Gaspar George Asbury v. Commonwealth of Kentucky

RENDERED: DECEMBER 18, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1135-MR
GASPAR GEORGE ASBURY APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 18-CR-01443
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: Gaspar George Asbury appeals his conviction for first-
degree criminal mischief and the sentence, which included restitution in the
amount of $4,350. We affirm.
FACTS
Gaspar Asbury had been separated from his wife, Sagrario, for over
eleven years when he asked to stay with his wife and her boyfriend in the
apartment the two shared with Asbury and Sagrario’s daughter and infant
granddaughter. Sagrario believed that Asbury was homeless, so she allowed him
to stay, and he remained for longer than the anticipated few days.
About a month after he came to stay, his daughter came home with
her boyfriend and Asbury was at the apartment. While he was calm when they
first arrived, he soon became agitated and began destroying items in the apartment,
damaging the apartment while doing so. His daughter and her boyfriend retreated
to a room upstairs and called the police.
When the police arrived, they found Asbury lying in a walk-in closet
which he used as his bedroom. He resisted arrest and kicked an officer while being
carried to a vehicle for transport to the jail. A responding officer later testified that
he appeared to be heavily intoxicated.
In the aftermath, the apartment was left a mess. Potted plants had
been dumped on the floor, food was scattered throughout the apartment, the
refrigerator was tipped over, and the microwave had been thrown through a
window.
Asbury was charged with first-degree criminal mischief for the
damage to the apartment and its contents, third-degree assault for kicking the
police officer, second-degree disorderly conduct, and being a persistent felony
offender in the first degree. At the trial, Sagrario, her boyfriend Anthony, and the
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landlord Todd Tighe testified about the damages to belongings and the dwelling
caused by Asbury.
The jury found Asbury guilty on all counts, and he was sentenced to
one year of imprisonment for the criminal mischief charge, a Class D felony,
which was enhanced to a ten-year sentence because he was found to be a persistent
felony offender. Kentucky Revised Statutes (KRS) 532.080(6)(b).
Asbury alleges that the trial court erred in not directing a verdict of
acquittal on the criminal mischief count, in entering a restitution order without due
process, and in not enforcing a discovery order and allowing the Commonwealth to
rely upon evidence which was not turned over to the defense in a timely manner.
Having reviewed the briefs of the parties and the orders of the trial court, we
affirm.
I. Directed Verdict
The standard of review on denial of a motion for directed verdict was
stated clearly by the Kentucky Supreme Court in Commonwealth v. Benham:
On 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.
816 S.W.2d 186, 187 (Ky. 1991) (citation omitted).
Asbury complains that the Commonwealth did not offer sufficient
proof that the damages he caused to the belongings and dwelling met the $1,000
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felony threshold.1 The Commonwealth presented testimony from Sagrario and her
boyfriend, Anthony, who both testified to damages to their personal property,
which Anthony estimated to be between $200 and $300. As to the damages to the
apartment, the Commonwealth presented the testimony of Todd Tighe. Mr. Tighe
was a principal in the LLC which owned the apartment building and operated a
separate entity that performed maintenance on the properties owned by the LLC
and provided the estimate of repairs. The estimate amounted to over $3,000.
Asbury complains that Tighe’s testimony was self-serving, as he
owned the company which would make the repairs and thus had every reason to
inflate the costs. Such, however, is no reason to enter a directed verdict, but is
rather an argument to be made to the trier of fact, the jury. It is the jury’s function
to evaluate the credibility and interests of witnesses who provide testimony and it
is not appropriate for the trial court to usurp that role by entering a directed verdict,
1
(1) A person is guilty of criminal mischief in the first degree when, having no right to do so or
any reasonable ground to believe that he or she has such right, he or she intentionally or
wantonly:
(a) Defaces, destroys, or damages any property causing pecuniary
loss of $1,000 or more; or
(b) Tampers with the operations of a key infrastructure asset, as
defined in KRS 511.100, in a manner that renders the operations
harmful or dangerous.
(2) Criminal mischief in the first degree is a Class D felony.
KRS 512.020. If one is alleged to have caused damage more than $500, but less than $1,000, the
appropriate charge is criminal mischief in the second degree, a Class A misdemeanor.
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nor is it the role of the appellate court to do so in determining whether a directed
verdict should have been entered. See Hatfield v. Commonwealth, 250 S.W.3d
590, 596 (Ky. 2008). The Commonwealth offered sufficient proof of the costs of
the repair of the damages the jury determined Asbury caused the dwelling and
personalty, and the trial court properly left it to the jury to determine the credibility
of that proof.
II. Restitution Order
Asbury did not object to the entry of a restitution order against him in
the amount of $4,350. Thus, Asbury must meet the heightened burden of proving
palpable error to prevail on appeal. He has not met that burden.
In Ladriere v. Commonwealth, we held that under that
standard, “reversal is warranted ‘if a manifest injustice
has resulted from the error,’ which requires a showing of
the ‘probability of a different result or error so
fundamental as to threaten a defendant’s entitlement to
due process of law.’” 329 S.W.3d 278, 281 (Ky. 2010)
(quoting Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.
2006)). Manifest injustice is found if the error seriously
affected the “fairness, integrity, or public reputation of
the proceeding.” Martin, 207 S.W.3d at 4.
Jones v. Commonwealth, 382 S.W.3d 22, 29 (Ky. 2011)
Asbury argues that there was no hearing on the amount of restitution
ordered. But there is no requirement that there be a separate hearing on restitution
when the amount ordered was, as here, proven beyond a reasonable doubt at trial.
Taylor v. Commonwealth, 588 S.W.3d 463 (Ky. App. 2019).
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Anthony testified that $200-300 of damage was caused to his personal
property and Sagrario testified that she and Anthony paid $150 for a used
refrigerator to replace the one Asbury damaged. The trial court ordered Asbury to
pay Anthony $450 in restitution. Todd Tighe testified that the total repair costs for
damages to the apartment were $3,650 and the used refrigerator Sagrario obtained
was replaced with another for $250, for a total restitution amount to the landlord of
$3,900. Thus, the restitution order of $4,350 was supported by a preponderance of
the evidence. See Mitchell v. Commonwealth, 538 S.W.3d 326, 329 (Ky. App.
2017). Again, Asbury wholly failed to object in any way. We find he was
accorded due process and can discern no manifest injustice occurred necessitating
reversal of the restitution order.
III. Discovery Violation
Asbury alleges that the Commonwealth tendered discovery, an
estimation of the costs of repairs, in an untimely fashion and alleges that the trial
court erred in allowing the Commonwealth to introduce the evidence at trial. A
trial court’s evidentiary rulings are reviewed for an abuse of discretion. Brown v.
Commonwealth, 416 S.W.3d 302, 308 (Ky. 2013).
Tighe provided the prosecution with a written invoice of the repairs
necessary to the unit for which the Commonwealth alleged Asbury was
responsible. He testified at the trial consistent with the invoice.
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The Commonwealth responds that the prosecution timely uploaded
the invoice in the trial court’s online discovery program before midnight on the last
day for timeliness, but said program did not “update” until after midnight, making
the evidence unavailable to defense counsel until after midnight. Whether such is
a timely tender is not necessary for us to determine, however, as Asbury failed to
show how his defense was prejudiced by the timing of the tender.
In order to necessitate reversal for untimely discovery, a showing
must be made that prejudice ensued from an untimely tender, by some showing of
actual prejudice or a proffer of rebuttal evidence which would have been obtained
had its necessity been known. We have no such showing here, nor even suggestion
of such prejudice. Further, the failure to even request a continuance of the trial to
prepare a defense because of the new discovery provides support for the trial
court’s determination that the defense was not prejudiced by receiving the invoice
at the time it was received.
Asbury also argues that the invoice was even “more untimely” and
that Tighe’s testimony was improperly admitted because Tighe was an expert
witness. Asbury therefore argues the Commonwealth should have turned over his
identity as an expert and the invoice as his “report” pursuant to Kentucky Rules of
Criminal Procedure (RCr) 7.24(1)(c) and the trial court’s standard discovery order,
both of which required the Commonwealth to provide the identity and report of
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any expert witness no less than thirty days before trial. Again, Asbury lodged no
such objection to Tighe’s testimony at trial. We are unpersuaded and find that the
amount of damages to a property owned by Tighe and repaired by a separate entity
he owns does not require expert testimony, but rather requires his personal
knowledge and he testified as a lay witness.
Because the defense did not request a continuance, which would have
evinced a need for additional time to prepare to meet the evidence, or state in what
way the defense case was prejudiced by the “late” tender of the invoice, we cannot
find that the trial court committed palpable error in allowing the evidence.
CONCLUSION
For the foregoing reasons, the judgment of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Shannon Dupree Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Robert Baldridge
Assistant Attorney General
Frankfort, Kentucky
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