Opinion
NO. 2014-CA-000214-MR
02-05-2016
CHRISTOPHER L. SCHULTISE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Department of Public Advocacy BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 13-CR-00150 OPINION
AFFIRMING IN PART; AND REMANDING IN PART FOR CORRECTION BEFORE: NICKELL, STUMBO AND VANMETER, JUDGES. NICKELL, JUDGE: Christopher L. Schultise brings this appeal from the Hardin Circuit Court's final judgment imposing an enhanced sentence of ten years on him as a first degree persistent felony offender (PFO I). The sentence resulted from a guilty plea to being a PFO I after a jury convicted him of theft by unlawful taking (TBUT) and tampering with physical evidence. Schultise asks this Court to remand the conviction and direct the trial court to amend the judgment to reflect he did not plead guilty to multiple charges, but rather pled guilty only to being a PFO I. He also seeks reversal and dismissal of the tampering conviction, claiming it was unsupported by sufficient evidence at trial. He does not challenge the TBUT conviction or the enhanced sentence. Having reviewed the record, the briefs, and the law, we affirm the conviction, but partially remand this matter to the trial court for the limited purpose of correcting the judgment entered on October 21, 2013, to accurately reflect the jury's verdict and that sentencing resulted from a combination of trial proceedings and a guilty plea.
Kentucky Revised Statutes (KRS) 532.080.
KRS 514.030, a Class A misdemeanor.
KRS 524.100, a Class D felony.
FACTS
On November 24, 2012, Schultise and Ronnie Young entered Kohl's Department Store in Elizabethtown, Kentucky. The two men got a cart and went to the women's intimates section where they began stuffing items into Schultise's jacket pocket and Young's purse. Without paying, the two men exited the store with three bras, two robes and other lingerie valued at $216.00.
While inside the store, the two men caught the eye of Allison Stuecker, Kohl's Loss Prevention Supervisor. She watched as Young selected items and Schultise concealed one item in his jacket pocket, and placed other items in the purse Young was carrying. Stuecker followed the pair onto the parking lot, identified herself as the store's Loss Prevention Officer, and asked the pair to return to the store so she could recover the stolen merchandise. As she approached them, they stopped briefly, but resumed walking and fled in a green Taurus owned and driven by Schultise.
Stuecker had alerted police dispatch to the suspicious activity while Schultise and Young were still in the store. Patrolman Travis Mills was dispatched to the store. Believing the men were still inside the store, he began securing the perimeter. Through additional contact with dispatch, he learned the suspected shoplifters had left in a green Taurus and were traveling north on Dixie Highway. Officer Travis saw a green Ford Taurus with a Kentucky tag and gave chase. The vehicle made a sharp right turn, as did Officer Travis, but he lost sight of the car.
Officer Travis turned into a gas station parking lot where he noticed a pile of clothing in a parking space. A male subject indicated to him a vehicle had just left the lot and returned to Dixie Highway. Officer Travis re-entered Dixie Highway, spotted the green Taurus, and stopped it after activating his lights and siren.
Dispatch had confirmed the car was registered to Schultise. Officer Travis approached the driver's side of the Taurus where Schultise was at the wheel. In frisking Schultise, Officer Travis removed a pair of women's panties from Schultise's jacket pocket. Officer Travis arrested Schultise. A second officer, Madison Kuklinski, arrested Young. Both suspects were transported back to Kohl's in separate vehicles where Stuecker identified them as the two men she had seen take lingerie from the store.
Officer Travis reviewed video from the gas station. That video showed the green Taurus arrive, the passenger door open, clothes drop onto the gas station parking lot from the open passenger door, the green Taurus exit the station lot, and Officer Travis arrive at the gas station in his police cruiser. Officer Travis reviewed the tape at the gas station, but was unable to secure a copy of the video.
Office Kuklinski recovered the pile of clothing from the gas station parking lot. Each item was recognized by the Kohl's electronic database as being part of the store's inventory. Neither Schultise nor Young had receipts for any of the merchandise nor Kohl's bags indicating a purchase had been made.
On February 29, 2013, Schultise was indicted on charges of tampering with physical evidence and TBUT—as both principal and accomplice—and being a PFO I. On September 20, 2013, a jury convicted him of both tampering and TBUT. Schultise then chose to plead guilty to being a PFO I, agreeing to serve a ten-year sentence—the minimum penalty. The Commonwealth's offer—ten years with parole eligibility after service of just twenty percent—was exceedingly generous considering this was Schultise's fifth felony conviction, it was committed while he was on probation from two separate Kentucky counties, and he faced a maximum term of twenty years.
