Joey Lynn Smith v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: January 21, 2021
• Docket: 2019 CA 001456
• Status: Unknown

Opinion

RENDERED: JANUARY 22, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2019-CA-1456-MR

JOEY LYNN SMITH APPELLANT

APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE KELLY MARK EASTON, JUDGE ACTION NO. 18-CR-01276

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.

DIXON, JUDGE: Joey Lynn Smith appeals her conviction and sentence of

robbery in the first degree1 entered by the Hardin Circuit Court on September 19,

2019. Having reviewed the briefs, the record, and the law, we affirm.

1 Kentucky Revised Statutes (KRS) 515.020. FACTS AND PROCEDURAL BACKGROUND

On October 25, 2018, Smith; her paramour, Michael Moody; and his

brother drove from Nelson County, Kentucky, to the mall in Elizabethtown. Smith

entered Belk, a department store, while Moody and his brother initially remained

in the van. The manager of Belk saw Smith and recognized her from the week

prior when Smith, accompanied by Moody, had attempted to shoplift from the

store. The manager apprised Rowe, who worked in loss prevention, of Smith’s

history.

Rowe proceeded to surveil Smith while she shopped and at one point

saw Moody separately in the store. Rowe’s surveillance did not go unnoticed. A

customer, Richardson, saw Rowe, whom she described as a “sketchy looking guy,”

lurking behind racks watching Smith. Richardson, unsure if Rowe was loss

prevention or a possible stalker, sought and received confirmation of his legitimacy

from store staff.

Meanwhile, Rowe observed Smith leave a fitting room with her purse

and a tote bag belonging to the store, both filled with merchandise. Smith

proceeded toward the store exit—two sets of glass doors separated by a vestibule.

Rowe alerted the manager that he was going to make a stop, made visible his staff

identification badge, and pursued Smith.

-2- Smith passed the checkout counters and reached the interior set of

doors when Rowe confronted her, announced that he was security, and asked her to

stop. Smith sped up and continued through the first set of doors to the vestibule.

Rowe again announced that he was security and asked her to stop. Smith

attempted to proceed out the exterior doors, but Rowe grabbed her shirt. The two

then struggled off and on for approximately five minutes. At periods, Smith would

calm, and Rowe would release her, only for her to attempt to flee again. Smith

yelled to be let go and attempted to headbutt, bite, and elbow Rowe. Rowe was

elbowed in the ribs and had his left hand cut open while holding Smith’s arms to

restrain her. Smith’s purse and the tote bag fell to the floor.

While the struggle was ongoing, Moody, who testified he had only

entered the store to locate Smith, left the store from a different exit. He further

testified that while walking to the van, he heard Smith screaming from the store

behind him. Moody got in the van, drove to the doors where Smith was being

restrained, and exited the van. Before entering the store, Moody encountered

Richardson who advised him that he should not enter as the police were on their

way. In response, Moody backpedaled to the van and retrieved a handgun

belonging to Smith.

Armed, Moody entered the vestibule of the store where Rowe had his

back to the entrance and Smith was against the wall. Moody chambered a round,

-3- pointed the gun at Rowe, and told him to release Smith. Rowe immediately

complied. Moody told Smith to get her stuff and go. Smith took her purse,

abandoning the tote bag. Moody and Smith left the store, got in the van, sped to

another exit of the mall to pick up Moody’s brother, and then fled with the van

door still open.

The police promptly stopped the van, and Moody and Smith were

arrested. Moody’s brother was not present, having been dropped off by Moody

prior to the stop. Moody testified he told his brother to go because the brother was

innocent of any wrongdoing. The Belk merchandise and a handgun were found in

the van. When police asked Moody if he knew Smith was shoplifting, Moody

stated that he did and indicated the reason he acted was to help Smith.

At the trial, Moody qualified these statements by testifying that he

only learned of Smith’s shoplifting after they left Belk, denying that they had

jointly planned to steal from Belk, and explaining that his only intent was to

protect Smith from what he perceived to be an attack by Rowe. Moody further

testified he fled the scene because he was a felon and knew it was illegal for him to

possess a firearm. Smith did not testify at trial.

After hearing the testimony, reviewing the video surveillance, and

listening to the police dispatch calls placed by the manager and Richardson, the

jury found both Smith and Moody guilty of robbery in the first degree. Smith was

-4- convicted and sentenced to ten years’ imprisonment by the Hardin Circuit Court.

This appeal followed.2 Additional facts will be introduced as they become

relevant.

ANALYSIS

Smith raises three claims: (1) the court erred in admitting evidence of

the prior shoplifting incident; (2) the Commonwealth improperly defined

reasonable doubt during voir dire; and (3) the court erred in denying Smith’s

directed verdict motion. We will address each claim in turn.

Admission of Evidence

Pursuant to KRE3 404(b), the trial court permitted admission of

evidence that Smith and Moody had been to Belk the week prior to October 25,

2018, at which time Smith was observed shoplifting. This evidence was primarily

introduced through the testimony of the manager who further stated that, after

providing Smith with great customer service, she observed Smith remove

merchandise from her purse and then meet up with Moody by the exit. The

manager explained that she did not stop Smith and Moody or report the incident to

police because, without confirmation by loss prevention, such actions violate store

2 Moody did not appeal his conviction. Any reference to him in this opinion is for the sake of clarity only. 3 Kentucky Rules of Evidence.

-5- policy. The allegations that Smith and Moody had attempted to shoplift previously

were also briefly repeated in the manager’s police dispatch call which was played

for the jury.

Immediately following the manager’s testimony, the trial court

admonished the jury as to how the prior bad act evidence could and could not be

used. The trial court informed the jury that prior acts could not be used as

character evidence to predict what a person would do at a later date. The jury was

further instructed to consider the evidence only to the extent that it showed, if

indeed it did, “a motive, intent, preparation, a plan, or knowledge of the defendants

relating to their actions on October 25, 2018.” Video ROA,4 6/24/2019, 4:23:00-

4:23:14. This admonition was repeated prior to closing arguments.

Smith argues the trial court erred in allowing evidence of the prior act

as it was not probative of the charge of robbery in the first degree since force was

not alleged to have been used. She further argues the testimony was unduly

prejudicial. Alternatively, Smith, citing Chumbler v. Commonwealth, 905 S.W.2d

488, 493 (Ky. 1995), asserts that even if the evidence was admissible for limited

purposes, the Commonwealth’s presentation of the prior act evidence constituted

reversible error because it far exceeded what was necessary to prove motive. The

4 Record on Appeal.

-6- Commonwealth argues the trial court did not err as the evidence was relevant to

whether Smith and Moody had a common plan and was not overly prejudicial.

This claim is preserved. Therefore, we review for an abuse of

discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). “The test for

abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999).

Evidence is relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” KRE 401. Generally, all

evidence which is deemed relevant is admissible. KRE 402. However, relevant

evidence “may be excluded if its probative value is substantially outweighed by the

danger of undue prejudice, confusion of the issues, or misleading the jury[.]” KRE

403. “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith.” KRE

404(b). However, it may be admissible “[i]f offered for some other purpose, such

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident[.]” KRE 404(b)(1).

The Commonwealth asserted two theories to support the charge of

robbery in the first degree: (1) Smith’s actions alone constituted the charge where,

-7- in the course of removing Belk’s property, she fought Rowe with the intent to

accomplish the theft and injured his hand and ribs; and (2) Smith and Moody

jointly intended to deprive Belk of its property, and Moody’s use of the firearm

was in furtherance thereof. Smith’s and Moody’s defense at trial was that each

acted separately, and Moody specifically denied foreknowledge of Smith’s

shoplifting or that his use of a firearm was motivated thereby.

We conclude that the trial court did not abuse its discretion. Evidence

of Smith’s prior shoplifting while with Moody in the same store was probative as it

made the existence of a shared intent or plan to commit theft—a necessary element

of one of the theories of the case—at least slightly more probable. Further, under

the facts of this case, we reject Smith’s assertion that the evidence itself, or the

Commonwealth’s presentation of the evidence, was unduly prejudicial. In opening

statements, and repeatedly throughout the trial, Smith conceded that she committed

theft and urged the jury to return a verdict of guilty on that charge. Accordingly,

any risk that the jury would improperly rely on the evidence to find that Smith

committed theft on October 25, 2018, was nullified. Additionally, this case is

distinguishable from Chumbler in that the Commonwealth did not belabor the prior

bad act in presentation of its case in chief.

Reasonable Doubt

During voir dire, the prosecutor made the following statement:

-8- We talk about the standard is beyond a reasonable doubt, alright? I cannot define that for you, nobody can. The courts have said no. Everybody here understands I did not say beyond any doubt, correct? Okay, I’m gonna give you an example, alright? I’m not much of a golfer[.] Who here knows Tiger Woods? Pretty good golfer to say the least. Me and Tiger show up [at the golf course] and we’re going to play nine holes. Is it possible I would win? Possible, maybe his arm falls off. You never know, everything and anything is possible. Is it reasonable to believe I would win? No. No, not at all. You understand the difference, what’s possible and what’s reasonable? I have to prove this case beyond a reasonable doubt, alright?

Video ROA, 6/24/2019, 9:55:38-9:57:04.

Smith argues the prosecutor’s statement violated the longstanding

prohibition of defining reasonable doubt and seriously affected the fairness of her

trial, alleging the result would have been different without this error. The

Commonwealth disputes that the prosecutor’s statement was impermissible and,

alternatively, argues that Smith cannot prove the requisite harm.

The parties agree this claim is not preserved. Accordingly, we will

review it only for a palpable error that affected Smith’s substantial rights and

resulted in manifest injustice. RCr5 10.26. Manifest injustice is an error which “so

seriously affected the fairness, integrity, or public reputation of the proceeding as

5 Kentucky Rules of Criminal Procedure.

-9- to be shocking or jurisprudentially intolerable.” Miller v. Commonwealth, 283

S.W.3d 690, 695 (Ky. 2009) (internal quotation marks omitted).

It has long been the rule in Kentucky that reasonable doubt is not to be

defined for the jury by either the courts or the parties. RCr 9.56; Commonwealth v.

Callahan, 675 S.W.2d 391, 393 (Ky. 1984). This applies to all stages of the trial’s

proceedings, including voir dire. Callahan, 675 S.W.2d at 393. Appellate courts

have repeatedly found that this prohibition is not violated by statements which

merely identify what reasonable doubt is not. See Rogers v. Commonwealth, 315

S.W.3d 303, 308 (Ky. 2010) (statement that “beyond a reasonable doubt” is not the

same as the civil trial standard of “beyond a preponderance of the evidence”

deemed permissible); Cuzick v. Commonwealth, 276 S.W.3d 260, 267-68 (Ky.

2009) and Johnson v. Commonwealth, 184 S.W.3d 544, 548-49 (Ky. 2005)

(statements that “beyond a reasonable doubt” was not the same as “beyond a

shadow of a doubt” deemed permissible).

Herein, the prosecutor went beyond merely stating that reasonable

doubt was not beyond all doubt, which under our precedent would be permissible,

and provided an example juxtaposing what was reasonable and what was possible.

Consequently, we agree with Smith that the prosecutor’s statement may have

violated the prohibition against defining reasonable doubt. Nevertheless, we hold

that the error did not rise to the level of manifest injustice where the prosecutor’s

-10- brief statement was made a full two days before deliberation, and there was a

wealth of evidence to support Smith’s conviction.

Directed Verdict

Pursuant to KRS 515.020(1), robbery in the first degree occurs when,

during the course of committing a theft, “[a person] uses or threatens the

immediate use of physical force upon another person with intent to accomplish the

theft and when he: (a) causes physical injury to any person who is not a participant

in the crime; or (b) is armed with a deadly weapon[.]” Physical injury means

“substantial physical pain or any impairment of physical condition[.]” KRS

500.080(13).

Smith argues the Commonwealth failed to present sufficient evidence

that either she or Moody used or threatened the use of physical force with the

requisite intent to accomplish the theft. Smith notes that she dropped the stolen

merchandise when grabbed by Rowe and argues her use of force was a justifiable

response to the perceived threat posed by Rowe, a “sketchy looking guy.” Smith

also argues that there was no direct evidence that she and Moody agreed or

planned to commit theft. Therefore, Smith asserts the trial court erred in denying

her motion for directed verdict.

-11- This claim is preserved. Therefore, “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[.]” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).

Herein, the proof was that Smith was in the process of committing a

theft and, when stopped by Rowe, engaged in a physical struggle. Rowe testified

that as a result of Smith’s struggle, he suffered cuts on his hand and bruising and

pain to his ribs and side. The fact Smith dropped the stolen merchandise does not

preclude the jury from reasonably finding that her use of force was with the intent

to accomplish the theft, especially where Smith did, in fact, abscond with stolen

items. Further, the jury heard that Moody was aware of the shoplifting and that he

was helping Smith. While Moody attempted to explain or mitigate these

statements, there was sufficient evidence for the jury to find for the

Commonwealth under either theory. Accordingly, the trial court did not err in

denying Smith’s motion for directed verdict.

CONCLUSION

Therefore, and for the foregoing reasons, the Judgment and Sentence

of the Hardin Circuit Court is AFFIRMED.

ALL CONCUR.

-12- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Shannon Dupree Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky

-13-