Robert Oates v. Commonwealth of Kentucky ( 2021 )

RENDERED: MARCH 26, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0105-MR
ROBERT OATES APPELLANT
APPEAL FROM LIVINGSTON CIRCUIT COURT
v. HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 17-CR-00046
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, TAYLOR, AND K. THOMPSON, JUDGES.
CALDWELL, JUDGE: Robert Oates (“Oates”) appeals from his conviction of
Theft by Unlawful Taking over $500 and his resultant sentence of one-year
imprisonment. He alleges that the trial court erred in not directing a verdict on the
charge. He also complains that the trial court allowed evidence to be presented
which was more prejudicial than probative because it was not properly
authenticated, but acknowledges that he did not object to the admission of the
evidence at trial. Finally, he alleges that the complaining witness’s utterance to the
Appellant whilst leaving the witness box was prejudicial and the jury should have
been admonished to ignore the utterance; relief he did not request from the trial
court. We affirm.
FACTS
In 2016, Oates was working for Greer Excavating in Livingston
County. Oates had previously operated his own construction business, but upon
divorcing, he had dissolved his business. While wrapping up his business, he sold
some equipment. This included a bulldozer which he sold to Greer Excavating,
owned and operated by Keith Greer (“Greer”). He then began working for Greer
as an employee.
In September of 2016, Oates was approached by Jim Tinsley
(“Tinsley”), who wanted to have some work done on property he owned.
Understanding that Tinsley would pay more if Greer Excavating was engaged,
Oates agreed to do the work for Tinsley as a side job “as a favor.”
According to Oates, he told Greer about the Tinsley job and Greer
agreed to allow him to use the bulldozer to do the work for Tinsley as long as rent
was paid for its use. After several weeks, toiling after work hours, Oates finished
the job and was paid by Tinsley via check made payable to Oates Construction in
the amount of $1,600, plus title to a Jeep valued by the parties at $500.
-2-
Oates insists he then reimbursed Greer Excavating for materials he
had ordered for the Tinsley job through Greer Excavating, and made this
reimbursement in cash. He also alleged that he had paid Greer for rental of the
bulldozer. The total amount that Oates alleged he paid Greer for the job was
$1,900. He did not ask for or receive a receipt. Evidence at trial suggested Tinsley
paid Oates a total of $2,100 in cash plus the value of the Jeep.
Greer had a different view of the situation. He testified at the trial that
he was wholly unaware of the Tinsley job and denied that Oates ever asked
permission to use the bulldozer or order materials for the job through Greer
Excavating. When Greer was billed for the materials, he asked Oates about the bill
and learned of the Tinsley job. Oates assured him that he would reimburse the
company for the materials. When Greer was never paid for the materials by his
employee, Oates, he approached Tinsley for payment. That was when he was
presented with evidence that Tinsley had paid “Oates Construction” for the work
which had been completed using Greer Excavating equipment and with materials
purchased through the company. Greer denied ever being reimbursed by Oates for
any of the materials or the use of the bulldozer, despite Oates’ testimony to the
contrary.
Oates was charged with Theft by Unlawful Taking over $500 but
under $10,000, a Class D felony. Following a trial at which the trial court entered
-3-
a directed verdict as to the Jeep, Oates was found guilty for keeping the $1,600
which Tinsley had paid him. The jury recommended the minimum sentence of
one-year imprisonment, which was imposed by the Livingston Circuit Court. He
now appeals as a matter of right.
STANDARD OF REVIEW AND ANALYSIS
Directed Verdict
The standard of review for the denial of a motion for directed verdict
of acquittal involves the following:
On motion for directed verdict, the trial court must draw
all fair and reasonable inferences from the evidence in
favor of the Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed
verdict should not be given. For the purpose of ruling on
the motion, the trial court must assume that the evidence
for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to
such testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
Oates argues that the trial court erred when it allowed the jury to
deliberate because there was insufficient evidence provided to support a finding of
guilt. He complains that the evidence—which consisted of the testimony of Keith
Greer and Jim Tinsley, as well as the check Tinsley gave him payable to Oates
Construction, and receipts for materials Oates purchased through Greer Excavating
-4-
to complete the Tinsley gig—was not sufficient because Oates himself disputed
their testimony.
However, Oates forgets that it is the jury who is the arbiter of the
credibility of witnesses when testimony is in conflict. What Oates suggests is that
the trial court should have placed his judgment as to the credibility of the witnesses
as paramount to the judgment of the trier of fact, i.e., the jury. However, the law is
actually in opposition to his argument.
[Such an argument] improperly shifts the credibility
determination from the jury to the judge. As cautioned
by Professor Lawson, the power to disqualify witnesses
“should be applied grudgingly, only against the
‘incapable’ witness and never against the ‘incredible’
witness, since the triers of fact are particularly adept at
judging credibility.” Robert G. Lawson, The Kentucky
Evidence Law Handbook § 3.00[2][b] at 239 (5th ed.
2013) (quoting the Evidence Rules Study Committee,
Kentucky Rules of Evidence—Final Draft, p. 54 (Nov.
1989)).
Ross v. Commonwealth, 531 S.W.3d 471, 477 (Ky. 2017).
When the testimony of witnesses differs on a fact, it is the jury’s
responsibility to determine witness credibility and find facts. It is not the trial
court’s purview to remove that duty from the jury.
