Opinion
NO. 2012-CA-001348-MR
05-16-2014
MARK THOMAS PULLEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Shannon Dupree Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE ANTHONY W. FROHLICH, JUDGE
ACTION NO. 12-CR-00064
OPINION
AFFIRMING
BEFORE: LAMBERT, TAYLOR, AND VANMETER, JUDGES. VANMETER, JUDGE: Mark Thomas Pullen appeals from the final judgment of the Boone Circuit Court imposing the jury's recommended sentence of 10 years in prison for Pullen's convictions of theft of identity and persistent felony offender in the first degree ("PFO1"). For the following reasons, we affirm.
On January 5, 2012, the Boone County Sheriff's Office received information that Pullen, for whom officers had an active arrest warrant, might be found at 6448 Rosetta Drive. Officers eventually located Pullen in a barn at that address.
Lieutenant Dean Pattison asked Pullen his name when he was brought out of the barn, and Pullen said his name was "Ronnie Lainhart." Lieutenant Pattison handed Pullen off to Sergeant Dan Stephens. Sergeant Stephens asked Pullen his name, social security number, date of birth, and address. Pullen told Sergeant Stephens that his name was "Ronald Edward Lainhart" and his social security number was XXX-XX-4266. He then corrected himself, claiming his social security number was XXX-XX-4278. Pullen further stated that his birth date was April 2, 1961 and his address was 6438 Rosetta Drive.
Pullen gave an entire social security number, but for ease of reference and identity protection, only the last four digits are referenced herein.
Deputy Doug Studer heard Pullen give this information to Sergeant Stephens, and ran the information on Ronald or Ronnie Lainhart. Deputy Studer testified that he did not remember whether he ran it as Ronald or Ronnie. Still, a valid driver's license eventually came back, belonging to a Ronnie Lainhart living on Todd Drive. Deputy Studer testified this would not have happened but for the correct social security number provided by Pullen. Officers contacted dispatch and requested a photograph of Mark Pullen. Deputy Studer approached Pullen and asked if he was the man in the photograph. Pullen initially answered no, but ultimately admitted that he was the man in the photo.
At trial, the victim, Ronnie Lainhart, testified that his legal name is "Ronnie Dale Lainhart," his date of birth is April 25, 1961, his address is 6491 Todd Drive, and his social security number is XXX-XX-4278. Lainhart testified that he and Pullen had known each other for 30 years, and Pullen knew that he lived on Todd Drive. He had not given Pullen his social security number or permission to use it.
Pullen testified that he gave officers false information to avoid being arrested. He denied using Lainhart's name and information as his own, and claimed he gave officers the fictional name "Ronald Edward Lainhart" because he could spell it. Pullen stated that he gave the 6438 Rosetta Drive address because it belonged to Ronnie's brother, and the April 2, 1961 birth date was based on his own birth date, March 21, 1960. Pullen explained that he came up with the XXX-XX-4266 social security number by altering a number he saw frequently on a cable box. Pullen was convicted by a Boone County jury of theft of identity and PFO1. Pullen's one-year sentence for identity theft was enhanced to 10 years due to his PFO status. This appeal follows.
On appeal, Pullen makes three claims of error. First, he claims that the trial court erred by denying him a directed verdict because the information he gave officers was fictional, not the information of a real person as required by KRS 514.160. Next, Pullen contends that the trial court gave the jury an instruction not supported by the evidence. Lastly, Pullen argues that the trial court should have declared a mistrial as a result of improper questioning by the Commonwealth.
Kentucky Revised Statutes.
First, Pullen claims he was entitled to a directed verdict of acquittal on the charge of theft of identity. "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.
Pullen argues that the information he gave the officers was fictional, not the identifying information of Ronnie Lainhart, and therefore, the court erred by failing to direct a verdict in his favor. The charge of theft of identity is described as follows:
(1) A person is guilty of the theft of the identity of another when he or she knowingly possesses or uses any current or former identifying information of the other person or family member or ancestor of the other person, such as that person's or family member's or ancestor's name, address, telephone number, electronic mail address, Social Security number, driver's license number, birth date, personal identification number or code, and any other information which could be used to identify the person, including unique biometric data, with the intent to represent that he or she is the other person for the purpose of:KRS 514.160. While Pullen did offer the officers the name "Ronald Edward Lainhart," which is not Ronnie Lainhart's legal name, the officers testified that he also offered the name "Ronnie Lainhart" at another point. Further, the social security number XXX-XX-4278, although one of two social security numbers Pullen gave the officers, was in fact Ronnie Lainhart's social security number. Either the social security number or the name alone would have been sufficient under the statute, and the evidence shows that Pullen provided both. In light of this evidence, the jury's guilty verdict was not clearly unreasonable and thus Pullen was not entitled to a directed verdict of acquittal on this charge.
. . . .
(d) Avoiding detection[.]
Pullen next argues that the court abused its discretion simply by refusing to put the name "Ronnie Dale Lainhart" in the instructions rather than just "Ronnie Lainhart." We disagree. This court reviews a trial court's rulings on jury instructions under an abuse of discretion standard. Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006). The theft of identity statute, KRS 514.160, only requires a name, not a first, middle, and last name. We believe the inclusion of "Ronnie Lainhart," the victim's first and last name, was sufficient to instruct the jury on the requirements of the statute. We find no abuse of discretion in the trial court's jury instructions.
Pullen also contends that the instructions and the KRS 514.160 statute should be found void for vagueness. However, Pullen did not raise this issue in the trial court and therefore we decline to address it on appeal. See Reg'l Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (holding if the trial court did not have opportunity to decide an issue, then no potential error exists for an appellate court to review).
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Lastly, Pullen maintains that the court should have granted a mistrial on grounds that the Commonwealth improperly asked him to characterize the officer's testimony as untruthful. In Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997), the Supreme Court held "[a] witness should not be required to characterize the testimony of another witness, particularly a well-respected police officer, as lying. Such a characterization places the witness in such an unflattering light as to potentially undermine his entire testimony." At trial, the Commonwealth asked Pullen if the officer was lying when he testified that Pullen gave him the XXX-XX-4278 social security number after Pullen denied ever giving officers the XXX-XX-4278 social security number. Pullen objected and moved for a mistrial.
The trial court denied Pullen's motion for a mistrial and instead admonished the jury to disregard the Commonwealth's question. The Supreme Court has described the mistrial remedy as follows:
It is well established that the decision to grant a mistrial is within the trial court's discretion, and such a ruling will not be disturbed absent a showing of an abuse of that discretion. Moreover, a mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings and there is a manifest necessity for such an action. The occurrence complained of must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way.Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) (internal citations and quotations omitted). Here, we find no "manifest necessity" for a mistrial. Pullen's trial was not rendered unfair by the Commonwealth's question, especially since the trial court admonished the jury to disregard the question. We do not agree with Pullen's contention that the admonition was insufficient because the question was asked before lunch and the admonition was not given until after lunch. We find no abuse of the trial court's discretion in refusing to grant a mistrial.
For the reasons stated above, the judgment of the Boone Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Shannon Dupree
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky