Alfred T. Kesseh v. Commonwealth of Kentucky ( 2022 )


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    RENDERED: APRIL 28, 2022
    NOT TO BE PUBLISHED
    Supreme Court of Kentucky
    2021-SC-0032-MR
    ALFRED T. KESSEH                                                      APPELLANT
    ON APPEAL FROM JEFFERSON CIRCUIT COURT
    V.              HONORABLE A.C. MCKAY CHAUVIN, JUDGE
    NOS. 19-CR-00237 & 19-CR-00638
    COMMONWEALTH OF KENTUCKY                                               APPELLEE
    MEMORANDUM OPINION OF THE COURT
    AFFIRMING
    For roughly six weeks, students at the University of Louisville reported a
    series of robberies, burglaries, and a sexual assault for which the appellant,
    Alfred T. Kesseh, was ultimately charged and convicted. Prior to trial, Kesseh
    moved the court to sever the first-degree rape, first-degree robbery, and first-
    degree burglary charges, which all involved the same victim, from the
    remainder of the charges. The trial court denied Kesseh’s motion to sever,
    which Kesseh argues was an abuse of discretion. Additionally, Kesseh alleges
    a bevy of errors by both the trial court and the Commonwealth resulted in
    undue prejudice. Finding none of Kesseh’s claims meritorious, we affirm.
    I. Factual and Procedural Background
    The facts of this case are numerous and complicated, but largely
    undisputed. Beginning on December 7, 2018, Kesseh engaged in a crime spree
    involving robbery, burglary, and culminating in rape, which lasted until he was
    arrested by the Louisville Metropolitan Police Department (LMPD) on January
    14, 2019. During that time Kesseh operated in and around the University of
    Louisville campus.
    After midnight, on December 7, Jason Schreiber was about to enter his
    home at the Cardinal Towne Apartment Complex when he noticed the front
    door was ajar. Schreiber called the police and waited for their arrival to
    reenter. However, by the time police arrived and searched the apartment
    Kesseh had already left. Schreiber, along with his roommates, reported that
    they were missing several electronics, including laptops and cameras, as well
    as their backpacks. Surveillance footage showed Kesseh exiting the apartment
    with two backpacks which Schreiber later identified as belonging to himself
    and his roommate.1
    Roughly a week later, on December 14, Paulo Robenboim noticed that
    his bank card had gone missing and checked his recent purchases, which
    showed that his card had been used at a Speedway and a McDonald’s which he
    had not visited. When the Speedway manager reviewed their surveillance
    video, he identified the man using the card as matching Kesseh’s description.
    Four days later, on December 18, Kesseh once again visited the Cardinal
    Towne Apartment Complex, breaking into three apartments. Unlike the first
    incident, however, the victims were home when Kesseh entered. The first
    1   Kesseh was arrested while carrying one of these backpacks.
    2
    victim, Erin Kidwell, testified that Kesseh entered her home around three o’
    clock that morning, made enough noise to wake her, and then stuck his head
    into her bedroom while she laid still. According to Kidwell, Kesseh remained in
    her home for several minutes before leaving and did not steal anything. As
    with his previous visit to the complex, surveillance footage confirmed Kesseh
    roaming the halls of the apartment complex at the corresponding time and day.
    That same evening, Kidwell’s apartment neighbor, Nikayla McFarland, reported
    having her laptop stolen. As with the previous incidents, surveillance footage
    showed Kesseh in the apartment hallway holding the stolen laptop.
    Kesseh capped off his December 18 spree by burglarizing Ali Conder’s
    apartment. At the time of the burglary, Conder was hosting two individuals,
    Grecia Sosa and Devon Rose, for the evening. Kesseh reportedly took a
    wrapped Christmas gift, a PlayStation gaming console, a laptop and charger,
    along with Sosa’s wallet. As with the previous burglaries, Kesseh was
    identified in the hallway, opening up Conder’s apartment door. Additionally,
    Kesseh was identified on surveillance footage at White Castle, where he had
    used Sosa’s debit card to purchase a meal.
    Four days passed before Kesseh committed another burglary at the
    Cardinal Towne Apartment Complex, this time at the home of Jacquayah
    Washington and Madison McCellon. At the time of the burglary McCellon was
    working, and not at home. The roommates reported that several video game
    consoles and paraphernalia were stolen along with a speaker and other items.
    Once again, video surveillance showed Kesseh leaving the apartment with a
    3
    stolen item in hand. Following a several weeks hiatus, Kesseh visited the
    University Pointe Apartment Complex and entered Allison Kirk and Sarah
    Delaney’s home just past midnight. Delaney testified that she heard the
    apartment door open, but assumed it was her roommate’s boyfriend leaving.
    The following morning, when the two women awoke, they discovered a missing
    wallet and laptop. When Delaney checked her mobile banking application, she
    saw several unauthorized purchases. Notably, employees from two of those
    establishments later identified Kesseh as the man using Delaney’s card to
    make the purchases in question. Additionally, when Kesseh was eventually
    arrested he was in possession of Kirk’s laptop.2
    Only two days after the previous burglary, Kesseh revisited the University
    Pointe Apartment Complex on January 9, 2019 and broke into Justin Wells’s
    apartment. Unfortunately, when Wells went to investigate the noises he heard
    in the kitchen he was confronted by Kesseh who brandished a pistol at him,
    demanding valuables and threatening to kill Wells. However, Wells stated that
    he recognized an orange tip on the gun (often denoting a toy, or non-lethal
    weapon) and rebuffed Kesseh’s demands. Kesseh left without further incident
    and Wells called the police. Apparently unperturbed, Kesseh immediately
    found another apartment to burglarize and entered the home of roommates,
    Skylar McGimsey, Kaitlin Armstrong, Sabrina Eden, and Kylie Meehan.
    Instead of remaining in common living spaces, Kesseh escalated his behavior
    2 Kesseh had changed the login information to his name and was logged into his
    Facebook account on the stolen computer.
    4
    by entering Meehan’s room and getting into bed with her. Kesseh briefly stayed
    in bed with Meehan before standing up and telling Meehan to turn around.
    When she had complied Kesseh pulled out his toy gun and placed it on
    Meehan’s back and demanded money. Meehan complied and gave him the pin
    number to her bank card.
    All the while, a fourth individual, Connor Dean, who was visiting
    Armstrong, went to investigate the noise previously heard in the common
    areas. Dean stated that he noted an unfamiliar backpack, inside of which he
    found a laptop which he turned on, seeing the name “Alfred” on the loading
    screen. At this moment Kesseh walked out of Meehan’s bedroom. Seeing
    Kesseh leave Meehan’s room, Dean assumed he was an invited guest and
    offered the stolen backpack and laptop back to him. Kesseh took the items
    and exited the apartment. Surveillance footage showed Kesseh in the hallway
    at the time and wearing the hat he had stolen from Meehan’s room. Kesseh left
    University Pointe before officers could arrive.
    Immediately thereafter, Kesseh returned to the Cardinal Towne
    Apartment Complex and entered T.D.’s apartment at six o’ clock in the
    morning. When T.D. heard noise in the kitchen she opened her bedroom door
    to investigate and startled Kesseh, who immediately pointed the fake gun at
    her. Kesseh approached T.D., ordered her to turn around and marched her
    into her bedroom. Kesseh asked T.D. who else was home but T.D. lied and told
    him she was alone. While robbing her, Kesseh commented on her
    attractiveness. Eventually he kissed her and asked T.D., “do you want to do
    5
    this?” to which T.D. replied, “no.” Unperturbed, Kesseh continued with his
    unwanted advances and eventually sexually assaulted and raped T.D. When
    the ordeal passed Kesseh threatened T.D. with death if she told anyone about
    what had just occurred. Immediately thereafter he left the apartment with
    T.D.’s phone, Apple Watch, and a pair of gray Nike pants.3 T.D. immediately
    reported the crime and was taken to the Center for Women and Families for a
    Sexual Assault Nurse’s Examination. The results of the examination revealed
    DNA which matched Kesseh’s.
    Kesseh’s final burglary occurred on January 11, 2019 when he was
    observed in the Louisville ESPN radio station offices rifling through desks.
    Kesseh left before he could be apprehended. LMPD was finally able to capture
    Kesseh on January 14, 2019 near the University of Louisville residence halls
    and in possession of numerous stolen items. Kesseh was indicted on 24
    counts, including burglary, robbery, theft, fraudulent use of a credit card, and
    rape.4 Prior to trial Kesseh moved to sever the charges relating to T.D. from the
    remainder of the counts, but the trial court denied the motion. Kesseh was
    ultimately convicted and sentenced to a total of twenty-seven years of
    imprisonment. However, prior to final sentencing Kesseh attempted to call T.D.
    from jail, for which the trial court held him in contempt and sentenced him to
    3   At the time of his arrest, these pants were in Kesseh’s possession.
    4 These charges originally stemmed from two indictments, 19-CR-0237 and 19-
    CR-0638. Those cases were consolidated and form the basis of the original conviction
    and this appeal.
    6
    serve an additional six-months consecutive to his underlying sentence. Kesseh
    appeals the judgment.
    II. Analysis
    I. RCr5 6.18 and 8.31.
    Kesseh argues that the three charges (rape, burglary, and robbery)
    related to T.D. were too dissimilar from the other counts that the denial of his
    motion to sever amounted to reversible error. Kesseh further requests severing
    the charges into a number of cases, arguing that he is entitled to eight separate
    trials. In order to succeed on these challenges Kesseh must prove that
    combining these charges into one case severely prejudiced him and resulted in
    a fundamentally unfair sentence.
    RCr 6.18 allows more than one offense to be charged together so long as
    the offenses are “of the same or similar character or are based on the same acts
    or transactions connected together or constituting parts of a common scheme
    or plan.” In turn, RCr 8.31 establishes boundaries, requiring that “[i]f it
    appears that a defendant or the Commonwealth is or will be prejudiced by a
    joinder of offenses or of defendants in an indictment, information, complaint or
    uniform citation or by joinder for trial, the court shall order separate trials of
    counts, grant separate trials of defendants or provide whatever other relief
    justice requires.” Since trial courts are in the best position to strike the proper
    balance between RCr 6.18 and RCr 8.31, they are afforded “great discretion”
    5   Kentucky Rules of Criminal Procedure.
    7
    when determining whether to “join or sever offenses.” Davidson v.
    Commonwealth, 
    548 S.W.3d 255
    , 258 (Ky. 2018) (citation omitted); Smith v.
    Commonwealth, 
    520 S.W.3d 340
    , 353 (Ky. 2017). Consequently, we do not
    disturb their judgment on these issues “absent a showing of clear abuse and
    actual prejudice.” Davidson, 548 S.W.3d at 258; see also Peacher v.
    Commonwealth, 
    391 S.W.3d 821
    , 838 (Ky. 2013) (“we have many times noted
    that an erroneous severance ruling does not justify appellate relief unless it
    resulted in actual prejudice to the party opposing the ruling[]”).
    While it may often be required for the Commonwealth to establish that
    the crimes of which a defendant is charged were part of a “common scheme or
    plan” by presenting the jury evidence regarding time and proximity, those
    elements are not enough, on their own, to satisfy RCr 6.18. Hammond v.
    Commonwealth, 
    366 S.W.3d 425
    , 428-29 (Ky. 2012). Likewise, RCr 6.18 is not
    satisfied because a defendant is charged with multiple counts of the same
    crime. Id. at 429. Instead, as this Court has stated, the better approach is to
    determine “[i]f evidence from one of the offenses joined in the indictment would
    be admissible in a separate trial of the other offenses[.]” Cohron v.
    Commonwealth, 
    306 S.W.3d 489
    , 493 (Ky. 2010).
    In Furnish v. Commonwealth, we applied this rule and affirmed the trial
    court’s consolidation of a burglary and murder involving the same victim at the
    same home where both crimes were perpetrated. 
    95 S.W.3d 34
     (Ky. 2002). In
    Furnish, the defendant, while working as a carpet cleaner, entered the victim’s
    home and stole jewelry. Id. at 40. A month later, the defendant broke into that
    8
    same home and murdered the homeowner. Id. The trial court denied
    Furnish’s motion to have the charges severed. Id. at 52-53. Affirming the
    denial, this Court stated that Furnish’s prior visit to the victim’s home was
    probative because it showed that he was aware of the house and its contents.
    Such evidence tended to establish “identity, motive, and part of a plan for
    criminal action.” Id. at 52. This Court concluded its reasoning by noting that
    joining charges will almost always result in prejudice but may nonetheless be
    probative and relevant and well within the bounds of RCr 6.18. Id. at 53.
    Conversely, in Rearick v. Commonwealth, we reversed a trial court’s
    consolidation in a case involving three indictments of sexual abuse committed
    against three different juvenile victims. 
    858 S.W.2d 185
     (Ky. 1993). Despite all
    being minors, the victims shared no other characteristics, nor were the specific
    incidents reflective of a theme or common plan. Since no evidence of the other
    incidents could be introduced at a trial of the other two, had they not been
    consolidated, joinder was improper. Id. at 187. Unlike in Rearick, the charges
    in this case share a multitude of relevant similarities and the trial court did not
    abuse its discretion in consolidating the indictments. We address each of
    Kesseh’s factual assertions in turn.
    1. The charges related to T.D.:
    We note from the outset that the incident with T.D. followed the exact
    same factual pattern as the other reported burglaries and robberies. Kesseh
    entered the apartment in the early morning hours and began rummaging
    through the common areas, looking for valuables. When Kesseh was
    9
    confronted by T.D. he acted exactly as he did with Wells and Meehan, he
    brandished the toy gun. The only difference between these three incidents is
    that Wells recognized the weapon as a toy and did not capitulate, whereas T.D.
    and Meehan both believed their lives to be in danger and complied.
    Furthermore, the fact that Kesseh took T.D. into her bedroom was not an
    outlier. Testimony at trial showed that Kesseh had several times before
    entered a female victim’s bedroom. In fact, that same morning, after the initial
    encounter with Wells, Kesseh found an apartment shared by four women and
    entered two of their bedrooms. With regards to Eden’s, her testimony stated
    that he simply peered into her room before leaving. However, Meehan’s
    testimony stated that he climbed into bed with her, consistent with the
    Commonwealth’s theory of escalating behavior. Consequently, given these
    similarities, any argument by Kesseh that his incident with T.D. differed in
    character from the other charges is belied by the record. Finally, we note that
    simply because rape required an intent not present in the remaining charges is
    not enough to require severance. When weighed against the remaining
    charges, the trial court correctly found the single incident of rape and assault
    insufficient to require severance under RCr 8.31.
    2. The gun charges:
    On appeal, Kesseh argues simultaneously that the four charges involving
    the toy gun must be severed from the remainder of the charges, while also
    asserting that charges 17 and 18 (those involving Wells) and charges 19 and 20
    (those involving Meehan) must be severed from one another. Although Kesseh
    10
    relies solely on the presence of the toy guns to support his position of severing
    charges 17-20 from the remainder of the counts, the discordance between the
    encounters stems from the location inside the apartments where he
    encountered the victims. Kesseh encountered Wells in the kitchen, brandished
    the toy gun defensively and demanded Wells’s possessions. When Wells
    recognized the orange tip on the weapon and refused to comply Kesseh left the
    apartment without further incident. By contrast, Meehan was confronted in
    her bedroom, requiring Kesseh to leave the familiar confines of common spaces
    in his previous burglaries. To quote Kesseh’s brief, the Wells robbery
    “indicat[ed] an intent to avoid others but to use force if encountered,” while
    robbing Meehan “indicat[ed] that he no longer avoided others.”
    Kesseh’s position is unpersuasive. At trial, and on appeal, the
    Commonwealth asserts that Kesseh’s behavior indicated a common scheme,
    burgling student apartments, while also showing that he was becoming bolder
    and escalating his behavior. The robberies involving Kesseh’s toy gun are
    probative for that reason. The trial court did not err in consolidating these
    charges. We are compelled to note the irony in Kesseh’s argument that
    severance is required because each incident is clearly unique, while in the
    same breath declaring that Kesseh’s behavior escalated until he no longer
    sought to avoid his victims. The Commonwealth relied on the same theory in
    support of joinder.
    11
    3. The remaining charges:
    In addition to requesting severance for the charges involving sexual
    assault and the toy gun, Kesseh asserts that we should sever the remaining
    charges against him. Specifically, Kesseh seeks to sever the charges in jury
    instructions 4 from charges in instructions 5 and 66 and all three charges from
    those in jury instructions 7-9.7 In addition, Kesseh seeks further delineation
    by severing the charge in jury instruction 38 and those charges laid out in jury
    instructions 12-169 from the remainder of the charges. Finally, Kesseh seeks
    to sever the burglary of the ESPN radio office in Louisville from all of the other
    charges.
    Kesseh’s position is unavailing because he relies on the quality of
    evidence presented by the Commonwealth at trial, which is a task for the jury
    to weigh. See Ross v. Commonwealth, 
    531 S.W.3d 471
    , 477 (Ky. 2017)
    (“Assessing the credibility of a witness and the weight given to her testimony
    rests within the unique province of the jury [or finder-of-fact][]”) (internal
    quotations and citation omitted). As Kesseh’s brief concedes, the charges in
    6Jury instruction 4: Burglary in the Second Degree at 1830 S. Third St. Apt.
    1343; Jury instruction 5: Burglary in the Second Degree at 325 W. Cardinal Blvd Apt.
    1107; Jury instruction 6: Theft by Unlawful Taking over $500.
    7 Jury instruction 7: Burglary in the Second Degree at 325 W. Cardinal Blvd.
    Apt. 1466; Jury instruction 8: Theft by Unlawful Taking over $500; Jury instruction 9:
    Fraudulent use of Credit Card under $500.
    8   Jury instruction 3: Theft by Unlawful Taking under $500.
    9 Jury instruction 12: Burglary in Second Degree at 2108 Unity Place Apt.
    112A; Jury instruction 13: Theft by Unlawful Taking over $500; Jury instruction 14:
    Theft by Unlawful Taking under $500; Jury instruction 15: Fraudulent use of a credit
    card under $500; Jury instruction 16: Fraudulent use of a credit card under $500.
    12
    jury instructions 4-9 occurred on the same night and at the same locations he
    had previously burgled. That footage would be relevant in either case as
    establishing his presence at the location on the night of the burglaries. The
    same may be said of the security footage showing his use of the stolen bank
    cards. That information was relevant to show that the man on the security
    footage at the apartment complex was Kesseh, because he was observed using
    the stolen bank cards to make purchases. While Kesseh correctly notes some
    differences in clothing and accessories between the different clips, that
    argument was properly made to the jury because it refers to the strength of the
    evidence. Finally, while the burglary at the ESPN radio building did differ in
    character from Kesseh’s previous burglaries, any error by the court to join the
    charge was not material. The radio building was adjacent to Cardinal Towne
    Apartments, the burglary occurred the day following the attempted robbery of
    Wells and the assault on T.D. and was accompanied by overwhelming evidence
    tying Kesseh to the charge. Consequently, Kesseh fails to show actual and
    undue prejudice resulted from joining that burglary with the remaining
    charges. Reversal is unwarranted in this case.
    II. The disc presented to the jury during deliberation.
    Having determined that the trial court did not abuse its discretion in
    consolidating the charges, we turn to Kesseh’s next allegation of error: that the
    digital copies of surveillance videos prepared for the jury by the Commonwealth
    at the trial court’s request resulted in undue prejudice and constituted
    reversible error. Following the close of proof, the Commonwealth prepared a
    13
    copy of all the surveillance videos shown at trial for the jury to take into the
    deliberation room. Kesseh asserts that the organization of the video clips and
    the titles used by the Commonwealth created an impermissible flowchart.
    As an initial matter, concerning preservation, we note RCr 9.22 requires
    parties to
    make[] known to the court the action which that party desires the
    court to take or any objection to the action of the court, and on
    request of the court, the grounds therefor; and, if a party has no
    opportunity to object to a ruling or order at the time it is made, the
    absence of an objection does not thereafter prejudice that party.
    In this case, Kesseh’s counsel failed to object to the file names when they were
    introduced at trial by the Commonwealth’s witnesses and did not object to the
    file names on the disc which was presented to the jury.10 Consequently we
    review the matter only for palpable error pursuant to RCr 10.26.
    Under RCr 10.26, an unpreserved error may generally be noticed on
    appeal if the error is palpable and if it affects the substantial rights
    of a party. Even then, relief is appropriate only upon a determination
    that manifest injustice resulted from the error. For an error to rise
    to the level of palpable, it must be easily perceptible, plain, obvious
    and readily noticeable.
    Martin v. Commonwealth, 
    409 S.W.3d 340
    , 344 (Ky. 2013) (internal quotations
    omitted). Manifest injustice is present when a “defect in the proceeding [exists
    that is] shocking or jurisprudentially intolerable.” Martin v. Commonwealth,
    10 The record is silent as to whether Kesseh ever reviewed the disc, however,
    both parties agree that the creation of the disc was discussed at length in a private
    conference with the judge, and that Kesseh was aware the disc would be presented to
    the jury well before the conclusion of proof. His assertion that he would have objected
    to the titles during trial is unsupported by the record and does not satisfy the
    requirements of RCr 9.22.
    14
    
    207 S.W.3d 1
    , 4 (Ky. 2006). Consequently, we will find palpable error when the
    defendant suffers a “manifest injustice, either through the probability of a
    different result or error so fundamental as to threaten a defendant’s
    entitlement to due process of law.” Jones v. Commonwealth, 
    331 S.W.3d 249
    ,
    256 (Ky. 2011) (internal quotation marks omitted).
    RCr 9.72 allows jurors to “take all papers and other things received as
    evidence in the case.” Given the extensive nature of the charges against
    Kesseh, the trial court directed the Commonwealth to prepare a digital copy of
    all the surveillance footage presented at trial. The result was a disc containing
    ten folders which corresponded to twenty-three charges. Inside of each folder
    was a series of files containing the video clips presented during trial. Kesseh’s
    first allegation of error relates to the organization of those discs and the titles
    given the video clips, such as “cT1108 C 1st floor Hallway to 1108” and “CT
    1108 E Suspect Walking towards East Exit 1st Floor.” Kesseh claims that the
    organization of the folders and the titles given to several of the video clips
    amounted to a flow-chart and impermissibly lowered the Commonwealth’s
    burden of proof.
    In support of his position, Kesseh cites Mills v. Commonwealth, 
    44 S.W.3d 366
     (Ky. 2001), in which the jury heard recorded witness interviews
    which were not played at trial. 
    Id. at 371
    . The defense objected on the
    grounds that the statements were inadmissible prior consistent statements. 
    Id.
    The trial court overruled the objection and the tapes were made available to the
    jury. 
    Id.
     This Court reversed the conviction, citing the testimonial nature of
    15
    the recordings and the fact that they were not properly admitted at trial. 
    Id. at 372
    . Unlike in Mills, however, the Commonwealth here took sufficient care to
    introduce the video clips at trial. Witnesses identified the hallways outside of
    their apartments as well as the stolen property being carried off by the
    individual in the surveillance footage. Heather Hadden, the assistant manager
    of the two apartment buildings,11 testified with regards to how the video clips
    were gathered and labeled. Finally, Detective Brown testified that the titles of
    the clips he used during his investigation were provided by the managers of the
    apartment complex and businesses. While titles could become testimonial in
    nature, the inclusion of the word “suspect” in a label or identifying a hallway
    location does not meet that threshold. Given that the video clips were admitted
    at trial and subject to cross-examination by the defense, their inclusion in the
    jury deliberation room meets the requirements of RCr 9.72. No error occurred.
    III. Video clips admitted into evidence without a time stamp.
    Kesseh’s allges that, because several video clips were not accompanied
    by an “on screen” time stamp, those videos are inadmissible because they fail
    to show that he was present at the time of the burglaries. These deficiencies,
    according to Kesseh, render the offending video clips inadmissible under KRE12
    901’s requirements for authentication and identification. We review the trial
    court’s decision to admit evidence for abuse of discretion. Anderson v.
    University Pointe and Cardinal Towne Apartments are owned by the same
    11
    company, of which Ms. Hadden was the assistant manager.
    12   Kentucky Rules of Evidence.
    16
    Commonwealth, 
    231 S.W.3d 117
    , 119 (Ky. 2007). Consequently, we do not
    disturb the trial court’s ruling unless the decision is “arbitrary, unreasonable,
    unfair, or unsupported by sound legal principles.” 
    Id.
     (citation omitted).
    In order to admit evidence under KRE 901(a), the party attempting to
    introduce the evidence must provide “evidence sufficient to support a finding
    that the matter in question is what its proponent claims.” KRE 901(b) provides
    several, non-limiting, examples which demonstrate how evidence may be
    properly authenticated; such as: KRE 901(b)(1) “[t]estimony of a witness with
    knowledge[;]” KRE 901(b)(4) “[d]istinctive characteristics and the like[;]” and
    KRE 901(b)(9) “[e]vidence describing a process or system used to produce a
    result[.]” KRE 901(a) treats questions of identification and authentication as
    matters of conditional relevancy. Johnson v. Commonwealth, 
    134 S.W.3d 563
    ,
    566 (Ky. 2004). This initial burden on the proponent is “slight” and “requires
    only a prima facie showing of authenticity[.]” 
    Id.
     (citation omitted).
    In this case, the Commonwealth presented the jury with Hadden’s
    testimony. Hadden, the assistant manager of the two apartment complexes
    involved, testified that Detective Brown approached the organization and
    requested surveillance footage from the relevant dates. Hadden testified that
    she and another (unidentified) employee compiled the video clips for Detective
    Brown. Hadden testified that although not all clips contained a time-stamp,
    the server containing the surveillance footage was searchable by time and date
    which could then generate the relevant footage. Hadden testified that this
    process was followed and that no alterations to the video clips were made.
    17
    Detective Brown testified that the parameters he provided to the
    managing company for surveillance footage were based on victim statements
    and the Computer-Aided Dispatch Report. When Detective Brown identified a
    time frame from these reports, he requested footage for one-half hour before
    and one-half hour after the crime was reported to have occurred. Thereafter,
    Detective Brown testified that he reviewed the footage with the company prior
    to their creating the disc containing the relevant footage. Finally, Detective
    Brown testified that he also requested that each clip be identified by date and
    time. Unfortunately, not all files were labeled in this manner. Nonetheless, at
    trial the witnesses reviewed the footage, identifying the location in the films,
    along with stolen items, such as the hats and stereo equipment. Although no
    direct eyewitnesses authenticated the scenes depicted in the video clips, the
    Commonwealth presented sufficient testimony to properly contextualize and
    identify the surveillance footage in accordance with KRE 901. Consequently,
    the trial court did not abuse its discretion in admitting the footage into
    evidence.
    IV. Alleged prosecutorial misconduct.
    Kesseh alleges three instances of prosecutorial misconduct, the first
    occurring during the guilt phase closing statements when the Commonwealth
    addressed the value of stolen property for which Kesseh was charged: five
    counts of theft by unlawful taking over $500.13 Since Kesseh properly
    13 KRS 514.030, under which Kesseh was charged, was amended in 2021 to
    raise the felony threshold of theft from $500 to $1,000.
    18
    objected, we will reverse if the proof of guilt was not otherwise overwhelming
    and the trial court failed to cure any misconduct with a sufficient admonition.
    Brafman v. Commonwealth, 
    612 S.W.3d 850
    , 861 (Ky. 2020). Because the trial
    court overruled Kesseh’s objection and did not admonish the jury, our review is
    functionally limited to determining whether the proof of guilt presented to the
    jury regarding the value of the stolen property was overwhelming.
    The second claim of error also originates from the Commonwealth’s
    closing statements in which it identified “twenty plus eyewitness ID’s.” The
    third claim of error occurred during the penalty phase when Kesseh alleges
    that testimony of two of the Commonwealth’s witnesses mischaracterized the
    meaning of “conditionally discharged” and materially influenced the jury’s
    decision to recommend a twenty-seven-year sentence for his convictions.
    Kesseh concedes that the latter two alleged errors are unpreserved and are only
    reviewable for palpable error. 
    Id.
     Consequently, we will not reverse unless “the
    alleged misconduct was flagrant[.]” Conduct is flagrant “if it render[ed] the trial
    fundamentally unfair.” 
    Id.
     (internal quotations and citation omitted). Four
    factors aid the Court in determining whether a prosecutor’s improper conduct
    is sufficiently flagrant to require reversal:
    (1) whether the remarks tended to mislead the jury or to prejudice
    the accused; (2) whether they were isolated or extensive; (3) whether
    they were deliberately or accidentally placed before the jury; and (4)
    the strength of the evidence against the accused. We look at the
    claimed error in context to determine whether, as a whole, the trial
    was rendered fundamentally unfair.
    
    Id.
     (citations omitted).
    19
    1. Assessing the value of the stolen property:
    Of the twenty-four counts for which Kesseh was ultimately convicted, five
    involved KRS 514.030, theft by unlawful taking over $500, a Class D felony at
    the time of trial. Kesseh asserts that the Commonwealth failed to present
    sufficient evidence to establish the value of the stolen property relevant to each
    count and then incorrectly stated the legal standard by which the jury was
    required to assess the value of the property. In Tussey v. Commonwealth, we
    established that “the value of the stolen property on the date the offender
    receives it is proper for determining the severity of the violation.” 
    589 S.W.2d 215
    , 215 (Ky. 1979). We concluded in Tussey, when referring to depreciation,
    that it would “contradict all theories of fairness” to hold individuals
    accountable for “an act unrelated to his or her own criminal liability[.]” Id. at
    216. Of course, value must be determined somehow, and in Commonwealth v.
    Reed, we affirmed that owners are competent to testify regarding the value of
    their property so long as they give “sufficient detail for the jury to make a value
    determination.” 
    57 S.W.3d 269
    , 271 (Ky. 2001).
    Kesseh is correct that the Commonwealth misstated the relevant law to
    the jury by claiming that: “the value is the cost. Ask anybody how they value
    the things that they own and it’s how much they spent to purchase it. Now
    most of these kids were students. Their computers, their laptops were relatively
    new. Their electronics were relatively new. It doesn’t say anything in here
    about depreciated value.” This statement was a clear misrepresentation of the
    law as it relates to valuing stolen property for the purposes of KRS 514.030.
    20
    However, at its core this issue asks whether, despite the misstatement, the
    Commonwealth provided overwhelming evidence of Kesseh’s guilt. We
    conclude that it did.
    The five victims the Commonwealth questioned over the course of three
    days each testified as to the value of their stolen property. Kirk testified that
    the value of her laptop was $1,200. Washington testified that the total value of
    stolen property for her Playstation 4, Nintendo Switch, and speaker was
    roughly $780. Rose testified that his laptop was worth roughly $1,000.
    Meanwhile, McFarland testified that her laptop was worth $800. Finally,
    Schreiber testified that his laptop, X-box 360, and camera were worth about
    $2,000. This testimony satisfied the Commonwealth’s burden, is well in line
    with our precedent, and consequently does not meet the threshold for reversal.
    See, e.g., Reed, 57 S.W.3d at 270; Poteet v. Commonwealth, 
    556 S.W.2d 893
    ,
    895-96 (Ky. 1977); Mitchell v. Commonwealth, 
    538 S.W.3d 326
    , 328 (Ky. App.
    2017); Meyer v. Commonwealth, 
    393 S.W.3d 46
    , 55 (Ky. App. 2013).
    2. The closing statement:
    Near the conclusion of the Commonwealth’s closing statements, counsel
    stated the following:
    We’re not asking you to just accept one witness 
    ID.
     We’re not asking
    you to accept even the twenty plus eyewitness ID’s. We’re asking
    you to weigh it with the video, with the evidence that he had in his
    possession at the time, with the DNA. We’re asking you to rely on
    all of the evidence. The piles of evidence that link him to every single
    one of these offenses. That link him to every single violation, every
    one of those students at U of L. We’re asking you to find him guilty
    of each and every one of these offenses that he committed.
    21
    Kesseh asserts that by incorrectly claiming that he was identified by twenty
    witnesses, the Commonwealth committed reversible misconduct. We disagree.
    As we have stated, prosecutorial conduct is judged for flagrancy by considering
    whether the remarks misled or prejudiced the jury, whether the remarks were
    isolated or extensive, whether those remarks appeared to have been deliberate,
    and finally, we look at the strength of the evidence against the defendant.
    Brafman, 612 S.W.3d at 861. In Duncan v. Commonwealth, the principal case
    on which Kesseh relies, the prosecuting attorney relied on testimony which
    simply stated that the defendant “could not be excluded as a source of the
    DNA[.]” The Commonwealth then proceeded to make an extraordinary
    rhetorical leap when it inferred that because the defendant could not be
    excluded as a source, the jury was required to find that it was the defendant’s
    DNA on the victim’s clothing. 
    322 S.W.3d 81
    , 91 (Ky. 2010). Inferring that the
    DNA evidence “pin-pointed” the defendant was “highly improper and, given the
    immense weight jurors are apt to accord DNA evidence, rendered [the
    defendant’s] trial manifestly unfair.” Id. at 93. The Commonwealth’s conduct
    in the case before us bears little, if any resemblance, to Duncan.
    In this case, the Commonwealth provided seven eyewitnesses who
    identified Kesseh at trial, in addition to more than a dozen video surveillance
    clips and a litany of stolen items that were on his person when he was
    arrested.14 Moreover, and crucially, these comments were isolated, coming in
    14 The Commonwealth also presented DNA evidence tying Kesseh to the sexual
    assault, however, that is not at issue in this appeal.
    22
    the final minutes of an extensive closing argument in which the
    Commonwealth had otherwise systematically addressed the elements of each
    charge against Kesseh. Given the apparent incidental nature of the comments,
    the fact that the eyewitness number was not integral to the underlying theory
    and proof of guilt, little suggests that they materially misled the jury.
    Consequently, Kesseh’s argument that the error was flagrant is unmeritorious.
    3. The penalty phase testimony:
    Kesseh’s final substantive allegation of prosecutorial misconduct
    concerns the testimony of two of the Commonwealth’s witnesses, called to
    testify during the penalty phase of his trial. The first, Sarah Butler,15 was
    brought forth to testify regarding Kesseh’s prior convictions. As part of her
    testimony Butler was asked to introduce Kesseh’s prior convictions. During
    that exchange, Butler testified that Kesseh had previously been convicted of
    fourth-degree assault and harassment for which he received 179 days,
    conditionally discharged for two years. Afterwards the following exchange
    occurred:
    Commonwealth: Okay, so when a sentence is conditionally discharged
    does that mean that he, does he serve a sentence in jail or is that
    essentially a community supervision type of sentence?
    Butler: Yes, it’s community supervision.
    Immediately thereafter, a juror requested that he be able to ask the court a
    clarifying question. The court agreed and had the juror write the question out
    15 Butler is a paralegal in the Commonwealth Attorney’s Special Victim Unit.
    Her testimony was limited to discussing Kesseh’s prior convictions.
    23
    for review. That question asked for clarification about whether Kesseh had
    served any jail time for those earlier misdemeanor offenses. The court,
    following a bench conference with both counsels, answered directly that
    conditional discharge16 meant that “time was not served. It was the time that
    was essentially probated on the condition that he do certain things and not do
    other things.” Immediately following this colloquy, and Butler’s testimony, the
    Commonwealth called Tara Vincent17 to discuss the implications of certain
    possible penalties which the jury could impose, having found Kesseh guilty. As
    part of her testimony, Vincent stated that during probation an individual is
    “allowed to remain in the community instead of going to prison[;]” and that the
    conditions of the “community supervision” are based on a needs assessment
    completed by the Department. Kesseh asserts that the proximity between
    Vincent’s discussion of community supervision and Butler’s explanation
    regarding Kesseh’s prior sentence created an impermissible inference that
    Kesseh had been under the Department’s supervision when he committed his
    crime spree. Having reviewed the record carefully, we find this allegation
    entirely without merit.
    16KRS 533.020(3) allows the court to impose conditional discharge when the
    defendant has been convicted and the court believes “that the defendant should
    conduct himself according to conditions determined by the court and that
    probationary support is inappropriate.” KRS 533.030 establishes the parameters by
    which the trial court establishes the conditions of conditional discharge.
    17 Vincent is a district supervisor with the Division of Probation and Parole
    within Kentucky’s Department of Corrections.
    24
    In Robinson v. Commonwealth, we reversed a conviction after a probation
    and parole officer provided incorrect information to the jury regarding a
    defendant’s potential parole eligibility. 
    181 S.W.3d 30
    , 38 (Ky. 2005). We
    reasoned that “[t]he use of incorrect, or false, testimony . . . is a violation of due
    process when the testimony is material[]” regardless of whether the prosecutor
    operated in good faith. 
    Id.
     In that case, the parole and probation officer
    incorrectly testified that a defendant’s good time credits would be factored into
    his parole eligibility when, in reality, “[a]lthough statutory good time is listed in
    the sentence calculation on a prisoner's resident record card, the prisoner does
    not actually receive credit for his good time until he reaches the minimum
    parole eligibility (or, in this case, service of 20% of his sentence).” 
    Id.
     The
    Commonwealth relied on this incorrect testimony in arguing that the defendant
    should receive the maximum sentence possible. 
    Id.
     See also Beard v.
    Commonwealth, 
    581 S.W.3d 537
    , 546 (Ky. 2019) (finding palpable error when
    the Commonwealth urged the jury to recommend the maximum sentence for
    each crime, to be run consecutively, after misinforming the jury that the
    defendant would be parole eligible after only serving 20% of the sentence).
    Simply stated, the crucial distinction between Robinson and this case is that
    here the testimony provided was correct. Butler’s and Vincent’s description of
    “conditional discharge” and “community supervision” accurately reflected KRS
    533.020. Consequently, we find no error.
    25
    V. No cumulative error.
    Lastly, Kesseh contends that his convictions should be reversed based on
    cumulative error, “the doctrine under which multiple errors, although harmless
    individually, may be deemed reversible if their cumulative effect is to render the
    trial fundamentally unfair.” Brown v. Commonwealth, 
    313 S.W.3d 577
    , 631
    (Ky. 2010). Cumulative error has been found “where the individual errors were
    themselves substantial, bordering, at least, on the prejudicial.” 
    Id.
     Since none
    of the errors in this case have been found individually substantial or
    prejudicial, no cumulative error resulted.
    III. Conclusion
    For the foregoing reasons, we affirm the judgment of the Jefferson Circuit
    Court.
    Minton, C.J.; Conley, Hughes, Keller, Lambert and VanMeter, JJ., sitting.
    All concur. Nickell, J., not sitting.
    COUNSEL FOR APPELLANT:
    Christopher Barrett Thurman
    Louisville Metro Public Defender’s Office
    COUNSEL FOR APPELLEE:
    Daniel J. Cameron
    Attorney General of Kentucky
    Joseph A. Beckett
    Assistant Attorney General
    26
    

Document Info

Docket Number: 2021 SC 0032

Filed Date: 4/26/2022

Precedential Status: Precedential

Modified Date: 4/28/2022