Opinion
NO. 2016-CA-000151-MR
01-26-2018
WESLEY ROBINSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Julia K. Pearson Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FULTON CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 14-CR-00068 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND NICKELL, JUDGES. NICKELL, JUDGE: Wesley Robinson has appealed from the Fulton Circuit Court's judgment of conviction and sentence following a jury trial on charges of wanton endangerment in the first degree, fleeing and evading police in the first degree, speeding, reckless driving, and operating a motor vehicle on a suspended license. Robinson challenges sufficiency of the evidence presented against him at trial and further argues his constitutional rights were violated. He also alleges the trial court improperly imposed court costs and jail fees. Following a careful review, we discern no error and affirm.
Kentucky Revised Statutes (KRS) 508.060, a Class D felony.
KRS 520.095, a Class D felony.
KRS 189.390, a traffic violation.
KRS 189.290, a traffic violation.
KRS 186.620, a Class B misdemeanor.
On October 19, 2014, at approximately 2:50 p.m., Fulton Police Officer Kenneth Mayo observed a light-colored Ford Edge SUV traveling on State Line Road in Fulton at a high rate of speed. Officer Mayo's radar gun indicated the Edge was going 50 miles per hour, 15 miles per hour above the posted speed limit. Officer Mayo activated his emergency equipment and pursued the speeding Edge. During the pursuit, Officer Mayo observed the Edge accelerate and eventually turn onto Third Street, disappearing from his view.
Several days later, Officer Mayo spoke with Cindy Pratt who lived next door to the Robinson family on Third Street. Pratt told Officer Mayo that on October 19, 2014, at approximately 3:00 p.m., she had been outside her home when she heard a vehicle approaching that "sounded like it was going too fast." When she observed the vehicle traveling on Third Street she identified it as a light- colored SUV. Pratt watched the SUV pull into the Robinsons' driveway and then behind the Robinsons' house. Pratt testified that as the driver parked the SUV she heard sirens. Pratt identified the driver as her neighbor Wesley Robinson.
Officer Mayo also spoke with Lori Pinion, who later testified at trial. Pinion informed Officer Mayo that on October 19, 2014, at approximately 3:00 p.m., she had been traveling on State Line Road when she saw a light-colored Ford Edge SUV traveling at a high rate of speed. Pinion testified the SUV "came within inches of hitting" her and had she not "slammed on [her] brakes," the SUV would have collided with her driver's side door at a high rate of speed. Pinion further testified this near-miss left her feeling she had been in danger of death or serious physical injury. Pinion stated after she composed herself she pulled off the road and when she looked up to see the Edge again she could barely catch a glimpse of it. Pinion testified she believed it likely the Edge would hit someone else.
Robinson was indicted and proceeded to trial on the aforementioned charges. At the close of the Commonwealth's case, Robinson moved for a directed verdict. The trial court denied his motion.
After deliberation, the jury returned guilty verdicts on all five counts. Consistent with the verdict, the trial court sentenced Robinson to two-and-a-half years on both felony counts, to be served consecutively, and imposed fines for the traffic violations. This appeal followed.
Before this Court, Robinson challenges sufficiency of the evidence on several of the essential elements of the offense of wanton endangerment in the first degree.
A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.KRS 508.060(1). However, a full understanding of the nature of this offense also requires definition of the terms "wantonly" and "serious physical injury." Wanton behavior, under KRS 501.020(3), is behavior evincing both an awareness and conscious disregard of a "substantial and unjustifiable risk that the result will occur[,]" and "[t]he risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe[.]" Serious physical injury, under KRS 500.080(15), is a "physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ."
Robinson argues the Commonwealth failed to prove he committed the offense of wanton endangerment in the first degree by failing to offer proof beyond a reasonable doubt that: (1) his actions reflected a wanton mens rea; (2) his actions reflected an extreme indifference to the value of human life; and, (3) he was the driver of the Edge Officer Mayo observed driving recklessly and which nearly collided with Pinion.
Robinson moved for a directed verdict of acquittal during trial. "The standard for appellate review of a denial of a motion for a directed verdict based on insufficient evidence is if, under the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, he is entitled to a directed verdict of acquittal." Wilburn v. Commonwealth, 312 S.W.3d 321, 323 (Ky. 2010) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). The trial court should only grant a defense motion for directed verdict if the Commonwealth's proof amounts to "no more than a mere scintilla of evidence[.]" Acosta v. Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013). The trial court is to examine the proof, assume the truth of the Commonwealth's evidence, draw all fair and reasonable inferences in favor of the Commonwealth, and refrain from intruding upon the jury's role in evaluating weight and credibility. Id. Contradicted proof is sufficient to support a conviction if the fact-finder assigns it sufficient weight. Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky. 2002).
Arguing the Commonwealth failed to produce adequate evidence, Robinson mischaracterizes Pinion's testimony about the Edge nearly colliding with her driver side door at a high rate of speed as a "hypothetical scenario of 'what might have happened'" under McCleery v. Commonwealth, 410 S.W.3d 597 (Ky. 2013), rather than an eyewitness account of what did happen. Id. at 602 (quoting Bell v. Commonwealth, 122 S.W.3d 490 (Ky. 2003)).
Robinson also attempts to distinguish his actions from those of other drivers in reported cases. In Crain v. Commonwealth, 257 S.W.3d 924 (Ky. 2008), the Supreme Court of Kentucky held a defendant's action of driving erratically, swerving to avoid a police checkpoint, and colliding with three other vehicles while under the influence of alcohol created a substantial risk. Id. at 927. Likewise, our Supreme Court held the defendant in Lawson v. Commonwealth, 85 S.W.3d 571 (Ky. 2002), created a substantial risk by ignoring traffic signals and driving through intersections at speeds exceeding 120 miles per hour. Id. at 576. In McCleery, the Supreme Court noted the defendant's behavior did not rise to the same level of risk created in Crain and Lawson. Nonetheless, the Court held evidence of the defendant's driving five miles per hour above the posted speed limit while running three stop signs in heavy traffic on a rainy day justified submission of the case to a jury. McCleery, 410 S.W.3d at 602.
While Robinson's driving may not seem as risky as that exhibited in Crain and Lawson, it created a similar or higher level of risk compared to McCleery, which "created a jury question sufficient to avoid a directed verdict." Id. Taking all the evidence into account, the jury would be justified in finding Robinson's near miss with Pinion reflected the required mens rea to convict him of wanton endangerment in the first degree. Moreover, under Suttles, the jury was entitled to convict based on the weight it assigned the evidence. Consequently, the trial court did not err.
Robinson makes a nearly identical argument concerning whether the Commonwealth offered sufficient proof to find him guilty of acting with extreme indifference to the value of human life. Relying on examples from case law, Robinson argues to demonstrate manifest extreme indifference to the value of human life within the context of operating a motor vehicle, one must drive at an exceedingly excessive speed, be intoxicated, or drive in an erratic manner. Robinson contends none of those conditions were established in his case. We disagree.
Shouse v. Commonwealth, 481 S.W.3d 480 (Ky. 2015); Brown v. Commonwealth, 297 S.W.3d 557 (Ky. 2009); Ison v. Commonwealth, 271 S.W.3d 533 (Ky. App. 2008); B.B., a Child Under Eighteen v. Commonwealth, 2014 WL 1998725 (Ky. App. 2014) (unreported).
The evidence established Robinson drove at an excessive speed, in a manner causing a near-collision, and then persisted to drive at reckless speeds—even accelerating—after that event. The trial court was justified in denying the directed verdict motion and the jury was justified in its verdict.
Robinson further argues the Commonwealth failed to prove beyond a reasonable doubt he was the driver who committed the offenses observed by Officer Mayo and Pinion. Robinson supports his contention by emphasizing testimony from Officer Mayo and Pinion that they never saw the driver. Robinson also bolsters his point with the testimony of Pratt, who said she never saw Robinson violate any law.
This position, however, ignores significant circumstantial evidence. All three witnesses saw a light-colored Ford Edge. Officer Mayo testified he engaged his light bar and siren during his pursuit of the Edge. Both Pinion and Pratt testified they heard sirens in conjunction with their observation of the Edge. Pinion testified she saw a police cruiser pursuing the Edge shortly after her near-collision. Pratt testified she heard a siren as she saw and identified Robinson exiting the driver's seat of the Edge at his home.
"Although circumstantial evidence 'must do more than point the finger of suspicion,' the Commonwealth need not 'rule out every hypothesis except guilt beyond a reasonable doubt.'" Ratliff v. Commonwealth, 194 S.W.3d 258, 267 (Ky. 2006) (internal citations omitted). The facts established by this testimony permit the jury to infer Robinson's vehicle was the one observed by Officer Mayo and Pinion. Thus, the trial court correctly determined the jury could render a guilty verdict.
Robinson presents arguments concerning whether the Commonwealth offered sufficient proof to support a conviction of fleeing and evading police in the first degree.
(1) A person is guilty of fleeing or evading police in the first degree:
(a) When, while operating a motor vehicle with the intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and at least one of the following conditions exists:
KRS 520.095(1)(a)4.4. By fleeing or eluding, the person is the cause, or creates a substantial risk, of serious physical injury or death to any person or property[.]
Robinson makes identical arguments regarding this charge as he made about the wanton endangerment charge. Having addressed those arguments above, and given the factually similar nature of the proof required for the two offenses, this Court shall avoid any repetitious analysis here. We simply conclude the trial court did not err in denying the motion for directed verdict and the evidence was sufficient to support the conviction.
Robinson did not assert any objection based on double jeopardy grounds at trial. However, claims of double jeopardy violations are not waived by failure to object or preserve them at trial. Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009). Appellate courts examine such allegations of error under the palpable error standard as described in RCr 10.26. Kiper v. Commonwealth, 399 S.W.3d 736 (Ky. 2012).
Kentucky Rules of Criminal Procedure.
The Supreme Court of Kentucky has previously held the same instance of conduct cannot be punished unless the two offenses pass the "same-elements test" set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Clark v. Commonwealth, 267 S.W.3d 668, 675 (Ky. 2008) (citing Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996)). As noted in Burge, "[d]ouble jeopardy does not occur when a person is charged with two crimes arising from the same course of conduct, as long as each statute 'requires proof of an additional fact that the other does not.'" Burge, at 809 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182).
Applying Blockburger, our Supreme Court specifically held convictions for both fleeing or evading police and wanton endangerment, both in the first degree, do not violate double jeopardy protections. Proof on the element of "circumstances manifesting extreme indifference to the value of human life" required to prove first-degree wanton endangerment, "is not present in first-degree fleeing or evading police," and first-degree fleeing or evading police contains several elements not found in first-degree wanton endangerment: the requirements of "operating a motor vehicle, having intent to elude or flee, and disobeying a police officer's direction to stop[.]" Brown v. Commonwealth, 297 S.W.3d 557, 563 (Ky. 2009).
The holding in Brown notwithstanding, Robinson asks us to reverse one of his convictions on double jeopardy grounds. Citing Kiper, he argues this particular case would result in a double jeopardy violation where convictions on both charges would require the jury to reach inconsistent conclusions. Kiper, 399 S.W.3d at 744. However, the comparison of the instant matter to Kiper fails factually. In Kiper, the defendant was charged with attempted murder and assault in the first degree, and our Supreme Court held those two convictions were incompatible.
[T]o convict a defendant of attempted murder, the jury must find that he specifically intended during the attack to kill the victim. On the other hand, and quite inconsistently, for the jury to convict the same defendant of first-degree assault for engaging in the same course of conduct, it must determine that his specific intent was not to kill, but merely to cause serious physical injury to the victim.Id. (internal citations omitted).
Robinson argues the trial court should have treated his first-degree wanton endangerment charge as a lesser-included offense of the first-degree fleeing or evading charge. Despite its character, this argument merely implicates the Blockburger analysis already decided in Brown. Therefore, the convictions on both the fleeing or evading and wanton endangerment charges do not violate double jeopardy protections, and, thus, do not present palpable error.
Robinson further contends the trial court erred in denying his motion for a mistrial based on the fact the jail identification bracelet he wore became visible during voir dire and that, consequently, his right to the presumption of innocence was impaired. Robinson was transported from the jail to the courthouse wearing street clothing but for a white paper bracelet with a bar code on his wrist identifying him as a jail inmate. He was not handcuffed or shackled in the jury's presence nor did he wear a jail jumpsuit. Robinson wore a long-sleeved shirt, which initially concealed his bracelet. At some point during voir dire Robinson's bracelet slipped into view.
During the discussion in chambers following voir dire, the trial judge noted Robinson's bracelet could easily be confused for a hospital bracelet. Robinson's own attorney did not notice the bracelet until the end of voir dire. The trial court ordered the bracelet to be cut off and the jail was notified to prevent an escape charge from being brought against Robinson upon his possible return to jail without the bracelet. After a brief discussion on this issue and a requested mistrial, the trial court denied Robinson's motion and trial proceeded.
The decision to deny or grant a mistrial is vested solely in the sound discretion of the trial court. We will not disturb such a ruling unless it presents clear error or an abuse of discretion. Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000).
Robinson's argument hinges on whether the bracelet is identifiable as "jail attire." Cognizant of the role clothing may play before a jury, our Supreme Court adopted RCr 8.28. "During his or her appearance in court before a jury the defendant shall not be required to wear the distinctive clothing of a prisoner." RCr 8.28(5).
"[A]n accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system." Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126 (1976). Prejudice can result when a defendant stands in the jury's presence "while dressed in identifiable prison clothing[.]" Scrivener v. Commonwealth, 539 S.W.2d 291, 292 (Ky. 1976). While Scrivener held it was reversible error for the trial court to deny a defendant's motion to continue trial so he could wear street clothing instead of prison clothing, that ruling was later held to be "entirely fact specific." Commonwealth v. Conley, 959 S.W.2d 77, 79 (Ky. 1997).
Given the standard of review and the fact-intensive review of the situation, we must defer to the findings of the trial court as it was in the best position to evaluate the facts. The record indicates the bracelet resembled a hospital bracelet, was concealed during most of voir dire, and was removed after being noticed. Considering these facts, which indicate the possibility of prejudice was minimal, we find neither clear error nor abuse of discretion in the trial court's decision to deny the motion for mistrial.
Finally, Robinson requests reversal of the trial court's imposition of court costs and jail fees contending he was previously found to be indigent. The courtroom recording equipment malfunctioned during the hearing on the Commonwealth's motion to impose costs and fees. Nonetheless, since sentencing issues, including imposition of costs and fees, are jurisdictional they may be raised for the first time on appeal. Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010).
By separate order, the trial court found the amount of funds in Robinson's commissary account plus "other assets" rendered him "not a poor person" and imposed costs and fees. "When the record is incomplete, this Court must assume the omitted record supports the trial court." Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008) (citing Commonwealth v. Thompson, 697 S.W.2d 143 (Ky. 1985)). It is entirely reasonable for this Court to assume—based on the silent record and the defendant's failure to submit a CR 75.13 supplemental narrative statement—the trial court's reference to "other assets" did not arise from a vacuum, and its imposition of court costs and jail fees was proper.
Kentucky Rules of Civil Procedure. --------
For the foregoing reasons, the judgment and sentence of the Fulton Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Julia K. Pearson
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky