Opinion
NO. 2018-CA-001354-MR
06-14-2019
MICHAEL GLENN KYLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Adam Meyer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Kristin L. Conder Assistant Attorney General Frankfort, Kentucky
TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 17-CR-00480 OPINION
AFFIRMING
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BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES. LAMBERT, JUDGE: Michael Glenn Kyle appeals from the judgment of the Fayette Circuit Court convicting him of theft by unlawful taking (over $500). He received a sentence of five years' imprisonment, which was enhanced to eighteen years by virtue of his status as a persistent felony offender in the first degree. Upon review, we affirm.
On October 19, 2016, Kyle entered Visionworks, an eyewear store in Lexington, approached the men's glasses racks opposite the door, and began slowly walking down the racks toward the door. The store manager, Lisa Conyers, became suspicious of Kyle and noticed some of the men's frames were missing from the racks. Ms. Conyers approached Kyle from behind to ask if she could help him. Startled, Kyle turned around and answered, "No, thank you, young lady. I'm fine." Then, Ms. Conyers noticed the entire row of sunglasses in front of Kyle and part of another row were missing. Kyle was wearing a button-down shirt and Ms. Conyers indicated he had his hand inside his shirt. Ms. Conyers backed away to give him a chance to return the frames, and Kyle exited the store. Multiple frames were missing from their racks after Kyle left, and he had been the only one near them.
Ms. Conyers followed Kyle out of the store and watched him get into a white Toyota parked and running with someone in the driver's seat. Ms. Conyers wrote down the license plate number and called the police to report the theft. Then, she filled out a theft report, which included a list of the missing frames, the value of each frame, a description of Kyle, and the license plate number. She noted the total value of the stolen frames was approximately $3,500.
Detective Stephanie McClain-Ward of the Lexington Police Department was assigned to the case. The only information she had at the beginning of her investigation was a description of the subject and the license plate number of 432 LRN. The detective discovered the owner of the vehicle was Kyle's mother, Barbara Lee Prater. Based on this information, Detective McClain-Ward developed Kyle as a suspect and requested a photo lineup of Kyle and individuals who resembled him. The detective presented the photos to Ms. Conyers who did not select Kyle from the lineup.
On March 9, 2017, Ms. Conyers was working near the front of Visionworks with her back to the door. The door opened, and Ms. Conyers said, "excuse me." The man behind her replied, "Oh, excuse me, young lady," and Ms. Conyers immediately recognized Kyle's voice. When she turned around, she knew it was the same man who had stolen frames from the store in October based on his voice, build, and essentially everything about him. Ms. Conyers instructed another employee to follow Kyle as he walked around the store. Positive he was the same man who stole the frames, Ms. Conyers took a photograph of Kyle on her phone as he walked to the front of the store. Ms. Conyers emailed the photograph to Detective McClain-Ward who compared the photo to Kyle's driver's license photo. The detective then submitted a criminal complaint and successfully sought a warrant for Kyle's arrest.
Detective McClain-Ward conducted additional investigation concerning the vehicle, which revealed another theft case involving the vehicle and Kyle at a Kroger supermarket. The Commonwealth sought to introduce evidence of the Kroger theft to prove Kyle's identity and motive. Kyle objected, and the trial court permitted the Commonwealth to present evidence of the Kroger theft for the sole purpose of proving Kyle's identity.
Kyle was initially tried on June 19, 2018, but the trial ended in a hung jury. Kyle's case was retried on July 9, 2018. The jury found Kyle guilty of theft by unlawful taking (over $500) and being a persistent felony offender in the first degree. The trial court sentenced him to eighteen years' imprisonment. This appeal followed.
On appeal, Kyle argues the trial court (1) erred in permitting the Commonwealth to present evidence in violation of KRE 404(b); (2) erred in denying his motions for directed verdict; and (3) erred in failing to instruct the jury on the lesser-included offense of theft by unlawful taking (under $500).
Kentucky Rules of Evidence.
First, Kyle argues the trial court erroneously permitted the Commonwealth to present unduly prejudicial propensity evidence of his history of shoplifting and propensity for violence in violation of KRE 404(b). Kyle does not contest the trial court's ruling permitting evidence of the Kroger theft to prove his identity. Instead, he argues the trial court permitted the Commonwealth to use the Kroger theft as a vehicle to present evidence of Kyle's bad character and propensity to commit the Visionworks theft under the pretense of proving his identity.
Kyle asserts he preserved this issue through his written response to the Commonwealth's KRE 404(b) notice, the hearing regarding the notice, and the trial court's subsequent ruling. However, he does not point to any specific objections at trial to the evidence complained of on appeal. "[T]he appellant has the duty to make timely objections and if he wants to preserve his issues for review by this court the objections must be specific enough to indicate to the trial court and this court what it is he is objecting to." Bell v. Commonwealth, 473 S.W.2d 820, 821 (Ky. 1971) (citing Blanton v. Commonwealth, 429 S.W.2d 407 (Ky. 1968); RCr 9.22 ). "RCr 9.22 . . . requires contemporaneous objections . . . because it gives the trial judge an opportunity to remedy any errors in the proceedings." Salisbury v. Commonwealth, 556 S.W.2d 922, 926 (Ky. App. 1977).
