Opinion
NO. 2018-CA-001195-MR
01-31-2020
JAMES P. HOLBROOK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Rawl Douglas Kazee Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Kristin L. Conder Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN E. REYNOLDS, JUDGE
ACTION NO. 16-CR-00798-002 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; L. THOMPSON, JUDGE; AND BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: James P. Holbrook appeals from the Fayette Circuit Court's final judgment sentencing him to a term of 10 years' imprisonment for complicity to robbery in the first degree and to 12 months for assault in the fourth degree. We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution. --------
Sometime after midnight on May 30, 2016, Holbrook and several other individuals, all of whom were under the age of 18 and at least some of whom were drinking or consuming drugs, attempted to rob Deonte Turner, who had driven a van to the Pinewood Apartment complex in Lexington to drop off Alisha Mills, a friend of Mackenzie Burnette, who was one of those who participated in the robbery. The plan to rob Turner was apparently hatched by Burnette, age 14.
When Turner arrived and dropped Mills off, Holbrook, Markell Bedford, and Angel Medrano approached the vehicle and began hitting Oliver Gill, who was also in the van. At some point, a gun went off and everyone scattered. Gill had been shot through his left arm and into the wall of his chest. Turner drove Gill to the hospital for treatment, and Gill was treated and released after several hours.
Mills, Burnette, Medrano, Bedford, and Holbrook, all of whom were under 18 years of age, were charged as adults in connection with the incident. All co-defendants except Holbrook and Bedford pled guilty to facilitation to first-degree robbery. These co-defendants were given five-year sentences contingent upon their testimony at the trial of Holbrook and Bedford, who were tried jointly by a jury.
The jury found both Holbrook and Bedford guilty of complicity to robbery in the first degree. The trial court sentenced each of them to 10 years in prison on the robbery charge and 12 months in jail on the assault charge in accordance with the jury's verdicts. Their separate appeals followed. Holbrook raises three arguments on appeal, each of which will be addressed herein.
DENIAL OF DIRECTED VERDICT MOTION
Holbrook's first argument is that the trial court erred in denying his motion for a directed verdict. He contends there was no evidence he ever engaged in a plan to commit first-degree robbery. Holbrook states that although the Commonwealth argued at trial that Bedford was the shooter and that he gave him the gun, the victims never identified Bedford as the shooter. In addition, although Medrano testified he knew Holbrook gave Bedford the gun, Holbrook contends such testimony "is fraught with inconsistency" because Medrano never stated how he knew or even that he saw it occur. Holbrook also states that Medrano's testimony was never corroborated by other testimony or evidence. Holbrook thus argues that because there was no plan by the group to use a gun in the robbery, "the only charge that should have been allowed to go to the jury was Complicity to Robbery 2nd."
We review the trial court's decision on a motion for a directed verdict as follows:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Id. (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)).
In Skinner v. Commonwealth, 864 S.W.2d 290 (Ky. 1993), our Supreme Court affirmed "the proposition that an accomplice may be held liable for a confederate's aggravated offense, although having no knowledge of the aggravating circumstance." Id. at 299 (citing Commonwealth v. Yeager, 599 S.W.2d 458 (Ky. 1980), and Ray v. Commonwealth, 550 S.W.2d 482 (Ky. 1977)). In Yeager, our Supreme Court held that "if the commission of the offense of robbery was intended, the lack of intent of an aggravating circumstance, such as the use of a gun, will not act to lessen criminal liability for the higher degree of the same offense." 599 S.W.2d at 459-60.
Based on the foregoing authorities, we conclude Holbrook could be found guilty of complicity in the higher degree of robbery regardless of whether he knew a firearm would be used in the committing of the offense. Furthermore, there was evidence that he was aware of the presence of the gun. In short, the trial court did not err in denying Holbrook's motion for a directed verdict.
SOCIAL MEDIA POST
Next, Holbrook argues that the trial court erred in denying him the right to admit a social media photo into evidence and that such denial would have created reasonable doubt. During the testimony of Mackenzie Burnette, Holbrook's attorney questioned her regarding a screenshot of a post on her Instagram account of Burnette's interrogation with the caption "F*** the Police" labeled over it. Burnette denied posting the photo but acknowledged that she had willingly given her passwords to her account to many people. Burnette stated that upon discovering the post, she took it down.
Holbrook argues that by denying the introduction of the photo into evidence and denying adequate cross-examination on that issue by his counsel, he was denied the right to a fair trial. He asserts that the photo's admissibility would have called into question Burnette's credibility as a witness and would have shown that "she had played the codefendants, the police, the prosecutors, and then the jury."
"[An appellate court] will not reverse a trial court's decision regarding the admission of evidence absent a clear abuse of discretion." Muncy v. Commonwealth, 132 S.W.3d 845, 847 (Ky. 2004) (citing Simpson v. Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994)). "The test for abuse of discretion is whether the trial [court's] decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Meece v. Commonwealth, 348 S.W.3d 627, 646 (Ky. 2011) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
Considering the denial by Burnette that she posted the photo as well as the fact that the photo itself was not necessarily indicative that she had lied during her testimony or to the police, we cannot conclude that the trial court abused its discretion in denying either the admissibility of the photo or further cross-examination of Burnette in that regard.
EVIDENCE TO SUPPORT
FOURTH-DEGREE ASSAULT CONVICTION
Lastly, Holbrook argues that the evidence was insufficient for the jury to have convicted him of assault in the fourth degree. However, the jury heard testimony from witnesses implicating Holbrook in the offense. Oliver Gill, the individual who was shot, stated that only one person assaulted him. Medrano testified that he saw Holbrook swing or punch at Gill, but he wasn't sure if Holbrook hit anyone. Burnette said she witnessed Holbrook hitting Gill. The testimony of these witnesses was enough to convict Holbrook of this misdemeanor offense.
The final judgment and sentence of imprisonment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Rawl Douglas Kazee
Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Kristin L. Conder
Assistant Attorney General
Frankfort, Kentucky