Opinion
NO. 2011-CA-000380-MR
02-01-2013
RICHARD LEE CLARK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: John W. Wooldridge Shepherdsville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 10-CR-00070
OPINION
AFFIRMING
BEFORE: CLAYTON, MOORE, AND NICKELL, JUDGES. CLAYTON, JUDGE: On February 18, 2010, a Bullitt County grand jury indicted Richard Clark on one count each of complicity to second-degree burglary, complicity to theft by unlawful taking over $500, and complicity to second-degree unlawful transaction with a minor. The matter proceeded to a jury trial.
The charges against Clark, and the proof at trial, concerned his involvement in the burglary of the residence of Jennifer Ogden. During the early evening hours of December 11, 2009, Charles "B. J." Prather and Michael Jackson, each of whom was an acquaintance of Clark, kicked in the door of Ogden's residence. They stole two flat-screen televisions, a laptop computer, two video gaming systems, a cell phone, a bag of change, and two digital music players. Ogden testified that the televisions, the laptop, and the video gaming systems had all been purchased less than a year prior to the theft, for a total retail price of approximately $2,750. Of these items, only the cell phone was recovered.
The Commonwealth does not allege that Clark was present during the burglary. But, while Prather and Jackson were in Ogden's house, Prather called Jesse Hardin and told him to bring a truck to the scene. Prather further testified that he and Jackson removed the items and took them to the back of the lot where Ogden's house was located. Hardin and Clark arrived in the truck a short time later. After the truck had been loaded, Hardin and Clark left with the stolen goods. Prather testified that he spoke with Clark a few days later, and Clark informed him that he and Hardin "got rid of" the stolen items.
Upon questioning by the police, Prather stated that Clark was not involved in the burglary but came to the scene later with Hardin and hauled the stolen items away. At trial, however, he testified that he did not see Clark at the scene. Jackson initially told the police that Clark was solely responsible for the burglary. Upon further questioning, he admitted that he and Prather conducted the burglary. He also told the police that Clark and Hardin came to get the stolen items in a truck. He further added that Clark had borrowed the truck from a person named Billy.
As part of his plea agreement, Hardin was required to testify against Clark. At Hardin's sentencing, he testified that Clark had picked him up in a pickup truck, and the two had driven to Ogden's house. The stolen items were loaded into the truck, and the two left the scene. At Clark's trial, however, Hardin changed his story several times. He initially denied going to Ogden's house on the night of the robbery. He later admitted that he picked up the items from Prather and Jackson at the house behind Ogden's, but he denied knowing that the items were stolen. In addition, he testified that Clark had borrowed the truck from its owner, but stated that Clark was not present during the pick up of the stolen items.
At the close of proof, Clark moved for a directed verdict on all charges. The trial court granted the motion with respect to the charge of complicity to second-degree unlawful transaction with a minor, but denied the motion with respect to the other charges. Thereafter, the jury found Clark guilty of complicity to second-degree burglary and complicity to theft by unlawful taking over $500. The jury fixed his sentence at ten years on the burglary charge and five years on the theft charge, to run concurrently for a total of ten years. The trial court reduced the sentence to a total of eight years of imprisonment. Clark now appeals.
Prather was a minor at the time of the burglary; however, the trial court found no evidence that Clark was aware of his age.
Clark primarily argues that the trial court erred by denying his motion for a directed verdict on the charges of complicity to second-degree burglary and complicity to theft by unlawful taking over $500.
When ruling on a directed verdict motion, a trial court must assume that all the evidence for the Commonwealth is true and "draw all fair and reasonable inferences from the evidence in favor of the Commonwealth." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). However, the Commonwealth is required to present evidence "of substance," and "more than a mere scintilla of evidence." Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983). Upon appellate review, the test for a directed verdict is whether "under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty[.] . . ." Id.
Clark first contends that the Commonwealth failed to prove the elements of complicity to second-degree burglary. He correctly notes that Kentucky Revised Statutes ("KRS") 502.020 sets out the elements under which a person can be found guilty by complicity. In pertinent part, KRS 502.020(1) sets out accomplice liability as follows:
(1) A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
(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[.] . . .
Thus, to establish complicity under KRS 502.020, the Commonwealth must establish that the defendant intended "that the principal actor commit the criminal act." Tharp v. Commonwealth, 40 S.W.3d 356, 360 (Ky. 2000). See also Thompkins v. Commonwealth, 54 S.W.3d 147, 150 (Ky. 2001). Clark notes that there was never any testimony that he participated in the burglary or that he went onto Ogden's property. Prather and Jackson completed the burglary before Hardin was called. At most, Clark contends that he arrived on the scene after the burglary and helped Hardin haul away the stolen items. Clark argues that this evidence was insufficient to support a finding that he intended to promote or facilitate the burglary by Prather and Jackson.
The Commonwealth responds that intent can be inferred from the evidence and the surrounding circumstances. Dillingham v. Commonwealth, 995 S.W.2d 377, 380 (Ky. 1999). The Commonwealth's evidence was clearly circumstantial and inferential. Since Clark was charged with complicity to second-degree burglary, the Commonwealth was not required to prove that he actually entered Ogden's house. Skinner v. Commonwealth, 864 S.W.2d 290, 298 (Ky. 1993). However, there was no evidence or testimony that Clark was present when Prather, Jackson, and Hardin planned the robbery or during the robbery. Indeed, Prather testified that he did not know that Clark was involved until he showed up as a passenger in the truck after the items had been removed from the house.
Nonetheless, Prather also testified that he spoke with Clark several days after the robbery, and Clark told him that he had disposed of the stolen items. When considered with the rest of the evidence, this testimony was sufficient to allow the jury to reasonably infer that Clark became involved before the crime was complete and that he was aware that the items were stolen and intended to assist Prather and Jackson in completing the burglary. Therefore, the trial court properly denied Clark's motion for a directed verdict.
Clark next argues that he was entitled to a directed verdict on the charge of complicity to theft by unlawful taking over $500 because the Commonwealth failed to establish that the items were worth more than $500 at the time of the burglary. An owner may provide testimony regarding the value of the stolen items so long as it provides "sufficient detail for the jury to make a value determination." Commonwealth v. Reed, 57 S.W.3d 269, 271 (Ky. 2001). At trial, Ogden testified that she had purchased the stolen items less than a year prior to the burglary, for a total of $2,750. We conclude that this testimony was sufficiently detailed to allow the jury to determine that the stolen property was worth more than $500 at the time of the burglary. Therefore, Clark was not entitled to a directed verdict on this issue.
Finally, Clark argues that the trial court failed to make a timely ruling concerning the admissibility of a previous conviction. Prior to trial, Clark moved to preclude the Commonwealth from introducing evidence of his 1999 conviction in federal court for bank robbery. Since the conviction was more than ten years old at the time of his current trial, he argued that it was inadmissible for impeachment purposes during the guilt phase. The Commonwealth asked the court to defer ruling on the motion, arguing that the admissibility of the conviction would turn on the content of Clark's testimony. The trial court agreed, stating that it would determine the admissibility of the conviction based on Clark's testimony at trial. Clark contends that the trial court's failure to rule on his pretrial motion forced him to choose not to testify during the guilt phase.
Under Kentucky Rules of Evidence ("KRE") 609(a), evidence that a witness has been convicted of a felony is admissible to impeach the witness's testimony. However, a felony conviction which is more than ten years old is not admissible "unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect." KRE 609(b). In making this determination, the trial court must consider whether the witness has placed his credibility at issue by testifying in contradiction to other witnesses and the relevance of the prior conviction to the credibility matter at issue. Miller ex rel. Monticello Baking Co. v. Marymount Med. Ctr., 125 S.W.3d 274, 285 (Ky. 2004). The trial court could not make this determination until Clark testified. Consequently, we find that the trial court did not abuse its discretion by reserving a ruling on the issue.
Accordingly, the judgment of conviction of the Bullitt Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John W. Wooldridge
Shepherdsville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky