Opinion
NO. 2015-CA-001172-DG
01-20-2017
JAMES W. STEADMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: James W. Steadman, pro se Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark Shouse Special Assistant Attorney General Elizabethtown, Kentucky
NOT TO BE PUBLISHED ON DISCRETIONARY REVIEW FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 15-XX-00003 OPINION
AFFIRMING
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BEFORE: JONES, D. LAMBERT, AND MAZE, JUDGES. D. LAMBERT, JUDGE: James W. Steadman, acting pro se, moved for this Court to exercise discretionary review of the conviction imposed on him by the Hardin District Court. He stands convicted of unauthorized practice of law, following a jury verdict. He attempts to challenge the constitutionality of KRS 524.130, the statute under which he was convicted, as well as challenge the sufficiency of the evidence to both survive a directed verdict motion and to support his conviction. Steadman also alleges that the Commonwealth made improper remarks during closing arguments. Having reviewed the record and finding no error, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Christy Taulbee and her husband, Tim, owned a restaurant in West Point, Kentucky, known as the Riverside Restaurant and Grill, LLC (hereinafter "Riverside"). David Rose worked as its manager. In November of 2014, Rose approached Steadman about a possible sale of the ownership interests in Riverside of the Taulbees to Steadman. Steadman, Rose, and Taulbee met on Saturday, November 15, 2014, to discuss the possible transaction.
During Steadman's trial, the jury heard testimony from Taulbee that Steadman represented himself to have been a partner and owner of a successful law firm, but was "semi-retired" and no longer practiced. Rose echoed this testimony, adding that Steadman purported to have an ownership interest in law firms in both Lexington and Louisville. Steadman denies the veracity of such testimony, and points vehemently to two instances in Taulbee's testimony that she stated he denied being a practicing attorney. Taulbee also testified that he advised her to file a Chapter 11 bankruptcy petition. She testified that Steadman told them that after the bankruptcy settled, he could purchase the restaurant's equipment for "pennies on the dollar." Taulbee further testified that Steadman offered to represent the business in those proceedings. Steadman's testimony differed, and he testified that he "agreed" with Taulbee that she should file a bankruptcy petition when she broached the subject. Rose testified that after Steadman reviewed the lease of the restaurant premises, Steadman offered the opinion that the document was not a valid commercial lease, but a residential lease. Taulbee testified similarly, adding that Steadman offered to help the business get out of the leases, and further to help Taulbee "clean up" her LLC documents. Steadman testified that he held the opinion that the "LLC was not legitimate."
Steadman strenuously denies ever holding himself out as a practicing attorney, yet he curiously uses the email address "JWSLAW4@gmail.com" in his contact information in his brief to this very Court as well as to the circuit court.
Though no written record or agreement came out of this meeting, Rose and Taulbee left the meeting with the understanding that Steadman had orally agreed to pay Riverside's upcoming payroll, which was set for disbursal on Monday, November 17, 2014. It is undisputed that Steadman failed to do so. Steadman testified that he failed to make the payment because he never agreed to make it, and also because he suffered a medical episode which left him hospitalized from November 16th until November 19th. Steadman also left the meeting in possession of Riverside's bank books and employee records, because, according to Taulbee's testimony, Steadman "wasn't comfortable until he knew what the complete debts were."
On November 17th, amidst growing concerns about the man with whom they were attempting to conduct business, Rose and Taulbee researched Steadman on the internet. Rose testified that his research left him with the belief that Steadman has a history as a confidence man. Bearing that in mind, Taulbee immediately went to the authorities and initiated criminal proceedings against Steadman. Those proceedings led to his conviction for unauthorized practice of law.
At trial, Steadman asserted that Taulbee and Rose, as the proprietors of a failing business, were the ones attempting to take advantage of him by tricking him into covering Riverside's payroll liabilities. He moved for directed verdict at the close of the Commonwealth's case, and again at the close of his own case-in-chief. The district court denied both motions.
The jury found Steadman guilty of unauthorized practice of law, and recommended a sentence of four days in jail and a $200 fine. The district court entered judgment, and Steadman appealed the conviction to the Hardin Circuit Court, which affirmed. His motion for discretionary review followed.
II. ANALYSIS
A. STEADMAN'S CONSTITUTIONAL CHALLENGE TO KRS
524.130 WAS NOT PRESERVED FOR REVIEW
Steadman argues in his brief that KRS 524.130 is unconstitutionally overbroad in that it is "so encompassing [as] to entrap a person discussing the purchase of property for himself, [and] clearly beyond reasonable purpose." Yet, Steadman cannot point to any motion or argument made before the trial court that asserted a constitutional challenge to the statute. Steadman notes that he "had raised the issue with his counsel," but could point to no instance in the record where he raised a constitutional argument. The circuit court even noted that Steadman conceded the lack of preservation of the issue at the oral argument below.
"[W]hen an issue is unpreserved at the trial [level], this Court will not review it unless a request for palpable error review under RCr 10.26 is made and briefed by the appellant." Webster v. Commonwealth, 438 S.W.3d 321, 325 (Ky. 2014) (citing Shepherd v. Commonwealth, 251 S.W.3d 891 (Ky. 2012)). Steadman made no such request, nor did he include any RCr 10.26 analysis in his brief. We, therefore, need not address this issue. As Steadman failed to preserve it, the issue is not properly before this Court
Rule of Criminal Procedure. --------
B. THE EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT
TO SURVIVE THE DIRECTED VERDICT MOTIONS
The Kentucky Supreme Court succinctly stated the standard for granting a directed verdict in a criminal action: whether, taking into account the evidence as a whole, it would be clearly unreasonable for a jury to find guilt. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
Steadman's entire challenge to the sufficiency of this evidence is based on his fundamental misunderstanding of the nature of the crime of which he was accused. Steadman contends that KRS 524.130 only prohibits one from affirmatively holding himself out as an attorney. However, KRS 524.130 declares: "a person is guilty of unlawful practice of law when, without a license issued by the Supreme Court, he engages in the practice of law, as defined by rule of the Supreme Court." KRS 524.130(1). The Supreme Court defined practice of law as "any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court . . . ." Supreme Court Rule ("SCR") 3.020. While the rule also contains an exception allowing individuals to draft documents in which they have an interest pro se, that exception does not apply here, where—by Steadman's own admission—no documents were ever drafted. It is the behavior, the act of providing services restricted to licensed attorneys, which comprises the offense, not simply the misrepresentation that one is an attorney.
Steadman unquestionably lacks a license to practice law in Kentucky, a fact he both stipulated and testified to on record during trial. He strongly denies holding himself out as an attorney, and emphasizes the instances in Taulbee's testimony wherein she stated that he denied being a practicing attorney. On the other hand, even assuming arguendo the truth of Steadman's assertion that he never held himself out as a practicing attorney, the jury also heard testimony that Steadman advised Taulbee to file a Chapter 11 bankruptcy petition. Whether Steadman merely agreed with Taulbee when the subject of bankruptcy arose or brought the subject up himself is immaterial, the act of advising another to enter into bankruptcy proceedings is consistent with the Supreme Court's definition of practicing law. Taulbee also testified that Steadman offered to perform further legal services in representing Riverside in bankruptcy proceedings. Both Rose and Taulbee testified that he offered legal opinions about the validity of the business' contracts, and further offered to perform legal services related to them. Other testimony indicated that Steadman did represent himself as possessing a license to practice law, even if not actively practicing.
This evidence, taken as a whole, presents a factual issue requiring a jury to resolve. The district court's denial of Steadman's motions for directed verdict was appropriate, and the circuit court properly affirmed the trial court's rulings.
C. THE EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT
TO SUPPORT THE CONVICTION
The analysis as to the sufficiency of the evidence to survive a directed verdict motion applies equally to Steadman's argument regarding the sufficiency of the evidence to support the conviction. Steadman's challenge to the sufficiency of the evidence essentially boils down to an argument as to the weight assigned to the evidence by the jury.
It is axiomatic in the law that the role of the jury is to determine the credibility and weight of the evidence presented during trial.
The determination of the weight of conflicting evidence and of the credibility of witnesses rests exclusively within the province of the jury. It may believe any of the witnesses in whole or in part, and may accept the testimony of one set of witnesses to the exclusion of that of another or the testimony of one witness as against the testimony of a number of witnesses.Cross v. Clark, 308 Ky. 18, 213 S.W.2d 443, 446 (1948).
A verdict reached by a properly instructed jury cannot be disrupted by this or any other court unless flagrantly against the weight of the evidence. "A verdict of the jury will not be set aside upon complaint that it is not sustained by the evidence, unless it is clearly and palpably against the weight of the evidence." Charles Taylor Sons Co. v. Hunt, 163 Ky. 120, 173 S.W. 333, 335 (1915). While Steadman challenged the jury instructions before the circuit court, no such challenge is presented in his appeal to this court.
The verdict here, clearly the result of the jury believing the Commonwealth's evidence over Steadman's, was consistent with the evidence, not palpably against its weight. The trial court properly entered judgment and the circuit court properly affirmed.
D. THE COMMONWEALTH'S COMMENTS DURING CLOSING
ARGUMENTS DO NOT REQUIRE REVERSAL
Steadman refrains from use of the phrase "prosecutorial misconduct" in his brief to this Court, but the circuit court treated the allegations as presented before it as though he had. Steadman takes issue with the Commonwealth's use of the word "scam" in reference to Steadman's behavior, arguing that the word was not consistent with the evidence. This argument is factually inaccurate. Taulbee testified that she was concerned after her internet research that she was being "conned." While the trial court sustained a hearsay objection excluding evidence of the actual results of the research, such ruling did not exclude evidence of Taulbee's state of mind. Rose also testified, without objection by Steadman, that he had discovered that Steadman "had conned other people."
As the circuit court opined: ". . . the prosecutor certainly could argue that the evidence actually presented was consistent with a 'scam,' which could be offered by the prosecution as a motivation for the conduct of Steadman in offering legal advice." We agree.
III. CONCLUSION
After careful examination of the record and consideration of the arguments presented by the parties, we find no error in the trial proceedings or in the circuit court's review thereof. Therefore, for the reasons described herein, we affirm the ruling of the circuit court.
ALL CONCUR. BRIEF FOR APPELLANT: James W. Steadman, pro se
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Mark Shouse
Special Assistant Attorney General
Elizabethtown, Kentucky