RENDERED: JULY 21, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0776-MR
PATRICK ORMOND APPELLANT
APPEAL FROM GALLATIN CIRCUIT COURT v. HONORABLE RICHARD A. BRUEGGEMANN, JUDGE ACTION NO. 21-CR-00150
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.
COMBS, JUDGE: This is a criminal appeal. Appellant was convicted of
receiving stolen property and possession of a handgun by a convicted felon and
was sentenced to fifteen-years’ imprisonment. He appeals as a matter of right.
After our review, we affirm.
In 2021, a Mr. Ramos purchased a skid steer from the Appellant,
Patrick Ormond (Ormond). The skid steer, as well as a trailer, had been reported
stolen by Gavin Hinds. Ramos subsequently posted the skid steer for sale online. Hinds, who had been searching online for his stolen equipment, discovered
Ramos’s post. Ultimately, a sting operation was set up for Ramos to meet Ormond
at a gas station in Sparta, Kentucky, to buy another skid steer, as well as a stump
grinder and a trailer.1
On February 19, 2021, Deputy Wilson was stationed on I-71 and was
instructed to be on the lookout for a white pick-up truck pulling a trailer and
equipment. Deputy Wilson initiated a traffic stop after he saw the suspect vehicle.
He was joined by Deputy Sizemore, who took charge of the scene.
Deputy Sizemore approached the driver’s side of the vehicle that
Ormond was driving. Ormond’s friend, Sean Stevenson, was in the passenger seat.
When he asked Ormond and Stevenson to step out of the vehicle, Deputy Sizemore
detected the smell of marijuana and conducted a search of the interior of the truck.
Deputy Sizemore testified at trial that he found a Glock .45 handgun inside the
glove compartment. He also found marijuana in the door compartments and center
console.
Deputy Sizemore verified that the serial number on the trailer matched
that of the one that Hinds had reported as stolen. On the trailer were a mini skid
steer and a stump grinder. Neither piece of equipment belonged to Hinds, but he
posted photos of them to Facebook to see if anyone else was missing them.
1 Ramos was not charged.
-2- Ultimately, it was determined that the skid steer and grinder belonged to Josh
Cutler, who owns a tree cutting business. After being contacted by Hinds, Cutler
discovered that his equipment was missing and reported it stolen.
On September 9, 2021, a Gallatin County Grand Jury indicted
Ormond for one count of Receiving Stolen Property Value $500.00 or More, but
Less than $10,000.00, in violation of KRS2 514.110, charging that on February 19,
2021, Ormond “received, retained or disposed of the moveable property of Gavin
Hinds . . . knowing it to be stolen, namely a trailer.” The Grand Jury also indicted
Ormond for one count of Possession of a Firearm by a Convicted Felon in
violation of KRS 527.040. The trial court subsequently granted the
Commonwealth’s motion to amend the indictment to possession of a handgun by a
convicted felon. 3
Following a trifurcated trial on April 28, 2022, the jury convicted
Ormond of receiving stolen property (over $500) and possession of a handgun by a
convicted felon. The trial court sentenced Ormond to fifteen-years’ imprisonment
in accordance with the jury’s recommendation of five years on the stolen property
2 Kentucky Revised Statutes. 3 Ormond was also indicted for one count of possession of marijuana; one count of possession of drug paraphernalia; first offense. Those charges were subsequently dismissed upon the Commonwealth’s motion.
-3- charge and ten years on the possession of the handgun charge -- to run
consecutively.
On appeal, Ormond has raised seven issues:
I.
Ormond first argues that the trial court committed reversible error
when it allowed the Commonwealth to amend the indictment without presentation
to the Grand Jury.
RCr4 6.16 provides as follows:
The court may permit an indictment, information, complaint or citation to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. If justice requires, however, the court shall grant the defendant a continuance when such an amendment is permitted.
On April 19, 2022, Ormond filed a motion in limine to prohibit the
Commonwealth from using the word “handgun” at trial because the indictment had
mentioned only a “firearm.” On April 20, 2022, the Commonwealth filed a motion
to amend Count IV of the indictment to possession of a handgun by a convicted
felon. On April 21, 2022, Ormond filed a response and argued that it would be
4 Kentucky Rules of Criminal Procedure.
-4- prejudicial to now require him to elicit proof that the firearm was not a handgun 5
so close to trial. Following a hearing, the trial court concluded that possession of a
handgun was not a different offense and granted the motion to amend.
The standard of our review is abuse of discretion. Herp v.
Commonwealth, 491 S.W.3d 507, 510 (Ky. 2016). We find none. Ormond was
indicted pursuant to KRS 527.040 for possession of a firearm. The
Commonwealth explains there is not a separate statute for possession of a handgun.
As summarized by another panel of this Court,
Kentucky Revised Statutes (KRS) 527.040 criminalizes the possession of a firearm by a convicted felon. If the firearm is a handgun, the punishment is enhanced to a Class C felony from a Class D felony. A firearm is defined in KRS 527.010(4) as “any weapon which will expel a projectile by the action of an explosive,” and KRS 527.010(5) defines handgun as a “pistol or revolver originally designed to be fired by the use of a single hand, or any firearm originally designed to be fired by the use of a single hand.”
Quarles v. Commonwealth, No. 2020-CA-0318-MR, 2021 WL 4126865, at *1, n.1
(Ky. App. Sep. 10, 2021).6 See Higgs v. Commonwealth, 2016-CA-001487-MR,
2019 WL 3763544 (Ky. App. Aug. 9, 2019), discussing the distinction between a
5 A handgun is defined in KRS 527.010(5) as “any pistol or revolver originally designed to be fired by the use of a single hand, or any other firearm originally designed to be fired by the use of a single hand.” 6 An unpublished opinion may be considered as permitted by Kentucky Rules of Appellate Procedure (RAP) 41.
-5- firearm and handgun: “possession [of] a firearm by a convicted felon is complete
when a convicted felon possesses a firearm. . . . The distinction of a handgun from
other firearms is only an element for purposes of enhancement of the punishment,
not the crime.” Id. at *3 (internal quotation marks and citation omitted).
Although Ormond claims that permitting the amendment just days
before trial prejudiced him, he did not request a continuance as permitted by RCr
6.16. “Appellee never requested the remedy prescribed in RCr 6.16, which was a
continuance. . . . [T]hus, any claim that Appellee was prejudiced by the lack
thereof was waived.” Commonwealth v. McKenzie, 214 S.W.3d 306, 308-09 (Ky.
2007). Waived errors are not subject to appellate review. Mullins v.
Commonwealth, 350 S.W.3d 434, 439 (Ky. 2011).
II.
Next, Ormond argues that the trial court erred by failing to direct a
verdict of acquittal because there was insufficient evidence to prove the charge of
possession of a handgun.
Ormond contends that the Commonwealth failed to prove the required
element that the gun he was alleged to have possessed was a handgun as defined in
the instructions. However, the issue is unpreserved. As Ormond explains, defense
counsel made an oral motion for directed verdict at close of the case in chief and
filed written motions for directed verdict and judgment of acquittal or new trial --
-6- but on grounds different from those he now raises. “The failure to identify a
particular ground in a motion for directed verdict forecloses appellate review of the
trial court’s denial of the motion except to the extent that palpable error is shown.”
Murphy v. Commonwealth, 509 S.W.3d 34, 42 (Ky. 2017).
Under [the palpable error] rule, an error is reversible only if a manifest injustice has resulted from the error. That means that if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial.
Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000).
Ormond explains that the firearm was not shown to the jury. The
Commonwealth presented a photograph to Deputy Sizemore who testified that it
was the handgun he located. He read the serial number. But the photograph was
not published to the jury. The Commonwealth notes that the photograph was
marked as Commonwealth’s Exhibit “2,” but it was not “formally admitted” into
evidence. Ormond claims that there was no evidence from which the jury could
determine that the firearm was a handgun other than Deputy Sizemore’s
conclusory statements. However, Ormond did not object to Deputy Sizemore’s
testimony at trial.
Ormond argues that Deputy Sizemore’s testimony improperly
“invaded the province of the jury by going to the ultimate issue as to whether the
firearm possessed by the defendant was a handgun.” Ormond cites Hall v.
-7- Commonwealth, 862 S.W.2d 321, 322 (Ky. 1993), for “[t]he general rule . . . that
[for opinion evidence] to be admissible, [it] must not decide an ultimate issue of
fact.” However, our Supreme Court abandoned the “ultimate issue” rule in
Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997). Additionally, both Hall
and Stringer involved expert testimony. Ormond does not contend that Deputy
Sizemore was testifying as an expert. Our rules of evidence discuss the parameters
of expert versus non-expert or lay opinion testimony.
“KRE[7] 701 . . . permits a nonexpert witness to [] express an opinion
which is rationally based on the perception of the witness and is helpful to a
determination of a fact in issue.” Hampton v. Commonwealth, 133 S.W.3d 438,
440 (Ky. 2004). “[L]aw enforcement officers may provide lay opinion testimony
as to their experience-based interpretations of certain facts which they personally
observed.” Carson v. Commonwealth, 621 S.W.3d 443, 447 (Ky. 2021) (footnotes
omitted).
We are satisfied that the jury was free to believe Deputy Sizemore’s
testimony that when he conducted a search of the subject vehicle, he found a .45
caliber Glock handgun in the glove compartment. The trial court did not commit
any error -- much less palpable error -- in denying Ormond’s motion for directed
verdict on this basis.
7 Kentucky Rules of Evidence.
-8- III.
Ormond’s third argument is that the trial court erred when it instructed
the jury on the presumption of knowledge of recently stolen property. The
presumption is contained in KRS 514.110(2), which provides that: “The
possession by any person of any recently stolen movable property shall be prima
facie evidence that such person knew such property was stolen.” The court read
and submitted the following instruction to the jury:
INSTRUCTION NO. 5
The possession by any person of any recently stolen property shall be prima facie evidence that the person knew such property was stolen.
On appeal, Ormond argues that this instruction invaded the province
of the jury and impermissibly shifted the burden of proof to the defense. However,
once again, Ormond did not present that argument to the trial court.
On the morning of trial, the parties discussed jury instructions. With
respect to the presumption in the statute regarding recently stolen property, the trial
court explained that the Commonwealth’s attorney had proposed that instruction.
The court was not sure if defense counsel had seen it and asked, “What’s your
position on that?” Defense counsel responded, “I did notice that that had been
added in. Of course we would prefer it not be in there, but I don’t have a legal
argument to make to keep it out.”
-9- “[A] party may not acquiesce in a jury instruction and then complain
about it on appeal.” Sufix, U.S.A., Inc. v. Cook, 128 S.W.3d 838, 843 (Ky. App.
2004). RCr 9.54(2) provides that:
No party may assign as error the giving or the failure to give an instruction unless the party’s position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.
In Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013), our
Supreme Court explained that where, as here, “the allegation of instructional error
is that a particular instruction . . . should not have been given but was given, RCr
9.54 operates as a bar to appellate review unless the issue was fairly and
adequately presented to the trial court for its initial consideration.” Defense
counsel merely expressed a generalized preference against the wording without
raising a formal objection -- indeed, even acknowledging that he had lacked a legal
basis for an objection. Accordingly, RCr 9.54(2) precludes our review.
IV.
Ormond’s fourth argument is that the trial court erred by allowing
introduction of evidence of unindicted charges of receiving stolen property and
other character and bad acts evidence under KRE 404.
-10- On April 21, 2022, the Commonwealth filed notice of intent to admit
prior bad acts pursuant to KRE 404(b). The Commonwealth sought to elicit
testimony from Cutler about Ormond’s arrest in 2017 for trying to sell Cutler’s
stolen chainsaws back to him after posting them for sale online -- as well as
testimony from Ramos that Ormond had sold stolen property to him on Facebook
Marketplace. On April 21, 2022, Ormond filed a response objecting to this
evidence.
The matter was heard on April 22, 2022. A lengthy discussion ensued
regarding the fact that the indictment on the receiving stolen property charge
pertained only to the trailer. The trial court was clear that it would find any
attempt to amend that indictment “problematic.” The Commonwealth explained
that it had no intention to do so -- but that it was always the Commonwealth’s
“intention that those three pieces of equipment were stolen” -- the trailer, the skid
steer, and the stump grinder. The trial court thought the Commonwealth would
likely be free to present that proof to the jury. The trial court noted that they had
deviated on a tangent from the 404(b) issue and stated that “there’s no dispute that
these items were all together on that day. It’s just the fact that the indictment
names one.”
With regard to proof of other bad acts, the trial court explained that
“knowledge of whether or not something is stolen is a key element” of the
-11- Commonwealth’s proof.8 The trial court thought that knowledge was appropriate
under KRE 404(b). While noting that “acts in conformity with character” are
absolutely prohibited, the court explained that the question is whether the evidence
is unduly prejudicial: “but when there is something that is . . . a serious element of
proof, ” does the probative value outweigh it? The court reasoned that “when
you’re talking about knowledge in a receiving charge,” that would probably pass
KRE 4039 under the court’s analysis. For that strictly limited purpose, the trial
court granted the Commonwealth’s motion and cautioned it not to abuse the ruling.
By written Order entered on April 28, 2022, the trial court “for the reasons
articulated from the Bench, overruled Ormond’s objection to the Commonwealth’s
notice of intent to admit prior bad acts pursuant to KRE 404.”
KRE 404(b) provides as follows:
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. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan,
8 KRS 514.110(1) provides as follows: “A person is guilty of receiving stolen property when he or she receives, retains, or disposes of movable property of another knowing that it has been stolen, or having reason to believe that it has been stolen, unless the property is received, retained, or disposed of with intent to restore it to the owner.” 9 KRE 403 provides that: “Although 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, or by considerations of undue delay, or needless presentation of cumulative evidence.”
-12- knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
(Emphases added.)
Our Supreme Court “has instituted a three-part inquiry for assessing
the admissibility of prior bad acts evidence under KRE 404(b), which includes
examining the relevance, probativeness, and prejudice associated with the prior
crime.” Benjamin v. Commonwealth, 266 S.W.3d 775, 791 (Ky. 2008). The
standard of our review is abuse of discretion. Id.
Ormond contends that the trial court’s analysis was flawed because
Cutler was not the victim of the alleged crime.10 We do not agree. In Grider v.
Commonwealth, 479 S.W.2d 11 (Ky. 1972),11 the Court examined pertinent
10 Ormond explains that the Commonwealth did not produce Ramos at trial but elicited testimony that he had previously purchased items identified as having been stolen from Ormond. Further, he notes that evidence of the prior theft charge relating to Cutler’s property was introduced through Cutler’s testimony.
11 In Grider, the defendant was convicted of receiving stolen property under the former KRS 433.290. “The gravamen of the offense is knowledge that the goods were stolen.” 479 S.W.2d at 13. Although Grider’s conviction was reversed because of a defective jury instruction, the Court held that “on the next trial evidence of other items in possession of Grider will be admissible, with proper admonition, provided they are adequately shown to have been stolen property.” Id. at 14.
-13- authority on the issue of whether it was improper to permit evidence of having
received stolen property other that described in the indictment:
Dating back to 1861 in Devoto v. Commonwealth, 60 Ky. (3 Metc.) 417, we find our court declaring it was well settled that defendant’s possession of stolen goods . . . other than the particular goods he was charged with receiving was admissible for the purpose of showing his guilty knowledge that the particular goods were stolen. In Duke v. Commonwealth, 255 Ky. 403, 74 S.W.2d 471 (1934), the accusation was that of receiving stolen property. It was held that ‘* * * evidence that other goods than those charged in the indictment were found in accused's possession at the same time as those set out in the indictment is admissible to establish guilty knowledge and as a part of the res gestae * * *’ (citing Commonwealth v. McGarvey, 158 Ky. 570, 165 S.W. 973 (1914)).
Id. at 14.
We are satisfied from our review of the record that the trial court
meticulously and correctly analyzed the admissibility of the 404(b) evidence. We
find no abuse of discretion. We also agree with the Commonwealth that even if
there were arguably any error, it was harmless in light of the testimony of Deputy
Sizemore and of Gavin Hinds. RCr 9.24.
V.
Ormond’s fifth argument is that the trial court erred by failing to
admonish the jury as to the limited admissibility of the KRE 404(b) evidence.
Ormond contends that having allowed that evidence to go to the jury, the court was
-14- required to give a limiting instruction. However, he does not state where counsel
requested one. We agree with the Commonwealth that the issue is waived.
Trial counsel knows best whether a limiting instruction will be beneficial . . . . Kentucky precedent leaves that important judgment call squarely within the trial counsel’s sound discretion by recognizing the concept of waiver. If a limiting instruction is advisable, trial counsel is now well-informed of the requirement to ask for one.
Quisenberry v. Commonwealth, 336 S.W.3d 19, 30 (Ky. 2011).
VI.
Sixth, Ormond argues that the trial court erred by presenting jury
instructions related to Josh Cutler (Instruction No. 7). Ormond concedes that
counsel did not specifically object to this instruction. We conclude that RCr
9.54(2) precludes our review for the same reasons discussed above. Martin, supra.
VII.
Ormond’s final argument is that cumulative errors made the trial
fundamentally unfair. We disagree. A combination of non-errors does not require
reversal and serves as no logical or legal basis for such a contention. Bowling v.
Commonwealth, 981 S.W.2d 545, 552 (Ky. 1998).
We affirm the judgment of the Gallatin Circuit Court.
ALL CONCUR.
-15- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Sarah D. Dailey Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Melissa A. Pike Assistant Attorney General Frankfort, Kentucky
-16-