RENDERED: JULY 9, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0130-MR
JAMES M. AUBREY APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 19-CR-00384
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: James M. Aubrey (“Aubrey”) appeals as a matter of right
from his convictions for disorderly conduct in the second degree, tampering with
physical evidence, and being a persistent felony offender in the second degree.
Upon review, we affirm.
In the early morning hours of February 9, 2019, law enforcement
officers responded to a 911 call from Patricia Bivens, an employee of the Huddle
House restaurant in Radcliff, Kentucky. Bivens reported that she had observed
Aubrey step out of his vehicle in the middle of the Huddle House parking lot and
retrieve what she believed to be a gun from the trunk of the vehicle. Upon
witnessing Aubrey retrieve the weapon and begin to walk toward the door of the
restaurant, Bivens and a fellow Huddle House employee barricaded themselves in
a walk-in freezer in the back of the restaurant. Bivens testified that while she was
in the freezer, she could hear an individual whom she believed to be Aubrey
moving around the restaurant and toward the door of the freezer. Eventually,
Aubrey physically struck the freezer door and shouted to Bivens and her co-worker
that “whoever was trying to rob [them] was gone.” A recording of both the 911
call and security camera footage from the restaurant were played for the jury at
trial and corroborated Bivens’ testimony.
Officer James Martin of the Radcliff Police Department testified that
he arrived at the Huddle House just after 4:30 a.m. in response to a 911 call
reporting a man with a gun inside the restaurant. As the first law enforcement
officer on the scene, Officer Martin testified that he observed Aubrey pacing from
one side of the restaurant to the other and described Aubrey as being in a “mode of
panic.” Officer Martin, along with officers from the Hardin County Sherriff’s
Department, converged around the building. Aubrey was ultimately taken into
custody by other officers.
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Once Aubrey was in custody, Officer Martin asked him where the gun
was, to which Aubrey initially replied that he did not have a gun. When Officer
Martin repeated the question, Aubrey responded that he did have a gun, but that it
was an airsoft gun.1 When Aubrey made reference to the airsoft gun that was in
his possession when he entered the restaurant, he pointed in the direction of a
restaurant seating booth directly behind him. Officer Martin testified that an
airsoft pistol was ultimately recovered by other officers between a wall and a booth
of the restaurant. A recording of Officer Martin’s body camera footage was played
at trial and corroborated the testimony he provided.
Aubrey was charged with disorderly conduct in the second degree,
tampering with physical evidence, and being a persistent felony offender in the
second degree. Following a jury trial, he was found guilty of all three offenses and
ultimately sentenced to a total of seven years’ imprisonment.
Aubrey moved for a directed verdict of acquittal on the charge of
tampering with physical evidence both at the close of the prosecution’s case and at
the conclusion of all the evidence. The circuit court denied both motions. On
appeal, Aubrey argues that the circuit court erred in denying his motions for a
1
An airsoft gun is a weapon that uses compressed air to fire what is typically a plastic BB.
Airsoft weapons are often manufactured with a bright orange tip to signify that they are in fact
replicas and not real guns. However, the orange tip of the airsoft pistol that Aubrey brought into
the Huddle House restaurant had been painted black.
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directed verdict because the Commonwealth provided insufficient evidence of guilt
that he tampered with physical evidence. “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.” Commonwealth v. Benham, 816 S.W.2d 186, 187
(Ky. 1991). Viewing the evidence in the light most favorable to the
Commonwealth, a trial court must deny a motion for directed verdict when there is
“evidence of substance, and the trial court is expressly authorized to direct a
verdict for the defendant if the prosecution produces no more than a mere scintilla
of evidence.” Id. at 187-88.
Kentucky Revised Statutes (KRS) 524.100 states in relevant part:
(1) A person is guilty of tampering with physical
evidence when, believing that an official proceeding is
pending or may be instituted, he:
(a) Destroys, mutilates, conceals, removes
or alters physical evidence which he
believes is about to be produced or used in
the official proceeding with intent to impair
its verity or availability in the official
proceeding[.]
...
(2) Tampering with physical evidence is a Class D
felony.
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(Emphasis added.) The jury was specifically instructed as to the act of
concealment of the airsoft pistol with the intent to impair its availability in an
official proceeding. The evidence presented by the Commonwealth established
that Aubrey got out of his car and secured what appeared to be a real pistol from
the trunk, approached the restaurant clearly brandishing an apparent weapon,
entered the restaurant with the airsoft pistol, and disposed of the pistol in a booth at
the restaurant before police arrived on the scene.
Aubrey argues that the circuit court erred in light of the holdings in
Commonwealth v. James, 586 S.W.3d 717 (Ky. 2019); and McGuire v.
Commonwealth, 595 S.W.3d 90 (Ky. 2019). We disagree. In McGuire, the
specific issue was whether the defendant “concealed” or “removed”
methamphetamine “when he tossed it from his flight path while being pursued by
[the officer].” 595 S.W.3d at 98-99. The Kentucky Supreme Court held as
follows:
In Commonwealth v. James, we noted that KRS 524.100
was based on Section 241.7 of the Model Penal Code,
and that twenty-eight other jurisdictions have enacted
tampering statutes based on this model provision. In
keeping with the courts of those jurisdictions, we adopted
a widely-recognized interpretation of our tampering
statute that applies to a narrow set of circumstances:
“‘where a defendant merely drops, throws down, or
abandons drugs in the vicinity of the defendant and in the
presence and view of the police, this conduct does not
constitute’ tampering by either concealment or removal
that will support an evidence-tampering charge.”
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Id. at 99 (footnotes omitted) (emphasis added). In denying Aubrey’s motion for a
directed verdict at the close of all the evidence, the circuit court distinguished the
holdings in McGuire and James. We agree that those cases are inapplicable to the
facts in the present case.
Here, there was no evidence to suggest that Aubrey placed the airsoft
gun in the booth while in the presence of a police officer. To the contrary, the
evidence presented was that Aubrey had attempted to hide the gun in the booth of
the restaurant before the officers arrived. See Crayton v. Commonwealth, No.
2013-SC-000266-MR, 2014 WL 2811316, at *4-5 (Ky. Jun. 19, 2014) (upholding
a tampering conviction where the defendant, while outside the presence of police
officers, threw a gun into another part of the backyard in which he was found
hiding). Indeed, it was only after the officers asked Aubrey where the gun was that
they recovered the gun between the restaurant booth and the wall.
The testimony of both Bivens and Officer Martin, together with the
recording of Bivens’ 911 call, Officer Martin’s body camera footage, and security
camera footage from the Huddle House restaurant, satisfy the concealment element
of tampering with physical evidence. It was not clearly unreasonable for the jury
to find guilt on the tampering charge. We conclude the Commonwealth produced
evidence regarding the concealment element of the tampering with physical
evidence charge, which “was considerably more than a mere scintilla and the case
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was properly presented to the jury for determination.” Benham, 816 S.W.2d at
188. Accordingly, the circuit court did not err in denying Aubrey’s motions for a
directed verdict.
Aubrey next argues that the charge of being a persistent felony
offender in the second degree should be reversed and dismissed with prejudice.
However, this argument is moot in light of the circuit court’s properly denying
Aubrey’s motions for a directed verdict.
For the foregoing reasons, we affirm the judgment of the Hardin
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
G. William Bailey, Jr. Daniel Cameron
Brian Clear Attorney General of Kentucky
Elizabethtown, Kentucky
Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky
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