Opinion
NO. 2012-CA-001962-MR
03-07-2014
DEDRICK LESEAN WILLINGHAM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Linda Roberts Horsman Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW SELF, JUDGE
ACTION NO. 09-CR-00569
OPINION
AFFIRMING
BEFORE: DIXON, NICKELL AND TAYLOR, JUDGES. DIXON, JUDGE: Dedrick Lesean Willingham appeals from the Christian Circuit Court's October 5, 2010, final judgment and sentence on plea of not guilty. That judgment found Willingham guilty of three counts of robbery, first-degree; fleeing or evading police, first-degree; tampering with physical evidence; carrying a concealed deadly weapon; and resisting arrest. Willingham was sentenced to a total of ten years' incarceration. Because we hold that the trial court did not err when it denied Willingham's motion for a directed verdict, we affirm.
In 2009, Willingham was indicted on the following charges: five counts of robbery, first-degree; one count of fleeing or evading police, first-degree; one count of tampering with physical evidence; one count of carrying a concealed deadly weapon; and one count of resisting arrest. A jury trial was held and Willingham moved for a directed verdict. That motion was denied. Following deliberations, the jury returned a verdict which found Willingham guilty of all charges, except for two of the robbery charges. The jury recommended a total concurrent sentence of ten years' incarceration. The trial court's final judgment and sentence was entered on October 5, 2010, in which Willingham was formally convicted and sentenced in accordance with the jury's verdict and recommended sentence. This appeal followed.
Willingham's sole argument on appeal is the trial court erred when it denied his motion for a directed verdict. When ruling on a motion for directed verdict, "the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). The trial court should assume the legitimacy of the Commonwealth's evidence, but allow the jury to determine the credibility and weight to be given to that evidence. Id. The motion should be denied "if the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty." Id. Therefore, we review a trial court's denial of directed verdict to determine whether, considering the totality of the evidence, it would be clearly unreasonable for a jury to find guilt. Id. If not, then the trial court's denial shall be affirmed. Id.
The evidence presented at Willingham's trial is as follows: On or about August 8, 2009, Robert Jones was in his backyard when he was encountered by a man armed with a rifle and demanding money. Jones was able to safely retreat to his house. The same night, Jeffrey Wilson was robbed of his wallet by a man with a rifle. Just after midnight on August 9, 2009, Tamisha Edwards, Keisha James, and Deneshia James were preparing to exit a parked car when a man stepped from the shadows and pointed a rifle at the front windshield. The man demanded that they surrender their property. The women gathered their belongings and passed them through the window to the assailant, who then told the women to leave. The women drove about a block away and called the police to report the robbery. The police arrived and took a report of the incident. Tamisha described the assailant as an African-American, dressed in black, with a short afro covered by a black ball cap. At trial, she further testified that his face was covered by a black bandana. Deneshia described the assailant as having recently removed braids from his hair, based on her experience braiding hair. She further testified that she did not look directly at the robber and did not recall him wearing a cap. Keisha did not report to the police that the assailant was wearing a bandana, but testified at trial that he was tall and thin, with a short afro, wearing all black, with a black bandana over his face, and a black cap with white lettering. Wilson was presented to the women, as a potential suspect, for identification. Tamisha and Keisha did not believe Wilson was the robber. Deneisha, however, identified him as the robber.
The evening of August 9, 2009, Nakedra Ingram was in a vehicle with a friend when they witnessed a man walking down the street with a rifle. Ingram's report to police indicated that the man was wearing a white shirt and cap. At trial, Ingram described the man as wearing black baggy pants, a black shirt, black cap, and a black and white bandana. Officer Joseph Garcia was responding to Ingram's call when he noticed Willingham standing on a street corner. Officer Garcia testified that Willingham's back was to him, but that he witnessed Willingham pull a long object from his pants. As Officer Garcia approached, Willingham ran. Officer Garcia pursued Willingham through several backyards, during which time Willingham dropped a rifle. Willingham knocked over a section of fencing in one yard and his pants became tangled in it. He worked his way out of his pants and a pair of shorts he was wearing under his pants and continued to run. Willingham was eventually caught and placed under arrest. He was wearing a black bandana. Officers recovered cell phones belonging to Tamisha and Deneshia in the shorts Willingham had been wearing under his pants. A black ball cap was also found nearby and later tested positive for Willingham's DNA, as well as the DNA of an unknown person. Rifle shells, that matched the rifle Willingham dropped, were found in the pocket of the pants Willingham had been wearing. No fingerprints were recovered from the rifle.
Willingham plead not guilty and testified at his trial. He testified that he did not rob anyone and was home the evening of August 8, 2009, except for one time he stepped outside to smoke. He testified that while he was smoking outside of his apartment, he was approached by someone who sold him the two cell phones for $10.00. Willingham testified that he knew Tamisha Edwards and explained that the recovered ball cap could have contained his DNA because he often sold or traded ball caps. His testimony further indicated that he had had a haircut two weeks prior to the robberies and therefore his hair could not have appeared long enough to have been recently unbraided. Willingham indicated that he found the rifle and shells on a street corner, where he pocketed the shells with the intention of picking up the rifle on his return trip, if it were still present. He confirmed that he ran from the police but testified that he did so out of fear, and further confirmed that his pants had come off while running.
Willingham maintains to this Court that the evidence presented at his trial was insufficient to support a conviction because it was unreliable and contradictory. Hence, he argues, the trial court should have granted his motion for a directed verdict. We disagree. Willingham has essentially asked this Court to reassess the evidence and substitute our own judgment as to its credibility and weight. However, such a de novo review of the evidence is outside of our authority. Benham, 816 S.W.2d 186; Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky. 1994). Here, the jury simply chose to believe the evidence presented by the Commonwealth over the testimony of Willingham; a decision well within its discretion. Id. Inconsistencies aside, and taking the evidence as a whole and in a light most favorable to the Commonwealth, there was sufficient evidence to induce a reasonable juror to believe beyond a reasonable doubt that Willingham was guilty. Id. Accordingly, we find no error with the trial court's denial of Willingham's motion for a directed verdict.
For the foregoing reasons, the Christian Circuit Court's October 5, 2010, final judgment and sentence is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky