Opinion
NO. 2014-CA-000435-MR
03-20-2015
ANCELMO FLORES, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Julia Pearson Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 13-CR-00225
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; STUMBO AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: Ancelmo Flores Jr. appeals from a Graves Circuit Court judgment after a jury convicted him of possession of a handgun by a convicted felon, second-degree wanton endangerment and third-degree terroristic threatening. Flores argues that he was entitled to a directed verdict on the possession of a handgun charge, and that the trial court erred in levying misdemeanor fines against him. We disagree as to the former, find merit in the latter, and remand for additional proceedings consistent with this opinion.
Flores and his boyfriend of nine years, Jorge Munoz, lived together in the home of Munoz's mother. On the morning of July 21, 2013, Flores and Munoz got into an argument and Flores left. He returned later that night and knocked on the door. Munoz refused to answer the door or to allow him inside. Munoz saw Flores walking around the side of the house to the back yard. He did not see anyone accompanying Flores. Shortly afterward, Munoz heard gunshots coming from the backyard. He testified that he heard three gunshots, and was initially so afraid that he waited about three minutes before going out to the yard. There he saw Flores sitting in a chair with a handgun beside him on a small table. Munoz retrieved the gun, took it inside and hid it under a bed.
The police, responding to reports of shots fired, arrived at the house a few minutes later. Officer Logan Hampton found Flores sitting on a chair on the back porch. He also found ten spent .40 caliber shell casings in the backyard. The officer estimated that the casings were approximately twenty feet away from Flores. Flores denied knowing anything about the gunshots. Officer Victor Maldonado spoke to Munoz, who initially denied knowing anything about the gunshots. When he was informed about the shell casings found in the backyard, he told the officers that Flores had fired the gun. Munoz then showed the officers where he had hidden the gun. Officer Hampton retrieved a .40 caliber handgun from under the bed.
The officers arrested Flores and searched him. They found a sock containing .40 caliber bullets in his pocket. Officer Hampton testified that the bullets in the sock were of a different make than the spent shell casings he had found in the yard, but stated that all of the bullets could have been fired from the weapon they recovered. After the police found the sock containing the bullets, Flores admitted to them he had fired the gun into the air.
A jury convicted Flores of possession of a handgun by a convicted felon, second-degree wanton endangerment and third-degree terroristic threatening. Flores also entered a plea of guilty to being a persistent felony offender (PFO) in the second degree. He was sentenced to fifteen years on the possession of a handgun and PFO charges. He was sentenced to twelve months, and fined $500 each for the wanton endangerment and terroristic threatening convictions. This appeal followed.
Flores argues that he was entitled to a directed verdict on the charge of possession of a handgun by a convicted felon because the prosecution failed to prove the element of possession as required to secure a conviction under Kentucky Revised Statutes (KRS) 527.040. Flores acknowledges that constructive possession, which is defined as the ability to exercise dominion and control over an object, is sufficient to prove possession. See Houston v. Commonwealth, 975 S.W.2d 925, 925 (Ky. 1998).
"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). The evidence presented by the prosecution must be more than a mere scintilla. Id. at 188.
Although Flores moved for a directed verdict, he did so only as to the charge of first-degree wanton endangerment. His claim regarding the sufficiency of the evidence supporting the possession charge is therefore unpreserved for appellate review. A party's failure to state the specific grounds for a directed-verdict motion forecloses appellate review. Sevier v. Commonwealth, 434 S.W.3d 443, 454 (Ky. 2014). "Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review pursuant to [Kentucky Rules of Criminal Procedure] RCr 10.26 unless such a request is made and briefed by the appellant." Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008). Flores has not requested or briefed such review, nor is such review warranted in light of the evidence supporting the possession charge: Officers Hampton and Maldonado testified that Flores confessed to them that he fired the gun, and Munoz testified that he saw the gun on a table near Flores shortly after the shots were fired.
Next, Flores argues that the trial court erred when it levied misdemeanor fines totaling $1,000.00. The issue is unpreserved, but he argues that it may be raised for the first time on appeal as a sentencing decision contrary to statute. We agree. See Roberts v. Commonwealth, 410 S.W.3d 606, 611 (Ky. 2013) (the erroneous imposition of a fine "is a true 'sentencing issue' which cannot be waived by failure to object").
The jury imposed fines of $500 each on the charges of terroristic threatening and second-degree wanton endangerment. At final sentencing, the trial court levied the fines in accordance with the jury's recommendation. The trial court waived court costs, and informed Flores that if he planned to pursue an appeal in forma pauperis, he should submit an affidavit of indigency. Flores did so a few days later, and the trial court entered a written order finding Flores was a pauper within the meaning of KRS 453.190 and KRS 31.110(2)(b) for purposes of appeal.
Flores argues that levying a fine against an indigent defendant is palpable error. Flores' situation is distinguishable, however, from that in Roberts, supra, in which the appellant was provided court-appointed counsel pursuant to KRS 31.110(2)(b) and also granted the right to appeal in forma pauperis. Under these circumstances, the Kentucky Supreme Court held that "we may assume the trial court determined that he was an indigent person." Roberts, 410 S.W.3d. at 611. Similarly, in Wright v. Commonwealth, 391 S.W.3d 743 (Ky. 2012), the appellant was found at his arraignment to be an "indigent person" under KRS 31.100(3) and appointed a public advocate. The Supreme Court held that the trial court erred when it nevertheless included fines in his sentence. Id. at 750.
By contrast, no formal finding of indigency was made at the outset of Flores's case before the circuit court, and he was represented by private counsel throughout the trial proceedings. The trial court could not be assumed to have determined that he was an indigent person. The Commonwealth points out that in forma pauperis status is governed by the standards of KRS 453.190, whereas indigency is determined under KRS 31.100 and KRS 31.120, and argues that the granting of in forma pauperis status for purposes of appeal should not serve automatically to vacate fines that were levied before that status was conferred. Flores argues that the distinction is meaningless in his case, because the definition of the term "poor person" for in forma pauperis purposes is even more stringent than the definition of an indigent person for the purpose of imposing fines.
Nonetheless, the statutory schemes for determining indigency and in forma pauperis status are separate. KRS 534.040(4) plainly states that fines shall not be imposed on a person determined by the court to be indigent pursuant to KRS Chapter 31. "[T]he cardinal rule of statutory construction is that the intention of the legislature should be ascertained and given effect[,]" MPM Financial Group, Inc. v. Morton, 289 S.W.3d 193, 197 (Ky. 2009), and "[a] basic rule in statutory interpretation is that the 'plain meaning' of the statute controls." Commonwealth v. McBride, 281 S.W.3d 799, 803 (Ky. 2009).
The trial court never made a finding (nor did Flores request such a finding) of indigency pursuant to KRS 31.100 and KRS 31.120, nor was the trial court put on notice before the fines were imposed that Flores was claiming to be indigent.
The matter is therefore remanded for further proceedings to the trial court. If the trial court finds that, at the time of imposition of the fines, Flores was indigent pursuant to KRS Chapter 31, that portion of the final judgment imposing the fines shall be vacated. The final judgment of the trial court is affirmed in all other respects.
ALL CONCUR. BRIEFS FOR APPELLANT: Julia Pearson
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky