David A. Kimmel v. Commonwealth of Kentucky

RENDERED: APRIL 27, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0038-MR
DAVID A. KIMMEL APPELLANT
ON APPEAL FROM BOYD CIRCUIT COURT
V. HONORABLE JOHN F. VINCENT, JUDGE
NO. 20-CR-00134
COMMONWEALTH OF KENTUCKY APPELLEE
AND
2022-SC-0061-MR
DAVID A. KIMMEL APPELLANT
ON APPEAL FROM BOYD CIRCUIT COURT
V. HONORABLE JOHN F. VINCENT, JUDGE
NO. 21-CR-00141
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE BISIG
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
In March 2020, Appellant David A. Kimmel shoplifted from Walmart in
Boyd County, Kentucky. He was charged and subsequently released on bond
pending trial. Six months later, Kimmel shoplifted from Rural King. Prior to
these 2020 shoplifting incidents, each store gave Kimmel notice prohibiting
him from being on the premises. Kimmel agreed to have all charges tried at
once and, after a jury trial, the trial court sentenced Kimmel to forty years in
prison consistent with the jury’s recommendation. Kimmel now appeals as a
matter of right. After review, we conclude that the forty-year sentence violates
the aggregate cap on sentences prescribed by Kentucky Revised Statute (KRS)
532.110(1)(c). For the following reasons, we affirm in part, vacate in part, and
remand this case to the Boyd Circuit Court.
FACTS AND PROCEDURAL HISTORY
On March 12, 2020, Michael Knipp, an Asset Protection associate at
Walmart in Boyd County, Kentucky observed Kimmel entering the store. Knipp
was familiar with Kimmel because Kimmel had previously been caught
shoplifting at Walmart. Because of this familiarity, Knipp called the sheriff’s
department almost immediately after observing Kimmel in the store. Knipp
watched Kimmel picking up two dolls, two sports bras, and a phone charger.
He concealed the sports bras on his person and placed the other items in his
cart. He then walked to the hardware department and placed the sports bras,
one doll, and the phone charger inside a mailbox box.1 Kimmel resealed the
box, walked to housewares, and concealed the other doll on his person.
Kimmel proceeded to walk out the door without paying for the doll.
1 In the Commonwealth’s proffered trial testimony, Kimmel’s actions were
referred to as “box stuffing” where someone puts items inside a box and scans only the
box to avoid paying for the items stuffed inside. On occasion, the box is left for an
accomplice to purchase.
2
After Kimmel returned to a vehicle, a sheriff’s deputy conducted a traffic
stop on the van Kimmel was in. The doll was found inside the van and Kimmel
could not produce a receipt for the merchandise. Inside the store, the mailbox
box was photographed, showing it contained the doll, sports bras, and phone
charger. Kimmel was ultimately charged with third-degree burglary given the
prior notice to stay off the premises and theft by unlawful taking for shoplifting
the doll.
After being charged for the Walmart incident on March 19, 2020 and
subsequently released on bond, Kimmel committed another theft at the Rural
King in Boyd County, Kentucky. On September 23, 2020, Jacob Thomas, a
Rural King tractor manager, was walking into the store when he observed
Kimmel pushing a shopping cart out of the store. Thomas was familiar with
Kimmel because Kimmel stole from Rural King before and was previously given
notice to stay off the premises.
The shopping cart contained three boxes of ammunition. Thomas
repeatedly asked Kimmel for a receipt, which he did not produce. Kimmel then
lied and stated he was trying to return the ammunition. Thomas grabbed the
cart and Kimmel picked up two of the boxes of ammunition from the cart.
Kimmel then ran to his vehicle and left the premises. Thomas reported the
theft and gave a statement to police. Kentucky State Police investigated the
theft and later located Kimmel. On April 13, 2021, Kimmel was charged with
third-degree burglary given the prior notice to stay off the premises and theft
3
by unlawful taking for shoplifting the ammunition. He was also indicted for
being a first-degree Persistent Felony Offender (PFO).
Kimmel agreed to have all charges tried together and trial began on
November 22, 2021. Deanna Harris, Kimmel’s girlfriend who accompanied him
to Walmart, testified that an unknown individual had purchased the doll found
in Kimmel’s vehicle and that they planned to return it. Harris also
accompanied Kimmel to Rural King on September 23, 2020. Harris claimed
she was the one pushing the shopping cart with the ammunition out of the
store, and she was the one approached by Thomas. Harris also stated that
Kimmel had no intention of stealing anything that day, and that Kimmel was
unaware that she had taken the boxes of ammunition. Harris pled guilty to
theft by unlawful taking for the two boxes of ammunition stolen from Rural
King.
Kimmel also testified and stated that two days prior to the Walmart
incident, his mother purchased the doll found in his vehicle. He also stated
that no Walmart staff approached him and told him to leave Walmart property.
As to the Rural King incident, Kimmel advised that he entered the store with
Harris. Kimmel testified that after a brief verbal argument, he left the store
before Harris and Harris was the one who stole the ammunition. Kimmel did
not recall being approached by Thomas but remembered that a store employee
approached him while putting the ammunition in his car. On cross-
examination, Kimmel admitted that he knew he was not permitted on Walmart
or Rural King property.
4
The jury found Kimmel guilty of two counts of third-degree burglary, two
counts of theft by unlawful taking (under $500) and being a first-degree PFO.
The jury initially recommended a sentence of five years on each burglary
charge but enhanced those sentences to twenty years each after finding that
Kimmel is a first-degree PFO. The jury also recommended that the sentences
run consecutively, for a total sentence of forty years. The trial court followed
the jury’s recommendation. Kimmel appeals as a matter of right.
ANALYSIS
I. The trial court erred when it ordered Kimmel to serve a forty-
year sentence.
In accordance with the jury’s recommendation, the trial court sentenced
Kimmel to five years for each burglary count, enhanced each count to twenty
years based upon his PFO status, and then ran the sentences consecutively for
a total sentence of forty years. Kimmel argues that the trial court erred by
ordering him to serve a forty-year sentence. KRS 532.110(1)(c) states, in
relevant part, that “[t]he aggregate of consecutive indeterminate terms shall not
exceed in maximum length the longest extended term which would be
authorized by KRS 532.080 for the highest class of crime for which any of the
sentences is imposed.” Third-degree burglary is a Class D felony. Because the
maximum length authorized by KRS 532.080 for a Class D felony as enhanced
by a PFO determination is twenty years, Kimmel argues that the trial court
erred by entering an aggregate consecutive sentence doubling that amount.
During sentencing, defense counsel argued that the maximum term of
imprisonment for Class D felonies enhanced by the PFO statute is twenty
5
years. Therefore, pursuant to KRS 532.110(1)(c), defense counsel requested
that the trial court correct the illegal forty-year sentence recommended by the
jury. The trial court inquired with the Commonwealth, and counsel for the
Commonwealth advised the trial court that the Department of Corrections
would automatically fix the error. The trial court agreed, classifying it as a
computation issue, not a sentencing issue. The trial court followed the jury’s
recommendation and ran the two twenty-year sentences consecutively for a
total sentence of forty years and entered the final judgment.
In McClanahan v. Commonwealth, 308 S.W.3d 694, 699 (Ky. 2010), the
Court explained that for a PFO convicted of a Class C felony, the aggregate of
the sentences imposed could not lawfully exceed twenty years. KRS 532.080
provides the same sentence limitation for Class D felonies. However, albeit in a
footnote, the Court also noted that “[t]here are several statutory exceptions to
this general rule,” including KRS 533.060(3). McClanahan, 308 S.W.3d at 699
n.8.
KRS 533.060(3) states:
[w]hen a person commits an offense while awaiting trial for another
offense, and is subsequently convicted or enters a plea of guilty to
the offense committed while awaiting trial, the sentence imposed
for the offense committed while awaiting trial shall not run
concurrently with confinement for the offense for which the person
is awaiting trial.
This issue requires analysis of the interplay between KRS 532.110, KRS
532.080 (the first-degree PFO statute), and KRS 533.060.
The Commonwealth argues that KRS 533.060(3) controls and, as such,
the trial court did not err in sentencing Kimmel to forty years in prison. When
6
a person commits an offense while awaiting trial for a prior offense, KRS
533.060(3) prohibits the imposition of a sentence for the offense committed
while awaiting trial that runs concurrently with confinement for the offense for
which the person was awaiting trial. The practical effect is that the trial court
must run the sentence for the offense committed while awaiting trial
consecutively with the confinement for the offense for which the person was
awaiting trial. Here, applying KRS 533.060(3) in isolation would lead to a
conclusion that the trial court correctly imposed a forty-year sentence.
However, we must also apply KRS 532.110(1)(c), which imposes a
maximum aggregate sentence of the longest extended term authorized by KRS
532.080. Based on the offenses for which Kimmel was convicted, the
maximum term of imprisonment is twenty years, in accordance with KRS
532.080(6)(b). Notably, KRS 532.110(1)(c) states:
The aggregate of consecutive indeterminate terms shall not
exceed in maximum length the longest extended term which would
be authorized by KRS 532.080 for the highest class of crime for
which any of the sentences is imposed.
(Emphasis added.) This subsection specifically references consecutive terms.
Therefore, KRS 533.060(3) and KRS 532.110(1)(c) can both be applied to
Kimmel’s sentence.
Devore v. Commonwealth, 662 S.W.2d 829 (Ky. 1984), required analysis
of both KRS 533.060(2) and KRS 532.110(1)(c). KRS 533.060(2) states that
when a person has been convicted of a felony and is released on parole or
probation and is then convicted of or enters a guilty plea to a felony committed
while on parole or probation, the period of confinement for that felony “shall
7
not run concurrently with any other sentence.” The Devore Court concluded
that the maximum sentence rule in KRS 532.110(1)(c) is not applicable to
individuals that fall within KRS 533.060(2). Id. at 831. In that multi-count
case, the trial court imposed a seventy-five-year sentence for burglary, felony
theft, receiving stolen property, trespass, and being a PFO. Id. At 829. The
Devore Court upheld the trial court’s decision to run that seventy-five-year
sentence consecutively to a prior five-year sentence for a total sentence of
eighty years.
Later, in Peyton v. Commonwealth, 253 S.W.3d 504 (Ky. 2008), the Court
overruled Devore to the extent that it “require[d] all subsequent sentences for
crimes committed while on probation or parole to be run consecutively to each
other.” Id. at 511. The Court concluded that the
subsequent felony offense(s) committed while on probation or
parole may not be run concurrently with the sentence for which
the individual is on probation or parole. In the instance of
multiple-count subsequent felony offenses committed while on
probation or parole, however, these subsequent offenses may be
run either consecutively or concurrently, at the court's discretion.
Id. The Peyton Court was not tasked with considering the interplay between
KRS 533.060(2) and KRS 532.110(1)(c) because the sentence of imprisonment
in Peyton did not exceed the maximum permissible under the statute. Id. at
510. Although the Peyton Court recognized the legislature’s intent in enacting
KRS 533.060(2) “was to strengthen the ramifications for repeat offenders,” the
Court believed that Devore could lead to “incongruous and excessive sentencing
results” and “sought to interpret this legislative intent with a much heavier
8
hand than the statute, the legislature or the jails and prisons of this
Commonwealth could have ever envisioned.” Id. at 509-10.
In Blackburn v. Commonwealth, 394 S.W.3d 395, 396 (Ky. 2011), the
defendant was charged in two separate indictments, and each indictment
charged Blackburn with one count of first-degree trafficking in a controlled
substance, a Class C felony. At the time she committed these trafficking
offenses, Blackburn was out of prison on parole. Id. The jury initially
recommended ten-year sentences for each conviction, and that the sentences
run consecutively. Id. Thereafter, the jury also found Blackburn guilty of
being a second-degree PFO and recommended a twenty-year sentence for each
conviction. Id. The trial court ordered that the sentences run consecutively for
a total sentence of forty years in prison. Id.On appeal, Blackburn argued that the forty-year sentence violated the
statutory maximum provided by KRS 532.110(1)(c). Id. at 398. In response,
the Commonwealth cited KRS 533.060(2), which states that if a person is
convicted of a felony and released on probation or parole and is then convicted
of a felony committed while on probation or parole, the person shall not be
eligible for probation or parole “‘and the period of confinement for that
felony shall not run concurrently with any other sentence.’” Id. (Emphasis
added.) As such, the Commonwealth asserted that the trial court did not err in
sentencing Blackburn in excess of the aggregate cap. Id.
After considering Devore and Peyton, the Blackburn Court concluded that
KRS 533.060(2) does not modify the maximum aggregate sentence allowed by
9
KRS 532.110(1). Blackburn, 394 S.W.3d at 401. Therefore, the trial court
incorrectly sentenced Blackburn to forty years in prison. Id. Because the
maximum sentence authorized by KRS 532.080 for an enhanced Class D felony
is twenty years, the Court concluded that “the aggregate of [Blackburn’s]
consecutive sentences (for the multiple subsequent offenses) could not exceed
that amount.” Id. “To the extent Devore states otherwise, it is overruled.” Id.
To summarize, in Devore, 662 S.W.2d at 531, the Court concluded that
multiple-count felony convictions resulting from offenses committed while on
parole must run consecutively to one another. In Peyton, 253 S.W.3d at 510-
11, the Court overruled that Devore holding and reasoned that it “leads to an
unworkable interpretation of KRS 533.060(2).” But the Peyton Court did not
address the effect of KRS 532.110(1)(c) on the trial court’s sentencing
discretion because the punishment in Peyton did not exceed the maximum
aggregate cap outlined in KRS 532.110(1)(c). Later, in Blackburn, 394 S.W.3d
at 401, the Court concluded that “KRS 533.060(2) does not modify KRS
532.110(1) so that subsequent offenses run consecutively may exceed the
maximum aggregate duration allowed by KRS 532.110(1)(c).” Blackburn
overruled Devore to the extent it states otherwise. Id.
The specific holding of Blackburn applies to KRS 533.060(2), and does
not explicitly address KRS 533.060(3), which is the subsection raised by the
Commonwealth in its argument. However, the reasoning espoused in
Blackburn is equally applicable here. Treating subsequent crimes under KRS
533.060(2) and (3) differently would lead to illogical and inconsistent results.
10
In an unpublished opinion by this Court, Holbrook v. Commonwealth,
2012-SC-0703 and 2012-SC-0704, 2014 WL 4160137, *1 (Ky. Aug. 21, 2014),
Holbrook appealed from two final judgments entered by the Fayette Circuit
Court following two separate trials on theft by deception charges pertaining to
cold checks. While released on bond pending a trial in the first case, Holbrook
committed other offenses which led to the second trial. Id. Holbrook was
sentenced to a total of sixty years in prison—twenty years from the first case
and forty years from the second, both of which resulted from PFO
enhancements. Id. In the second case, the trial court sentenced Holbrook to
ten years for each theft by deception over $10,000 count, enhanced each count
to twenty years based on his PFO status, and ran the sentences consecutively
for a total of forty years. Id. at *15. The appeals from each trial were
consolidated, and Holbrook argued, among other things, that his consecutive
forty-year sentence from the second trial violated the maximum aggregate
sentence allowed under KRS 532.110(1)(c), which was twenty years. Id. at *16.
The Commonwealth conceded the error, citing Blackburn, 394 S.W.3d at 397-
402. Id.
This Court followed Blackburn and concluded that the trial court
incorrectly entered a total sentence of forty years based upon the jury’s
recommendation that Holbrook’s sentences should run consecutively. Id. With
little elaboration, the Court vacated Holbrook’s forty-year sentence and
remanded the case to the trial court for resentencing by the court, not the jury.
Id. While Holbrook did not implicate KRS 533.060, the Court cited Blackburn
11
for its holding that the “statutory maximums established by the interplay of
KRS 532.080 and KRS 532.110(1)(c) control over the jury’s discretion in
recommending consecutive sentences.” Id.
We note the existence of two opinions rendered over twenty years ago,
Moore v. Commonwealth, 990 S.W.2d 618, 619 (Ky. 1999), and White v.
Commonwealth, 5 S.W.3d 140, 142 (Ky. 1999), in which the appellants
committed subsequent offenses while released on bond and awaiting trial. This
Court cited the legislature’s intent to punish persons convicted of committing
subsequent crimes while awaiting trial more severely by eliminating the
possibility of concurrent sentences. Moore, 990 S.W.2d 618, did not implicate
KRS 532.110(1)(c). In White, 5 S.W.3d at 142, the appellant argued that the
trial court erred by not running the twenty-year sentence imposed for the
offenses committed while on bond concurrently with a one-year sentence he
was already serving. The White Court relied on Devore and concluded that KRS
533.060(3) controls over KRS 532.110(1)(c). Id. Nevertheless, we find that the
more recent rationale behind applying KRS 533.060, subject to the statutory
limits contained in KRS 532.110(1), as explained in Blackburn controls.
We also recognize that a 2002 amendment to KRS 532.110 supports our
conclusions. In 2002, the General Assembly amended KRS 532.110(2) to
indicate that where a judgment is silent as to whether multiple sentences run
concurrently or consecutively, the sentences run concurrently “unless the
sentence is required by . . . KRS 533.060 to run consecutively.” Thus, the
General Assembly amended the maximum sentence statute in full
12
recognition—and indeed with specific acknowledgement—that KRS 533.060
mandates that certain sentences be run consecutively.
In amending KRS 532.110, the General Assembly could have indicated
that such consecutively running sentences may be imposed even where they
exceed the maximum aggregate sentence requirement in KRS
532.110(1)(c). The General Assembly did not do so, and we will not write into
the statute what the General Assembly has not said. This is particularly so
given our previous ruling in Blackburn and our inability to perceive any logical
basis to treat offenses committed while awaiting trial differently—and more
harshly—than those committed by persons violating the privilege of probation.
We further recognize our obligation to harmonize apparently conflicting
statutes when it is possible to do so. Indeed, we have often noted that “‘[w]here
there is an apparent conflict between statutes or sections thereof, it is the
duty of the court to try to harmonize the interpretation of the law so as
to give effect to both sections or statutes if possible.’” Elliott v. Lanham,
540 S.W.3d 353, 356 n.11 (Ky. 2018) (quoting Ledford v. Faulkner, 661 S.W.2d
475, 476 (Ky. 1983)) (emphasis added). Here, the statutes conflict insofar as
KRS 533.060 requires consecutive sentences for a total term that violates the
maximum aggregate sentence cap set forth in KRS 532.110. Applying KRS
533.060 alone, Kimmel should be sentenced to forty years. However, we must
strive to give effect to both KRS 533.060 and KRS 532.110. To harmonize and
give effect to both statutes, we conclude that while sentences under KRS
13
533.060(3) must be consecutive, the resulting total term of years cannot violate
the maximum aggregate sentence cap set forth in KRS 532.110(1)(c).
The dissent insists that our precedent interpreting KRS 533.060(2) is
inapplicable here, focusing on the portion of that subsection that states “the
period of confinement for that felony shall not run concurrently with any other
sentence.” The dissent aptly notes that KRS 533.060(3) does not contain the
“any other sentence” language but fails to recognize that inclusion of such
language in subsection three would be illogical. In subsection two, a person
has already been convicted of a felony and released on probation or parole. In
subsection three, a person is “awaiting trial for another offense” and thus there
is presumably no “other sentence” for a trial court’s consideration during
sentencing.
We recognize that KRS 533.060(3) is straightforward. But when
construing statutes, we must give “words of a statute their literal meaning
unless to do so would lead to an absurd or wholly unreasonable conclusion.”
Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004) (quotation omitted). In
applying subsections two and three differently, as the dissent suggests, we
would have to assume that the legislature intended to be more lenient in
sentencing persons that have already been found guilty of felony offenses and
who commit subsequent offenses while on probation or parole. For subsection
two to apply, these persons must have violated the “very special privilege” of
probation or parole. Devore, 662 S.W.2d at 831. Conversely, we would also
need to assume that the legislature intended to punish persons who commit
14
any offense (not just felony offenses) while awaiting trial for any offense more
harshly than persons convicted of felony offenses who are probated or paroled
only to commit another felony offense. That simply cannot be the legislative
intent behind KRS 533.060.
Kimmel also argues that this case does not involve subsequent
convictions, as stated in KRS 533.060(3), because he was convicted
simultaneously of both offenses. However, in assessing the plain language of
the statute, we interpret it to mean that a person must commit a crime while
awaiting trial and their conviction or plea must be subsequent to the crime
committed while awaiting trial – not that they must be subsequently
convicted of committing a crime while awaiting trial after they have been
convicted of the original crime.
The trial court erred by imposing a forty-year sentence that exceeded the
maximum aggregate cap delineated in KRS 532.110(1)(c). As such we vacate
Kimmel’s forty-year sentence and remand to resentence Kimmel to twenty
years in prison.
II. The trial court did not err when it permitted introduction of
evidence of prior instances of shoplifting.
Kimmel argues that the trial court erred in allowing admission of
irrelevant and prejudicial evidence of two prior allegations of shoplifting.
Specifically, Kimmel asserts that the evidence of him placing items in a mailbox
at Walmart and stealing a lawnmower from Rural King was improperly
admitted. On November 12, 2021, the Commonwealth gave notice under
Kentucky Rule of Evidence (KRE) 404(c) of its intent to introduce evidence of
15
seven prior instances of shoplifting at Walmart and one prior instance of
shoplifting at Rural King. The Commonwealth indicated that the evidence
would be offered to prove motive, intent, preparation, plan, knowledge, and
absence of mistake or accident. While not mentioned in the body of the
motion, there was in incident involving a mailbox referenced in one of the
exhibits.
That exhibit was an internal document prepared by Asset Protection
Associate Michael Knipp for Walmart. Knipp observed Kimmel selecting two
sports bras and two dolls from the shelf, then concealing the bras in his pants.
Kimmel left the clothing area and went to the hardware section, where he
selected a mailbox and concealed one doll, a phone charger, and the two sports
bras he had hidden in his pants inside the mailbox. Kimmel resealed the
mailbox packaging and left the area. Knipp clarified that while he observed
Kimmel concealing items on his person, an Asset Protection trainee observed
the actual box stuffing.
At trial, Knipp testified to those basic facts but clarified that he had not
personally observed Kimmel put items in the mailbox. A trainee observed
Kimmel and relayed the events to Knipp. Knipp explained that this type of
action is called box stuffing. After an individual fills the mailbox packaging
with extra items, they will only pay for the mailbox. The individual then may
try to return or exchange the items at Walmart, even though they did not pay
for them. In this case, the total value of the items in the mailbox was $62.72.
Deputy Mark Wheeler also testified about his familiarity with the practice of
16
box stuffing, classifying this form of theft as either an individual act or an act
done in concert with another individual.
The Commonwealth also introduced evidence of Kimmel stealing a
lawnmower from Rural King. Former Rural King tractor manager Jacob
Thomas testified that in February 2020, Kimmel stole a lawnmower from Rural
King. Thomas stated that Kimmel pulled a lawnmower from an outside display
and brought it inside the store. Kimmel exited the store. Thomas walked in
the store and asked other employees if anyone sold a lawnmower, and no one
had made such a sale. By the time Thomas walked back outside, he saw
Kimmel load the lawnmower into his vehicle before Thomas could ask him to
produce a receipt. After the incident, Thomas saw Kimmel sign a notice
restricting him from Rural King property. Former State Trooper Daniel
Vossmer also testified that when they located the stolen lawnmower, Kimmel
was “trespassed” from Rural King by the Boyd County Sheriff’s Department.2
Kimmel acknowledges that this KRE 404(b) issue is unpreserved for
appellate review and requests palpable error review. “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.” Rule of Criminal Procedure (RCr) 10.26. An error
is palpable when it is “‘easily perceptible, plain, obvious and readily
2 The term “trespassed from” was used throughout trial. The Commonwealth
explains that this phrase means Kimmel was given notice to remain off the properties.
17
noticeable.’” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). The
error must be “so manifest, fundamental and unambiguous that it threatens
the integrity of the judicial process.” Martin v. Commonwealth, 207 S.W.3d 1, 5
(Ky. 2006). “A palpable error must be so grave that, if uncorrected, it would
seriously affect the fairness of the proceedings.” Davis v. Commonwealth, 620
S.W.3d 16, 30 (Ky. 2021) Given the strength of the substantial evidence against
Kimmel, the admission of the KRE 404(b) evidence did not seriously affect the
fairness of the trial.
KRE 404(b) provides that, generally, evidence of other crimes or wrongs
is not admissible to prove the character of a person in order to show conformity
therewith. However, such evidence may 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; or
(2) If so inextricably intertwined with other evidence essential to
the case that separation of the two (2) could not be accomplished
without serious adverse effect on the offering party.
KRE 404(b). To determine whether evidence of other bad acts is admissible
under KRE 404(b), the Court must consider relevance, probative value, and
prejudice. Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994). Given the
similarity of the conduct at issue, we address the prior Walmart and Rural King
incidents together.
First, the evidence of box stuffing and the lawnmower incident was
relevant under KRE 401. “‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
18
without the evidence.” KRE 401. Evidence of prior incidents at both stores are
undoubtedly relevant to the burglary and theft charges. The fact that Kimmel
engaged in similar conduct at both locations on prior occasions has a tendency
to make it more probable that, on the day in question, he was present at both
stores with the intent to commit a crime and that he shoplifted. The employees
of both Walmart and Rural King indicated as much in their testimony – they
identified Kimmel at their stores on the dates in question and recognized him
from past incidents of shoplifting. As such, the evidence was relevant.
Next, we consider whether the evidence was probative. “[E]vidence of
other bad acts is sufficiently probative if ‘the jury could reasonably infer that
the prior bad acts occurred and that [the defendant] committed such
acts.’” Howard v. Commonwealth, 595 S.W.3d 462, 476 (Ky. 2020)(quoting
Parker v. Commonwealth, 952 S.W.2d 209, 217 (Ky. 1997)). Here, Knipp
provided testimony indicating that he observed Kimmel conceal items on his
person. The same items concealed on his person were soon after stuffed in the
mailbox. Those items were later photographed inside the mailbox and the
photograph was introduced at trial as evidence of the box stuffing. As to the
Rural King incident, Thomas testified that he approached Kimmel on the day
he stole ammunition because he recognized Kimmel from the lawnmower
incident and knew he was not supposed to be on store property. Based on this
testimony and evidence, “the jury could reasonably infer that the prior bad acts
occurred.” Id.19
Kimmel also highlights what he perceives as uncertainty as to whether
Knipp personally observed the acts in question. Kimmel asserts that it was an
asset protection trainee that observed him stuffing the mailbox, not Knipp, so
there is no competent evidence of the box stuffing incident. Kimmel also states
it is unclear whether Knipp actually saw any of Kimmel’s actions. We agree
that what actions Knipp personally observed is unclear. At the beginning of
Knipp’s testimony, he states that he and the trainee were walking the sales
floor at Walmart on the day in question. Knipp observed Kimmel and informed
the trainee about Kimmel’s history at the store. Knipp then stated, “we
continued watching him,” during which time they observed Kimmel carrying
the two sports bras, a phone charger and two dolls. Kimmel then concealed
the items on his person. Knipp further described the box stuffing incident.
Then, the Commonwealth asked Knipp if he “personally had eyes” on Kimmel
when he was in the store that day, to which Knipp responded “yes.”
On cross-examination, Knipp stated he did not recall seeing Kimmel
conceal the items in the mailbox, and that it might have been the trainee that
observed that portion of the incident. He also admitted that the surveillance
video did not show the box stuffing. It is unclear which of Kimmel’s actions
that Knipp personally observed, and which of Kimmel’s actions the trainee
observed. In any event, the Commonwealth introduced photo evidence of the
mailbox that showed the items in question inside. Given Knipp’s general
observations of Kimmel and the items he was carrying then concealed, this
20
evidence is sufficiently probative because it allowed the jury to reasonably infer
that the box stuffing incident occurred.
Further, evidence of the lawnmower incident was necessary to prove the
elements of third-degree burglary. The Commonwealth had to prove Kimmel’s
knowledge that he was not allowed to be on Rural King property. The prior
theft incident with the lawnmower served as proof that Kimmel was not
permitted on the property. Thomas also testified that on the day at issue, he
recognized Kimmel and knew he was not supposed to be on the property
because of the lawnmower incident. This knowledge prompted Thomas to
approach Kimmel to ask for a receipt for the ammunition.
Finally, a trial court must weigh the prejudicial nature of the evidence
against its probative value. Bell, 875 S.W.2d at 889. “Although relevant,
evidence may be excluded if its probative value is substantially outweighed by
the danger of undue prejudice . . . .” KRE 403. “A proper balancing under
KRE 403 requires that a trial court consider three factors: the probative worth
of the evidence, the probability that the evidence will cause undue prejudice,
and whether the harmful effects substantially outweigh the probative worth.”
Yates v. Commonwealth, 430 S.W.3d 883, 897 (Ky. 2014) (citing Barnett v.
Commonwealth, 979 S.W.2d 98, 100 (Ky.1998)).
The evidence of Kimmel previously stealing a lawnmower and engaging in
box stuffing was undoubtedly prejudicial. But we must determine whether
that prejudice was “unnecessary and unreasonable.” Price v. Commonwealth,
31 S.W.3d 885, 888 (Ky. 2000). At trial, the Commonwealth produced a
21
significant amount of evidence demonstrating that Kimmel committed the
crimes for which he was charged. Both testimony and documentation
indicated that Kimmel was not allowed on the premises and that he intended to
commit crimes. Ultimately, the evidence of other acts demonstrated motive,
intent, knowledge, and plan. KRE 404(b)(1). Admission of the evidence did not
constitute manifest injustice.
Kimmel argues that the Commonwealth only needed to prove that
Kimmel knowingly entered Walmart and Rural King with the understanding
that he could not be on the property and that he intended to commit a crime
while on the property. Importantly, the Commonwealth was tasked with
proving Kimmel was unlawfully at Walmart and Rural King with an intent to
steal. KRS 511.040(1). The mailbox stuffing and lawnmower evidence directly
contradicted Kimmel’s trial testimony that he did not intend to steal anything
from either location. Further, “evidence of similar acts perpetrated against the
same victim are almost always admissible . . . .” Harp v. Commonwealth, 266
S.W.3d 813, 822 (Ky. 2008). This evidence serves “to prove the defendant’s
intent, plan, or absence of mistake or accident.” Dant v. Commonwealth, 258
S.W.3d 12, 19 (Ky. 2008) (internal quotations and citations omitted).
While Harp and Dant involved instances of physical abuse, the same
rationale can and should be applied here. Here, we have a similar act
(shoplifting) being perpetrated against the same victims (Walmart and Rural
King). On several occasions, Kimmel attempted to or successfully perpetrated
offenses to the detriment of Walmart and Rural King. Additionally, we note
22
that the mailbox stuffing incident immediately proceeded Kimmel exiting
Walmart with the stolen doll down his pants. This incident occurred at the
same time, date, and place as the doll theft and during a continuous course of
conduct.
In this case, there was compelling evidence that Kimmel committed the
crimes in the indictment. The additional evidence of prior incidents at Walmart
and Rural King likely had little impact on the jury’s determination of guilt,
particularly in light of the substantial evidence presented. There is no
substantial possibility that the result would have been different if this evidence
was not admitted. Davis, 620 S.W.3d at 30. As such, we cannot find that
admission of the KRE 404(b) evidence rose to the level of palpable error.
III. The trial court did not err in permitting the Commonwealth to
elicit narration from Michael Knipp during the Walmart video.
Finally, Kimmel argues that the trial court erred in allowing the
Commonwealth to elicit narration from Knipp while the Walmart video was
played at trial. This issue is unpreserved, and therefore reviewed under the
same palpable error standard outlined in Section II above.
During Knipp’s testimony, the Commonwealth introduced surveillance
video purporting to show Kimmel 1) removing a doll from his car; 2) turning his
back to the surveillance camera; 3) raising his shirt; and 4) covering his
waistline up with his hoodie. Knipp testified briefly just before or after each
video clip, in part, as follows:
Video 1:
Commonwealth: What did we just observe?
23
Knipp: David Kimmel entering the facility.
Video 2:
Commonwealth: What did the video show?
Knipp: That was David Kimmel making a selection on the phone
charger from the shelf.
Video 3:
Commonwealth: I guess before I click this, you had mentioned
that there’s not video in every single section of the store. Is that
correct?
Knipp: Correct.
Commonwealth: And, is that why you walk the floor, to observe?
Knipp: Correct.
Commonwealth: Okay . . . . It appears this video is a little more
grainy. You had testified earlier that Mr. Kimmel had gone down a
particular aisle and concealed the remaining doll. Which aisle was
that?
Knipp: It’s going to be this aisle right here.
(resumes playing video)
Commonwealth: What did we observe there?
Knipp: David [Kimmel] remove the doll from the top of the buggy,
turned his back to the camera, raised up his shirt, concealed the
merchandise into his pants, covered his waistline back up with his
hoodie.
Video 4:
Commonwealth: What did we observe there?
Knipp: David Kimmel exiting the facility.
Kimmel did not object to this testimony.
24
Knipp provided narrative testimony in conjunction with the surveillance
videos. KRE 602 and KRE 701 govern the admissibility of narrative testimony.
KRE 602 requires a witness to have personal knowledge before being permitted
to testify about something. KRE 701 limits a lay witness’s testimony to matters
“a) rationally based on the perception of the witness; [and] b) helpful to a clear
understanding of the witnesses' testimony or demonstration of a fact in issue.”
In Boyd v. Commonwealth, 439 S.W.3d 126, 131 (Ky. 2014), this Court
explained that
narration of a video may be proper but only if it is comprised of
opinions and inferences that are rationally based on the witnesses'
own perceptions of which he had personal knowledge and that are
helpful to the jury. Furthermore, witnesses are limited to a
description of events when narrating video footage and any
interpretation of that footage is improper.
(Citing Cuzick v. Commonwealth, 276 S.W.3d 260, 265–66 (Ky.2009)).
In arguing that Knipp’s narration was improper, Kimmel again classifies
Knipp’s testimony as inconsistent and uncertain, creating a question as to
whether Knipp had personal knowledge of what was shown on the surveillance
videos. See discussion supra, Section II. While Knipp’s testimony as to what
he personally observed and what the asset protection trainee observed lacked
clarity, Knipp nonetheless possessed some degree of personal knowledge about
Kimmel and his actions in the store that day based on his testimony that “we
continued watching him” and that he personally had eyes on Kimmel. While
Knipp did not observe everything Kimmel did that day, Knipp clearly followed
Kimmel and observed him committing portions of the burglary at Walmart.
25
In videos 1, 2 and 4, Kimmel is shown entering Walmart, selecting a
phone charger from the shelf, and exiting Walmart. Kimmel spends time in the
relevant aisle and is shown with the phone charger in his hand. These actions
are clearly depicted by the video, and Knipp’s narration did not add to what
jurors could view on the video themselves. Video 3 is of poor quality, and it is
difficult to ascertain where Kimmel is located in the video or his actions.3
Knipp testified that Kimmel removed the doll from the cart, turned his back,
raised his shirt and concealed the merchandise in his pants. The difficulty in
observing Kimmel in the video, paired with the uncertainty as to which of
Kimmel’s actions Knipp personally observed, leads us to conclude that Knipp’s
narration as to Video 3 exceeded the bounds of KRE 602 and 701. Because we
cannot definitively conclude whether Knipp’s testimony exceeded his personal
knowledge of the events, this narration should not have been permitted.
Nevertheless, we cannot say this error was palpable. The jurors watched
the video and “were in a position to interpret the security footage independently
from the testimony.” Boyd, 439 S.W.3d at 132. Additionally, the evidence
against Kimmel was substantial, making it difficult to conclude that the jury
was improperly persuaded by Knipp’s one-line testimony describing Kimmel’s
actions. The error certainly was not palpable and so fundamental that it
threatened the integrity of the judicial process. Brewer, 206 S.W.3d at
349; Martin, 207 S.W.3d at 5.
3 The trial exhibits are not available in the record from the trial court.
Therefore, we watched the surveillance videos through the trial footage, making video
3 even more difficult to interpret.
26
CONCLUSION
For the foregoing reasons, we hereby affirm Kimmel’s convictions.
However, his forty-year sentence is vacated, and this case is remanded to the
trial court for resentencing to reduce Kimmel’s sentence to twenty years
pursuant to KRS 532.110(1)(c).
All sitting. Lambert and Nickell, JJ., concur. Thompson, J., concurs by
separate opinion. Conley, J., concurs in part and dissents in part by separate
opinion in which VanMeter, C.J., and Keller, J., join.
THOMPSON, J., CONCURRING: I write separately to: (1) express my
concern with the majority’s decision to endorse the admission of Kentucky
Rules of Evidence (KRE) 404(b) evidence at trial; (2) explain why I strongly
concur that Kimmel should receive twenty-year concurrent sentences rather
than consecutive sentences for a total of forty years of incarceration; and (3)
express my frustration with the current state of sentencing laws in our
Commonwealth and urge the General Assembly to carefully consider what its
“tough on crime” stance is costing our state and its citizens by diverting our
treasure to incarcerate low-level non-violent offenders to lengthy terms which
are not proportional to their offenses.
I. KRE 404(b) Evidence Should Not Have Been Admitted
I believe the Commonwealth, in proving that Kimmel committed the
crimes of third-degree burglary, should only have been authorized to establish
that Kimmel had been banned from patronizing the Walmart and Rural King
27
and not the reasons behind such bans. Pursuant to the Kentucky Rules of
Evidence 404(b):
Evidence 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; or
(2) If so inextricably intertwined with other evidence essential
to the case that separation of the two (2) could not be
accomplished without serious adverse effect on the offering
party.
While it was of course essential to prove that Kimmel had been banned from
these stores to establish third-degree burglary, the basis for the bans was not
offered for any appropriate purpose and was not so inextricably intertwined
with the evidence of the bans as to require its admission. Kimmel’s previous
history of shoplifting was only relevant for the penalty phase of the trial.
However, given the overwhelming evidence that Kimmel committed the
crimes at issue, which included video surveillance and eyewitness testimony, I
believe the admission of this evidence in his trial was harmless. I caution,
however, that this may not be true in other cases and that the Commonwealth
should avoid introducing such improper character evidence in other cases.
II. The Twenty-Year Sentence “Cap” Should Have Limited the
Possible Sentence Imposed Over Other Statutes
We are tasked with interpreting how three statutes should be interpreted
together: KRS 532.110, KRS 532.080 and KRS 532.060. KRS 532.110(1) states:
When multiple sentences of imprisonment are imposed on a
defendant for more than one (1) crime, including a crime for which
28
a previous sentence of probation or conditional discharge has been
revoked, the multiple sentences shall run concurrently or
consecutively as the court shall determine at the time of sentence,
except that: . . .
(c) The aggregate of consecutive indeterminate terms shall
not exceed in maximum length the longest extended term
which would be authorized by KRS 532.080 for the highest
class of crime for which any of the sentences is imposed.
The “shall not exceed” language in KRS 532.110(1)(c) is of paramount
importance.
KRS 532.080(6) provides:
A person who is found to be a persistent felony offender in the first
degree shall be sentenced to imprisonment as follows: . . .
(b) If the offense for which he presently stands convicted is a
Class C or Class D felony, a persistent felony offender in the
first degree shall be sentenced to an indeterminate term of
imprisonment, the maximum of which shall not be less than
ten (10) years nor more than twenty (20) years.
Therefore, the maximum length of the longest extended term authorized by
KRS 532.080 for Class D felonies as a PFO-1 is twenty-years’. The “shall not
exceed” language is a cap providing an absolute upper limit.
KRS 533.060(3) adds an additional wrinkle as follows:
When a person commits an offense while awaiting trial for another
offense, and is subsequently convicted or enters a plea of guilty to
the offense committed while awaiting trial, the sentence imposed
for the offense committed while awaiting trial shall not run
concurrently with confinement for the offense for which the person
is awaiting trial.
“When all else is said and done, common sense must not be a stranger
in the house of the law.” Cantrell v. Kentucky Unemployment Ins. Commission,
450 S.W.2d 235, 237 (Ky. 1970). All things being equal, I will use common
29
sense in interpreting the overlapping laws that apply to determining Kimmel’s
maximum sentence. I will not interpret the language “shall not run
concurrently” in KRS 533.060(3) to trump the stronger “shall not exceed”
language of KRS 532.110(1)(c) because doing so does not make any logical
sense.
By its terms, KRS 533.060(3) could have an effect if Kimmel had been
sentenced to less than the maximum PFO-1 sentences for his crimes, but it
cannot break through the “cap” provided by KRS 532.110(1)(c). Therefore, I
strongly agree with the majority opinion that the maximum sentence Kimmel
could receive was twenty years’ total.
Capping Kimmel’s sentence to a total of twenty-years’ is as much as we
can do in our role as Kentucky’s highest court as we are tasked with
interpreting the laws as they are written and have no authority to change them.
I could end my concurring opinion here, but Kimmel’s case has brought to the
forefront my thoughts about Kentucky’s problem with overincarceration in
general, and especially our overincarceration of low-level offenders. Our Court
should rule that a cap statute is a cap and encompasses or applies to all
enhancement statutes enacted before or after the cap statute.
III. Lengthy Sentences for Low Level Crimes Wastes our Limited
Resources and is Counterproductive
Our incarcerated population has grown rapidly.
In the early 1970s, [Kentucky] had about 3000 convicted felons in
custody, operated two prisons for men and a small prison for
women, made no use of private prisons, had no inmates housed in
county jails, and had a corrections budget of about 10 million
dollars a year. By February of 2008, the state had 22,719 felons
30
under incarceration, owned and operated 13 full-sized state
prisons (with very few if any empty beds), supervised the
incarceration of about 1,600 inmates in three private prisons, had
more than 8000 inmates serving their sentences in county jails
across the state, and had a corrections budget of about 450 million
dollars and rapidly bearing down on half-a-billion (not including
the very heavy costs of prison construction).
Robert G. Lawson, PFO Law Reform, A Crucial First Step Toward Sentencing
Sanity in Kentucky, 97 Ky. L.J. 1, 6–7 (2009) (PFO Law Reform) (internal
citation footnotes omitted).
In 2011, Kentucky enacted sweeping reforms designed to curb the out-of-
control growth in our prison populations through House Bill (HB) 463, the
“Public Safety and Offender Accountability Act.” These reforms included a
mandatory reentry supervision policy, a reduction of classification for low level
possession type drug charges, expanded access to evidence-based drug abuse
treatment programs both in and out of correctional facilities, and the option for
graduated sanctions to be used for minor probation violations. HB 463 has
certainly done some good. “HB 463 has resulted in fewer inmates than would
otherwise be the case, some savings to the state and better access to substance
abuse treatment and programs that help reduce recidivism.” Ashley Spalding,
Corrections Data Shows Positive Impact of HB 463 that Additional Criminal
Justice Reforms Can Build On (Sep. 28, 2016), https://kypolicy.org/new-data-
shows-positive-impact-hb-463-additional-criminal-justice-reforms-can-
build/. However, “[t]he impact of Kentucky’s 2011 criminal justice reforms on
the state’s inmate population and budget have been much less than what was
projected[.]” Id. “In fact, the state’s inmate population is now higher [in 2016]
31
than it was in 2011, and the rate of inmates returning to prison after release —
“recidivism” — is on the rise.” Id.“Between 2011 and 2016 the number of people incarcerated in Kentucky
grew by 8%, resulting in Kentucky having the 10th highest incarceration rate
in the country.” Carmen Mitchell, Pam Thomas, Ashley Spalding & Dustin
Pugul, In Decade Since Major Criminal Justice Reform, the Kentucky General
Assembly Has Passed Six Times as Many Laws Increasing Incarceration as
Decreasing It, Kentucky Center for Economic Policy 3 (Dec. 9, 2021),
https://kypolicy.org/wp-content/uploads/2021/12/Criminal-Penalties-
FINAL.pdf. (Decade Since HB 463).
The problem of overincarceration in Kentucky has only continued to
worsen since then. In 2018, Kentucky had the fifth highest rate of
incarceration nationwide. U.S. Department of Justice, Office of Justice
Programs, Bureau of Justice Statistics, 11-12 (Aug. 2020), https://bjs.ojp.
gov/content/pub/pdf/cpus1718.pdf. This adds up to 37,500 incarcerated
adults in Kentucky. Id. If states were countries, Kentucky would rank at least
seventh-highest in the world for its rate of incarceration, worse than all
countries outside of the United States. Decade Since HB 463 at 1. There has
been a temporary drop in Kentucky’s prison population due to Covid-19
commutations, but the upward trend continues. Id. at 2.
So why does Kentucky have such a high incarceration numbers relative
to other states? It is not because our citizens are less law abiding than in other
states. Part of that growth is due to the Kentucky General Assembly choosing
32
to pass legislation that “establishes new crimes and penalties, expands the
parameters of existing crimes, enhances already harsh sentencing practices
and lengths of incarceration, or otherwise increases punishment.” Id. at 5. “[A]
review of legislation enacted between 2011 and 2021 relating to felony criminal
punishment found that just ten bills reduced criminalization and incarceration
while 59 bills increased or enhanced criminal punishment in some way.” Id.
(citation footnote omitted). Additionally, our laws mandatorily impose far too
lengthy sentences for repeated low-level crimes by providing enhancement after
enhancement. Our Persistent Felony Offender (PFO) statutes are a prime
example of this practice.
As noted in Robert G. Lawson’s, PFO Law Reform, A Crucial First Step
Toward Sentencing Sanity in Kentucky, 97 Ky. L.J. 1, 6–7 (2009), Kentucky’s
persistent felony offender law “clearly heads the list of tough-on-crime
measures that have filled prisons and jails beyond capacity, pushed the state’s
corrections budget off the charts, and changed the balance of power over
punishment in ways that threaten the basic fairness of the justice system.”
While things have changed around the margins, in the time since this article
was published our PFO laws continue to sweep low level offenders into
increasingly lengthy sentences.
A repeat offender law that throws a blanket over all offenders with
a felony record, as Kentucky’s does, is destined to squander
corrections resources by filling prison beds with many inmates
who are more threatening to themselves than to others. And . . . it
is destined to produce results that are totally at odds with core
values of a justice system that is committed above all else to the
belief that “all offenders should receive their particular deserts-no
33
more and no less.”
Id. at 22–23.
Incarcerating felons in our state prisons is not cheap. The Department of
Corrections expenditures for Fiscal year 2021-2022 was a total of more than
$605 million.4 Annual Report 2021, Kentucky Department of Corrections, 21,
https://corrections.ky.gov/About/researchandstats/Documents/Annual%20R
eports/2021%20Annual%20Report%20-%2011-2022.pdf. To put that in
context, the similarly priced, $626 million DOC enacted budget from the
General Fund for 2022 constituted “a 72% increase from [the DOC enacted
budget in] 2010 in actual terms” while “[o]ver that same period of time, total
General Fund expenditures have grown just 45%[.]” Decade Since HB 463 at 5.
Kentucky’s total state facility average cost comes in at $38,409.45 per
inmate, with the costs varying substantially depending upon the facility, with a
bed at the Kentucky State Penitentiary costing significantly higher at
$65,378.02 per year.5 Cost to Incarcerate – FY22, Kentucky Department of
Corrections, https://corrections.ky.gov/About/researchandstats/Documents
/Annual%20Reports/FY22%20CTI.pdf
4 The total of $605,727,967.91 included the costs for corrections management,
community services, adult institutions and a local jail allotment, with these categories
including personnel, operating costs, care and support, debt service (for the
construction of facilities) and capital outlays, with adult institutions constituting 59%
of the total budget at more than $355 million.
5 In contrast, a bed at the Lee Adjustment Center is the least, at $29,154.83 per
year; county jails who house state inmates cost $18,288.94, those without state
inmates cost $14,638.94, and halfway houses cost $17,040.14. In comparison,
electronic monitoring only costs $2,413.46 per year and the cost to supervise through
Probation and Parole is only $1,499.78 per year.
34
Kimmel’s example provides a pertinent case study in just what is wrong
with Kentucky’s incarceration practices. Kimmel is a habitual shoplifter, who is
a potentially undiagnosed kleptomaniac, and has a lengthy history of
committing these types of low-level, non-violent crimes. In 2009, Lawson
provided numerous examples of how low-level offenders were sentenced to
disproportionate sentences based on the application of our PFO statutes in PFO
Law Reform and, more than a decade later, Kimmel fits right in with those
examples.
Kimmel shoplifted a $12.88 doll from Walmart and $142.68 worth of
ammunition from Rural King. Each of these events constituted theft by
unlawful taking. As the property taken was valued under $500, these were
Class B misdemeanors. KRS 514.030(2). Class B misdemeanors are subject to
a term of imprisonment that “shall not exceed ninety (90) days.” KRS
532.090(2).
However, Kimmel was subject to a new crime and a longer sentence for
each because he previously had been banned from the two stores where he
shoplifted and, pursuant to KRS 511.090(2), no longer had a license to enter or
remain in such premises which were generally open to the public. This made
his conduct in entering such stores with intent to commit theft by unlawful
taking constitute the crime of burglary in the third degree, a Class D felony.
KRS 511.040. Class D felonies have a sentencing range of one to five years’.
KRS 532.060(2).
35
Next, based on Kimmel’s previous record, which included felony
convictions for theft by unlawful taking for property of higher values, and
burglary in the third degree (based on having been banned from other stores
for shoplifting), and having committed a felony, Kimmel qualified as a
persistent felony offender in the first degree (PFO-1) pursuant to KRS
532.080(3). As a PFO-1 convicted of either a Class C or Class D felony,6 he was
subject to a sentence of between ten and twenty years of incarceration. KRS
532.080(6)(b). The jury then determined Kimmel should serve the maximum
term for each count as a PFO-1 through consecutive sentences and the circuit
court decided to impose this sentence as specified, thinking that the
Department of Corrections would correct this sentence as needing to be
concurrent. On appeal, the Commonwealth asserted that Kimmel must serve
each sentence consecutively based upon the most punitive reading of our
sentencing laws possible.
While I agree that repeat offenses are appropriately subject to longer
sentences as provided by our sentencing structure, I do not agree with the
manner in which Kimmel has been subjected to enhancement after
enhancement for shoplifting. Twenty-year sentences, whether served
6 The General Assembly thus conflates two classes of crimes, Class C and Class
D felonies, which originally have different sentencing ranges (five to ten years for Class
C felonies and one to five years for Class D felonies as provided in KRS 532.060(2)(c)
and (d)), into one PFO-1 sentencing range resulting in a ten-to-twenty-year sentencing
range. This results in an increased minimum sentence for Class D felonies which is
ten times greater than would be available without such an enhancement, or four times
greater maximum sentence, as compared with only a doubling in the minimum and
maximum sentences for Class C felonies.
36
concurrently or consecutively are clearly disproportionate to the crimes which
he committed, with the shoplifting offenses themselves only subject to ninety-
day maximums.
Incarcerating low level criminal felons with lengthy sentences does not
make financial sense. Just as with low level drug users, there are other options
that may place offenders on a more positive trajectory. I urge members of the
General Assembly in the strongest terms possible to consider what reforms
may be enacted to limit punitive sentences imposed on low level offenders.
While legislative reform is clearly needed, I need not solely depend on
legislative reform for improvements in our situation. There are still things that
can be done at the trial level to remove low level offenders from the path of
continued recidivism and increasingly punitive sentences subject to lengthy
mandatory minimums. I urge prosecutors, defense attorneys and my brother
and sister judges who serve on our trial level courts to consider what they may
do to help put low level offenders on a different path. Prosecutors, rather than
seeking to “win” through the imposition of the lengthiest sentences possible
whether through plea agreements or during the sentencing phase of a trial,
should consider what sentences would be just given the nature of the
underlying offense. Defense attorneys should advocate for alternatives which
will realistically allow their clients to successfully address and reform their
criminal behavior. Prosecutors and judges should consider whether probation
with appropriate treatment is a valid option.
37
As Kimmel is a shoplifter, I address what can be done for shoplifters
before they are classified as burglars and then PFOs for their shoplifting
conduct. Shoplifting is a very common crime. Approximately one in eleven
Americans shoplift and there are 550,000 shoplifting incidents per day in this
country. National Association for Shoplifting Prevention (NASP), The Shoplifting
Problem, https://www.shopliftingprevention.org/the-shoplifting-problem/ (last
visited Apr. 6, 2023). Just as with drug addiction, “many individuals who
shoplift experience a pleasurable rush of dopamine throughout the body,
similar to other addictive behaviors, and seek to feel that pleasure again and
again.” Steven Petrow, Perspective, Struggling with Mental Health, I Began to
Shoplift, The Washington Post, https://www.washingtonpost.com/wellness
/2022/09/26/shoplifting-depression-mental-health/ (quoting interview with
Adam Borland, psychologist at the Cleveland Clinic’s Center for Behavioral
Health).
Treatment options for shoplifting include cognitive behavioral talk
therapy, the administration of psychotropic medications, participation in
support groups, and twelve-step recovery programs. Id. There are also
educational programs with very encouraging results in documented studies.
The NASP educational programs, the Shoplifters Alternative Course and
the Youth Educational Shoplifting Program, which are typically assigned
through the justice system as a condition of probation or alternative
sentencing, are online programs that boast of a recidivism rate upon
completion averaging 2.9% nationally compared to a 30-40% recidivism rate
38
among offenders who do not participate in such a program. NASP, Criminal and
Juvenile Justice, https://www.shopliftingprevention.org/criminal-juvenile-
justice/ (last visited Apr. 6, 2023). These programs cost $75 per offender and
take approximately four hours to complete. Email from Renee Sirianni, Deputy
Executive Director of the National Association for Shoplifting Prevention (March
28, 2023, 10:24am CST) (on file with author) (Sirianni Email 1). Court ordered
participation in such programs potentially offers substantial savings to our
Commonwealth if recidivism is thereby reduced but they are currently
underutilized in our state.7
While I do not know if programs like this would help Kimmel, I do believe
it is our duty to try to help offenders become productive citizens and this is one
low-cost option that ought to be considered.
7 These programs feature video scenarios and 124 questions designed to test
their comprehension. Too many incorrect answers results in the participant having to
restart the program and a certain level of comprehension must be obtained to pass the
program. Sirianni Email 1. The programs also contain a Psychological Profile Analysis
and Risk Assessment to help identify offenders at risk of repeating shoplifting offense
who may need referral for additional services. Id. However, only a few of Kentucky’s
120 counties have referred offenders to this program. Email from Renee Sirianni,
Deputy Executive Director of the National Association for Shoplifting Prevention
(March 31, 2023, 11:36 CST) (on file with author) (Sirianni Email 2). Sirianni reported
that Jefferson, Paducah, Pulaski, Carter, Lexington-Fayette Marion, Mercer, Letcher,
and Graves Counties have referred offenders to this program in conjunction with a
retailer-initiated program. Id. The number of offenders in Kentucky to have gone
through this program is relatively small at under 3,000, with this number including
individuals managed by county court systems in other states who use the NASP
programs for transfer and out of town cases as well as the United States Army in Fort
Knox. Id. In comparison, the number of county-wide adoption of this program in other
states ranges as high as 95% in New Jersey, 87% in Florida and 76% in Michigan.
Email from Renee Sirianni (Apr. 3, 2023, 12:43pm CST) (on file with author) (Sirianni
Email 3). Nationwide, NASP’s programs have helped more than one million adults and
juveniles to stop shoplifting, and “are appropriate for both first and repeat offenders
and provide benefit to any offender who has not already completed this type of
comprehensive education.” Sirianni Email 1.
39
Accordingly, I concur with the majority opinion.
CONLEY, J., CONCURRING IN PART AND DISSENTING IN PART: I
concur with the Court’s conclusion that there were no evidentiary errors as to
the admittance of prior instances of shoplifting or the narration of Michael
Knipp. Respectfully, however, I dissent as to its application of KRS 533.060(3)
and KRS 532.110(1)(c). These two statutes present an actual, irreconcilable
conflict, or, at the least, present an apparent conflict. Rules of statutory
construction counsel that we apply KRS 533.060(3). Therefore, I would affirm
the trial court’s sentence of forty years total imprisonment for consecutive
twenty-year sentences.
“Apparent conflicts or requgnancies [sic] between statutes on the same
general subject enacted at different times should be reconciled in the light of
the existing statutes and Constitution.” Brown v. Hoblitzell, 307 S.W.2d 739,
744 (Ky. 1956). But “[i]f the conflict cannot be reconciled, the later statute
controls.” Id. Here, application of KRS 533.060(3) leads to a forty-year
sentence. Application of KRS 532.110(1)(c) leads to a twenty-year sentence.
This is a conflict. Typically, we would apply the statute passed latter in time,
which in this case is KRS 532.110(1)(c). Id. Two other rules of statutory
construction, however, are more compelling in this instance. First, the rule that
the more specific statute controls over the general. Abel v. Austin, 411 S.W.3d
728, 738 (Ky. 2013). KRS 533.060(3) is undoubtedly more specific. Second, the
rule that “[t]he Legislature is presumed to be aware of the existing law at the
time of enactment of a later statute.” Stogner v. Commonwealth, 35 S.W.3d 831,
40
835 (Ky. 2000). These two principles obviate any concern over the General
Assembly’s amendments of KRS 532.110 in 2002 and 2006, making it the
statute passed later in time.
Briefly, I do not agree that our precedent interpreting KRS 533.060(2) is
applicable here. Peyton v. Commonwealth ruled that under that provision’s
language “‘the period of confinement for that felony shall not run concurrently
with any other sentence,’ should be construed as meaning [only] that
subsequent felony offense(s) committed while on probation or parole may not
be run concurrently with the sentence for which the individual is on probation
or parole.” 253 S.W.3d 504, 511 (Ky. 2008) (quoting KRS 533.060(2))
(emphasis added). Blackburn v. Commonwealth explicitly relied on that
construction of “any other sentence” in Peyton to hold that KRS 533.060(2) did
not control for multiple sentences received at the same time and ran
consecutively by the trial court with one another, because “such an
interpretation would ‘take the phrase “with any other sentence” and extend it
beyond the context and statutory framework where it is found.’” 394 S.W.3d
395, 400 (Ky. 2011) (quoting Devore v. Commonwealth, 662 S.W.2d 829, 831
(Ky. 1984) (Leibson, J., dissenting)).
But more to the point is that both Peyton and Blackburn are cases
interpreting a different provision other than KRS 533.060(3) and were rendered
two and five years after the last amendments to KRS 532.110, respectively.
Thus, when the General Assembly passed those amendments, it was aware of
previous judicial constructions that had been given to both KRS 532.110 and
41
533.060(3). Specifically, Commonwealth v. Martin had held that the latter
statute controlled over the former. 777 S.W.2d 236, 238 (Ky. App. 1989). The
Court has not cited this case in its opinion. Moreover, another appellate court
case had previously held KRS 533.060(3) controlled over KRS 532.110(1)(a).
Handley v. Commonwealth, 653 S.W.2d 165, 166 (Ky. App. 1983). And as the
Court accurately states, this Court had already spoken on the issue of KRS
533.060(3) controlling over KRS 532.110(1)(c) in the event of a conflict in White
v. Commonwealth, 5 S.W.3d 140, 142 (Ky. 1999), holding the former applies
over the latter. Thus, by the time the General Assembly amended KRS 532.110
in 2002, it was presumably aware for thirteen years that the courts of the
Commonwealth were applying KRS 533.060(3) over KRS 532.110(1)(c), despite
the latter’s statutory cap. “The failure of the legislature to change a known
judicial interpretation of a statute is extremely persuasive evidence of the true
legislative intent. There is a strong implication that the legislature agrees with
a prior court interpretation of its statute when it does not amend the statute
interpreted.” Bloyer v. Commonwealth, 647 S.W.3d 219, 225 (Ky. 2020).
The amendment to KRS 532.110 in 2002 was not to subsection (1)(c) of
that statute. Instead, it added language to subsection (2), making that section
read: “If the court does not specify the manner in which a sentence imposed by
it is to run, the sentence shall run concurrently with any other sentence which
the defendant must serve unless the sentence is required by subsection (3)
of this section or KRS 533.060 to run consecutively.” Act of Mar. 11, 2002,
ch. 11, § 5, 2002 Ky. Acts 227, 228-29 (emphasis added). This addition post-
42
dates the language in KRS 532.110(1)(c) referring to KRS 532.080, and
indicates legislative intent that KRS 533.060 is controlling. Thus, the General
Assembly was well aware that KRS 533.060 creates exceptions to the general
scheme created by KRS 532.110. Moreover, none of its amendments changed
the known interpretation that KRS 533.060(3) was more specific and
controlling over the statutory cap of KRS 532.110(1)(c). Thus, because Kimmel
committed one offense while awaiting trial for another offense those two
sentences cannot be run concurrently (which is the functional result of the
Court’s opinion), therefore the forty-year sentence is lawful, and I would affirm
the trial court.
VanMeter, C.J.; Keller, J., join.
COUNSEL FOR APPELLANT:
Jennifer Leigh Wade
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Joseph A. Beckett
Assistant Attorney General
43