Opinion
2014-SC-000726-MR
08-25-2016
RONNIE JOE FORTE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: V. Gene Lewter Brandon Neil Jewell Department of Public Advocacy COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Micah Brandon Roberts Assistant Attorney General
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. NOT TO BE PUBLISHED ON APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW C. SELF, JUDGE
NOS. 12-CR-00545 AND 14-CR-00133
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART , REVERSING IN PART, AND REMANDING
Ronnie Joe Forte appeals from his convictions for First-Degree Robbery; First-Degree Trafficking in a Controlled Substance, First Offense; Tampering with Physical Evidence; First-Degree Burglary; and for being a First-Degree Persistent Felony Offender (PFO I). On appeal, Forte argues that the trial court: made two instructional errors; erred when it converted his trafficking conviction from a Class D to a Class C felony during the penalty phase of the trial; and erroneously denied his motion for a directed verdict on the tampering charge. Additionally, Forte argues that the Commonwealth failed to meet its burden of proof on the PFO I charge. Having reviewed the record and the arguments of the parties, we affirm in part, reverse in part, and remand.
I. BACKGROUND.
At the outset, we note that there are various versions of what occurred, with the witnesses differing about several of the details. We set forth the version that is the most accurate one we can glean from the testimony, pointing out any differences as we deem necessary to our analysis.
On October 30, 2012, James Forte (James), Jay Carner, and Chris Taylor decided to rob Antonio Greene because they believed that Greene had a substantial amount of money and drugs. The three went to Forte's house to develop their plan. Forte, James's brother, did not participate in the planning, but he agreed to drive the "getaway car." Pursuant to the plan devised by Carner, Taylor, and James, Forte dropped them off near Greene's apartment building and waited in the car. Carner, Taylor, and James then went to Greene's apartment building. Carner, who knew Greene and had visited him earlier that day, knocked on the building's security door and identified himself to Greene. When Greene opened the door, Taylor shoved him to the floor. Greene could not identify the person who shoved him to the floor; however, he stated that person had a gun. Taylor, who admitted to his part in the events, testified that he did not have a gun but rather had his hand inside a sock.
While Taylor held Greene down, Carner and James went up the stairs to Greene's apartment, where they took several bags of marijuana, a cell phone, and other items. While Carner and James were in Greene's apartment, one of Greene's neighbors, Tyrone Bailey, who had heard a loud crash in the hallway, came out of his apartment to investigate. When Taylor saw Bailey, he released Greene, left the building, and walked back to Forte's car. Bailey and Greene then followed Taylor out of the building.
Carner and James came out of the building shortly thereafter, and James shot Bailey. James and Carner then ran to Forte's car, and the four then went to Forte's sister's house to divide up the proceeds. It is unclear exactly when, but sometime thereafter, Forte drove Carner to his mother's house. When Carner told his mother what had happened, she told him to call the police and surrender, which he did.
We note that Bailey was shot in the head, was treated at the hospital, and returned home the next day.
Carner then gave several statements to the police, initially denying that he had any part in the crime. However, Carner ultimately admitted his part in the crime, identified the others, and was arrested. Based on earner's statement and information they received from witnesses at the scene, the police began looking for the other participants.
An officer spotted what he believed to be Forte's car in the driveway of a house belonging to Warren Thompson. Thompson testified that Forte came to his house the night of the robbery and told him "something went on." Forte then gave Thompson a plastic sandwich bag, asked Thompson to hold it for him, and left. Thompson, who believed the bag contained marijuana and pill bottles, was unaware that police officers were watching his house. After Forte left, Thompson's wife called him and told him that she had seen police officers outside the house. Thompson, fearing he would be caught with Forte's drugs, hid the plastic bag on a rafter in the basement. A police officer knocked on Thompson's door and asked if officers could search his house. Thompson agreed that they could and the officers found the plastic bag containing the marijuana and pill bottles. Later that night, officers arrested Forte and they eventually arrested Taylor and James. As did Carner, Taylor gave several inconsistent statements but ultimately admitted his part in the crimes and identified the other participants. He, like Carner, entered a guilty plea and agreed to testify against Forte and James.
Forte and James were tried together and, as noted above, the jury found Forte guilty of multiple offenses. Forte brings this appeal from his conviction of those offenses and his sentence of 20 years' imprisonment. We set forth additional background information as necessary below.
II. STANDARD OF REVIEW.
The issues raised by Forte have different standards of review, which we set forth as necessary when analyzing each issue.
