Gray v. Commonwealth

479 S.W.3d 94, 2015 Ky. App. LEXIS 174, 2015 WL 9252679
CourtCourt of Appeals of Kentucky
DecidedDecember 18, 2015
DocketNO. 2014-CA-000813-MR
StatusPublished
Cited by3 cases

This text of 479 S.W.3d 94 (Gray v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gray v. Commonwealth, 479 S.W.3d 94, 2015 Ky. App. LEXIS 174, 2015 WL 9252679 (Ky. Ct. App. 2015).

Opinion

OPINION

COMBS, JUDGE:

Timothy F. Gray appeals from a final judgment and sentence of -the Bell Circuit Court convicting him of theft by unlawful taking. He received a sentence of five-years’ imprisonment, which was enhanced to fifteen years by virtue of his status as a persistent felony offender in the first degree (PFO I). After our review, we affirm.

On the evening of June 2, 2013, a large quantity of copper wire was stolen from Hinkle Contracting in Middlesboro. Gray was arrested for the crime on July 23, 2013. On September 18, 2013, the grand jury charged him with one count of theft by unlawful taking (over $500.00) (Kentucky Revised Statute[s] (KRS) 514.030) and one count of being a persistent felony offender (KRS 532.080). ’ He was arraigned on October 18,' 2013, and he pleaded not guilty.

His trial began on February 27, 2014. The evidence included testimony from a security guard who was working at a nearby business. The guard reported that he observed Gray on the premises of Hinkle Contracting and that Gray was loading copper wire into the trunk of a car. The guard‘indicated that when he approached [96]*96him, Gray reported that he had permission to take the wire. The guard could not tell how much wire had been loaded into the trunk.

■ A manager at Hinkle Contracting -testified that at least 500 pounds of copper wire had been removed from the facility on the evening of June 2,2013. He estimated the value of the missing copper wire to be $4,000.00. He expressly denied having given Gray permission to take the copper wire from the premises.

The jury convicted Gray on both charges. The court’s judgment and sentence were entered on March 20, 2014. This appeal followed.

- Gray presents three arguments for our-review. First, he argues that the trial court erred by failing to. give an instruction on the lesser-included offense of theft by unlawful taking (under $500.00). We disagree.

Gray contends that the jury might have reasonably deduced from the evidence that the value of the copper was in dispute since the security guard could not indicate precisely how much had been loaded into the trunk of the car. However, as the Commonwealth explains, “the only evidence regarding the value of the stolen wire indicated that the wire, was worth far in excess of $500.00.” There was no reasonable inference to be drawn from the testimony that would have supported a finding that the value of the copper wire removed from the premises was valued at less than $500.00. In fact, the defense never contested the vahfe of the copper wire stolen 'from the victim. Rather, the defense strategy consisted of disputing the reliability of the security guard’s identification of Gray.

“[A] lesser-included offense instruction is available only when supported by the evidence^]” and “[t]he jury is required to decide a criminal case on the evidence as presented or reasonably deducible therefrom .... ” White v. Commonwealth, 178 S.W.3d 470, 490-91 (Ky.2005) (citing Thompkins v. Commonwealth, 54 S.W.3d 147, 151 (Ky.2001)). There was no evidence from which the jury could find that the stolen copper wire was valued at less than $500,00. Since the evidence regarding the value, of the copper wire was uncontroverted, either an acquittal or a conviction for the charged offense was required. Because there was no reasonable. basis upon which to conclude that the value .of the copper wire taken from Hinkle Contracting was less than $500.00, the trial court did not err by denying Gray’s request to instruct the jury on the lesser-included offense of theft by unlawful taking (under $500.00).

Gray next contends that the trial court erred by providing the jury with a deficient Allen charge.1 He acknowledges that the alleged error was not properly preserved for review, but he asks the court to consider it on the basis of our palpable error rule, Kentucky Rule[s] of Criminal Procedure (RCr) 10.26.

The provisions of RCr 10.26 authorize us to consider a “palpable error” even where the error was insufficiently preserved for review if it affects the substantial rights of a party. An error is “palpable” where it is plain and obvious. Brewer v. Commonwealth, 206 S.W.3d 343 (Ky.2006). Relief may be granted only if we determine that manifest injustice has resulted from the error. In order to prove “manifest injustice,” we must be persuaded that “upon a consideration of the whole case,” a substantial possibility exists “that [97]*97the -result [of the trial] would have been different but for the alleged error.” Ramsey v. Commonwealth, 157 S.W.3d 194, 199 (Ky.2005).

After closing argúménts and a reasonable period of deliberation, the jury informed the bailiff that it was having trouble reaching a verdict. The court informed the parties that it would bring the jury members back into the courtroom and advise them to continue to deliberate. Defense counsel did not object.

When the jury was back in the box, the court asked if the bailiffs report was correct. One .of the jurors responded that it was. The court instructed the jury as follows:

... go back and deliberate further and see if we can’t come to a resolution on this and if you decide that you’re just hopelessly deadlocked, we’ll talk about that. But I’m going to ask you to give it some more time and a little discussion and see if you guys can reach a verdict in this matter.

Nearly an hour and one-half later, the jury came back with a verdict finding Gray guilty of the charged offense. Gray contends that the trial court’s , interactions and communications with the jury during its deliberations warrant a reversal of- the convictions.

RCr 9.57(1) sets out Kentucky’s charge for deadlocked juries pursuant to the Court’s holding in Allen v. United States, supra,... That rule provides as follows:

(1) If a jury reports to a court that is unable to reach a verdict- and the court determines further deliberations may be useful, the court shall not give any. instruction regarding the desirability of reaching a verdict other than one which contains only the following elements:
(a)in order to return a verdict, each juror must agree to that verdict;
(b) jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment; ■
(c) each juror must decide the case, but only after an impartial consideration of the evidence with the other jurors;
(d) in the course of deliberations, a ju'ror should not hesitate to reexamine- his or her own views and change his or her opinion if convinced it is erroneous; and
(e) no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of other jurors, or for the meré purpose of returning a verdict.

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Cite This Page — Counsel Stack

Bluebook (online)
479 S.W.3d 94, 2015 Ky. App. LEXIS 174, 2015 WL 9252679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-commonwealth-kyctapp-2015.