"'[W]here evidence is sufficient to support a conviction as either an accomplice or as a principal, an instruction in the alternative is proper.'" Peacher v. Commonwealth, 391 S.W.3d 821, 842 (Ky. 2013) (quoting Pate v. Commonwealth, 243 S.W.3d 327, 334-35 (Ky. 2007)). Instruction No. 5—the instruction on tampering with physical evidence—directed:
You will find the Defendant guilty of Tampering with Physical Evidence under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:The corresponding verdict form, signed by the jury foreman, read: "We, the Jury, find the Defendant guilty of Tampering with Physical Evidence under Instruction No. 5." There were no objections to any of the instructions. We note this with particularity because the Trial Verdict and Judgment—prepared by the Commonwealth—and entered by the trial court on October 21, 2013—recites the jury verdict as, "We, the jury, find the Defendant guilty of Complicity to Tampering with Physical Evidence under Instruction No. 5." Thereafter, the jury's verdict is consistently, but inaccurately, recited as "Complicity to Tampering with Physical Evidence." This error was repeated in the Judgment and Sentence on Plea of Guilty. Since jurors were instructed in the alternative, and were not asked to specify a theory of guilt, one cannot simply assume the jury found Schultise guilty of complicity to tampering. This is another error in need of correction.
A. That in this county on or about November 24, 2012, and before the finding of the Indictment herein, the Defendant alone or a person or persons with whom the Defendant acted in complicity concealed or removed clothing which belonged to Kohl's Department Store which he believed was about to be produced or used in an official proceeding.
AND
B. That the Defendant alone or a person or persons with whom the Defendant acted in complicity did so with the intent to impair its availability in the proceeding.
Schultise executed a motion to enter guilty plea. The trial court then conducted a guilty plea colloquy in which Schultise participated fully, both responding appropriately to the court's questions and expressing his own desires. The trial court found the guilty plea to be knowingly, voluntarily and intelligently entered. The court stated on the record the Commonwealth's offer was highly favorable to Schultise.
Formal sentencing was set for October 15, 2013. The hearing began with motions by defense counsel—to release Schultise to undergo back surgery; to alter the guilty plea (treated as a motion to withdraw the plea); and, to grant a new trial (due to Schultise being on a number of medications in high dosages during trial). After argument on the record, all three motions were denied. The trial court found Schultise had a high tolerance for pain medications due to long-term use and health issues, and no errors occurred during trial justifying withdrawal of the guilty plea or a new trial.
On appeal, Schultise contests neither the TBUT conviction nor his status as a PFO I. The issues presented to this Court concern only an alleged clerical error in the judgment and alleged insufficiency of the evidence used to convict Schultise of complicity to tampering with physical evidence.
Judgment was entered October 21, 2013, but not until February 11, 2014, did Schultise tender a notice of appeal and a separate request for leave to file a belated appeal. On September 4, 2014, this Court dismissed Case No. 2014-CA-000286 as being duplicative and untimely. We remanded Case No. 2014-CA-000214—the request for a belated appeal—to the trial court for determination of whether Schultise had waived the right to appeal. The circuit court found, after scheduling an evidentiary hearing at which no new evidence was offered, Schultise had not waived the right to appeal, but any appeal would be limited to the issue of guilt on the two substantive charges—tampering and TBUT. Based on that decision, by order dated January 13, 2015, this Court permitted Schultise to pursue a belated appeal in this case.
ANALYSIS
Both Schultise and the Commonwealth agree the final judgment is marred by clerical error. All agree jurors convicted Schultise of both tampering and TBUT before he agreed to plead guilty to being a PFO I. However, the final judgment says Schultise pled guilty to complicity to tampering with physical evidence and complicity to TBUT, as well as being a PFO I.
This statement is erroneous for two reasons. First, jurors found Schultise guilty of the two substantive charges—the underlying convictions did not result from a guilty plea. Second, jurors did not specify whether Schultise was guilty of the substantive offenses as a principal or as an accomplice. Thus, based upon our reading of the record, the judgment does not accurately reflect the events of September 20, 2013—the day on which Schultise stood trial, was found guilty by a jury, and then entered a guilty plea to being a PFO I.
Under RCr 10.10,
Kentucky Rules of Criminal Procedure. --------
[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is perfected in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.Based on the record, two clerical errors occurred, but neither was called to the trial court's attention. We are the first Court to receive the complaint. Therefore, we remand this matter to the trial court, in part, for the limited purpose of correcting the Judgment and Sentence on Plea of Guilty entered on October 21, 2013.
