Opinion
NO. 2012-CA-000883-MR
03-14-2014
GEORGE MICHAEL WINCHESTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: George Michael Winchester Pro se Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 10-CR-00467
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND MOORE, JUDGES. MOORE, JUDGE: George Michael Winchester appeals the Fayette Circuit Court's judgment convicting him of three counts of filing or making a false tax return; one count of failure to file a tax return; three counts of theft by unlawful taking under $300.00; one count of theft by deception under $300.00, individual liability for corporate conduct; twenty-two counts of redemption of vehicles, receipt required; and twelve counts of miscellaneous prohibited acts by private impound tow truck service or operator. After a careful review of the record, we affirm because Winchester's claim regarding the vagueness of the jury instructions was not preserved for appellate review; his claim concerning a lesser included offense is speculative; and no palpable error occurred when a witness was permitted to refer to a spreadsheet during her testimony.
I. FACTUAL AND PROCEDURAL BACKGROUND
Winchester was indicted on the following counts: (1 - 3) Filing or making a false tax return; (4 - 5) Failure to file a tax return; (6) Theft by deception over $500.00, individual liability for corporate conduct; (7 - 8) Theft by deception over $300.00, individual liability for corporate conduct; (9) Theft by deception under $300.00, individual liability for corporate conduct; (10 - 31) Redemption of vehicles, receipt required; and (32 - 43) Miscellaneous prohibited acts by private impound tow truck service or operator.
Counts 1 through 5 were severed from the remaining counts. Count 5 was dismissed without prejudice prior to trial, but Winchester was convicted by a jury on counts 1 through 4. Counts 6 through 8 were amended to read "Theft by unlawful taking under $300.00," and Winchester entered a guilty plea to the amended counts 6 - 8, as well as to counts 10 - 43. He was sentenced as follows: (Counts 1 - 4) One year three months of imprisonment each to be served consecutively; (Counts 6 - 9) Twelve months of imprisonment each to be served concurrently; and (Counts 10 - 43) $50.00 fine each. Thus, his total time in imprisonment was set at five years.
Winchester now appeals, contending that: (a) the jury instructions in this case were vague in how they defined the terms "willfully" and "intent" and in including the phrase "or any part thereof"; (b) the jury instructions should have included an instruction for a lesser included offense; and (c) evidence was admitted at trial in violation of RCr 7.26.
Kentucky Rule of Criminal Procedure.
II. ANALYSIS
A. VAGUENESS OF JURY INSTRUCTIONS
Winchester first alleges that the jury instructions in this case were vague in how they defined the terms "willfully" and "intent" and in including the phrase "or any part thereof" in part "C" of the instructions. However, Winchester has not cited to where in the record these claims were preserved, as required by CR 76.12(4)(c)(v). Additionally, the Commonwealth argues that the claims were not preserved. We further note that Winchester has not asked us to review these claims for palpable error. Therefore, we will not consider them for the first time on appeal. See Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976).
Kentucky Rule of Civil Procedure.
B. LESSER INCLUDED OFFENSE INSTRUCTION
Winchester next argues that the jury instructions should have included an instruction for a lesser included offense. He asserts that "[t]he elements of KRS[ ] 141.990 exactly match the elements of several misdemeanor and civil violations of the Kentucky Tax Code." However, he does not mention to which misdemeanors and civil violations he is referring. This is therefore speculative and conclusory, and we will not consider it.
Kentucky Revised Statute.
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Moreover, the Commonwealth contends that Winchester's defense counsel did not request an instruction for a lesser offense, and Winchester has not cited to where in the record his attorney requested such an instruction. Pursuant to RCr 9.54(2),
No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.
We were unable to find in the written record any proof that Winchester proffered an instruction on a lesser included offense to the circuit court, and Winchester has not cited to where in the record he proffered such an instruction or objected to the court's failure to provide the jury with this type of instruction. Therefore, Winchester is not entitled to relief based upon this claim.
C. SPREADSHEET
Finally, Winchester alleges that evidence was improperly admitted at trial in violation of RCr 7.26. Specifically, Winchester contends that
Commonwealth witness, Robin Kinney, was . . . asked by the Commonwealth Attorney if she knew the totalWinchester asks us to review this claim for palpable error. "A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error." RCr 10.26.
amount of cash and checks that were deposited into a certain account in the year 2006. At [that] point in the trial Kinney was not able to answer the question and the Commonwealth then produced a spread sheet in which the witness was allowed to [ob]tain the information needed to answer the questions asked.
Winchester claims that the information from the spreadsheet was improperly admitted pursuant to RCr 7.26, which states:
(1) Except for good cause shown, not later than forty-eight (48) hours prior to trial, the attorney for the Commonwealth shall produce all statements of any witness in the form of a document or recording in its possession which relates to the subject matter of the witness's testimony and which (a) has been signed or initialed by the witness or (b) is or purports to be a substantially verbatim statement made by the witness. Such statement shall be made available for examination and use by the defendant.
(2) If the Commonwealth claims that a statement to be produced under this Rule 7.26 does not relate to the subject-matter of the witness's testimony, the court shall examine the statement privately and, before making it available for examination and use by the defendant, excise the portions that do not so relate. The entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant.
Even if we were to assume for the sake of argument that the evidence was improperly admitted, it did not amount to palpable error. The spreadsheet was based upon information found in bank account records that had already been admitted into evidence in the form of a CD. Thus, we cannot say that a manifest injustice occurred by allowing Robin Kinney to testify while referring to a spreadsheet which contained information from the bank records that had already been admitted into evidence. Consequently, this claim lacks merit.
Accordingly, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: George Michael Winchester
Pro se
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky