Opinion
NO. 2011-CA-000596-MR
08-03-2012
JEROME NOONAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Shanon Dupree Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE TIMOTHY A LANGFORD, JUDGE
ACTION NO. 10-CR-00090
OPINION
AFFIRMING
BEFORE: COMBS AND THOMPSON, JUDGES; LAMBERT, SENIOR JUDGE. LAMBERT, JUDGE: Jerome Noonan appeals from his conviction for fourth-degree assault. On appeal, he alleges that the trial court erred in admitting "other bad acts" evidence under Kentucky Rule(s) of Evidence 404(b) and by ordering him to pay court costs and a fine. Upon a review of the record, we affirm the Fulton Circuit Court.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
History
On the morning of August 30, 2010, Noonan arrived at the home of his on-again, off-again girlfriend, D.T. Noonan brought whisky and a six-pack of beer with him to the house. Shortly thereafter, D.T. and Noonan had consensual sex.
As the morning progressed, the couple consumed the beer and whiskey. D.T. acknowledged in her testimony that she had a drinking problem and that she had recently been to rehab; however, she stated that she was not impaired that day. Later that afternoon, Noonan became violent and began calling D.T. offensive names. D.T. asked Noonan to leave at that point, and he refused. When Noonan refused to leave, D.T. decided to leave instead.
When D.T. attempted to leave the residence, Noonan grabbed her, dragged her up the exterior steps, and threw her inside the house. D.T. weighed only 98 pounds. Noonan pushed her into a corner and began knocking items off a table. D.T. asked Noonan to stop and told him that he was hurting her. She then grabbed a bottle of rubbing alcohol and threw it at him in self defense. Noonan was not harmed. He then forced D.T. into a bedroom and onto the bed. Noonan continued to call D.T. offensive names as he held her down on the bed and proceeded to have intercourse with her.
Thereafter, D.T.'s brother arrived as D.T. and Noonan were exiting the front of the house. When he saw D.T and Noonan outside the residence, he knew something was wrong. D.T. asked to use his telephone, but her brother did not have any minutes left on his plan. When her brother entered the home, he saw that the house was disheveled and showed signs of a struggle.
D.T. later reached a telephone and called the Fulton Police Department. A police officer arrived to take D.T. to the hospital. A rape examination was performed by Emma Elias, a hospital emergency nurse. Elias observed that D.T. had bruises "pretty much all over her" and a large abrasion on her back. Elias did not remove body fluids for DNA testing because D.T. reported that she and Noonan had had consensual sex that morning.
Noonan was indicted by a Fulton County Grand Jury on first-degree rape, first-degree sodomy, assault in the fourth degree, and being a persistent felony offender. The Commonwealth moved to dismiss the sodomy charge and the trial court granted the motion. Noonan was tried before a jury and convicted of fourth-degree assault. He received a sentence of 365 days in jail and a fine of $500.00.
Noonan now appeals to this Court.
Analysis
Noonan claims that inadmissible "other bad acts" evidence was erroneously admitted at trial and that the court erred by assessing him fines and costs.
We first consider whether the trial court erred in admitting "other bad acts" evidence. Before trial, the Commonwealth noted its intention to introduce KRE 404(b) evidence. Specifically, the Commonwealth wanted D.T. to testify to two prior occasions where Noonan had raped her. Noonan filed a written objection to the admission of this evidence. The trial court ruled that the prior rapes were admissible. At trial, D.T. ultimately testified regarding two prior occasions where Noonan had forced himself upon her against her will. On appeal, Noonan argues that it was error for the trial court to admit this testimony.
The general rule is that all evidence having the tendency to make any fact of consequence more or less probable is admissible. KRE 401. However, under KRE 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person" or in order to show that the person acted in conformity with that bad character. Nonetheless, evidence of prior crimes or wrongs is admissible when "offered for some other purpose, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]" Id.
We review a trial court's decision to admit evidence of other crimes or "bad acts" under KRE 404(b), for abuse of discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007). In determining whether to admit 404(b) evidence, a trial court must evaluate the proposed evidence in terms of: (1) whether the evidence is relevant for some purpose other than showing conformity, (2) its probative value, and (3) its prejudicial effect. Bell v Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994).
Despite the Commonwealth's argument to the contrary, we find that the defendant preserved the issue for appellate review by her objection during the motions in limine on the morning of trial. Indeed, a "motion in limine resolved by order of record is sufficient to preserve error for appellate review." KRE 103(d); Metcalf v. Commonwealth, 158 S.W.3d 740, 743 (Ky. 2005).
In the present case, it is not clear that the evidence came in for any reason other than to show conformity. Indeed, the Commonwealth did not even assert any arguments for why the evidence might show motive, opportunity, or something other than conformity. It is clearly error to admit evidence for the purpose of showing conformity with a "bad" or "criminal" character. So while the evidence may have been relevant and probative, it was only so in an impermissible way. As to its prejudicial effect, prior rapes would tend to be prejudicial to a criminal defendant in a case involving rape. Thus, there is no question that the evidence should not have come in.
However, when a trial court errs in the admission of evidence, an appellate court must determine whether that error constitutes harmless or reversible error. To constitute reversible error, the substantial rights of a party must be affected. KRE 103; RCr 9.24. Had Noonan been convicted of rape, there would be no question that his substantial rights had been affected.
In the present case, however, Noonan was not convicted of rape. Instead, the jury convicted Noonan only of fourth-degree assault. There was ample evidence of assault at trial as the ER nurse stated that D.T. had bruises "all over" her body, and the jury was provided access to pictures demonstrating the same. Clearly, D.T. had been assaulted.
As is apparent from the verdict, the jury believed Noonan assaulted D.T., but did not believe he raped her. Thus, we find that Noonan was not prejudiced by D.T.'s testimony concerning the prior rapes.
In addition, we note that Noonan's own counsel asked the jury not to convict him of rape, but seemed to acknowledge, nonetheless, that he had assaulted D.T. Defense counsel stated in her closing arguments, "They had been in a fight. . . she did have bruises and scrapes on her." Counsel further stated that D.T. had those bruises "because [Noonan] was so much bigger than her."
Accordingly, the error was harmless. RCr 9.24.
We now address the second issue raised by Noonan, specifically, whether the trial court erred in ordering him to pay court costs and a $500 fine, despite his alleged indigency.
Initially, on September 14, 2010, the trial court found that Noonan was not indigent. On his financial statement, Noonan indicated that he had a total monthly income of $1500 and total monthly expenses of $400. One month later, on October 14, 2010, although there was no updated financial statement, the court appointed a public defender for Noonan. On February 26, 2011, after the jury trial, the judge ordered that Noonan pay court costs and a $500 fine because he had "assets in his commissary account and or other assets that would render him not to be indigent." The judgment ordered the payment to be deferred, but required it to be paid in full within 7 months of the final judgment. Less than one month later, Noonan filed for in forma pauperis status for the purposes of appeal. On March 11, 2011, despite the fact that no new or additional facts accompanied the motion, the court granted him in forma pauperis status.
At the outset, we find it necessary to reiterate the distinction recently made by the Supreme Court of Kentucky in Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012). In Maynes, the Court noted that,
Kentucky Revised Statute (KRS) 23A.205 provides that persons convicted of a crime in Circuit Court shall pay court costs of $100.00. The statute allows court costs to be waived for "poor persons," as that term is defined in KRS 453.190(2), the in forma pauperis statute. KRS 31.110 provides that "needy persons" facing serious criminal charges are entitled to representation by an attorney at public expense.Maynes, 361 S.W.3d at 923-929.
...
[A] person may qualify as "needy" under KRS 31.110 because he cannot afford the services of an attorney yet not be "poor" under KRS 23A.205...unless he is also unable to pay court costs without "depriving himself or his dependents of the necessities of life, including food, shelter or clothing." Finally, the KRS 23A.205 directive to consider not only the defendant's present ability to pay court costs but also his ability "in the foreseeable future" cannot be overlooked. [A] trial court's determination [that a criminal defendant] would be able to earn enough within the six months following his sentencing to afford the costs required by KRS 23A.205 is not clearly erroneous.
In the present case, the trial judge found that Noonan was not indigent at the time of sentencing due to assets available to him. However, the judge, apparently recognizing Noonan would have a greater ability to pay once released from imprisonment, deferred the payment for seven months' time. Mere weeks after sentencing, the judge granted Noonan in forma pauperis status.
As the Supreme Court made clear in Maynes, one may be "needy" under KRS 31.110 because he cannot afford the services of an attorney, yet not be "poor" under KRS 23A.205, necessitating a waiver of costs. Nonetheless, that situation is distinct from the present case, because the trial judge did not find Noonan to be "needy" rather than "poor." Instead, the trial judge found Noonan not to be "poor," and then weeks later, found him to be "poor." Specifically, the judge found that costs should not be waived under KRS 23A.205, then found that they should be waived under KRS 453.190(2). Both KRS 23A.205 and KRS 453.190(2) share the same standard.
"A 'poor person' means a person who is unable to pay the costs and fees of the proceeding in which he is involved without depriving himself or his dependents of the necessities of life, including food, shelter, or clothing." KRS § 453.190(2).
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This fact would tend to lead us to a different result than that reached in Maynes. Unless some material change occurred, it would seem that one could not both be a "poor" and "not poor," as defined by the statutes, concurrently. However, we are called upon to consider another distinction raised in Maynes: a defendant's present ability to pay versus a defendant's future ability to pay. As the Supreme Court established in Maynes, a trial court may consider a defendant's future ability to pay.
In the present case, the court deferred the payment for seven months' time. Because of time served, Noonan would already be released from jail by the time payment was due. Presumably, given his prior earning history, Noonan would be able to pay costs and a fine at that time. Thus, we conclude that the trial court acted within its broad discretion in ordering Noonan to pay the same. Like the defendant in Maynes, Noonan was soon to be released from jail, and so, "could reasonably be expected in the near future to acquire the means to pay the relatively modest court costs" and accompanying $500 fine. Id. at 930. In contrast, in order to file an appeal, Noonan would be required to presently have the ability to pay the filing fee. It appears clear that while Noonan may not have had the present ability to pay (1) court costs, (2) a fine, and (3) a filing fee to the Court of Appeals, he could reasonably be expected to have the means to pay the court costs and fine in the foreseeable future.
Accordingly, we affirm the Fulton Circuit Court.
COMBS, JUDGE, AND THOMPSON, JUDGE, CONCUR IN RESULT ONLY. BRIEF FOR APPELLANT: Shanon Dupree
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry Ryan
Assistant Attorney General
Frankfort, Kentucky