Next, Schultise seeks palpable error review of the trial court's denial of his directed verdict motion on the tampering charge. He acknowledges this claim was only partially preserved by his stated ground of "insufficient evidence" without any specific attack in the trial court on the lack of proof of complicity to tamper with physical evidence. As noted previously, there was no objection to the instruction on tampering which allowed jurors to find Schultise guilty as either a principal or an accomplice. Furthermore, the verdict form signed by the jury foreman merely found Schultise guilty of the crime without specifying whether he was the principal or the accomplice.
RCr 10.26 allows an unpreserved error to be reviewed if it affected the defendant's "substantial rights" and resulted in "manifest injustice." To rise to the level of palpable error, there must be a "defect in the proceeding" which is "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
On appeal, Schultise argues he should have been granted a directed verdict because there was insufficient proof he conspired with or aided Young in discarding the lingerie on the gas station parking lot. The combination instruction allowed jurors to convict Schultise upon finding he—either alone or with another —tampered with the physical evidence in this case.
The standard for granting a directed verdict is:
[o]n 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). To defeat a directed verdict motion, the Commonwealth must produce "evidence of substance" greater than "a mere scintilla of evidence." Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).
One method of securing a conviction for tampering with physical evidence, is to establish:
believing that an official proceeding is pending or may be instituted, [the accused]:
KRS 524.100(1). Conviction as an accomplice under KRS 502.020(1) is appropriate when:(a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding[.]
with the intention of promoting or facilitating the commission of the offense, [the accused]:
(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or
(c) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.
As an appellate court, we will reverse a trial court's denial of a directed verdict motion only, "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]" Benham, 816 S.W.2d at 187 (internal citation omitted). We will affirm the trial court's decision "unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ." Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky. App. 2003) (internal citations omitted).
Only two witnesses testified in this entire trial. The first was Stuecker, the Loss Prevention Supervisor who observed Young select the lingerie and Schultise conceal the lingerie in his jacket pocket and the purse Young carried. Stuecker positively identified the two shoplifters when police returned them to the store.
The other witness was Officer Mills, the investigating officer who pursued the green Taurus based on information provided by Stuecker, spied the pile of lingerie on the gas station parking lot, resumed chase of the green Taurus, caught up with and stopped the vehicle, arrested the two occupants, and viewed a videotape showing the lingerie being dropped onto the gas station parking lot from the open passenger door of the green Taurus. Mills also testified the getaway car was registered to and driven by Schultise. According to Mills, during the pursuit, Schultise made a sharp right turn and entered a gas station parking lot where the passenger door opened and a pile of merchandise belonging to Kohl's was dropped to the ground before the green Taurus returned to Dixie Highway and was ultimately stopped in response to activation of his police lights and siren.
Jurors weigh witness credibility. Benham, 816 S.W.3d at 187. They may infer a defendant's actions or intent from the circumstances presented from the evidence. Commonwealth v. Combs, 316 S.W.3d 877, 883 (Ky. 2010). "[A]n express pact between the complicitors" is not required; inference of "a common purpose and the joint character of the undertaking" is enough. Peacher, 391 S.W.3d at 842 (internal citations omitted).
The evidence presented against Schultise demonstrated he entered Kohl's with Young; they walked through the store together collecting merchandise; they exited the store together; they drove away together with the stolen merchandise; and, a videotape of the Taurus in which they left the Kohl's parking lot and in which they were ultimately arrested, depicted the stolen merchandise being discarded from the vehicle. Schultise and Young did everything in tandem and were together at all stages of the heist. Review of the record convinces us the Commonwealth satisfied the elements of KRS 524.100. From the evidence, jurors reasonably inferred Schultise tampered with the lingerie —either alone or in tandem with another—paving the way for a tampering conviction. Therefore, it was proper for the trial court to deny the directed verdict motion. There is no basis for reversal of the conviction.
WHEREFORE, we AFFIRM the trial court's denial of a directed verdict motion, and the jury's verdict finding Schultise guilty of misdemeanor TBUT and tampering with physical evidence. Furthermore, we REMAND this matter to the trial court for the limited purpose of correcting the Judgment and Sentence on Plea of Guilty to reflect guilt was established by a combination of jury trial and guilty plea, and to reflect jurors found Schultise guilty of misdemeanor TBUT and tampering with physical evidence as stated in the verdict form signed by the jury foreman, rather than complicity to either of those crimes. The trial court is urged to carefully review the judgment to ensure it is correct in all other respects.
ALL CONCUR. BRIEFS FOR APPELLANT: Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky