Opinion
NO. 2012-CA-002033-MR NO. 2012-CA-002034-MR NO. 2012-CA-002035-MR
03-14-2014
MARTY WELCH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE MADELINE WELCH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE IAN WELCH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANTS: Stephen W. Owens Pikeville, Kentucky BRIEFS FOR APPELLEES: Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NOS. 12-CR-00017, 12-CR-00018, 12-CR-00019
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NOS. 12-CR-00026, 12-CR-00028,
12-CR-00032, AND 12-CR-00033
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NOS. 12-CR-00027, 12-CR-00029, 12-CR-00031
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON AND VANMETER, JUDGES. DIXON, JUDGE: Appellants, Madeline Welch and Marty Welch, and their son, Ian Welch, each appeal from their convictions and sentences in the Johnson Circuit Court for various offenses stemming from the seizure of several vehicles from Welch's Towing Service. For the reasons set forth herein, we affirm the trial court in all three matters.
In February 2008, the Johnson County Sheriff's department seized a 2007 Chevy Tahoe from Rocky Sloane in connection with a drug investigation. The vehicle was towed by a company owned and operated by Marty Welch that was part of a rotation of such companies routinely used by the sheriff's department. Initially, the sheriff's department intended to file forfeiture proceedings against the Tahoe and sell it at auction. However, after learning that GMAC held a lien on the Tahoe in the amount of $35,000, the sheriff's department decided to let the Tahoe go back to Sloane or to GMAC. Sometime thereafter in June 2008, Marty claimed that he released the Tahoe to an individual purporting to be associated with Ohio Recovery towing service.
In January 2009, GMAC filed a civil action against Marty and the sheriff's department in relation to the Tahoe. In August 2009, the sheriff's department was dismissed from the civil action on sovereign immunity grounds. Thereafter, on September 24, 2009, GMAC and Marty agreed to a stipulated dismissal of the civil action since Marty claimed the vehicle was not in his possession. Some two months after the dismissal of the civil action, Ohio Recovery returned the Tahoe to Marty.
Although it is not clear from the record why the Tahoe was returned, Trooper Caudill testified at trial that Ohio Recovery was being investigated as well.
In December 2009, Madeline Welch, Marty's wife, purchased part of the cowl from a 2008 GMC Yukon for $2,500. The cowl had a vehicle identification number (VIN) ending in 2432 for the Yukon. Madeline also purchased the title for the Yukon connected to said VIN. The remaining parts of the Yukon were sold to other buyers. Thereafter in January 2010, Madeline brought in a vehicle to the sheriff's department for a rebuilt-vehicle inspection. The paperwork purported that the vehicle was a 2008 GMC Yukon with a VIN ending in 2432. Following an inspection, Deputy Witten completed an application for registration and title for a GMC Yukon. The following month, the Commonwealth of Kentucky Transportation Cabinet issued a "Registration Pursuant to KRS 186.115 Rebuilt Motor Vehicle" in Madeline's name.
The cowl is the top portion of the front part of an automobile body forward of the two front doors and to which the windshield and instrument board are attached. Significantly, an automobile's VIN number is affixed to the cowl.
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Following a joint investigation, on January 5, 2012, Kentucky State Police and the sheriff's department executed a search warrant, and seized several vehicles from Marty Welch's place of business. One of the seized vehicles was the registered 2008 Yukon with a VIN ending in 2432. In fact, however, authorities determined that the Yukon was actually the 2007 Tahoe, VIN ending in 5300, that was seized during the Sloane criminal investigation. Also seized from the property were two Ford Mustangs, one having the VIN number of a vehicle that had previously been reported stolen.
In 2012, Marty was charged in three separate indictments with two counts of receiving stolen property over $10,000 (Tahoe and 2009 Mustang), alone or in complicity with Madeline and Ian; trafficking in stolen vehicles and/or stolen vehicle parts, alone or in complicity with Madeline and Ian; and four counts of obscuring the identity of a machine over $10,000 (Tahoe, Yukon, 2008 and 2009 Mustangs), alone or in complicity with Madeline and Ian.
Madeline was charged in four separate indictments with receiving stolen property over $10,000 (Tahoe), alone or in complicity with Marty and Ian; trafficking in stolen property or parts, alone or in complicity with Marty and Ian; and two counts of second-degree forgery (2008 Mustang, Yukon), alone or in complicity with Marty and Ian.
Marty and Madeline's son, Appellant Ian Welch, was charged in three separate indictments for trafficking in stolen vehicles or stolen vehicle parts (Tahoe, Yukon, both Mustangs), alone or in complicity with Marty and Madeline; four counts of obscuring the identity of a machine or other property over $10,000 (Tahoe, Yukon, both Mustangs), and one count of receiving stolen property (2009 Mustang); and one count of second-degree forgery (2008 Mustang), alone or in complicity with Marty and Madeline.
All three Appellants were tried together in October 2012. Following a three-day trial, a jury found Marty guilty on all charges and recommended a total sentence of ten years' imprisonment. The jury likewise found Madeline guilty on all charges and recommended a total sentence of seven years' imprisonment. Ian was found guilty of facilitation to trafficking in stolen vehicles and/or stolen vehicle parts, receiving stolen vehicles (2009 Mustang), obscuring the identity of a machine or other property over $10,000, relating to the two Mustangs only, and complicity to second-degree forgery (2008 Mustang). The jury recommended a total sentence of seven years' imprisonment. On November 16, 2012, the trial court entered judgment according. These appeals ensued.
As a preliminary note, the Commonwealth points out that Ian's arguments on appeal do not relate to either of the Mustangs, but rather focus only on the Chevy Tahoe and the GMC Yukon. As such, his claims necessarily only pertain to his conviction for facilitation to trafficking in stolen vehicles and/or stolen vehicle parts, a misdemeanor for which he was sentenced to six months imprisonment. Consequently, no argument herein can have any effect on his felony convictions, including the conviction for receiving stolen property (2009 Mustang) for which he was sentenced to seven years' imprisonment. Even if Ian were to prevail in this appeal, such victory would be Pyrrhic, at best.
Appellants first argue that the trial court erred in denying their motion for a directed verdict with regard to the charges relating to the Tahoe because the Commonwealth failed to prove beyond a reasonable doubt that it was stolen. Essentially, Appellants contend that the Tahoe did not have a rightful owner and that they, in fact, had a legal interest in the vehicle because of the towing and storage expenses that had been incurred. At most, Appellants argue, they may be guilty of improper paperwork in securing the new registration and title for the Yukon.
The standard of review for the denial of a motion for a directed verdict was set forth in Commonwealth v. Sawhill, 660 S.W.2d 3, 4 (Ky. 1983):
With the evidence viewed in the light most favorable to the Commonwealth, if the totality of the evidence is such that the trial judge can conclude that reasonable minds might fairly find guilt beyond a reasonable doubt, then the evidence is sufficient and the case should be submitted to the jury. If the evidence cannot meet this test it is insufficient and a directed verdict of acquittal should be granted. (Citation omitted)"[O]n appellate review, the test for a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for the jury to find guilt, only then is the defendant entitled to a directed verdict of acquittal." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). Further, it is the duty of this Court not to reevaluate the evidence but to "consider the decision of the trial judge in light of the proof presented." Id.
As previously noted, Appellants argue that the Tahoe could not be characterized as a stolen vehicle because neither the sheriff's department, Rocky Sloane nor GMAC had any legal right to the vehicle. Appellants point out that they lawfully received the Tahoe from the sheriff's department when Welch's towing was hired to remove the vehicle from Sloane's premises. Further, since the vehicle was taken from Slone as part of a drug investigation, Appellants claim that he no longer had a legal interest in the vehicle either. Finally, Appellants contend that GMAC's agreement to dismiss its civil suit against Marty terminated any right GMAC had to the vehicle.
At trial, Trooper B.J. Caudill testified unequivocally that GMAC had a valid lien on the Tahoe and was the rightful owner in the absence of Sloane. Further, he clarified that once the sheriff's department discovered the lien, no forfeiture proceedings were initiated and Sloane was never divested of his ownership of the vehicle. Thus, while Sloane's right to the Tahoe was certainly conditioned upon the loan agreement he had with GMAC, the sheriff department's act of hiring Appellants to tow the vehicle during the criminal investigation pertaining to Sloane in no manner gave Appellants any legal ownership right to the Tahoe.
Nor do we find any merit in Appellants' argument that GMAC cannot be deemed the legal owner of the Tahoe because it dismissed its civil action against Marty with prejudice. The testimony at trial established that in January 2009, GMAC filed a civil action against Marty and William Whitten, in his official capacity as Johnson County Sheriff, alleging that it had the right to possession of the Tahoe due to the first valid lien it held on the vehicle. In August 2009, Sheriff Whitten was dismissed from the civil action on sovereign immunity grounds. Attorney Adam Hall, who represented Marty in the civil action, testified during the trial herein that he contacted GMAC to inform them that Ohio Recovery towing service had picked up the vehicle and that Marty was no longer in possession of such. Attorney Hall explained that following several discussions with GMAC's legal counsel, the parties agreed to a dismissal of the action since Marty did not have the Tahoe. Accordingly, a stipulated order of dismissal with prejudice was entered on September 24, 2009.