III. ANALYSIS.
A. The trial court's failure to give an instruction on facilitation to commit robbery and burglary is not reviewable.
Forte argues that the trial court erred by failing to instruct the jury on facilitation to commit robbery and burglary. Forte admits that this issue is not preserved because he did not ask the trial court to give those instructions. Despite his failure to preserve the issue, Forte invites us to review it for palpable error. We decline that invitation.
We agree with Forte that the trial court has an obligation to instruct the jury on the whole law of the case. Martin v. Commonwealth, 409 S.W.3d 340, 345 (Ky. 2013). We also agree that, generally, we review unpreserved errors under the palpable error standard. Kentucky Rule of Criminal Procedure (RCr) 10.26. However, as we held in Martin, RCr 9.54(2) "bars palpable error review for unpreserved claims that the trial court erred in . . . the failure to give a specific instruction." In other words, "when the allegation of instructional error is that a particular instruction should have been given but was not . . . given, RCr 9.54 operates as a bar to appellate review unless the issue was fairly and adequately presented to the trial court for its initial consideration." Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013). As Forte admits, he never asked the trial court to instruct the jury on facilitation to commit burglary or facilitation to commit robbery; therefore, the issue he now raises was not presented to the trial court for its consideration. The failure to do so acts as a bar to any review, palpable or otherwise.
B. The first-degree trafficking in a controlled substance instruction did not deprive Forte of a unanimous verdict.
Forte argues the first-degree trafficking instruction given by the trial court permitted the jury to render a non-unanimous verdict and that the instruction contained language not supported by the evidence. The Commonwealth argues Forte did not properly preserve this issue. In the alternative, the Commonwealth argues any error was harmless. Because it is dispositive, we address the preservation issue first.
The Commonwealth charged Forte with first-degree trafficking in a controlled substance (cocaine) based primarily on his delivery of the sandwich bag containing marijuana and cocaine to Thompson. Kentucky Revised Statute (KRS) 218A.010(49) defines traffic as "to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance."
On the second day of trial, Forte submitted proposed jury instructions to the trial court. Forte's proposed first-degree trafficking instruction stated:
You will find Ronnie J. Forte not guilty of First-Degree Trafficking in a Controlled Substance under this Instruction unless, and only unless, you believe from the evidence alone and beyond a reasonable doubt all of the following:His proposed instructions defined possession as "to have actual physical possession or otherwise exercise actual dominion and control over a tangible object" and sell as "to dispose of a controlled substance to another person for payment or other consideration."
A. That in Christian County on or about October 30, 2012, and before the finding of the Indictment herein, he had in his possession a quantity of cocaine;
B. That he knew the substance so possessed by him was cocaine; AND
C. That he had it in his possession with the intent of selling it.
The trial court's proposed first-degree trafficking in a controlled substance instruction, which is also the instruction provided to the jury, reads as follows:
You will find the Defendant guilty of Trafficking in a Controlled Substance, First Degree under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about the 30th day of October 2012 and before the finding in the Indictment herein, the Defendant had in his possession a quantity of cocaine;
B. That he knew the substance so possessed by him was cocaine;
AND
C. That he had the cocaine in his possession with the intent to sell, dispense, transfer or distribute it to another person.
At the close of the guilt phase of the trial, the court held an in-chambers discussion with the parties regarding the jury instructions. At the beginning of that discussion, Forte stated that he had a general objection to any instruction that differed from what he had proposed. The trial court then went through each instruction so the parties could discuss any differences and the court could make any necessary changes. Forte stated that he preferred that each instruction start with the premise that the jury should find him "not guilty . . . unless" rather than "guilty . . . if;" however, the court did not make that requested change to the instructions. The parties then requested changes to the robbery and burglary instructions, which the court made. When the court asked if there were any specific changes to the trafficking instruction, Forte stated that, other than the "guilty . . . if" language, the court's instructions were "substantially the same as those he offered." He did not argue, as he does here, that the instruction had extraneous language, that it could lead to a non- unanimous jury verdict, or that it was otherwise erroneous. Therefore, despite Forte's general objection, this issue is unpreserved.
As noted above, we will not review issues of alleged error regarding the failure to give an unrequested instruction. However, we do review unpreserved alleged instructional error with regard to the wording of an instruction. Martin 409 S.W.3d at 344. In doing so, we apply the palpable error standard, i.e. to determine if the error affected the substantial rights of a party and thereby caused a manifest injustice. Id. However, when, as here, a party admits that the trial court's proposed instruction is substantially the same as the instruction he offered, "we . . . regard the error as having been invited . . . and not subject to appellate review. Id. at 347. Therefore, we need not further review this issue.