[W]hen looking at the trial court’s failure to grant a
directed verdict, an appellate court should not reverse
unless “it would be clearly unreasonable for a jury to find
guilt.” Commonwealth v. Benham, 816 S.W.2d 186, 187
(Ky. 1991).
-5-
Commonwealth v. Goss, 428 S.W.3d 619, 625-26 (Ky. 2014), as modified (Apr.
28, 2014). A simple divergence of testimony, such as that at issue here, is
insufficient for us to determine “it would be clearly unreasonable for a jury to find
guilt.” Id.The trial court properly allowed the jury to determine which witnesses
to find credible, and, through the testimony, determine the facts it found supported
by substantial evidence. We cannot say that it was wholly unreasonable for the
jury to have found the testimony of Tinsley and Greer credible and to have found
the testimony of Oates to be self-serving and less worthy of belief. The trial court
did not err in denying the motion for a directed verdict.
Admission of Evidence
Oates made no objection to the introduction of the evidence of which
he now complains; thus, he alleges that the introduction of the evidence rises to the
level of palpable error.
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a
new trial or 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.
Kentucky Rules of Criminal Procedure (RCr) 10.26.
A palpable error is clear and plain, affects the substantial
rights of a party, and is more likely than other ordinary
errors to affect the outcome of the case. Miller v.
-6-
Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009). Even
so, the defendant is not entitled to relief unless it can be
determined that manifest injustice, i.e., a repugnant and
intolerable outcome, resulted from that error. Id.McCleery v. Commonwealth, 410 S.W.3d 597, 605-06 (Ky. 2013).
Oates alleges that the introduction of receipts for the materials he
purchased for the Tinsley job through Greer Excavating were not properly
authenticated. He claims this because of handwritten notations which appear on
several of them, and complains that one of the receipts was completely
handwritten. Oates alleges that it is only these handwritten notations that link the
receipts to the Tinsley job, and therefore to him, alleging that the receipts could
have been from other jobs performed for Greer Excavating customers. He forgets,
however, that he testified that he ordered materials for the Tinsley job through
Greer Excavating, utilizing the company’s ability to order materials without having
to pay immediately as he would have had to if he had ordered the materials
himself.
Oates’ failure to challenge the admissibility of the receipts for the
materials at trial requires the application of the more vigorous standard of palpable
error in reviewing his allegation of error. We cannot say that “a repugnant and
intolerable outcome, resulted” because of the introduction of the receipts. Id. at
606. The testimony of Tinsley and Greer alone was sufficient for the jury to find
guilt, and these receipts were not the linchpin of the case. We cannot say that the
-7-
result of this trial was so shocking or repugnant as to require reversal or that there
is a “probability of a different result or error so fundamental as to threaten a
defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207
S.W.3d 1, 3 (Ky. 2006). Therefore, we find no palpable error in the introduction of
the receipts.
Witness Comment While Leaving the Stand
We will review this allegation of error for an abuse of discretion.
Shegog v. Commonwealth, 142 S.W.3d 101 (Ky. 2004). However, we must point
out that despite Oates’ arguments to the contrary, at trial he never requested
specific relief for what he alleges occurred when Mr. Greer left the witness stand.
Therefore, our review for an abuse of discretion is of a generous nature as we
could just have soundly determined that a palpable error review was warranted. As
we do not believe that he is entitled to relief under either standard of review, we
will review the trial court’s actions for an abuse of discretion.
Mr. Greer was called by the Commonwealth on rebuttal after Oates
testified in his own defense. Upon leaving the stand and walking past defense
counsel table where Oates sat, Mr. Greer apparently made a disparaging comment
to him. The comment was not caught by the courtroom microphones and thus we
only have counsel’s representations to the content of Mr. Greer’s utterance at the
bench. But, suffice it to say, Mr. Greer was not kindly disposed towards Oates and
-8-
expressed that opinion in strong language as an aside. An attorney, not involved in
the matter at hand, was present in the courtroom and was close to counsel table,
heard the utterance, and approached the bench with defense counsel to discuss the
matter with the trial court.
We have no reason to believe the utterance did not occur as defense
counsel and uninterested counsel stated. However, we cannot say that the
statement alone to the court, without asking for relief, was sufficient for a finding
that the trial court abused its discretion in not taking action—particularly
when defense counsel did not request any action be taken vis-à-vis the deliberating
jury. Now, on appeal, Oates argues that the jury should have been polled and, if
polling determined the remark was heard, admonished not to consider the remark if
they did hear it. However, no such request was made by counsel at the trial. When
the trial court asked counsel after the return of the verdict whether either side
wished the jury to be polled on the verdict, defense counsel declined and did not
bring up Greer’s utterance again.
We cannot say that the trial court abused its discretion in not taking
action on this matter, especially after defense counsel effectively waived the matter
by not requesting any further action be taken after the guilty verdict was returned.
Rather, we find the trial court was correct in not highlighting an unfavorable
utterance about the defendant before the verdict as the jury could have found Oates
-9-
not guilty, and mentioning the utterance before deliberation could have affected the
outcome, especially if the jury did not actually hear the aside. We find the trial
court acted properly and did not abuse its discretion.
CONCLUSION
Having reviewed the allegations of error, we find that the trial court
did not err and AFFIRM the conviction and sentence.
TAYLOR, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kayla D. Deatherage Daniel J. Cameron
Frankfort, Kentucky Attorney General of Kentucky
Lauren Lewis
Assistant Attorney General
Frankfort, Kentucky
-10-