Kentucky Rules of Criminal Procedure.
At the hearing on the Commonwealth's KRE 404(b) notice, Kyle objected to the evidence of the Kroger theft generally, but he did not object to specific testimony that would be presented at trial. Furthermore, as stated above, Kyle does not contest the trial court's ruling admitting the evidence of the other theft. He merely complains the trial court did not sua sponte enforce its order. Because Kyle cannot point to a specific objection to the evidence complained of at the time it was presented, the issue was waived.
Next, Kyle argues the trial court erred in denying his motions for a directed verdict. At the close of the Commonwealth's case, Kyle urged the trial court to grant a directed verdict in his favor because the Commonwealth failed to present competent proof of the value of the stolen frames. "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." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). Viewing the evidence in the light most favorable to the Commonwealth, a trial court must deny a motion for directed verdict when there is "evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence." Id. at 187-88.
Here, the Commonwealth presented eyewitness testimony from Visionworks manager, Ms. Conyers, who unequivocally stated the value of the stolen frames was approximately $3,500, and the stolen Nike frames were worth between $199 and $230 based on notes she took the day of the theft. On cross-examination, Kyle questioned Ms. Conyers regarding the reliability of her identification of him and asked her whether anyone else could have removed the frames from the racks. Ms. Conyers testified the racks were full before Kyle approached them, and she was certain Kyle was the person who stole the frames. No other witnesses testified regarding the value of the stolen frames or whether someone else could have stolen them.
We conclude the Commonwealth produced evidence regarding the value of the stolen frames, which "was considerably more than a mere scintilla and the case was properly presented to the jury for determination." Id. at 188. Thus, we hold the trial court correctly found that a reasonable juror could fairly find Kyle guilty of theft by unlawful taking (over $500) beyond a reasonable doubt.
Finally, Kyle argues the evidence supported an instruction on the lesser-included offense of theft by unlawful taking (under $500) because the jury could have believed the frames were worth less than $500. "[A]buse of discretion applies in . . . situations where, for example, a court is empowered to make a decision—of its choosing—that falls within a range of permissible decisions." Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004) (internal quotation marks and citation omitted). "The trial court's decision not to give a jury instruction is reviewed for abuse of discretion." Hunt v. Commonwealth, 304 S.W.3d 15, 31 (Ky. 2009) (citation omitted). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). "An instruction on a lesser-included offense is appropriate if and only if on the given evidence a reasonable juror could entertain reasonable doubt of the defendant's guilt on the greater charge, but believe beyond a reasonable doubt that the defendant is guilty of the lesser offense." Skinner v. Commonwealth, 864 S.W.2d 290, 298 (Ky. 1993) (citing Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky. 1977)).
In Gray v. Commonwealth, 479 S.W.3d 94 (Ky. App. 2015), this Court addressed a similar situation and held the evidence did not support an instruction on a lesser-included offense. There, the defendant was convicted of theft by unlawful taking (over $500) for stealing "a large quantity of copper wire." Id. at 95. At trial, a security guard of a nearby business reported observing the defendant "loading copper wire into the trunk of a car" but "could not tell how much wire had been loaded into the trunk." Id. at 95-96. The manager of the company, from which the defendant stole the wire, "testified that at least 500 pounds of copper wire had been removed from the facility on the evening" the wire went missing and estimated its value at $4,000. Id. at 96. On appeal, the defendant argued "the trial court erred by failing to give an instruction on the lesser-included offense of theft by unlawful taking (under $500.00)." Id. The defendant "contend[ed] that the jury might have reasonably deduced from the evidence that the value of the copper was in dispute since the security guard could not indicate precisely how much had been loaded into the trunk of the car." Id. This Court held the evidence did not support an instruction on the lesser-included offense of theft by unlawful taking (under $500), based on the following reasoning:
There was no reasonable inference to be drawn from the testimony that would have supported a finding that the value of the copper wire removed from the premises was valued at less than $500.00. In fact, the defense never contested the value of the copper wire stolen from the victim. Rather, the defense strategy consisted of disputing the reliability of the security guard's identification of Gray.Id.
Here, the Commonwealth presented eyewitness testimony from Ms. Conyers who unequivocally stated the value of the stolen frames was approximately $3,500, and the stolen Nike frames were worth between $199 and $230 based on her notes from the day of the theft. On cross-examination, Kyle questioned Ms. Conyers regarding the reliability of her identification of him and asked her whether anyone else could have removed the frames from the racks. Ms. Conyers testified the racks were full before Kyle approached the racks and she was certain that Kyle was the person who stole the frames. Again, no other witnesses testified regarding the value of the stolen frames or whether someone else could have stolen them.
As discussed above, Kyle points to no evidence from which the jury could find the stolen frames were valued at less than $500. The evidence regarding the value of the frames was uncontroverted, so "either an acquittal or a conviction for the charged offense was required." Id. There was no reasonable basis upon which to conclude the value of the frames taken from Visionworks was less than $500. Thus, we hold the trial court did not abuse its discretion in denying Kyle's request to instruct the jury on the lesser-included offense of theft by unlawful taking (under $500).
For the foregoing reasons, we affirm the judgment of the Fayette Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Adam Meyer
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Kristin L. Conder
Assistant Attorney General
Frankfort, Kentucky