Jhah Rizen v. Commonwealth of Kentucky ( 2022 )

RENDERED: MAY 27, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1583-MR
JHAH RIZEN APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE TIMOTHY KALTENBACH, JUDGE
ACTION NO. 19-CR-00321
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
CLAYTON, CHIEF JUDGE: Jhah Rizen (“Rizen”) appeals from the McCracken
Circuit Court’s final judgment sentencing him to ten (10) years’ imprisonment for
one count of fourth-degree assault, one count of tampering with physical evidence,
and one count of being a second-degree persistent felony offender (“PFO”). Rizen
argues that he was entitled to a directed verdict regarding the tampering with
physical evidence charge. Rizen further contends that the trial court committed
error by permitting the jury to hear prejudicial and irrelevant testimony concerning
his other bad acts. Finally, Rizen argues that the trial court denied him the right to
present a defense.
Because we believe that the trial court erred by failing to grant
Rizen’s motion for a directed verdict on the charge of tampering with physical
evidence, we reverse the trial court’s judgment and remand with directions for the
trial court to enter a directed verdict of acquittal on the charges of tampering with
physical evidence and being a second-degree PFO. However, we affirm the
remainder of the trial court’s judgment and sentence regarding the charge of
fourth-degree assault. Finally, because we are reversing and remanding Rizen’s
tampering with physical evidence and second-degree PFO convictions and
affirming Rizen’s fourth-degree assault conviction, we do not reach Rizen’s other
arguments.
FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2019, the McCracken County grand jury indicted Rizen
on one count of the following offenses: second-degree assault, second-degree
unlawful imprisonment, tampering with physical evidence, third-degree terroristic
threatening, and being a second-degree PFO. His three-day trial began on
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September 23, 2020. Below is a summary of the evidence introduced at that
proceeding.
In early 2019, Ashley Hiester (“Hiester”) had recently moved out of
her apartment because she did not have enough money to pay her rent. As a result
of these circumstances, Rizen offered to allow Hiester to live with him and his
girlfriend, Neva Smith. Around mid-February of 2019, Hiester moved in with
Rizen and Smith.
Hiester testified that, on March 19, 2019, Rizen was upset with her
because she had taken a gun and scales that had belonged to him. The next
afternoon, on March 20, 2019, after again discussing the missing items with
Hiester, Hiester testified that Rizen “just snapped.” Hiester testified that Rizen
smashed Hiester’s phone with a hammer and then bent the cell phone with his
hands. Hiester testified that she did not know why Rizen had broken her phone but
“[h]e was irritated that I had been on it pretty much all day. I was on and off of it,
wasn’t really doing nothing around the house, just kind of sitting there.” Hiester
testified that Rizen then threw the phone, and it slid across the floor into his
bedroom.
Hiester testified that approximately thirty to forty-five minutes later,
Rizen pushed Hiester onto the couch and struck her several times with his fist. She
further testified that he put her in a headlock and threw her down. Subsequently,
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Rizen retrieved a kitchen knife, held it to her throat, and threatened to “physically
hurt [her] bad” if she did not give him “the answers he was wanting.” Around that
time, he also threatened to kill her. Moreover, Hiester testified that he informed
her that if she “didn’t tell him the truth . . . he was going to take [her] life,” and
instructed her to “give him one reason why he shouldn’t.”
Hiester further testified Rizen struck Hiester with his fists “several”
times during the assault. The blows knocked out a few of her teeth. Hiester
additionally testified that Rizen attempted to hit her with a hammer at one point but
missed. After the assault, Rizen informed Hiester that she “was his bitch and
nobody else could have [her].” He also said he would hurt her if she tried to leave
the apartment.
Sometime thereafter, Hiester asked Rizen if he had an extra phone
into which she could put her SIM card since he had destroyed her other phone. He
gave her a couple to try, but Hiester testified that the phones could not read her
SIM card. However, she was finally able to find a phone in Rizen’s apartment
whereby she could text with friends and family and make phone calls. Hiester
testified that she stayed in Rizen’s apartment texting people for the next seven to
eight hours after the alleged assault.
At approximately 2:00 a.m. – when she believed that Rizen was
asleep – Hiester testified that she left the apartment and ran approximately two
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blocks to a Five Star Food Mart. When she arrived, she hid in the bathroom. She
also called her fiancé and an ambulance using Five Star’s phone. Hiester went to
the hospital, and staff documented that she had bruises and abrasions on her face
and neck and missing teeth.
On March 21, 2019, Detective Blake Quinn was investigating
Hiester’s allegations. At 8:20 a.m., he arrived at Rizen’s apartment to conduct
surveillance. Detective Quinn testified on direct examination that almost
immediately afterward, he saw Rizen “appear[] to be throwing something away” in
the apartment complex’s dumpster. However, on cross-examination, the following
exchange occurred:
Defense Attorney: Did you say you saw [Rizen]
approach the dumpster, or you saw him throw something
in?
Quinn: I saw him at the dumpster.
Defense Attorney: Oh, okay, so you didn’t actually see
something in his hand, and him toss it in?
Quinn: No.
After Rizen left, law enforcement followed him until he stopped at a
Budget Inn. Officers thereafter took him into custody. Detective Quinn
subsequently returned to aid in the search of the dumpster. As a result of this
endeavor, they recovered Hiester’s cell phone.
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Following Rizen’s trial, the jury convicted him of fourth-degree
assault, tampering with physical evidence, and being a second-degree PFO. The
jury, however, acquitted him of the remaining charges.
At the conclusion of the penalty phase, the jury recommended a
$500.00 fine and twelve (12) months’ imprisonment on the assault charge; it
further recommended a five (5) year sentence for the tampering charge, enhanced
to ten (10) years as a result of Rizen’s status as a PFO. The trial court
subsequently sentenced Rizen in accordance with the jury’s recommendation –
apart from the fine, which the court waived. This appeal followed.
ANALYSIS
a. Directed Verdict – Tampering With Physical Evidence
Rizen first argues on appeal that the trial court erred when it failed to
grant his directed verdict motion on the tampering with physical evidence charge.
As a preliminary matter, the Commonwealth contends that Rizen did not properly
preserve this issue. The Commonwealth argues that, contrary to Kentucky Rules
of Civil Procedure (“CR”) 50.01’s requirement that a directed verdict motion “state
the specific grounds therefor[,]” Rizen gave only a general statement which was
insufficient for preservation purposes. We disagree.
The Commonwealth cites Pate v. Commonwealth, 134 S.W.3d 593,
597 (Ky. 2004), in which counsel twice stated that he wished to make a motion for
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a directed verdict without providing any grounds or argument in support thereof.
The Kentucky Supreme Court found the foregoing to be insufficient for the
purpose of preserving the denial of the defendant’s motion for appeal. Id. at 597-
98.
However, Kentucky courts have also stated that “[t]he purpose of [CR
50.01] is to apprise fairly the trial judge as to the movant’s position and also to
afford opposing counsel an opportunity to argue each ground before the judge
makes his ruling.” Gulf Oil Corp. v. Vance, 431 S.W.2d 864, 865 (Ky. 1968)
(emphasis added) (citation omitted); see also Hercules Powder Co. v. Hicks, 453
S.W.2d 583, 590 (Ky. 1970).
In this case, after defense counsel stated that Rizen based his motion
on the insufficiency of the evidence, the Commonwealth responded to the directed
verdict motion with specificity, stating:
As to the tampering . . . I believe we presented sufficient
evidence that Mr. Rizen concealed the cell phone to
attempt to prevent law enforcement from discovering it
when he took the phone and put it in the dumpster. I
think that the interview where he said he located the
phone on the floor by the door is evidence that he was
aware of it, there was evidence that he was by the
dumpster where the phone was found by the police and I
think that a reasonable jury could infer from the
circumstances that Ms. Hiester had left the apartment,
that Mr. Rizen was in the process of cleaning up and
disposing of evidence.
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We feel that the foregoing exchange was sufficient to “apprise fairly the trial judge
as to the movant’s position and also to afford opposing counsel an opportunity to
argue each ground before the judge makes his ruling.” Vance, 431 S.W.2d at 865.
Thus, we believe that “the purpose of the rule as so stated was completely met in
the present case.” Hicks, 453 S.W.2d at 590. Accordingly, we proceed to the
substantive legal issue at hand.
As discussed by the Kentucky Supreme Court, “[o]n appellate review,
the test of a directed verdict is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the defendant is entitled to a
directed verdict of acquittal.” Commonwealth v. Benham, 816 S.W.2d 186, 187
(Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). When
ruling on a directed verdict motion, the trial court must assume the evidence for the
Commonwealth is true and draw all fair and reasonable inferences from the
evidence in favor of the Commonwealth. Id. However, “[i]t should be
remembered that the trial court is certainly authorized to direct a verdict for the
defendant if the prosecution produces no more than a mere scintilla of evidence.
Obviously, there must be evidence of substance.” See Sawhill, 660 S.W.2d at 5.
A directed verdict motion is reviewed in light of the proof at trial and
the statutory elements of the alleged offense. Lawton v. Commonwealth, 354
S.W.3d 565, 575 (Ky. 2011). We review the trial court’s decision on a motion for
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a directed verdict for an abuse of discretion. Exantus v. Commonwealth, 612
S.W.3d 871, 887 (Ky. 2020).
Kentucky Revised Statute (“KRS”) 524.100(1)(a) states, in pertinent
part:
(1) A person is guilty of tampering with physical
evidence when, believing that an official proceeding is
pending or may be instituted, he: (a) Destroys, mutilates,
conceals, removes or alters physical evidence which he
believes is about to be produced or used in the official
proceeding with intent to impair its verity or availability
in the official proceeding[.]
Section (2) of KRS 524.100 states that tampering with physical evidence is a Class
D felony.
The Commonwealth must therefore establish that the defendant (1)
believed that an official proceeding was pending or may be instituted, (2)
performed the act of “tampering with” the evidence at issue, and (3) acted with the
intent to prevent the use of the evidence at an official proceeding. Id.As the Kentucky Supreme Court further explained in Commonwealth
v. James, “KRS 524.100 requires the Commonwealth to prove both that the
defendant acted with the requisite criminal intent and that he completed the
requisite criminal act.” 586 S.W.3d 717, 724 (Ky. 2019) (emphasis in original).
As required by the statute, “the Commonwealth satisfies the intent element by
showing beyond a reasonable doubt that the defendant acted with intent to impair
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[the evidence’s] verity or availability in [an] official proceeding.” Id. (emphasis in
original) (internal quotation marks and citation omitted). Separately, “the
Commonwealth satisfies the criminal-act element by showing beyond a reasonable
doubt that the defendant completed one of the following proscribed acts:
destroy[ing], mutilat[ing], conceal[ing], remov[ing] or alter[ing] physical
evidence.” Id. at 725 (internal quotation marks and citation omitted).
As discussed in Little v. Commonwealth, 272 S.W.3d 180, 186 (Ky.
2008), intent “may be inferred from the actions of a defendant or from the
circumstances surrounding those actions. Likewise, intent may be inferred from
the defendant’s knowledge. Finally, we are mindful that a person is presumed to
intend the logical and probable consequences of his conduct.” (Internal quotation
marks and citations omitted.)
In this case, even if Rizen did put the phone in the dumpster, the
Commonwealth provided no proof that he either believed that an official
proceeding was pending or may be instituted or that he intended to impair the
item’s availability in such a proceeding. As to any inferences to be drawn from his
actions pursuant to Little, Rizen was in the apartment complex’s parking lot and
using the apartment complex’s dumpster at 8:00 a.m., which was not an
abnormally late or early time. No evidence exists in the record to indicate that
Rizen was acting furtively or attempting to hide his actions from any onlookers.
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Nor did the Commonwealth produce any evidence that the cell phone was placed
within a garbage bag or other container or bag of trash in an effort to otherwise
conceal it and keep it from being used against Rizen in any official proceeding.
As to any inferences to be drawn from Rizen’s apparent knowledge of
the circumstances at that time, the record indicates that he had attempted to find
multiple replacement cell phones for Hiester. Such behavior evidences an apparent
lack of concern that Hiester would contact the police and a lack of knowledge that
his conduct was such that it would result in a possible official proceeding if she
were to receive another means of communication. Indeed, Hiester testified that she
had remained in Rizen’s apartment for seven or eight hours after the assault texting
and calling friends and family on a phone that belonged to Rizen, and that he was
aware of such fact. Additionally, the record does not reflect that Hiester had given
Rizen or Smith any indication that she would be contacting the authorities.
Rizen’s only testimony was that he had seen the broken phone on the floor in front
of the door.
Accordingly, we find that Rizen was entitled to a directed verdict on
the tampering with physical evidence charge as a matter of law; thus, the trial court
abused its discretion when it denied such motion. We, therefore, reverse the trial
court’s judgment and remand with directions for the trial court to enter a new
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judgment granting Rizen’s motion for a directed verdict on the charge of tampering
with physical evidence.
Moreover, because the failure of the underlying felony conviction
renders Rizen’s conviction for being a second-degree PFO improper, we reverse
the trial court’s judgment and remand with directions for the trial court to enter a
new judgment granting a directed verdict on the charge of being a second-degree
PFO. See KRS 532.080(2).
b. Other Arguments
Rizen makes other arguments on appeal regarding alleged prejudicial
and irrelevant testimony concerning other bad acts. However, because we are
reversing and remanding the trial court’s judgment regarding Rizen’s convictions
for tampering with physical evidence and being a PFO in the second degree, and
because Rizen made no arguments concerning his conviction for fourth-degree
assault, we need not address Rizen’s arguments regarding the admissibility of
Kentucky Rules of Evidence 401, 402, or 404(b) evidence. See Sexton v.
Commonwealth, 317 S.W.3d 62, 64 (Ky. 2010).
CONCLUSION
For the foregoing reasons, we reverse the trial court’s judgment and
remand with directions for the trial court to enter a directed verdict of acquittal on
the charges of tampering with physical evidence and being a second-degree PFO.
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However, we affirm the remainder of the trial court’s judgment and sentence
regarding the charge of fourth-degree assault.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Emily Holt Rhorer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Christopher Henry
Assistant Attorney General
Frankfort, Kentucky
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