IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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RENDERED : AUGUST 26, 2010
NOT TO BE PUBLISHED
SixyrrMr C~aixrf of tit
2008-SC-000804-MR
DAT . .-- Aaa
PAUL D . YORK, SR .
ON APPEAL FROM BULLITT CIRCUIT COURT
V HONORABLE RODNEY D . BURRESS, JUDGE
NO . 08-CR-00145
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Paul D . York, appeals from a Judgment of the Bullitt Circuit
Court, entered upon a jury verdict, convicting him of complicity to burglary,
second degree and of theft by unlawful taking, more than $300 .00 . Appellant
was also found to be a first-degree persistent felony offender (PFO 1) . He was
sentenced to ten years imprisonment for the burglary conviction and five years
imprisonment for the theft conviction, enhanced to ten years by his PFO 1
status, with the two ten-year sentences ordered to run consecutively for a total
of twenty years . Appellant appeals to this Court as a matter of right . Ky.
Const. § 110(2) (b) . He argues that the trial court erred in refusing his tendered
instruction on attempted theft by unlawful taking . Additionally, he raises three
claims of error concerning the penalty phase of his trial; namely, that the
introduction of his prior convictions through testimony by an Assistant
Commonwealth's Attorney prejudiced him; that one of the previous convictions
utilized to establish his PFO1 status was not valid ; and that he was prejudiced
by improper closing arguments made by both the Commonwealth and his co-
defendant's counsel. Finding no merit to Appellant's contentions, we affirm his
convictions and sentence .
RELEVANT FACTS
Appellant's convictions stem from events occurring on April 3, 2008,
when detectives with the Bullitt County Sheriff's Office responded to a report of
a residential burglary. Appellant's accomplice, Kenneth Huffman, was sitting
in the get-away vehicle on the side of the road . When the detectives arrived
and began to exit the vehicle, Huffman sped off. One of the detectives pursued
him and the other stayed behind to investigate the residence. As the detective
approached the house, he saw a footprint on the side of the door and observed
that the lock was splintered, suggesting that it had been kicked in . The
detective drew his weapon and pushed the door open whereupon he discovered
Appellant coming down the hallway, carrying a clipboard in one hand and a red
sack in the other . When the detective ordered Appellant to get on the ground,
he complied . The detective restrained Appellant until backup arrived.
Meanwhile, the second detective pursued Huffman, who sped out of the
subdivision on the wrong side of the road. With the aid of city police officers,
Huffman was soon forced to stop his vehicle . In response to the detective's
questions, Huffman stated that he had been at the subject residence to fix a
leaky roof and that he (did not know Appellant However, a search of Huffman
and Appellant revealed that each was carrying the same kind of walkie-talkie
tuned to the same channel.
The victim, Jeremy Heffernan, was at work during the burglary, but he
later identified the red sack as a pillowcase from his bed . He identified the
property discovered inside the pillowcase as his wife's jewelry, his
grandmother's silverware, and a case of six watches . At trial, Heffernan
testified that the value of the watches was $750 .00 and the silverware was
worth $500.00 .
Appellant was indicted for complicity to second-degree burglary,
complicity to theft by unlawful taking over $300.00, and for being a persistent
felony offender, first-degree (PFO 1) . Ajury found Appellant guilty of all three
offenses and recommended an enhanced sentence of twenty years on each of
the two felonies, to run consecutively for a total of forty years. The trial court
properly lowered each sentence to the statutory maximum calculated under
Kentucky Revised Statutes (KRS) 532 .1 10(l) (c), a total of twenty years
imprisonment, and entered judgment that was otherwise in accord with the
jury's verdict. In his matter-of-right appeal Appellant raises the four claims of
error noted above .
ANALYSIS
The Trial Court Properly Declined to Instruct the Jury on
Attempted Theft By Unlawful Taking
Appellant contends that the trial court erred in denying his request for
an instruction on attempted theft by unlawful taking. Because Appellant never
exited the residence with the stolen items, he asserts that the jury could have
believed that the theft was not completed and, therefore, could have found him
guilty only of an attempt to commit the underlying crime.
A trial court is duty-bound to instruct the jury on the whole law of the
case, including any applicable lesser included. offenses . Houston v.
Commonwealth, 975 S .W.2d 925 (Ky . 1998) . Whether a lesser included
instruction is required depends on whether there is an evidentiary basis to
support it. Id. A defendant's entitlement to a lesser included instruction
depends upon whether, "considering the totality of the evidence, the jury might
have a reasonable doubt as to the defendant's guilt of the greater offense, and
yet believe beyond a reasonable doubt that he is guilty of the lesser offense ."
Id. at 929 (citing Wombles v. Commonwealth, 831 S .W.2d 172 (Ky. 1992)) .
Consequently, we must determine whether a jury could have had reasonable
doubt of Appellant's guilt of theft by unlawful taking, but could have believed
that Appellant was guilty of the attempt of that crime .
With respect to movable property, the offense of theft by unlawful taking
is committed when a person unlawfully "[flakes or exercises control over
movable property of another with intent to deprive him thereof." KRS
514 .030(1) (a) . Criminal attempt of an offense is committed when :
A person . . . acting with the kind of culpability
otherwise required for commission of the crime . . . (a)
[i]ntentionally engages in conduct which would
constitute the crime if the attendant circumstances
were as he believes them to be ; or (b) [i]ntentionally
does or omits to do anything which, under the
circumstances as he believes there to be, is a
substantial step in a course of conduct planned to
culminate in his commission of the crime .
KRS 506 .010. Appellant submits that because he did not leave the residence
with the items he was carrying, a jury could have found that he had taken a
substantial step in the course of the theft, but did not complete the act.
However, the trial court properly rejected Appellant's tendered instruction on
attempt, pointing out that theft by unlawful taking merely required. that
Appellant take or exercise control over the property . See KRS 514 .030 (1) (a) .
To support Appellant's requested instruction, there must have been evidence
from which the jury could have believed that Appellant intended to deprive
Heffernan of his property, but did not actually take it or exercise control over it .
While it is true that Appellant did not leave the residence with the stolen items
because he was apprehended inside, he had selected the items, deposited them
in a pillow case, and carried them out of the room in which he found them .
Accordingly, it is illogical that a fury would find that Appellant intended to
deprive Heffernan of the items but had not taken or exercised control over
them. As such, the trial court properly rejected Appellant's requested
instruction on attempted theft by unlawful taking .
II. Introduction of Appellant's Prior Convictions through an
Assistant Commonwealth Attorney Did Not Constitute Reversible
Error
To establish Appellant's status as a first-degree persistent felony
offender, certified copies of two prior felony conviction judgments, one from
Owen Circuit Court and one from Boone Circuit Court, were introduced into
evidence. The Commonwealth called an Assistant Commonwealth's Attorney to
read the prior judgments into the record . Appellant objected on grounds that
the attorney was not the custodian of the records nor could he testify to the
procedures concerning the preparation or maintaining of the records . The trial
court correctly rejected Appellant's argument and allowed. the Assistant
Commonwealth's Attorney to read the judgments into the record . "Pursuant to
IKRE 1005, a certified copy is self-authenticated and does not require
testimonial declarations of its verity." Skimmerhorn v. Commonwealth, 998
S .W .2d 771 (Ky. App . 1998) . See also Montgomery v. Commonwealth, _ S .W.
3d - (Ky . March .18, 2010) . Accordingly, it was unnecessary that the attorney
have personal knowledge of the authenticity of the judgments as a prerequisite
to testifying to their contents.
Before this Court, Appellant appears to have abandoned the grounds
that he asserted to the trial court and, instead, argues that he was prejudiced
by the Commonwealth's use of an Assistant Commonwealth's Attorney to
testify to the prior convictions because of the "authority, prestige and gravitas"
his official
of position- Appellant's failure to cite the latter grounds as a basis
for his objection in the trial court renders the argument unpreserved . Henson
v. Commonwealth, 20 S .W.3d 466 (Ky. 199S) . Moreover, Appellant's assertion
that the resulting prejudice was demonstrated by the jury's recommendation of
the maximum sentence is unpersuasive because the Assistant
Commonwealth's Attorney merely read from the judgments, without comment,
after the judgments were admitted into evidence . As such, Appellant's
argument in this regard must fail.
III . The Judgment of Conviction From Boone Circuit Court Was
Properly Admitted to Establish Appellant's Status as a Persistent
Felony Offender
Next, Appellant asserts that the judgment of conviction from Boone
Circuit Court should not have been used to establish his PFO status because it
was not a valid conviction . Specifically, Appellant objected to the judgment
being admitted, arguing that although he had pled guilty to second-degree
burglary, the indictment had been for first-degree robbery. Appellant reasoned
that because he was ultimately convicted of a crime for which he was not
indicted, the resulting conviction was invalid . Appellant filed an RCr 11 .42
motion for relief from the conviction in Boone Circuit Court, which he attached
to a motion in limine filed in the Bullitt Circuit Court to attempt to prevent
admission of the conviction . Nevertheless, the trial court properly denied
Appellant's motion in limine and allowed the prior judgment of conviction to be
admitted .
While a pending direct appeal from a judgment of conviction serves to
suspend the judgment, preventing its use to establish PFO status, collateral
attacks do not prevent a judgment of conviction from being used to prove PFO
status . Melson v. Commonwealth, 772 S .W.2d 631 (Ky . 1989) . When either the
period for filing a direct appeal has expired or a conviction has been affirmed
on direct appeal, the conviction is deemed final for purposes of proving a prior
conviction under the persistent felony offender statute, KRS 532 .080 . Id. As
the time for pursuing a direct appeal from the Boone Circuit Court conviction
expired, without appeal having been taken, the conviction was permissibly
admitted to prove Appellant's status as a persistent felony offender.
IV. Nothing in Closing Arguments During Penalty Phase Was
Improper
Appellant's final claim of error concerns closing arguments of the
Commonwealth and of his co-defendant's counsel . With respect to the
argument of his co-defendant's counsel, Appellant cites to that portion of
counsel's argument that sought leniency for her client by distinguishing him
from Appellant based on Appellant's more recent criminal history . In so doing,
counsel reiterated the two prior felony convictions that had been introduced
against Appellant and explained that Appellant's "last" two convictions were in
2005 and 1999, while her client's last conviction was thirteen years prior.
Appellant objected to this part of the argument, asserting that counsel was
implying that Appellant had more than two prior convictions, which was a
mischaracterization of the evidence given that only two prior convictions had
been introduced . The trial court overruled the objection, finding that counsel's
statement was correct because the two prior convictions referenced were
Appellant's "last" two even if they were also his only two prior convictions .
While this issue initially appears to have some merit, given the common
impression that "last two" implies there were others preceding, the record does
not support Appellant's suggestion that he had only two prior convictions .
Specifically, Appellant's first judgment of conviction, the Owen County
judgment, included a conviction for possession of a handgun by a convicted
felon, meaning that before the Owen County conviction (which was followed by
the 2005 Boone County conviction) Appellant had previously been convicted .
Thus, there was evidence of record, albeit inferential, that Appellant had more
than two prior felony convictions . We, thus, agree with the trial court that
counsel's argument was not improper although our conclusion is premised on
the fact that the co-defendant's counsel did not really mischaracterize the
evidence .
Appellant also complains that the Commonwealth's closing argument
contained an improper reference . Specifically, after submitting to the jury that
the Commonwealth had proven Appellant's two prior convictions for PFO
purposes, the Commonwealth stated :
There is no evidence before the court that those
convictions aren't good convictions or that the
information contained therein is not absolutely
accurate . There is no challenge to it.
Appellant objected and argued that he had, in fact, challenged one of the prior
convictions . The trial court overruled the objection. Again, we must agree with
the trial court's ruling. Although Appellant challenged one of the prior
convictions in a motion in limine, the trial court overruled that motion.
Accordingly, the Commonwealth's statement was accurate because no
challenge to the convictions had been made before the jury; rather, the trial
court's previous ruling on the motion in limine determined that, as a matter of
law, Appellant had not presented a legitimate challenge to use of the prior
conviction for a PFO charge .
Counsel is given great leeway in the presentation of closing arguments .
Foley v. Commonwealth, 953 S .W.2d 924 (Ky. 1997) . Appellant has failed to
show that any improper comments were encompassed in the closing argument
of either the Commonwealth or his co-defendant's counsel .
CONCLUSION
Appellant was not entitled to an instruction on attempted theft by
unlawful taking . There was no reversible error in the Assistant
Commonwealth's Attorney's testifying to the contents of Appellant's prior
judgments of conviction . Likewise, there was no error in the admission of the
Boone Circuit Court prior conviction despite a pending collateral attack . And,
finally, neither the Commonwealth nor counsel for Appellant's co-defendant
made improper closing arguments. Accordingly, Appellant's convictions and
sentence are affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Samuel N . Potter
Assistant Public Advocate
Department Of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Perry Thomas Ryan
Assistant Attorney General
Office Of The Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204