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NOT TO BE PUBLISHED OPINION
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RENDERED: APRIL 27, 2017
NOT TO BE PUBLISHED
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MARCUS POWELL APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT
V. HONORABLE PATRICIA M SUMME, JUDGE
NO. 15-CR-00520-002
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A circuit courtjury_convicted Marcus Rashe Powell of criminal attempt to
commit first-degree murder (principal or accomplice) and fixed his punishment ·
at ten years' imprisonment, enhanced to twenty years based on the jury further
finding Powell's status as a second-degree persistent felony offender. The trial
court entered judgment conforming to the jury's verdict and imposed a
sentence consistent with the jury's recommendation.
Powell appeals the judgment as a matter ofright.l He contends the trial
court erred by (1) failing to grant a directed verdict motion on all charges
except wanton endangerment because of a lack of evidence of the necessary
intent to commit the offense of murder, (2) improperly answering a question
1 Ky. Const. § 110(2).
from the jury in violation of the Sixth Amendment, and (3) improperly
instructing the jury in violation of his right to a unanimous verdict. Because
none of these alleged errors ·warrant reversal, we affirm the trial court's
judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Underlying Powell's conviction is a series of events that ultimately led to
shots being fired at the home of Justin and Jeannette Massengale.
For some period of time before the shooting incident, Powell shared a
residence with Justin and Jeannette Massengale, along with Christina Hughes
and her husband. The Massengales moved out of the shared residence, keeping .
their key to the residence. Powell and Christina Hughes, who developed a
romantic relationship, remained in the residence. After the Massengales
moved, the residence was burglarized three or four times. Powell and Hughes
suspected that the Massengales were responsible for these burglaries, so
Hughes, who owned a gun that was in her brother's possession, asked him to
return the gun to her.
On the day of the shooting, at the request of the Massengales, Jeanette
Massengale's younger brother Joseph "Jojo" Hemingway, returned to the
residence ostensibly to retrieve some items the Massengales claimed to have
left behind and used the Massengales' key. While Jojo was exiting the home,
Powell and Hughes arrived and demanded the key from JoJo, and he
acquiesced.
2
Later that day, Hughes and Powell allegedly discovered that some of
Powell's personal belongings were missing, and they suspected Jojo had taken
them. Powell and Hughes decided to confront Jojo. On the way, Hughes and
Powell picked up Hughes's relatives Jeremy "Worm" Griffen and Tequija "Kiki"
Brown. Powell and Hughes questioned Jojo about the burglaries and Griffen
and Brown assaulted him. After the assault, all four left for the Massengale
residence.
Meanwhile, Jojo called Jeanette and told her about the assault. She then
woke Justin to inform him of Jojo's assult. Justin then exited the back door to
check on Jojo when the first four shots were fired at the Massengale residence.
The police apprehended Powell and Hughes the same day as the shooting
incident and both were charged and brought to trial.
II. ANALYSIS.
A. Standard of Review.
Powell concedes that all of his alleged errors are unpreserved and he
requests palpable-error review of each. So we review each alleged error under
RCr 10.26,2 granting relief upon a showing of"palpable error."3 Palpable error
requires a showing that the alleged error affected the "substantial rights" of a
defendant, for whom relief may be granted "upon a determination that manifest
injustice has resulted from the error."4 To find manifest injustice, the reviewing
2 Kentucky Rules of Criminal Procedure 10.26.
s Id.
4 Id.
3
court must conclude that the error so seriously affected the fairness, integrity,
or public reputation of the proceeding as to be "shocking or jurisprudentially
intolerable." 5 We analyze Powell's substantive arguments under this standard.
B. Powell was not .entitled to Directed Verdict.
When deciding a directed-verdict motion, the trial court must view all
evidence in a light favorable to the Commonwealth and determine whether
. there is sufficient evidence for a reasonabl.e jury to believe beyond a reasonable
· doubt that the defendant is guilty.6 In Commonwealth v. Benham we stated that
"[o]n appellate review, the test of a directed verdict is, if under the evidence as a
whole, it would be clearly unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal. "7 In applying this
standard, we reject Powell's argument.
Poyvell asserts that he was entitled to a directed verdict for conviction for
criminal attempt to commit first-degree murder (principal or accomplice). As is
noted in Perry v. Commonwealth, criminal attempt to commit murder requires
the intent to kilJ.B Powell rests his argument on the theory that the
Commonwealth failed to prove the intent necessary for conviction. Both parties
agree, failure to offer proof of intent would be fatal to the Commonwealth's
s Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
6 Pollini v. Commonwealth, 172 S.W.3d 418, 429 (citing Commonwealth v.
Benham, 816 S.W.2d 186, 187 (Ky. 1991)).
1 Benham, 816 S.W.2d at 187.
a Perry v. Commonwealth, 839 S.W.2d 268,273 (Ky. 1992).
4
charge. Both parties further agree that intent can be inferred from the actions
of the defendant.9
Powell asserts that the Commonwealth Marcus Powell v. Commonwealth of Kentucky
Combined Opinion