IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 13, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0072-MR
NATHANIEL LUCAS APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT V. HONORABLE JOHN D. SIMCOE, JUDGE NO. 21-CR-00746
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Nathaniel Lucas was convicted in Hardin Circuit Court of robbery in the
first degree, being a convicted felon in possession of a handgun, tampering with
physical evidence, and being a persistent felony offender in the first degree.
The jury recommended a sentence of thirty-five years in the aggregate, with the
sentence of twenty years for robbery in the first degree and the sentence of
fifteen years for possession of a handgun by a convicted felon running
concurrently, and the additional fifteen-year sentence for tampering with
physical evidence running consecutively, for a total sentence of thirty-five
years. 1 Following the jury’s recommendation, the trial court sentenced Lucas
1 The Parties’ Briefs differ regarding the terms of Lucas’s sentences. Lucas’s Brief states that the first-degree robbery sentence (twenty years) runs concurrently with the possession of a handgun by a convicted felon sentence (fifteen years) and consecutively with the tampering with physical evidence sentence (fifteen years), for a total of thirty-five years. The Commonwealth’s Brief states that Lucas was sentenced to thirty-five years’ incarceration. Lucas now appeals to this Court as a matter
of right. Ky. Const. § 110(2)(b). Having carefully reviewed the record and the
briefing of the parties, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 29, 2021, at about 4:13 a.m., a robbery occurred at the
Speedway gas station located on North Mulberry Street in Elizabethtown,
Kentucky. During the robbery, the perpetrator brandished a gun and
demanded that the store clerk place cash and a carton of cigarettes into an
orange bag. The perpetrator then left the store.
The events of the robbery were captured on surveillance video. After the
robbery, the Speedway clerk contacted 911 and offered a general description of
the robber as a black male, dressed in camouflage and an orange vest, and
wearing a mask. Law enforcement immediately arrived on the scene. Upon
searching the area, Deputy Kevin Johnson of the Hardin County Sheriff's Office
quickly detained a suspect who matched the clerk’s description. The suspect
was determined to be Lucas, who was sweating despite the cool weather that
evening. Law enforcement also recovered in Lucas’s vicinity an orange bag
containing a shirt, a camouflage hat, a carton of cigarettes, and approximately
$200 in cash. Found nearby was an additional bag containing a gun and
to concurrent sentences for possession of a handgun by a convicted felon (fifteen years) and tampering with physical evidence (fifteen years) that run consecutive to his sentence for robbery in the first degree (twenty years), also totaling thirty-five years. A review of the trial court’s judgment reveals that Lucas is correct. 2 bearing a tag with a Lake City, Florida address. The gun was owned by a
resident of Lake City, where Lucas is from.
While other detectives interviewed Lucas, along with his girlfriend and
niece, Sergeant Madison Kuklinski reviewed still photographs from surveillance
footage taken at the Speedway. Sergeant Kuklinski noticed that, in one of the
photographs, the suspect was wearing a large and distinctive watch. She
further observed that Lucas was not wearing a watch in the interview room.
Sergeant Kuklinski discussed the missing watch with the other officers.
Deputy Johnson recalled placing handcuffs on Lucas at the scene of the
robbery and putting the handcuffs over a watch on Lucas’s wrist. As a result,
Johnson checked the police cruiser in which he had placed and transported
Lucas upon his arrest and eventually recovered a watch from the backseat.
The watch was tucked in the backseat of the vehicle and matched the general
description of the one worn by the suspect in the surveillance video. When
Sergeant Kuklinski confronted Lucas regarding the watch, Lucas persisted in
denying his involvement in the robbery.
Lucas was charged with robbery in the first degree, tampering with
physical evidence, possession of a handgun by a convicted felon, and being a
persistent felony offender in the first degree. The jury found Lucas guilty on all
counts and recommended a sentence of thirty-five years, which the trial court
imposed. This appeal followed.
3 ANALYSIS
Lucas raises two issues for review by this Court: (1) whether the trial
court erred by failing to grant a directed verdict on the tampering with physical
evidence charge; and (2) whether the prosecutor engaged in flagrant
misconduct during closing argument. We review each issue in turn, providing
additional facts as necessary.
I. Lucas Was Not Entitled To A Directed Verdict On The Tampering With Physical Evidence Charge.
Lucas first argues that the trial court erred in refusing to grant his
motion for a directed verdict on the tampering charge. Lucas failed to preserve
this issue for appeal. Although he referenced the tampering charge in making
his motion, he never specified the particular elements that the Commonwealth
failed to prove. Lucas also neglected to raise the issue in his subsequent
motions for judgment notwithstanding the verdict and for new trial. Kentucky
Rules of Criminal Procedure (RCr) 10.24, 10.02, & 10.06.
To preserve an alleged directed verdict issue for appeal, a criminal
defendant must: (1) move for a directed verdict at the close of the
Commonwealth’s evidence; (2) renew the same directed verdict motion at the
close of all the evidence, unless the defendant does not present any evidence;
(3) identify the particular charge the Commonwealth failed to prove; and (4)
“identify the particular elements of that charge the Commonwealth failed to
prove.” Ray v. Commonwealth, 611 S.W.3d 250, 266 (Ky. 2020) (emphasis
added). Lucas neither identified which elements of the tampering count the
Commonwealth failed to prove, nor provided any specificity whatsoever 4 regarding the grounds for his motion. This deficiency amounts to a clear
failure to properly preserve Lucas’s directed verdict claim for appellate review. 2
When a defendant fails to preserve an error based upon the sufficiency of
the evidence, an appellate court may review the issue for palpable error.
Chavies v. Commonwealth, 354 S.W.3d 103, 113 (Ky. 2011), abrogated on other
grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015). Because Lucas
requests palpable error review, we therefore consider whether the trial court’s
denial of a directed verdict in favor of Lucas constituted palpable error. The
first step of a palpable-error analysis involves determining whether an error
occurred. Newcomb v. Commonwealth, 410 S.W.3d 63, 19 (Ky. 2013). Only
after establishing the “error” component of the test will a reviewing court
address the remaining elements. Those elements include whether such error
(1) was clear or plain under current law; (2) affected the “substantial rights” of
a party; and (3) resulted in manifest injustice, i.e., the error so seriously
affected the fairness, integrity, or public reputation of the proceeding as to be
“shocking or jurisprudentially intolerable.” RCr 10.26; Commonwealth v.
Jones, 283 S.W.3d 665, 668 (Ky. 2009) (quoting Martin v. Commonwealth, 207
S.W.3d 1, 4 (Ky. 2006)).
A defendant is entitled to directed verdict only if under the evidence as a
whole, it would be clearly unreasonable for a jury to find guilt. Commonwealth
2 The Commonwealth notes in its Brief that Lucas failed to renew his motion for
a directed verdict after returning for oral arguments. Since Lucas presented no evidence in his defense, Lucas was not obliged to renew his motion at the close of all the evidence for purposes of preservation. 5 v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). The Commonwealth must present
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. Nonetheless, on motion for a directed
verdict of acquittal, the trial court must draw all fair and reasonable inferences
from the evidence in favor of the Commonwealth. Id. at 187. Questions
regarding the credibility and weight to be given to the evidence are reserved for
the jury, and 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. Id.
We find no error in the trial court’s denial of Lucas’s motion for a
directed verdict on the tampering charge. Lucas urges this Court to follow the
reasoning of Commonwealth v. James and its progeny in finding that his
motion should have been granted. 586 S.W.3d 717, 724-25 (Ky. 2019);
Commonwealth v. Bell, 655 S.W.3d 132 (Ky. 2022); Saxton v. Commonwealth,
671 S.W.3d 1 (Ky. 2022). More specifically, he contends that because the
watch was left in the backseat of the vehicle in which he was transported by
the police, it was easily and immediately retrievable. James, 586 S.W.3d at
725. Consequently, his act was mere abandonment and did not rise to the
level of unlawful tampering. Id. at 730. We disagree.
James does not compel the result Lucas seeks. In James, the defendant
was charged with tampering because he dropped a glass pipe containing
methamphetamine while in the presence of police. Id. at 720. We held that
6 such conduct could not form the basis of a tampering charge, which by statute
requires in relevant part that the defendant conceal or remove the evidence at
issue. KRS 524.100(1)(a); James, 586 S.W.3d at 729-30. More particularly, we
held that “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, and the
officer can quickly and readily retrieve the evidence, the criminal act of
concealment or removal has not taken place.” Id. at 731.
Notably, however, we also noted in James that the inquiry is case-
specific, and thus efforts to conceal evidence, even in the presence of police,
may form the basis for a tampering conviction:
We caution, however, that the dropping or tossing away of evidence in the presence of a law enforcement officer, even when the drugs are eventually recovered, is not always outside the reach of the tampering statute. In some scenarios, the affirmative act of dropping or throwing away the evidence even in the presence of law enforcement officers may constitute a violation of the statute, depending on the specific facts of the case. For example, where the tossing away of evidence makes the evidence “substantially more difficult or impossible” for law enforcement to recover and use in a later proceeding against the defendant, the act may result in concealment, even if the officers ultimately succeed in retrieving the evidence.
Id. at 730 (emphasis added). As we subsequently clarified in Stieritz v.
Commonwealth, the ultimate inquiry is “whether the defendant intended ‘to
prevent law enforcement officials from finding the evidence and using it in an
official proceeding’ and further completed the criminal act by destroying,
mutilating, concealing, removing, or altering the physical evidence.” 671
S.W.3d 353, 365 (quoting Commonwealth v. Henderson, 85 S.W.3d 618, 620
(Ky. 2002)). 7 Such an act of concealment occurred in this case. Surveillance footage
showed that the perpetrator of the robbery was wearing a watch at the time of
the crime. The law enforcement officer who arrested Lucas recalled that he
was wearing a watch when he was handcuffed. Later, during Lucas’s interview,
Sergeant Kuklinski noticed Lucas was not wearing the watch seen in the
surveillance footage from the scene of the crime. A subsequent search of the
police cruiser in which Lucas was transported revealed that the watch had
been tucked away from view in the backseat.
Construed in the light most favorable to the Commonwealth, this
evidence was sufficient to allow a reasonable jury to find that Lucas, outside
the view of the officers, tucked the watch into the backseat of the cruiser. In so
doing, Lucas hid the watch from view and thus unquestionably made it
substantially more difficult for law enforcement officers to recover the watch.
Unlike James, Lucas points us to no evidence that he threw down or
abandoned the watch in the presence of police. As such, it simply cannot be
said that Lucas did not “conceal” the evidence at issue. See KRS 524.100(1)(a)
(“A person is guilty of tampering with physical evidence when, believing that an
official proceeding is pending or may be instituted, he . . . conceals . . . 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[.]”); James, 586 S.W.3d at 730 (“[W]here the tossing away of
evidence makes the evidence ‘substantially more difficult or impossible’ for law
enforcement to recover and use in a later proceeding against the defendant, the
8 act may result in concealment, even if the officers ultimately succeed in
retrieving the evidence.”). Indeed, the instructions allowed for a finding of guilt
only if the jury concluded that Lucas concealed or removed the watch, and that
he did so with an intent to impair its availability in a proceeding. The jury
found that Lucas did so, with that requisite intent. Thus, because the
Commonwealth presented evidence of substance that Lucas tucked the watch
into the backseat of the cruiser, and thus affirmatively engaged in an act
designed to make it more difficult for law enforcement to recover the watch, we
find that the trial court’s denial of Lucas’s motion for a directed verdict was not
error, much less palpable error.
II. The Commonwealth’s Statements In Closing Argument Were Fair Comment And Argument On The Evidence.
Lucas also argues that the Commonwealth engaged in flagrant
misconduct during its closing argument. By way of background, the
prosecution pointed out during trial that when interviewed by police
immediately after the crime, Lucas did not attempt to assert his innocence but
rather talked in circles and answered questions with questions. In pointing to
this as evidence of guilt in closing argument, the prosecutor stated “[w]e all
know the verse in Proverbs, right? The wicked flee when no one pursues but
the righteous are bold as a lion.” Five minutes later, the prosecutor stated
Lucas
is not bold. The wicked are not bold as a lion. What are they? The wicked are shameful. They are timid and they are cowardly. That’s why they flee. Even when they are not pursued, the wicked flee. Why? They want to distance themselves from their accuser and they want to avoid judgment. They are too shameful to face 9 the truth. Too timid to confront facts, too cowardly to take the blame for their deeds. . . .
The prosecutor then further stated:
What did he do when he was confronted by his accuser and judgment was near? He fled. Maybe not physically. But you saw him flee verbally and morally all over that interview. He talks a lot without saying anything because he is trying to distance himself from his accuser and avoid judgment. He answers a question with a question because he’s too shameful to face the truth. And he talks in circles because he’s too timid to face facts.
Lucas contends this commentary was improper because it invoked religious
scripture, cast Lucas as wicked, shameful, cowardly, and timid, and denigrated
his constitutional right to a trial. We disagree.
As an initial matter, Lucas concedes that he failed to preserve this claim
for appeal and requests palpable error review. Thus, we review the issue under
a palpable error standard, pursuant to RCr 10.26. See Brewer v.
Commonwealth, 206 S.W.3d 343, 348-49 (Ky. 2006). Given that the error is
unpreserved, we will reverse only if the prosecutorial misconduct was “flagrant
and was such as to render the trial fundamentally unfair.” Ordway v.
Commonwealth, 391 S.W.3d 762, 789 n.16 (Ky. 2013) (quoting Duncan v.
Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)). The issues of whether a
prosecutor’s statements rise to the level of misconduct and render the trial
fundamentally unfair are mixed questions of law and fact and are reviewed de
novo. U.S. v. Francis, 170 F.3d 546, 549 (6th Cir. 1999).
Prosecutorial misconduct is an improper or illegal act by a prosecutor
involving an attempt to persuade the jury to wrongly convict or assess an
unjustified punishment. Dickerson v. Commonwealth, 485 S.W.3d 310, 329
10 (Ky. 2016). Such misconduct may take the form of improper closing argument.
Id. In reviewing an unpreserved claim of prosecutorial misconduct, we first
consider whether the remarks were improper. If not, the remarks do not
warrant reversal and our inquiry is at end. If the remarks were improper, we
then consider four factors to determine whether reversible flagrant misconduct
occurred: (1) whether the remarks tended to mislead the jury or prejudice the
accused; (2) whether the remarks were isolated or extensive; (3) whether the
remarks were deliberate or accidental; and (4) the strength of the evidence
against the accused. Id.
Prosecutors enjoy considerable latitude as to the content of closing
arguments. Barrett v. Commonwealth, 677 S.W.3d 326, 333 (Ky. 2023). As a
result, prosecutors are generally permitted to comment liberally and
extensively on the evidence presented. Maxie v. Commonwealth, 82 S.W.3d
860, 866 (Ky. 2002). An appellate court’s review must center on the essential
fairness of the trial as a whole, with reversal being justified only if the
prosecutor’s misconduct was “so improper, prejudicial, and egregious as to
have undermined the overall fairness of the proceedings.” Brewer, 206 S.W.3d
at 349 (citing Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004)).
We conclude that the Commonwealth’s remarks did not rise to the level
of flagrant misconduct required for reversal. The prosecutor’s implied
depictions of Lucas as “wicked,” “shameful,” “cowardly,” and “timid,” though
certainly strong, were comparable to other equally harsh characterizations
tolerated by this Court and its predecessor. See, e.g., Murphy v.
11 Commonwealth, 509 S.W.3d 34, 53 (Ky. 2017) (“monster”); Dean v.
Commonwealth, 844 S.W.2d 417, 421 (Ky. 1992) (“crazed animals”); Slaughter
v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987) (“bit of evil”); Ferguson v.
Commonwealth, 401 S.W.2d 225, 228 (Ky. 1965) (“beast”); Grigsby v.
Commonwealth, 302 Ky. 266, 194 S.W.2d 363, 364 (1946) (“vile brute”);
Holbrook v. Commonwealth, 249 Ky. 795, 61 S.W.2d 644, 645 (1933)
(“desperado”). Although the prosecutor’s statements were fairly extensive in
both duration and frequency, their extensiveness was commensurate with the
culpability of Lucas’s behavior in light of the strong evidence against him.
Consequently, the Commonwealth did not exceed the bounds of proper
argument by wrongfully condemning or vilifying Lucas. See Murphy, 509
S.W.3d at 53. Nor do we perceive in the prosecutor’s comments any improper
indictment of Lucas’s insistence on his constitutional right to a jury trial.
Neither do we find the Commonwealth’s quotation of the book of Proverbs
to be so egregious as to merit reversal. It is well established that a prosecutor
may argue reasonable inferences that may be derived from a particular
defendant’s behavior, such as flight from the scene of a crime being indicative
of guilt, as these are simply appeals to the common sense and collective
wisdom of the jury. Ordway, 391 S.W.3d at 776. In invoking an evocative
image from wisdom literature, the prosecutor made a deliberate attempt not to
mislead the jury, but rather to highlight the strength of the evidence
incriminating Lucas and to persuade the jury to weigh that evidence
accordingly. In doing so, the Commonwealth made fair arguments regarding
12 general principles of the behavior of guilty individuals and the ways in which
Lucas’s conduct matched those principles. For this reason, reversal here is
unwarranted.
We reject Lucas’s argument that the Commonwealth invoked holy
scripture in order to induce the jury to find Lucas guilty on religious, rather
than legal, grounds. It is true that we found error in a prosecutor’s questioning
of a minister regarding his study of biblical teachings on the death penalty,
scriptural references addressing the penalty, and testimony that God would
condemn the jury for not imposing the penalty on the defendant. Ice v.
Commonwealth, 667 S.W.2d 671, 676 (Ky. 1984). We also held it improper for
jurors to take Bibles into the jury room with them. Grooms v. Commonwealth,
756 S.W.2d 131, 142 (Ky. 1988). Indeed, conduct of this nature would surely
mislead the jury and stir up prejudice against the accused. However, Lucas
fails to show how an abbreviated reference to the Bible is analogous to either of
these cases as an attempt to compel the jury to convict him on religious
grounds. Indeed, the Biblical reference at issue is in the nature of a wide-
recognized sentiment rather than a religious command.
Within the wide latitude afforded to prosecutors in closing arguments,
expression of personal opinions regarding a defendant’s guilt that are based on
the evidence in the case is proper under this Court’s precedent. Dickerson, 485
S.W.3d at 332. Given the overwhelming proof of Lucas’s guilt, the
Commonwealth’s words, even in conjunction with its invocation of Proverbs,
amounted to fair and nonprejudicial comments on the evidence presented.
13 Therefore, we find no reversible misconduct in the Commonwealth’s statements
during closing argument.
CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the
Hardin Circuit Court.
All sitting. VanMeter, C.J.; Bisig, Conley, Lambert, and Nickell, JJ.,
concur. Keller and Thompson, JJ., concur in result only.
COUNSEL FOR APPELLANT:
Steven J. Buck Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Thomas A. Van De Rostyne Assistant Attorney General