RENDERED: JULY 26, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0675-MR
BROOKE WITTE APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE KATHLEEN S. LAPE, JUDGE ACTION NO. 22-CR-01241
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Brooke Witte appeals her convictions in the Kenton Circuit
Court for promoting contraband in the first degree and tampering with physical
evidence, both Class D felonies. We affirm.
For reasons that are unclear from the record before us, Brooke Witte
became an inmate at the Kenton County Detention Center (“KCDC”) on October
22, 2022. After spending the night in a holding cell in the booking area, Witte was
called to “dress out” (i.e., remove her street clothes and don a KCDC uniform) by Deputy Sabrina Williams. Deputy Williams testified that, during dress out, Witte
refused to take off her bra and struggled with the garment, and Deputy Williams
became suspicious. When Witte was instructed to put on the KCDC-approved
shirt, she continued to struggle and attempted to hold her hands close to her chest.
When Witte was attempting to put on the shirt, Deputy Williams observed two
small baggies fall out of Witte’s bra. One was empty, but the other contained what
was later determined by laboratory analysis to be methamphetamine. Deputy
Williams called her supervisor, who instructed her to perform a body scan on
Witte. The two baggies were confiscated and taken to KCDC’s evidence room.
The body scan performed on Witte revealed an “abnormality” in her
vaginal area. Deputy Williams was instructed to perform a full strip search on
Witte at that point. Deputy Williams’ body camera footage showed her leading
Witte to an empty room. From there, the actions of Witte and Deputy Williams
move very quickly. After removing her sanitary napkin in front of Deputy
Williams, Witte continued to touch and/or grab at her vaginal area. Deputy
Williams yelled at her to stop, and Witte stated she did not understand what
Deputy Williams was asking of her. Deputy Williams then leaned backwards to
yell out the door for a sergeant, and Witte was momentarily out of view of the
body camera. Just a second or two later, when Deputy Williams leaned back into
the room, the footage shows Witte with her back to the camera, hunched over, and
-2- grabbing at her vaginal area. Deputy Williams then grabbed Witte and yelled at
her to “Take it out of your mouth!” Witte, who had been talking nonstop up to that
point, responded only with grunts. Deputy Williams and Witte struggled
momentarily until Witte yelled at Deputy Williams to stop hurting her. Deputy
Williams was holding one of Witte’s arms while Witte attempted to reach behind
her with the other hand. Although the video is fast-moving and chaotic, Deputy
Williams testified she did see Witte pull “something” from her vagina and put it in
her mouth.
Witte was placed in a “dry cell” for three to four days. Deputy
Williams testified that a dry cell has no running water so that inmates suspected of
ingesting contraband cannot flush feces or vomit down the toilet. KCDC guards
checked on Witte every 15 to 20 minutes; however, no contraband was ever
recovered from Witte’s person or the dry cell. It was unclear from the evidence
presented at trial if another body scan was ever performed on Witte.
Witte testified in her own defense at trial. Her version of events was
vastly different from Deputy Williams’ testimony. Witte testified that she spent
the night in the holding cell in the booking area and, when called to dress out by
Deputy Williams, she began to gather her belongings. Witte claims it was at that
time she discovered a small baggie of what she believed to be drugs in the holding
cell. Witte testified she wanted to give the bag to KCDC staff “because it’s the
-3- right thing to do.” She testified that she had the baggie in her possession for less
than one minute before handing it to Deputy Williams. She claimed Deputy
Williams became angry and accused her of possessing the drugs. Witte testified
she had no idea where the drugs came from, but they were not hers, and neither
Deputy Williams or any other KCDC staff member found drugs on her person at
any point. Witte denied putting anything into or removing anything from her
vaginal area or mouth in the body camera footage and stated her behavior was
because she was confused and did not know what she was supposed to do.
At trial, Witte moved for a directed verdict on both counts at the
conclusion of the Commonwealth’s case in chief and again after the close of all
evidence. The trial court denied the motions. The jury found Witte guilty on both
counts. The trial court imposed the jury’s recommended sentence of one-year’s
imprisonment for each offense, to run consecutively, for a total of two years of
incarceration. This appeal followed.
Witte argues the trial court should have granted her motion for
directed verdict. The standard for a directed verdict is outlined in Commonwealth
v. Benham, 816 S.W.2d 186, 187 (Ky. 1991):
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on
-4- the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
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.
An appellate Court is “to affirm . . . unless there is a complete absence
of proof on a material issue in the action, or if no disputed issue of fact exists upon
which reasonable men could differ.” Fister v. Commonwealth, 133 S.W.3d 480,
487 (Ky. App. 2003) (citations omitted).
We first address the conviction for promoting contraband. Kentucky
Revised Statutes (KRS) 520.050 provides, in relevant part,
(1) A person is guilty of promoting contraband in the first degree when:
(a) He knowingly introduces dangerous contraband into a detention facility or a penitentiary; or
(b) Being a person confined in a detention facility or a penitentiary, he knowingly makes, obtains, or possesses dangerous contraband.[1]
1 “Dangerous contraband” is defined in KRS 520.010(3) and includes “any controlled substance.”
-5- The jury was faced with an issue of credibility. Either they believed
Deputy Williams’ version of events that she observed the baggie of
methamphetamine and an empty baggie fall out of Witte’s bra during dress out; or
Witte’s version of events that she found a single baggie containing what she only
thought might be drugs in the holding cell and immediately turned it over to
Deputy Williams.
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RENDERED: JULY 26, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0675-MR
BROOKE WITTE APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE KATHLEEN S. LAPE, JUDGE ACTION NO. 22-CR-01241
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Brooke Witte appeals her convictions in the Kenton Circuit
Court for promoting contraband in the first degree and tampering with physical
evidence, both Class D felonies. We affirm.
For reasons that are unclear from the record before us, Brooke Witte
became an inmate at the Kenton County Detention Center (“KCDC”) on October
22, 2022. After spending the night in a holding cell in the booking area, Witte was
called to “dress out” (i.e., remove her street clothes and don a KCDC uniform) by Deputy Sabrina Williams. Deputy Williams testified that, during dress out, Witte
refused to take off her bra and struggled with the garment, and Deputy Williams
became suspicious. When Witte was instructed to put on the KCDC-approved
shirt, she continued to struggle and attempted to hold her hands close to her chest.
When Witte was attempting to put on the shirt, Deputy Williams observed two
small baggies fall out of Witte’s bra. One was empty, but the other contained what
was later determined by laboratory analysis to be methamphetamine. Deputy
Williams called her supervisor, who instructed her to perform a body scan on
Witte. The two baggies were confiscated and taken to KCDC’s evidence room.
The body scan performed on Witte revealed an “abnormality” in her
vaginal area. Deputy Williams was instructed to perform a full strip search on
Witte at that point. Deputy Williams’ body camera footage showed her leading
Witte to an empty room. From there, the actions of Witte and Deputy Williams
move very quickly. After removing her sanitary napkin in front of Deputy
Williams, Witte continued to touch and/or grab at her vaginal area. Deputy
Williams yelled at her to stop, and Witte stated she did not understand what
Deputy Williams was asking of her. Deputy Williams then leaned backwards to
yell out the door for a sergeant, and Witte was momentarily out of view of the
body camera. Just a second or two later, when Deputy Williams leaned back into
the room, the footage shows Witte with her back to the camera, hunched over, and
-2- grabbing at her vaginal area. Deputy Williams then grabbed Witte and yelled at
her to “Take it out of your mouth!” Witte, who had been talking nonstop up to that
point, responded only with grunts. Deputy Williams and Witte struggled
momentarily until Witte yelled at Deputy Williams to stop hurting her. Deputy
Williams was holding one of Witte’s arms while Witte attempted to reach behind
her with the other hand. Although the video is fast-moving and chaotic, Deputy
Williams testified she did see Witte pull “something” from her vagina and put it in
her mouth.
Witte was placed in a “dry cell” for three to four days. Deputy
Williams testified that a dry cell has no running water so that inmates suspected of
ingesting contraband cannot flush feces or vomit down the toilet. KCDC guards
checked on Witte every 15 to 20 minutes; however, no contraband was ever
recovered from Witte’s person or the dry cell. It was unclear from the evidence
presented at trial if another body scan was ever performed on Witte.
Witte testified in her own defense at trial. Her version of events was
vastly different from Deputy Williams’ testimony. Witte testified that she spent
the night in the holding cell in the booking area and, when called to dress out by
Deputy Williams, she began to gather her belongings. Witte claims it was at that
time she discovered a small baggie of what she believed to be drugs in the holding
cell. Witte testified she wanted to give the bag to KCDC staff “because it’s the
-3- right thing to do.” She testified that she had the baggie in her possession for less
than one minute before handing it to Deputy Williams. She claimed Deputy
Williams became angry and accused her of possessing the drugs. Witte testified
she had no idea where the drugs came from, but they were not hers, and neither
Deputy Williams or any other KCDC staff member found drugs on her person at
any point. Witte denied putting anything into or removing anything from her
vaginal area or mouth in the body camera footage and stated her behavior was
because she was confused and did not know what she was supposed to do.
At trial, Witte moved for a directed verdict on both counts at the
conclusion of the Commonwealth’s case in chief and again after the close of all
evidence. The trial court denied the motions. The jury found Witte guilty on both
counts. The trial court imposed the jury’s recommended sentence of one-year’s
imprisonment for each offense, to run consecutively, for a total of two years of
incarceration. This appeal followed.
Witte argues the trial court should have granted her motion for
directed verdict. The standard for a directed verdict is outlined in Commonwealth
v. Benham, 816 S.W.2d 186, 187 (Ky. 1991):
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on
-4- the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
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.
An appellate Court is “to affirm . . . unless there is a complete absence
of proof on a material issue in the action, or if no disputed issue of fact exists upon
which reasonable men could differ.” Fister v. Commonwealth, 133 S.W.3d 480,
487 (Ky. App. 2003) (citations omitted).
We first address the conviction for promoting contraband. Kentucky
Revised Statutes (KRS) 520.050 provides, in relevant part,
(1) A person is guilty of promoting contraband in the first degree when:
(a) He knowingly introduces dangerous contraband into a detention facility or a penitentiary; or
(b) Being a person confined in a detention facility or a penitentiary, he knowingly makes, obtains, or possesses dangerous contraband.[1]
1 “Dangerous contraband” is defined in KRS 520.010(3) and includes “any controlled substance.”
-5- The jury was faced with an issue of credibility. Either they believed
Deputy Williams’ version of events that she observed the baggie of
methamphetamine and an empty baggie fall out of Witte’s bra during dress out; or
Witte’s version of events that she found a single baggie containing what she only
thought might be drugs in the holding cell and immediately turned it over to
Deputy Williams. The jury clearly believed Deputy Williams. As a reviewing
Court, we do not make determinations regarding credibility or weight of the
evidence. Benham, 816 S.W.2d at 187. The trial court was correct to deny Witte’s
motion for directed verdict.
We next turn to the tampering with evidence conviction. KRS
524.100 provides, 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[.]
Notably, if evidence is “destroyed” it cannot be produced for trial.
The fact that KCDC staff did not find evidence easily visible in Witte’s feces or
vomit in the dry cell does not mean it was never there. Deputy Williams’
testimony of the events during dress out and when she attempted to do a full body
-6- search of Witte, combined with the body camera footage, and the fact that one
baggie of methamphetamine was found along with an empty baggie, could lead a
reasonable juror to conclude that Witte tampered with evidence in this case.
Again, we emphasize that “[c]redibility and weight of the evidence are matters
within the exclusive province of the jury.” Commonwealth v. Smith, 5 S.W.3d 126,
129 (Ky. 1999) (citation omitted). Considering the evidence as a whole, it was not
clearly unreasonable for the jury to find Witte guilty of tampering with physical
evidence. See Benham, 816 S.W.2d at 187.
Accordingly, for the foregoing reasons, the judgment of the Kenton
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert C. Yang Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Thomas A. Van de Rostyne Assistant Attorney General Frankfort, Kentucky
-7-