"[A] judgment of a civil court is not binding on a court trying a criminal case, and a civil judgment is not admissible in a subsequent criminal prosecution where the judgment is offered to prove facts adjudicated in the civil proceedings, although exactly the same questions are in dispute in both cases." Gregory v. Commonwealth, 610 S.W.2d 598, 600 (Ky. 1980). The rationale behind this rule includes the fact that "the parties are not the same" and that there are "different rules as to the weight of evidence, or quantum of proof necessary, to prevail." 647 Am.Jur.2d Judgments §654 (2013).
The flaw in Appellants' argument is that the Commonwealth was not a party nor had any interest in the civil action between GMAC and Marty. Further, we would note that GMAC agreed to dismiss the civil action against Marty, not because it was not the legal owner of the Tahoe, but rather because Marty claimed he was not in possession of the vehicle. Clearly, the dismissal of the civil action, even with prejudice, can have no res judicata effect as to the Commonwealth and certainly does not preclude the Commonwealth from asserting that GMAC was the legal owner of the Tahoe.
The evidence presented at trial established that Appellants, acting alone or in complicity with each other, took extraordinary measures to change the VIN on the Tahoe to that of the Yukon before having the vehicle titled and registered as a Yukon. The Yukon VIN was purchased as part of the cowl from a vehicle that no longer existed as a whole. Clearly, there can be no purpose in changing the VIN on the Tahoe and registering it as a Yukon other than to make the Tahoe "disappear" on paper, thus depriving GMAC of its lien interest in the vehicle. Quite simply, Appellants' claim that they had a rightful interest in the Tahoe and simply went about registering it improperly is belied by the fact that they disguised its identity. We conclude that there was more than sufficient evidence that the Tahoe was stolen and, as such, the trial court properly denied the motion for a directed verdict.
Appellants next argue that because a primary offender was not convicted of trafficking in stolen vehicles, their convictions for complicity and facilitation must be reversed. We disagree.
"[W]here evidence is sufficient to support a conviction as either an accomplice or as a principal, an instruction in the alternative is proper." Pate v. Commonwealth, 243 S.W.3d 327, 334-35 (Ky. 2007) (citing Campbell v. Commonwealth, 732 S.W.2d 878, 880 (Ky. 1987). In Pate, the appellant argued on appeal of his conviction for complicity to manufacturing methamphetamine that the complicity instruction was in error because his co-defendant had pled guilty to facilitation, and further that because no other defendant "was charged with aiding him in his intent to manufacture methamphetamine, he should have been granted a directed verdict on the complicity charge." Id. at 334. Disagreeing, the Kentucky Supreme Court held that based upon the evidence presented at trial, "[t]he jury could reasonably have found that either Appellant acted in complicity with [the co-defendant] or that Appellant was principally liable for intent to manufacture methamphetamine." Id. at 335. Compare Parks v. Commonwealth, 192 S.W.3d 318 (Ky. 2006) (Evidence was insufficient to show that the appellant's co-defendant had possession of anhydrous ammonia in an unapproved container with intent to manufacture methamphetamine, and thus the appellant could not have been convicted as complicit in that offense).
The evidence herein established that all three Appellants worked together in rebuilding and changing the VIN number on stolen vehicles. We believe the jury could reasonably have found that each Appellant acted in complicity with the others or that each Appellant was principally liable. Because the evidence was sufficient to support either charge, the instruction and following convictions were proper. Pate, 243 S.W.3d at 335.
Finally, Appellants argue that the Commonwealth failed to prove the elements of trafficking in stolen vehicles and/or stolen vehicle parts. Specifically, they point out that trafficking in stolen vehicles and/or stolen vehicle parts requires the involvement of two or more vehicles. KRS 186A.325. The indictments against Appellants charged that the vehicles involved in the trafficking offense were the 2009 Mustang, the Tahoe and the Yukon. Appellants contend that neither the Yukon nor the Tahoe was stolen. While we might agree that the only part of the Yukon in Appellant's possession was the cowl, which was legally purchased, the Commonwealth clearly proved that the Tahoe was stolen. Furthermore, the Commonwealth introduced evidence that the owner of the Mustang had previously reported it stolen. Accordingly, two or more vehicles were involved, satisfying the requirement of KRS 186A.325.
For the reasons set forth herein, the judgments and convictions of the Johnson Circuit Court in each of the three matters herein are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANTS: Stephen W. Owens
Pikeville, Kentucky
BRIEFS FOR APPELLEES: Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky