approximately five minutes after the conclusion of Doebler’s plea 

hearing and a half-hour after the trial court’s sentencing of Doebler’s codefendant, Lankford. Therefore, the forfeiture hearing was a continuation of 

those proceedings. From those proceedings, the trial court knew the following 

facts: both Doebler and Lankford were in room 226 of the motel at 6:30 a.m. on

March 14, 2017; the cash was in Doebler’s purse; there were sufficient 

quantities of drugs in room 226 to sustain a trafficking plea by Lankford; there 

was a scale in the room; Lankford had a long criminal history, including at

least one other methamphetamine trafficking offense; and Doebler admitted to 

possession of a syringe. Doebler’s plea was to a lesser charge, but a conviction 

for trafficking is not required to justify forfeiture, Osborne, 839 S.W.2d at 283, 

and while the most damning evidence implicated Lankford more directly, the 

court may properly draw inferences from that knowledge. Although we note the

aforementioned facts and evidence, in best practice, the trial court should 

make explicit findings of facts upon which it has relied in reaching its decision. 

Defense counsel appeared to tacitly acknowledge that the facts contained 

in both plea allocutions, as well as Lankford’s sentencing, were sufficient to 

infer the proximity and traceability required to trigger the statutory 

presumption and place the burden on Doebler to rebut that presumption. 

Defense counsel made no objection to the court’s direction that the defense 
14

proceed first in the forfeiture hearing or even showed any surprise at being 

asked to do so. Furthermore, in his summation, defense counsel acknowledged 

that the burden was on Doebler to rebut the presumption in this case and 

focused on the Commonwealth’s failure to put on affirmative evidence to 

counter the defense’s rebuttal. We recognize a more proper courtroom 

procedure would have been for the Commonwealth to formally ask the court to 

take judicial notice of the plea allocutions and other surrounding evidence and 

find that when considered together, they established the proximity and slight 

traceability required to trigger the statute’s presumption of forfeiture. However,

once triggered, the presumption shifted the burden to Doebler to convince the 

court that there was no connection between the money and the drug trafficking

by clear and convincing evidence. When viewed in light of the totality of the 

circumstances known to the trial court, it was not clearly erroneous for the 

court to find that there was sufficient proximity and traceability to invoke the 

presumption of forfeiture in KRS 218A.410(1)(j) in favor of the Commonwealth.

As to the question of whether Doebler successfully rebutted the 

presumption, the court’s decision is analyzed for an abuse of discretion. 

Robbins, 336 S.W.3d at 65. “The test for abuse of discretion is whether the trial 

[court's] decision was arbitrary, unreasonable, unfair, or unsupported by 

sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.

1999). While Doebler successfully convinced the trial court that the source of 

the funds was legitimate, she failed, in the trial court’s view, to rebut by clear 

and convincing evidence that she did not intend to use the money for drug 
15

transactions or to facilitate a violation of chapter 218A. KRS 218A.410(1)(j). The 

trial court heard Doebler’s explanation for her presence in the motel room. The 

court also heard her timeline since receiving the money the prior day. It heard 

her admission that significant quantities of drugs were found in the room and 

her denial that she knew they were there. The court could properly weigh this 

against the effect of her plea and her testimony on cross-examination that she 

did not know that the drugs were in the room.

A trial court is not bound to accept the testimony of any witness as true. 

Dunn v. Commonwealth, 151 S.W.2d 763, 764 (Ky. 1941); see also McQueen v. 

Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986) (recognizing the trial court’s

superior position to judge witness credibility and the weight to be given their 

testimony). Most of this information was elicited from Doebler on crossexamination rather than through direct examination of the Commonwealth’s 

own witnesses, but that does not make its impact any less relevant to 

countering Doebler’s attempt to rebut the statute’s presumption. We cannot 

say from the record that the trial court’s determination that Doebler’s 

testimony was insufficient to overcome the presumption by clear and 

convincing evidence was arbitrary, unfair, unreasonable, or unsupported by 

legal principles. To do so would be to substitute our judgment of Doebler’s 

credibility for that of the trial court. 

B. Doebler’s excessive fines argument was unpreserved, and any error 

was not palpable.

Lastly, Doebler contends the forfeiture of $3,759 for a criminal violation 

with a maximum fine of $500 is violative of her rights under the Eighth 
16

Amendment of the United States Constitution and Section 17 of the Kentucky 

Constitution. In Timbs v. Indiana, ––– U.S. ––––, 139 S.Ct. 682, 203 L.Ed.2d 11 

(2019), the United States Supreme Court held that the Eighth Amendment's 

excessive fines clause is “fundamental to our scheme of ordered liberty,” and is 

therefore incorporated by the Due Process Clause of the Fourteenth 

Amendment and is enforceable against the states. Id. at 686. “The purpose of 

the Eighth Amendment . . . was to limit the government's power to punish.”

Austin v. United States, 509 U.S. 602, 609 (1993) (citing Browning–Ferris Indus.

of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266–67 (1989)). The 

clause applies to forfeitures so long as the forfeiture is at least partially 

punitive. Timbs, 139 S.Ct. at 689.

While Timbs was rendered after the consideration of the forfeiture issue 

herein, even prior to Timbs, Kentucky courts had concluded that an excessive 

fine could violate both the Eighth Amendment and Section 17 of the Kentucky 

Constitution.

4 The duty to raise an excessive fines violation lies with the 

defendant. Doebler did not raise the issue with the trial court, and the issue is 

unpreserved as recognized by Doebler’s request for a palpable error review 

under Kentucky Rules of Criminal Procedure (RCr) 10.26. “For an error to rise 

to the level of palpable error, ‘it must be easily perceptible, plain, obvious and 

readily noticeable.’” Doneghy v. Commonwealth, 410 S.W.3d 95, 106 (Ky. 2013) 

 

4 Harbin, 121 S.W.3d at 197 (citing Austin, 509 U.S. 602) (holding punitive 

forfeitures implicate the excessive fines clause); see also Commonwealth v. Fint, 940 

S.W.2d 896, 897-98 (Ky. 1997); Hinkle v. Commonwealth, 104 S.W.3d 778, 782 (Ky. 

App. 2002).
17

(quoting Brewer, 206 S.W.3d at 349). We will reverse under the palpable error 

standard only when a “manifest injustice has resulted from the error.” RCr 

10.26.

The touchstone of the constitutional inquiry under the excessive fines

clause is the principle of proportionality. U.S. v. Bajakajian, 524 U.S. 321, 334

(1998). This determination hinges upon whether the property was “sufficiently 

tainted by the criminal act to be subject to forfeiture” and whether the 

forfeiture itself was grossly disproportionate to the particular offense 

considering “the gravity of the offense, the potential penalties, the actual 

sentence, sentences imposed for similar crimes in this and other jurisdictions, 

and the effect of the forfeiture on innocent third parties.” Hill, 308 S.W.3d at 

230 (quoting Smith v. Commonwealth, 205 S.W.3d 217, 223 (Ky. App. 2006)).

Kentucky courts have approved a range of forfeitures depending on the 

factual circumstances. We approved the forfeiture of $1,010 found on a 

defendant arrested for drug trafficking, but who eventually pleaded guilty to 

possession. Robbins, 336 S.W.3d at 62, 65. In Osborne itself, while the issue of 

traceability of the money was divisive, the court approved the forfeiture of an

automobile owned by Osborne based on its use to facilitate Osborne’s exhusband’s drug trafficking. 839 S.W.2d at 283. The Court of Appeals has held 

the forfeiture of $2,175 was not excessive where the defendant was potentially 

liable for fines up to $10,000. Hill, 308 S.W.3d at 231. In Johnson v. 

Commonwealth, the Court of Appeals approved the forfeiture of $4,500 in $50s 

and $100s, denominations not normally associated with drug trafficking, 
18

because it was found in proximity to the trafficking activities occurring in the 

same hotel room. 277 S.W.3d at 641.5

Doebler emphasizes that the maximum fine for the offense for which she 

was convicted was $500, but fails to recognize that as part of its acceptance of 

her plea, the Commonwealth dismissed charges with a total potential penalty of 

$20,000. As we have said in the past, conviction is not required to justify 

forfeiture. Additionally, the trial court found that while the money was not the 

proceeds of a drug transaction, it was “intended to be used to facilitate a drug 

transaction.” Therefore, we hold that any error is not easily perceptible, plain, 

obvious, and readily noticeable nor that it rises to the level of manifest 

injustice.

We reemphasize that when a forfeiture is ordered, it is the appellant’s

responsibility to ensure the order is supported by sufficient findings of fact and 

conclusions of law to permit satisfactory appellate review of the order. Because 

any error, if it existed, was not palpable, we hold the Jefferson Circuit Court 

did not abuse its discretion in ordering the forfeiture of the $3,759.

 

5 Looking to cases in other jurisdictions: in United States v. One 1990 Ford 

Ranger Truck, 876 F.Supp. 1283 (N.D. Ga. 1995), a truck transporting a small amount 

of psilocybin mushrooms was ordered forfeited; in Worthington Police v. One 1988 

Chevrolet Berreta, 516 N.W.2d 581 (Minn. Ct. App. 1994), a vehicle valued between 

$2,500 and $4,500 which was used to transport a stolen color TV worth $300 from the 

scene of the crime to another person was ordered forfeited; and in State ex rel. 

McGehee v. 1989 Ford F–150, 888 P.2d 1036 (Okla. Ct. App. 1994), a truck used to 

transport fifteen grams of marijuana was ordered forfeited. While these cases dealt 

with vehicle forfeitures, the relative value of the property when compared to the 

offense is still illustrative of the issues involved.
19

III. CONCLUSION

For the aforementioned reasons, we reverse the Court of Appeals and 

reinstate the Jefferson Circuit Court’s forfeiture order. 

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Daniel J. Cameron

Attorney General of Kentucky

Christopher Henry

Assistant Attorney General

COUNSEL FOR APPELLEE:

Joshua Michael Reho

Louisville Metro Public Defender's Office