C. Error in the trial court's penalty phase trafficking in a controlled substance instruction was not harmless.
In pertinent part, KRS 218A. 1412 provides that a person is guilty of first-degree trafficking in a controlled substance if he knowingly and unlawfully traffics in cocaine. If the trafficked amount is four or more grams or if it is a second or subsequent offense, the person "shall be guilty of a Class C felony;" if the amount is less than four grams and it is the first offense, the person "shall be guilty of a Class D felony." As set forth above, the guilt-phase first-degree trafficking instruction only required the jury to find that Forte trafficked in cocaine without specifying the amount. Neither the Commonwealth nor Forte objected to this instruction on that ground.
During the penalty phase, the court, over Forte's objection, instructed the jury based on the penalty for a class C felony, and the jury sentenced Forte accordingly. The court then entered a judgment stating that Forte had been convicted of first-degree trafficking in a controlled substance, first offense, in an amount greater than four grams. Forte now argues that, because the guilt-phase instruction did not specify the amount of cocaine, he could only be found guilty of first-degree trafficking, first offense, a Class D felony, and that the subsequent judgment is erroneous. We agree.
The Commonwealth, citing Thacker v. Commonwealth, 194 S.W.3d 287, 291 (Ky. 2006), argues that "an erroneous jury instruction that omits an essential element of the offense is subject to harmless-error analysis." Applying that analysis herein, the Commonwealth notes that there was no dispute that the amount of cocaine involved was more than six grams. According to the Commonwealth, it cannot therefore be disputed that the jury would have found that Forte trafficked in more than four grams of cocaine, rendering any error harmless.
However, the Commonwealth's argument ignores the Constitutional mandate that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). This includes the amount of a drug that a defendant is alleged to have possessed if the amount elevates the penalty. See United States v. Booker, 543 U.S. 220 (2005).
Forte had prior trafficking convictions and the Commonwealth could have elevated Forte's trafficking charge and penalty from a Class D to a Class C felony by prosecuting him accordingly. However, the Commonwealth made a conscious election to treat Forte as a first-time offender. Thus, the only way the Commonwealth could have obtained a Class C felony conviction and penalty was by obtaining a jury verdict that Forte had more than four grams of cocaine. This the Commonwealth failed to do, a failure of Constitutional magnitude and one that requires reversal.
Although it is not clear from the record, it appears that the Commonwealth made this choice in order to preserve its ability to pursue PFO charges against Forte. See KRS 532.080(10).
We note that, although we are reversing this conviction, Forte's sentence will not change. The jury found Forte guilty of first-degree robbery with a 10 year sentence enhanced to 20 years for being a PFO; first-degree burglary with a 10 year sentence enhanced to 20 years for being a PFO; and tampering with physical evidence with a 10 year sentence. The jury recommended that these sentences run concurrently for a total of 20 years, a sentence the court imposed. Therefore, while Forte may have won this battle, his victory is a hollow one.
D. The trial court did not err when it denied Forte's directed verdict motion on the tampering with physical evidence charge.
At the close of proof, Forte and James made a joint motion for directed verdict, arguing generally that the witnesses could not be believed. Forte did not specifically address any of the separate charges. He now argues that the Commonwealth had not met its burden of proving that he tampered with physical evidence and that his general motion for a directed verdict preserved the issue. The Commonwealth argues that: the issue is not properly preserved; Forte is only entitled to palpable error review; and the trial court correctly denied Forte's motion. We agree with the Commonwealth.
"A motion for a directed verdict shall state the specific grounds therefor, and failure to state a specific ground 'will foreclose appellate review,' except to the extent that palpable error is shown." McCleery v. Commonwealth, 410 S.W.3d 597, 601-02 (Ky. 2013)(internal citations omitted). To the extent that Forte's general motion for a directed verdict included the tampering with physical evidence charge, he did not state any specific grounds to support such motion. Therefore, we conduct palpable error review only.
We reverse under the palpable error standard only when a "manifest injustice has resulted from the error." RCr 10.26. "[T]he required showing is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
On a 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 purposes 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. 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 at 187 (Ky. 1991).
A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he:KRS 524.100.
(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[.]
The tampering charge arose from Forte's handling of the bag containing the marijuana and cocaine. Forte argues that the only way the jury could have found him guilty of tampering is if it found he concealed that bag. According to Forte, there was no evidence sufficient to support that finding. The Commonwealth argues that Forte tampered with the evidence when he left it with Thompson. Again, we agree with the Commonwealth.
