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Eversole v. Commonwealth

Commonwealth of Kentucky Court of Appeals
May 24, 2019
NO. 2018-CA-000731-MR (Ky. Ct. App. May. 24, 2019)

Opinion

NO. 2018-CA-000731-MR

05-24-2019

EDDIE EVERSOLE, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEFS FOR APPELLANT: Emily Holt Rhorer Frankfort, Kentucky BRIEF FOR APPELLEES: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE MICHAEL O. CAPERTON, JUDGE
ACTION NO. 16-CR-00322 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

** ** ** ** **

BEFORE: ACREE, NICKELL, AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: The appellant, Eddie Eversole, Jr., appeals his conviction on one count of escape in the second degree. For the reasons set forth below, we affirm in part, reverse in part, and remand for entry of a judgment consistent with this opinion.

Kentucky Revised Statutes (KRS) 520.030, a Class D felony.

In 2016, Eversole was charged with trafficking in a controlled substance in the first degree, second offense. As a condition of bond, he entered into an agreement with Emcon Home Guard ("Emcon") to serve home incarceration. Under the terms of his home incarceration, Eversole was required to remain at 834 Corn Cemetery Road in London, Kentucky unless given permission to leave for a medical, legal, or employment-related reason.

On November 22, 2016, Eversole had permission to leave his home for a court appearance in his criminal case. Eversole did not appear in court and Emcon was unable to contact or track him. Approximately two weeks later, Eversole's mother returned his ankle monitor, which had been cut, to Emcon. On January 27, 2017, Eversole was stopped by a Laurel County deputy sheriff and taken into custody. A Laurel County grand jury indicted Eversole on one count of escape in the second degree and one count of being a persistent felony offender in the second degree.

At trial, Eversole admitted he removed his ankle monitor and explained he wanted to spend the holidays with his children in Lexington, Kentucky. He testified he planned to turn himself in to the Laurel County jail after the holidays. On cross-examination, the Commonwealth questioned Eversole about whether he gave a false name when he was stopped by a Laurel County deputy sheriff on January 27, 2017. Eversole admitted he gave a false name.

Eversole was convicted of one count of second-degree escape for which the jury recommended a sentence of five years' imprisonment and a one thousand dollar fine. Upon the Commonwealth's motion to strike the fine from Eversole's sentence due to indigency, the circuit court removed the fine but imposed a public defender fee of two hundred fifty dollars. The circuit court sentenced Eversole to five years' imprisonment. This appeal followed.

Eversole appeals on two grounds. First, he argues the Commonwealth improperly elicited testimony that Eversole gave a false name to the Laurel County deputy sheriff when he was apprehended. Second, Eversole argues the public defender fee was improperly assessed because he was found to be a "poor person" by the circuit court.

First, Eversole concedes any error relating to the Commonwealth's introduction of evidence of an uncharged crime is unpreserved and thus should be reviewed only for palpable error under RCr 10.26.

Kentucky Rules of Criminal Procedure.

[A]n unpreserved error may only be corrected on appeal if the error is both palpable and affects the substantial
rights of a party to such a degree that it can be determined manifest injustice resulted from the error. For error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable.
Young v. Commonwealth, 426 S.W.3d 577, 584 (Ky. 2014) (internal quotation marks and citations omitted). "A party claiming palpable error must show a probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Newman v. Commonwealth, 366 S.W.3d 435, 442 (Ky. 2012) (citing Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)).

Eversole argues the Commonwealth's introduction of testimony that he used a false name when apprehended by law enforcement violates KRE 404(b). KRE 404(b) makes inadmissible "[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." Eversole further argues the Commonwealth violated KRE 404(c) by failing to provide proper notice of its intent to introduce this evidence. Although it appears from the record that notice was not given, the Commonwealth argues this testimony is admissible under KRE 404(b) because "flight and attempts at concealment are circumstantial evidence of guilt." Fugate v. Commonwealth, 445 S.W.2d 675, 681 (Ky. 1969), overruled on other grounds by Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983).

Kentucky Rules of Evidence. --------

Even if we agree with Eversole that the Commonwealth's introduction of testimony regarding his use of a false name constitutes KRE 404(b) evidence, the admission of this testimony does not rise to the level of palpable error because no manifest injustice occurred. In light of Eversole's admission to removing his ankle monitor, there is no real probability that, had testimony regarding his use of a false name been kept out of evidence, a different outcome would have resulted. Therefore, even if this evidence was improperly admitted, it did not constitute palpable error.

Second, Eversole argues a public defender fee was improperly assessed against him because he was found to be a "poor person" by the circuit court. "[I]t does not appear that a person can be 'poor' under [KRS 453.190] but nevertheless able to pay a partial fee for legal representation." Miller v. Commonwealth, 391 S.W.3d 857, 871 (Ky. 2013) (internal quotation marks and citation omitted). Here, the circuit court found Eversole to be a poor person for purposes of waiving court costs but imposed a public defender fee against him. As conceded by the Commonwealth, the imposition of this fee must be vacated.

For the foregoing reasons, we reverse the Laurel Circuit Court's judgment only to the extent it improperly imposed a public defender fee upon Eversole. We remand for entry of a judgment consistent with this opinion. The judgment is otherwise affirmed.

ALL CONCUR. BRIEFS FOR APPELLANT: Emily Holt Rhorer
Frankfort, Kentucky BRIEF FOR APPELLEES: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky


Summaries of

Eversole v. Commonwealth

Commonwealth of Kentucky Court of Appeals
May 24, 2019
NO. 2018-CA-000731-MR (Ky. Ct. App. May. 24, 2019)
Case details for

Eversole v. Commonwealth

Case Details

Full title:EDDIE EVERSOLE, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court:Commonwealth of Kentucky Court of Appeals

Date published: May 24, 2019

Citations

NO. 2018-CA-000731-MR (Ky. Ct. App. May. 24, 2019)