Yoisvan Yanes Domenech v. Commonwealth of Kentucky

RENDERED: DECEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NOS. 2022-CA-0061-MR AND 2022-CA-0062-MR
YOISVAN DOMENECH APPELLANT
APPEALS FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NOS. 17-CR-003044 AND 19-CR-001836
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND MAZE, JUDGES.
CLAYTON, CHIEF JUDGE: Yoisvan Yanes Domenech appeals from two orders
of the Jefferson Circuit Court revoking his probation and ordering him to serve two
consecutive five-year sentences. Domenech argues that the preponderance of the
evidence did not support revocation and the sentence imposed was unreasonable.
Upon review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Indictment No. 17-CR-003044
In October 2017, Domenech was indicted for trafficking in more than
five pounds of marijuana, with a firearm; third-degree trafficking in Alprazolam,
more than 120 dosage units, with a firearm; receiving stolen property (firearm);
second-degree possession of a controlled substance (Ecstasy); possession of drug
paraphernalia; and failure to notify the Department of Transportation of his address
change.
Domenech entered a plea of guilty to an amended charge of
trafficking in marijuana, less than five pounds. On April 2, 2018, the trial court
imposed a five-year period of supervised pretrial diversion.
Indictment No. 19-CR-001836
Approximately fifteen months later, on May 22, 2019, Domenech was
arrested for first-degree robbery. The victim reported that he owed Domenech
money for drywall and the two agreed that Domenech would accept a vehicle as
payment for the debt. When the victim arrived with the vehicle, Domenech was
dissatisfied with it, put a knife to the victim’s throat and took the vehicle.
Upon learning of this new indictment, the Division of Probation and
Parole filed a violation of supervision report, and the Commonwealth filed a
motion to revoke Domenech’s supervised release in Case No. 17-CR-003044. On
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February 24, 2020, the trial court entered an order voiding Domenech’s further
participation in the pretrial diversion program. Following a hearing, it entered
judgment of conviction and sentence imposing five-year sentences on one count of
trafficking in marijuana and twelve months on one count of illegal use or
possession of drug paraphernalia, to run concurrently for a total sentence of five
years, probated for five years.
Domenech entered a plea of guilty to an amended charge of
facilitation to first-degree robbery in Case No. 19-CR-001836. On May 13, 2020,
the trial court entered judgment of conviction and sentence imposing a sentence of
five years, probated for a period of five years. The sentence was ordered to run
consecutively with his other probated five-year sentence in No. 17-CR-003044.
Oldham County Indictment No. 21-CR-00195
On October 21, 2021, the trial court issued a bench warrant for
Domenech’s arrest based on another violation of supervision report, which stated
that Domenech had been indicted in Oldham County on charges of possession of a
firearm by a felon, theft by unlawful taking, criminal mischief, and being a first-
degree persistent felony offender. The Commonwealth moved to revoke his
probation. A probation revocation hearing was held on December 14, 2021.
Officer Tyler Covington of the Oldham County Police Department
testified that on June 17, 2021, he assisted Officer Harrod in responding to a
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complaint made by Rolando Cevada that his boat had been stolen from his
residence. Harrod located Domenech with the stolen boat on Highway 42. Officer
Covington met Officer Harrod, who told him Domenech admitted he took the boat
because Cevada owed him $2000. Cevada alleged that Domenech pointed a gun at
him and stated that Domenech would have a shotgun and pistol in his vehicle.
Cevada also stated that he believed Domenech was a convicted felon. The police
found a loaded handgun in plain view on the passenger seat of Domenech’s vehicle
but did not find a rifle. Domenech was the driver, sole occupant, and registered
owner of the vehicle.
Domenech’s parole officer, Lewis Willett, testified that he filed a
violation of supervision report after learning Domenech was indicted in Oldham
County for being a felon in possession of a handgun and theft by unlawful taking
under $10,000. He testified that it was a condition of Domenech’s probation that
he was not allowed to possess any firearms.
Andres Torres Soto testified on Domenech’s behalf that he was the
owner of the handgun recovered from Domenech’s vehicle. Torres Soto stated that
he purchased the gun from a Cuban man in a Walmart parking lot. He explained
that he used to be employed by Domenech’s remodeling company, cleaning up
different projects. He explained that he left the gun on the passenger seat in
Domenech’s vehicle when he went to work and then forgot about it. He later got a
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job driving trucks and did not hear from Domenech again. He testified that he told
the police about his ownership of the gun and signed a notarized statement to that
effect.
The mother of Domenech’s two children testified that Domenech was
previously employed in construction but was currently working in vehicle transport
and has a new truck and trailer. She explained that he is the family’s main support.
The trial court did not allow her to testify any further on the grounds that her
testimony was not relevant.
Domenech also submitted an affidavit from Cevada, dated July 7,
2021, recanting his prior accusation that Domenech stole his boat at gunpoint. The
affidavit claims he made the false accusations because he owed Domenech money
for work performed, and that Domenech did not take any money or attempt to take
a boat.
The trial court did not find Cevada’s recantation to be credible and
relied on Officer Covington’s testimony to conclude that Domenech did take
Cevada’s boat. As further evidence to support this finding, the trial court observed
that the offense was similar to Domenech’s earlier offense of holding a knife on an
individual and taking his car. The trial court found that Domenech violated the
terms of his probation by possessing the gun found in his vehicle, and that the
actual ownership of the gun was irrelevant. The trial court also noted that the
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offense occurred in Oldham County, which meant that Domenech had left
Jefferson County without permission and that he was driving trucks, which
constituted two additional violations of the terms of his probation.
The trial court found that Domenech possessed a gun and committed a
new offense similar to an earlier one for which he was on probation, yet provided
no apology or explanation for his actions. Instead, he chose to have others lie on
his behalf. The court concluded that Domenech could not be supervised because
he was willing to be untruthful in order to avoid the consequences of his actions.
The trial court revoked Domenech’s probation in Case No. 17-CR-003044 and
Case No. 19-CR-001836 and ordered the two five-year sentences to be run
consecutively. These appeals followed.
STANDARD OF REVIEW
A trial court may revoke probation only if it finds that the individual’s
failure to comply with the conditions of supervision (1) “constitutes a significant
risk to prior victims of the supervised individual or the community at large,” and
(2) “cannot be appropriately managed in the community[.]” Kentucky Revised
Statutes (KRS) 439.3106(1); Commonwealth v. Andrews, 448 S.W.3d 773, 780
(Ky. 2014). “There must be proof in the record established by a preponderance of
the evidence that a defendant violated the terms of his release and the statutory
criteria for revocation has been met.” Helms v. Commonwealth, 475 S.W.3d 637,
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645 (Ky. App. 2015). The trial court’s findings “can be either oral or written to
satisfy both KRS 439.3106(1) and the defendant’s due process rights.”
Commonwealth v. Gilmore, 587 S.W.3d 627, 630 (Ky. 2019).
A decision to revoke probation is reviewed for an abuse of discretion.
Andrews, 448 S.W.3d at 780. An abuse of discretion occurs when a trial court’s
decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations
omitted).
ANALYSIS
Domenech argues that the Commonwealth failed to show by a
preponderance of the evidence that he engaged in the alleged conduct. He
maintains that it was an abuse of discretion for the trial court to disregard Torres
Soto’s testimony that he was the owner of the gun and Cevada’s affidavit recanting
his accusations against Domenech, and instead to rely on the testimony of Officer
Covington, which was based largely on the hearsay testimony of Officer Harrod.
As Domenech notes, the trial court stated that it was inclined to
believe Torres Soto’s testimony that he was the owner of the gun, and also
commented that Cevada’s recantation would make for a difficult case against
Domenech in Oldham County. The trial court further pointed out, however, that
the mere presence of the gun in Domenech’s vehicle, when he was the sole
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occupant, was sufficient to constitute possession for purposes of revoking
probation. The trial court found there was no doubt that Domenech was the only
person in the vehicle on the day he took the boat, the gun was found in the vehicle,
and Torres Soto was not in the car at all that day. The record shows that the terms
of Domenech’s probation in both Case No. 17-CR-003044 and Case No. 19-CR-
001836 expressly include that he was “not to possess or have access to any
weapons[.]”
The trial court’s decision to disbelieve Cevada’s recantation and rely
instead on Officer Covington’s testimony was entirely within its province as the
factfinder. “The trial court, as fact finder, is in the best position to evaluate the
weight and credibility of the evidence[.]” Croft v. Croft, 240 S.W.3d 651, 655
(Ky. App. 2007). Domenech attempts to discount the evidentiary value of Officer
Covington’s testimony, on the grounds that it was offered via telephone and
consisted in substantial part of hearsay based on Officer Covington’s conversation
with Officer Harrod. “A probation revocation proceeding ‘is not a part of
a criminal prosecution and thus the full panoply of rights due a defendant in such a
proceeding does not apply to parole revocations.’” Robinson v. Commonwealth,
86 S.W.3d 54, 56 (Ky. App. 2002) (quoting Morrissey v. Brewer, 408 U.S. 471,
480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972)). “[P]robation revocation
hearings are not to be treated as criminal judicial proceedings.” Id. at 57. Rather,
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they are “flexible hearings that accept matters into evidence otherwise inadmissible
in a criminal prosecution.” Barker v. Commonwealth, 379 S.W.3d 116, 129 (Ky.
2012). Thus, hearsay evidence is admissible at these informal types of hearings
and there is no absolute right to confront witnesses. Id.Domenech also claims that there was a language barrier because
Officer Covington did not know if Officer Harrod speaks Spanish. This claim is
purely speculative and there is no evidence that Officer Harrod misunderstood
Cevada’s allegations regarding the theft of his boat. He contends that his probation
was revoked merely because a co-worker left a gun in his car without his
knowledge. But the gun was found in plain sight on the passenger seat and Cevada
originally contacted the police to report that Domenech threatened him with it.
Domenech also criticizes the court’s unwillingness to hear lengthy
testimony from Domenech’s girlfriend about his job and family ties, and its refusal
to allow the entry of additional testimony by avowal. The trial court stated that it
was well aware that revoking Domenech’s probation could cause hardship to his
family, but that this was not relevant to the revocation determination. Domenech
argues that evidence of his local family ties and responsibilities, as well as his
steady work history, were relevant to determining whether he could be
appropriately managed in the community. Yet the existence of these family ties
and responsibilities had not deterred him from violating the terms of his supervised
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release in Case No. 17-CR-003044 and the terms of his probation in Case No. 19-
CR-001836.
There was more than sufficient evidence that Domenech’s conduct
constituted a significant risk to the community. He threatened Cevada at gunpoint
and took his boat as repayment for a debt, repeating the behavior underlying his
indictment for first-degree robbery in 2019, when he allegedly stole a vehicle at
knifepoint to settle a debt. He was well aware he should not be near a firearm yet
possessed one, lying on the front seat of his vehicle. The trial court’s finding that
Domenech simply could not be trusted to be truthful and comply with the terms of
his release supported the further conclusion that he could not be appropriately
managed in the community.
Domenech argues that the trial court further abused its discretion by
imposing the two consecutive five-year sentences rather than a lesser sanction
under KRS 439.3106(1)(b). He contends that no evidence was introduced to
explain why Cevada would lie in his recantation and that at worst, Domenech
violated his probation by “inadvertently” having a gun in his vehicle. As we have
already stated, however, the trial court was acting well within its role as the finder
of fact in choosing to believe Cevada’s original complaint to the police,
particularly in light of the fact that Domenech had engaged in similar aggressive
behavior before. “Nothing in the statute or in the Supreme Court’s interpretation
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of it requires the trial court to impose lesser sanctions prior to revoking
probation.” McClure v. Commonwealth, 457 S.W.3d 728, 732, (Ky. App. 2015).
Taken as a whole, the evidence of Domenech’s threatening behavior, his
untruthfulness, and his refusal to accept responsibility for his actions supported the
conclusion that a lesser sanction under KRS 439.3106(1)(b) would not be
appropriate.
CONCLUSION
For the foregoing reasons, the Jefferson Circuit Court’s orders
revoking Domenech’s probation in Case No. 2017-CR-003044 and Case No. 2019-
CR-001836 and directing his five-year sentences in these cases to be served
consecutively are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Rob Eggert Daniel Cameron
Louisville, Kentucky Attorney General of Kentucky
Melissa A. Pike
Assistant Attorney General
Frankfort, Kentucky
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