As noted by Forte, simply leaving the scene of a crime with evidence is not sufficient to prove tampering, there must be "some additional act demonstrating an intent to conceal." Mullins v. Commonwealth, 350 S.W.3d 434, 442 (Ky. 2011). However, Forte did not simply leave the scene with the bag of drugs. Following the robbery, Forte, James, and Taylor went to Forte's sister's house and divided up the proceeds. At some point after that Forte drove to Thompson's house, gave Thompson the bag, and asked Thompson to hold it for him while he went to the store. From that evidence a reasonable juror could have easily inferred that Forte did not want to have the drugs with him if he was stopped by the police, and that he was trying to conceal the drugs from the police. Therefore, we discern no error in the trial court's denial of Forte's motion for a directed verdict.
E. The jury's finding that Forte is a first-degree PFO is supported by sufficient evidence.
KRS 532.080 provides, in pertinent part, that a person convicted of being a persistent felony offender must have been over the age of 18 when he committed two or more prior felonies. As with any count of an indictment, the Commonwealth has the burden of proving every element beyond a reasonable doubt. Cantrell v. Commonwealth, 288 S.W.3d 291, 295 (Ky. 2009).
During the penalty phase of the trial, the deputy circuit clerk, Pam Futtrell, referred to three judgments and testified that Forte was arrested and convicted in 1987 of two drug-related felonies - the first felony; he was arrested in 1989 and convicted in 1990 of first-degree trafficking subsequent offense - a second felony; and he was arrested and convicted in 2006 of possession of a controlled substance - a third felony. Futtrell also testified that Forte was born on September 22, 1961. Following Futtrell's testimony, the Commonwealth entered into evidence the judgments Futtrell referred to during her testimony. Those judgments are not in the record. Probation and parole officer Debbie Finley, who testified after Futtrell, said, "Yes," when the Commonwealth asked if it was her "understanding that in each of those three prior convictions . . . [Forte] was over the age of 18[.]" Based on the preceding, the jury found Forte guilty of being a first-degree persistent felony offender.
We note that Futtrell testified that the first number in each of the case numbers for the three judgments represents the date of arrest. Forte argues in his brief that the first number represents the date of indictment, not the date of arrest. However, Forte did not object or otherwise attempt to clarify this at trial. --------
Forte, who admits he failed to preserve this issue, now argues that the Commonwealth failed to prove that he was over the age of 18 when he committed the three prior felonies. The Commonwealth argues that it put forth sufficient evidence from which the jury could infer that Forte was older than 18 when he committed those felonies. Because this issue is unpreserved, we review it for palpable error. RCr 10.26.
A reasonable inference is one in accordance with reason or sound thinking and within the bounds of common sense without regard to extremes or excess. It is a process of reasoning by which a proposition is deduced as a logical consequence from other facts already proven. Guesswork, on the other hand, is the process of making a judgment without adequate information, or to conjecture, or to speculate.Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky. 1999).
In Cantrell, the jury had evidence that:
(1) Cantrell was born in 1976; (2) his prior offense was for possession of a controlled substance; (3) the indictment was returned in 2003 (when Cantrell was 26 or 27 years old); and (4) at the time Cantrell received a one-year sentence after pleading guilty in 2004 (when he was 27 or 28 years old)[.]288 S.W.3d at 295. The Court determined that this evidence was "sufficient to support the jury's inference that Cantrell was more [than] . . . eighteen (18) years old when he committed the first offense. . . ."
Here, as in Cantrell, the jury had evidence that Forte was: 25 or 26 when he was arrested and convicted of his first felony; 27 or 28 when he was arrested and convicted of his second felony; and 44 or 45 when he was arrested and convicted of his third felony. Thus, this jury, as the jury did in Cantrell, had sufficient evidence from which to infer beyond a reasonable doubt that Forte was older than 18 when he committed each of his three prior felonies.
We note, as we did in Moore v. Commonwealth, 462 S.W.3d 378, 387 (Ky. 2015) "that any doubts, confusion, or uncertainty of the jury, and similar concerns about the efficacy of its verdict would have been avoided" if the Commonwealth had asked but one simple question of either Futtrell or Finley: "How old was Forte when he committed each of the prior felony offenses?" Because a PFO conviction has a significant impact on the amount of time a defendant must serve, it would behoove the Commonwealth to carefully "dot all of its i's and cross all of its t's" when presenting its proof.
IV. CONCLUSION.
Based on the preceding, Forte's convictions for First-Degree Robbery, First-Degree Burglary, and Tampering with Physical Evidence are affirmed. However, we reverse his conviction for First-Degree Trafficking in a Controlled Substance of More than Four Grams and this matter is remanded to the circuit court for entry of a judgment consistent with this opinion.
All sitting. All concur. COUNSEL FOR APPELLANT: V. Gene Lewter
Brandon Neil Jewell
Department of Public Advocacy COUNSEL FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Micah Brandon Roberts
Assistant Attorney General