John Glenn Ray v. Commonwealth of Kentucky ( 2015 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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RENDERED: FEBRUARY 19, 2015
NOT TO BE PUBLISHED
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2013-SC-000695-MR
JOHN GLENN RAY APPELLANT
ON APPEAL FROM MUHLENBERG CIRCUIT COURT
V. HONORABLE BRIAN WIGGINS, JUDGE
NO. 13-CR-00194
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On July 2, 2013, Connie Edwards, a pharmacy manager of the Central
City Walmart in Muhlenberg County, was working inside the store when she
observed Appellant, John Glenn Ray, coming toward her with a shopping cart
containing two air conditioners. When he was approximately fifteen feet from
the exit, Ray stopped and made eye contact with Ms. Edwards. He immediately
turned around and retreated back into the store with the cart. Edwards. was
suspicious because it appeared that Ray did not pay for the appliances at the
cash register area before proceeding to the exit.
Because of Ray's suspicious behavior, Ms. Edwards radioed Tonya
Beadnall, the store's asset protection manager. Ms. Beadnall promptly arrived
at Edwards' location where she was briefed. Edwards identified Ray who was
still in the store at this time. With this information, Beadnall kept Ray in her
line of sight as he walked throughout the store. Ms. Beadnall testified that
during this period, she observed Ray walking toward an exit with the air
conditioners in his cart. He passed the check out station and made no attempt
to pay for the units at any of the cash registers. When Ray reached the
vestibule, the area between the two sets of doors where patrons enter and exit
the store, Ray forcibly opened a set of automatic doors. He did so by pushing
the cart into the doors, thereby triggering an emergency mechanism. The
doors did not automatically engage because Ray attempted to exit through the
entrance. This prompted Ms. Beadnall to say "excuse me sir." Ray said
nothing in response. However, Beadnall testified that Ray made a sound when
confronted, backed the cart up, and then proceeded back into the store with
the cart. Ms. Beadnall continued to follow Ray throughout the store but did
not confront him again. At this point, Ray discarded the cart in one of the
aisles and exited the store without the cart or the air conditioners. Beadnall
followed Ray outside and observed him walk away through the parking lot.
She then contacted the police who arrested Ray shortly thereafter.
Ray was indicted by a Muhlenberg County grand jury for theft by
unlawful taking over $500 and being a first-degree persistent felony offender
("PFO"). At trial, a Muhlenberg Circuit Court jury found Ray guilty of both
charges and recommended a five-year sentence for the theft conviction,
enhanced to twenty years as a result of the PFO conviction. The trial court
sentenced Ray in accord with the jury's recommendation. Ray now appeals his
judgment and sentence as a matter of right pursuant to § 110(2)(b) of the
Kentucky Constitution. Three issues are raised and addressed as follows.
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Directed Verdict
Ray first argues that the trial court erred in denying his motion for a
directed verdict of acquittal for the offense of theft by unlawful taking over
$500. We will reverse the trial court's denial of a motion for directed verdict "if
under the evidence as a whole, it would be clearly unreasonable for a jury to
find gu lt[1" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing
Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) (emphasis added)). When
ruling on a directed verdict motion, the trial court must assume that the
Commonwealth's evidence is true. Benham, 816 S.W.2d at 187. Our review is
confined to the proof at trial and the statutory elements of the alleged offense.
Lawton v. Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011).
Ray does not contest that the air conditioners constituted movable
property, that the units had a value of $500 or more, or that he intended to
deprive Walmart of the property. KRS 514.030(1)(a). Instead, Ray argues that
the Commonwealth presented insufficient evidence to demonstrate that he took
the air conditioners. In support, he places great emphasis on Ms. Beadnall's
testimony wherein she stated that the air conditioners never crossed the store's
outer threshold and that Ray turned around and walked back into the store
with the units. Furthermore, the police officer's citation stated that Ray
"attempted to take 2 air conditioning units . . . ." However, the citation clearly
charged Ray with theft by unlawful taking. Ray also contends that the video
prepared by Ms. Beadnall was labeled "attempted to push out."
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The Commonwealth argues that, although there was no evidence that
Ray actually exited the store with the air conditioners or that he made efforts to
conceal them, there was sufficient evidence to demonstrate a taking. In
support, the Commonwealth presents persuasive authority. Leslie W.
Abramson, Kentucky Practice, Substantive Criminal Law § 6:24 (2013) ("[A]
defendant can "take" control over another person's property without removing
it from either the premises or the presence of the owner or possessor."); 50
Am.Jur2d Larceny § 21 (2014) (carrying away or removing property "may be
found if there is conduct indicating that the actor's possession of the property
is adverse to that of the store.") (emphasis added); see also Commonwealth v.
Davis, 667 N.E.2d 1167, 1168 (Mass. App. Ct. 1996) (recognizing that "[t]he
weight of authority holds that taking goods beyond the store's premises is not a
necessary precondition to a conviction of larceny.") (collecting cases).
Under KRS 514.030(1)(a), actually taking an item is not required for
there to be a completed theft by unlawful taking. Instead, that statute "defines
the crime in terms of one who unlawfully takes property or who unlawfully
exercises control over property," with the intent to deprive another of that
property. Commonwealth v. Day, 599 S.W.2d 166, 168 (Ky. 1980) (emphasis
added). Taking an item is indeed a different act from exercising control over it,
but the statute makes the crime complete when either occurs. Day makes it
clear that the crime can be committed by two different types of acts. That is,
so long as the conduct manifests an intent to deprive the owner of the item.
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The confusion in this case comes because the trial court did not instruct
on the alternative element of exercising control over the property with the
intent to deprive. Here, the jury instruction required a determination that
"[Ray] took two (2) air conditioners which belonged to Walmart .. .
(Emphasis added). However, that does not affect the question of whether Ray
was entitled to a directed verdict. Since a directed verdict motion must be
decided before instructions are given, the trial court's denial of the directed
verdict motion was correct because Ray clearly exercised control over the air
conditioners with the intent to deprive Wal-Mart of them.
Jury Instruction
Next, Ray contends that the trial court erred by failing to instruct the
jury on criminal attempt to commit theft by unlawful taking. He specifically
asserts that this instruction was warranted because the jury could have
reasonably believed that he took a substantial step towards taking the air
conditioners without actually completing the theft.
It is well-established that the trial court has a duty to instruct the jury
on the whole law of the case, including any applicable lesser-included
offenses. Houston v. Commonwealth, 975 S.W.2d 925 (Ky. 1998). However, a
trial court need not instruct on a lesser-included offense that has no
evidentiary foundation. Id. Furthermore, "[1]esser-included offense
instructions are proper if the jury could consider a doubt as to the greater
offense and also find guilt beyond a reasonable doubt on the lesser offense."
Parker v. Commonwealth, 952 S.W.2d 209, 211 (Ky. 1997) (citing Skinner v.
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Commonwealth, 864 S.W.2d 290 (Ky. 1993)). When reviewing claims of error in
failing to give a jury instruction, we consider the evidence in the light most
favorable to the moving party. Thomas v. Commonwealth, 170 S.W.3d 343, 347
(Ky. 2005). We agree with the trial court's determination and have addressed a
similar issue in York v. Commonwealth, No. 2008-SC-000804-MR, 2010 WL
3377757 at *2 (Ky. Aug. 26, 2010).
In York, the defendant requested a jury instruction on attempted theft by
unlawful taking. He specifically argued that, "because he did not leave the
residence with the items he was carrying, a jury could have found that he had
taken a substantial step in the course of the theft, but did not complete the
act." Id. We held that the trial court properly denied the attempt instruction
and adopted the following reasoning in support:
[w]hile it is true that [the defendant] did not leave the residence
with the stolen items because he was apprehended inside, he had
selected the items, deposited them in a pillow case, and carried
them out of the room in which he found them. Accordingly, it is
illogical that a jury would find that [the defendant] intended to
deprive [the victim] of the items but had not taken or exercised
control over them. Id.
As previously discussed, the evidence in the present case demonstrates
the following: 1) Ray had the merchandise in his possession; 2) he made no
attempt to pay for the merchandise; 3) he walked approximately twenty-five feet
beyond the check out area toward the vestibule; and 4) he forcibly opened the
wrong doors before being intercepted by the store's asset protection manager.
Like in York, it is illogical under these facts that a jury would find that Ray
intended to deprive Walmart of the air conditioners, but had not taken them.
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Accordingly, Ray was not entitled to an instruction on the lesser-included
offense of attempt.
Evidence of Prior Crimes
Lastly, Ray argues that the trial court erred in allowing the
Commonwealth to introduce irrelevant, improper, and unduly prejudicial
evidence of prior bad acts. The disputed evidence concerned Ray's prior thefts
that occurred in Ohio County on June 27 and 28, 2013.
Prior to trial, the Commonwealth filed a notice pursuant to KRE 404
indicating that it intended to introduce certified records revealing that Ray had
recently been convicted of two counts of theft by unlawful taking in Ohio
County after taking a total of four air conditioners from the Beaver Dam
Walmart. In addition, the Commonwealth sought to introduce video
surveillance footage of the Ohio County thefts and the testimony of a store
employee who witnessed the crimes. It appears that the Ohio County
convictions were the only prior offenses introduced by the Commonwealth in
the guilt stage of trial. However, evidence was introduced in the PFO stage of
trial that Ray had been convicted of ten prior felonies as well as numerous
misdemeanors, eight of which were prior shoplifting convictions.
At a pre-trial hearing, Ray moved the trial court to exclude evidence of
these prior convictions from being admitted at trial. However, the trial court
agreed with the Commonwealth that the evidence was probative, relevant, and
not unduly prejudicial. As a result, the court admitted the Ohio County
convictions, the testimony of a Beaver Dam Walmart assistant asset protection
employee, and the Beaver Dam Walmart surveillance videos and photographs.
We review a trial court's evidentiary rulings for an abuse of discretion.
Anderson v. Commonwealth, 231 S.W.3d 117, 120 (Ky. 2007). The rule at issue
is KRE 404(b), which provides in pertinent part as follows:
[e]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident . . . .
Thus, evidence of prior crimes or bad acts must be relevant "for some purpose
other than to prove the criminal disposition of the accused . . . ." Meece v.
Commonwealth, 348 S.W.3d 627, 662 (Ky. 2011); Bell v. Commonwealth, 875
S.W.2d 882, 889 (Ky. 1994) (noting that trial courts must apply KRE 404(b)
cautiously).
The evidence arising from the Ohio County convictions certainly satisfies
the intent exception to KRE 404(b). See Hayes v. Commonwealth, 175 S.W.3d
574 (Ky. 2005) (defendant's manufacturing methamphetamine conviction was
admissible to prove defendant's motive, intent, and plan to manufacture
methamphetamine in subsequent trial); United States v. Harris, 293 F.3d 970,
976 (6th Cir. 2002) (prior conviction of drug trafficking admissible to prove
intent and knowledge in trial for distribution of crack cocaine). The evidence
arising from the Ohio County conviction is also indicative of a common plan.
State v. Brown, 782 P.2d 1013 (Wash. 1989) (defendant's prior misdemeanor
theft convictions were admissible to demonstrate common plan and scheme);
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Howard v. Commonwealth, 787 S.W.2d 264, 266 (Ky. App. 1990) (evidence that
defendant sold a pound of marijuana to an undercover policeman four months
after the charged offense was admissible to prove plan, scheme, or system).
Furthermore, the disputed evidence was relevant, probative, and not unduly
prejudicial.
KRE 401 and 402 provide a well-established minimal relevancy standard.
See also Harris v. Commonwealth, 134 S.W.3d 603, 607 (Ky. 2004). Regarding
relevancy of the contested evidence, the Ohio County thefts for which Ray was
convicted occurred only several days before the theft in the present case.
Furthermore, the Ohio County thefts were similar if not identical in operation
to the theft in the present case, thus making the existence of Ray's intent more
probable than not. Therefore, we agree with the trial court that the evidence
arising from the Ohio County thefts was certainly relevant and probative. See
Davis v. Commonwealth, 147 S.W.3d 709, 724 (Ky. 2004) (holding that evidence
is probative if the jury could reasonably conclude that the other crime or act
actually occurred and that the defendant was the actor); see also Bell, 875
S.W.2d at 890.
However, evidence that is relevant and probative may still be excluded if
its probative value is substantially outweighed by its prejudicial effect. KRE
403. In Mayse v. Commonwealth, we stated that "all evidence demonstrating
that a defendant is guilty beyond a reasonable doubt prejudices the defendant.
KRE 403 requires something more." 422 S.W.3d 223, 228 (Ky. 2013). The
evidence of the prior completed offense was especially probative in this case as
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to intent, since Ray did not get off of the premises with the stolen items.
Considering the highly probative value of the contested evidence, we cannot say
that the trial court abused its discretion in admitting the evidence of Ray's
prior crimes.
Conclusion
For the foregoing reasons, we hereby affirm the judgment of the
Muhlenberg Circuit Court.
Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ.,
sitting. All concur.
COUNSEL FOR APPELLANT:
Roy Alyette Durham, II
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
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