Opinion
NO. 2012-CA-000107-MR
02-22-2013
STEPHON L. TRAMBER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: J. David Niehaus Bruce P. Hackett Daniel T. Goyette Assistant Public Advocate Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 11-CR-001042 & 11-CR-003392
OPINION
AFFIRMING
BEFORE: DIXON, LAMBERT AND TAYLOR, JUDGES. DIXON, JUDGE: Appellant, Stephon Tramber, was convicted in the Jefferson Circuit Court of second-degree robbery and for being a first-degree persistent felony offender. He was sentenced to twelve years' imprisonment and appeals to this Court as a matter of right. Finding no error, we affirm.
On August 19, 2010, Jeremy Williams had left a friend's home in an area known as Old Louisville and was walking to his vehicle when a male, later identified as Appellant, asked him for some spare change. Williams unlocked his vehicle and was getting into the driver's seat when Appellant jumped into the passenger seat holding a handgun. Appellant and Williams wrestled for the car keys before Appellant hit Williams behind his left ear with the gun. Williams was able to get out of the vehicle and Appellant sped away. Williams called 911 and subsequently gave an account of the incident as well as a description of his vehicle to Louisville Metro Police.
On August 26, 2010, Detective Theodore Eiden conducted a follow-up with Williams since his vehicle had not been located. Upon learning that the vehicle was equipped with a GPS system, Detective Eiden contacted the dealership where the car was purchased and, through the dealership's GPS tracking service, was able to determine that the vehicle was located in Guardian Court off of Preston's Highway. Detective Eiden found the vehicle, confirmed the VIN number, and also found paperwork in the glove box bearing Williams' name. The vehicle was thereafter towed to the auto theft garage where it was processed by a Louisville Metro Police's latent fingerprint technician. Not only were Appellant's fingerprints found on a package of cigars located in the vehicle, but a black BB gun was discovered in the trunk. Williams subsequently positively identified Appellant as the assailant through a photo line-up.
On March 31, 2011, Appellant was indicted by a Jefferson County Grand Jury for first-degree robbery. In November 2001, Appellant was also indicted for being a first-degree persistent felony offender. During the November 2011 trial, Appellant's defense was that he had obtained Williams' vehicle on August 19th through a "crack rental," whereby Williams consented to Appellant's use of the vehicle in exchange for ten Lortabs and one Opana, drugs that had a street value of about $270.
During a conference at the close of evidence regarding instructions, Appellant tendered an instruction on the offense of unauthorized use of a motor vehicle pursuant to KRS 514.100(1). The trial court denied the instruction on the grounds that it was not consistent with the evidence presented. The jury thereafter found Appellant guilty of second-degree robbery and of being a first-degree persistent felony offender. The trial court sentenced Appellant to a total of twelve years' imprisonment and he now appeals to this Court as a matter of right.
Appellant first argues that the trial court erred in refusing to instruct the jury on unauthorized use of a motor vehicle as an alternate but uncharged offense. Relying upon the decisions in Fields v. Commonwealth, 219 S.W.3d 742 (Ky. 2007) and Elery v. Commonwealth, 368 S.W.3d 78 (Ky. 2012), Appellant contends that the trial court was required to give instructions applicable to every state of the case, including "an uncharged, but not lesser-included offense." Fields, 219 S.W.3d at 749 (Quoting Hudson v. Commonwealth, 202 S.W.3d 17, 21 (Ky. 2006)). Appellant further points out that an instruction is required when "a guilty verdict as to the alternate crime would amount to a defense to the charged crime, i.e., when being guilty of both crimes is mutually exclusive." Id. at 750 (Quoting Hudson, 202 S.W.3d at 22). Although Appellant has correctly stated the law, he is mistaken that it mandated the instruction at issue herein.
We review a trial court's decision not to give a jury instruction under the same "reasonable juror" standard we apply to the review of its decision to give such an instruction. Allen v. Commonwealth, 338 S.W.3d 252, 255, n. 1 (Ky. 2011); see also Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991). "Construing the evidence favorably to the proponent of the instruction, we ask whether the evidence would permit a reasonable juror to make the finding the instruction authorizes." Allen, 338 S.W.3d at 255, n. 1.
The unauthorized use of a motor vehicle instruction tendered by Appellant stated, in relevant part:
You will find the Defendant, Stephon Tramber, not guilty of Robbery in the First-Degree under this instruction unless you believe from the evidence beyond a reasonable doubt, all of the following:
As Appellant correctly notes, a defendant has a right to have every issue of fact raised by the evidence and material to the defense submitted to the jury on proper instructions. Hudson, 202 S.W.3d at 20. No instruction is warranted, of course, unless supported by the evidence. Appellant's testimony at trial was that on August 19th he obtained Williams' consent to use the vehicle in exchange for drugs. We are of the opinion that the above-instruction is clearly not consistent with Appellant's own testimony.A. That in Jefferson County on or about the 19th day of August, 2010, and within 12 months before the finding of the indictment herein, he knowingly exercised control over a motor vehicle which belonged to Jeremy Williams;
AND
B. That in so doing, he did not, and knew that he did not, have the consent of Jeremy Williams to do so.
As the trial court properly concluded, either the jury could find that on the day in question, Appellant stole Williams' vehicle through the use of physical force, thus making him guilty of robbery, or that he properly obtained the vehicle with Williams' consent, resulting in a finding of not guilty on the robbery charge. Thus, even viewing the evidence favorably to Appellant, we perceive no set of facts from which a jury could have reasonably found him guilty of unauthorized use of a motor vehicle. Accordingly, the trial court did not err in refusing to give the jury such instruction.
Appellant next argues that the trial court erred in authorizing the bailiff to determine when and/or if jurors could contact persons outside the jury room during the course of deliberations. Specifically, prior to sending the jury for deliberations, the trial court admonished them that they were not allowed to have their cell phones and ordered jurors to turn their phones over to the bailiff. However, the trial court did note that if a necessity arose, the bailiff could permit a juror with a problem to use his or her phone in a secured area. Although Appellant concedes that the alleged error was not preserved, he urges review under CR 10.26. Further, Appellant maintains that the error denied him a fair trial, and was thus a structural error warranting reversal of his conviction. Appellant's argument is wholly lacking in merit.
Under CR 10.26, an unpreserved error may be reviewed on appeal "only if the error is 'palpable' and 'affects the substantial rights of a party,' and even then relief is appropriate only 'upon a determination that manifest injustice has resulted from the error.'" Commonwealth v. Jones, 283 S.W.3d 665, 669 (Ky. 2009). As Appellant has not alleged that a juror, in fact, used a cell phone during deliberations, we cannot fathom how his substantial rights were affected or that manifest injustice resulted. Notwithstanding, we believe that the trial court's directive fully complied with the requirements of KRS 29A.320(1). See Winstead v. Commonwealth, 327 S.W.3d 386 (Ky. 2010). No error, palpable or otherwise, occurred.
For the reasons set forth herein, the judgment and sentence of the Jefferson Circuit Court are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: J. David Niehaus
Bruce P. Hackett
Daniel T. Goyette
Assistant Public Advocate
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky