IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 25, 2021 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0734-MR
RICKY SIMPSON APPELLANT
ON APPEAL FROM CASEY CIRCUIT COURT V. HONORABLE JUDY DENISE VANCE, JUDGE NO. 18-CR-00088
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Ricky Simpson appeals as a matter of right1 from his conviction and 20-
year sentence for receiving stolen properly valued at $500 or more, multiple
motor vehicle offenses (having no registration receipt, having no registration
plate, failure to maintain insurance, driving on a DUI suspended license), and
being a first-degree persistent felony offender (“PFO-1”). For the following
reasons, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Simpson was convicted of being in possession of a stolen black walnut
log from Joseph Chad Wheet’s property on White Oak Church Road in Adair
County, Kentucky. Evidence was introduced that the approximate value of the
1 Ky. Const. § 110(2)(b). log was between $1,700 and $3,000. In the spring of 2018, Wheet had entered
into an agreement with timber cutter Clifford Jasper to harvest black walnut
trees located near a creek on Wheet’s property, and the two were to divide the
proceeds equally. Because cutting trees next to a waterway is prohibited,
Jasper examined them with a forestry official who decided which trees he could
cut and marked those trees with orange paint. In May 2018, Jasper cut the
trees marked with orange, yarded the logs in the adjacent fields, took bids, and
found a buyer.
On the morning of May 22, 2018, the logs were still in Wheet’s field.
That day, Wheet traveled to Somerset to train for his job as a paramedic. While
there, Wheet received a phone call from his neighbor, Mike Schweppe, who
informed him that boys were dragging logs from his property up the road with a
Dodge truck and loading them onto a green flatbed trailer. Wheet and
Schweppe exchange multiple phone calls that morning; during one call, Wheet
said that Schweppe identified Simpson as the perpetrator. However, at trial,
Schweppe denied saying this.
Wheet called the Adair County 911 center to report the theft, to which
Deputy Aaron Rainwater and Sheriff Harrison Moss responded, arrivng at his
house shortly thereafter. No one was there, and Deputy Rainwater saw no
indication that a log had been dragged onto White Oak Church Road. However,
once they drove to intersecting Providence Road, Deputy Rainwater saw deep
drag marks in the road that indicated something had been dragged from
Wheet’s field to the road and up a rise.
2 Wheet called Jasper, who went to his house and observed drag marks
leading from a strip of dead grass – where one of the logs had been – up to
Providence Road. Jasper had not left those drag marks; he used a skidder to
bear the weight of the logs and did not take any of them to Providence Road.
Jasper drove to a local sawmill and learned that no one had taken the stolen
log there. Jasper knew that nearby Wolford & Wethington Lumber also
purchased black walnut logs at the time and believed that whoever stole the log
would probably take it there.
Information about the theft and Simpson’s likely destination was relayed
to law enforcement agencies in adjacent Casey County. Deputy Jeffrey Brown
waited off Route 127 for Simpson and stopped his vehicle - a Dodge pickup
truck pulling a green utility trailer with a single log on it. Simpson’s license
plate was expired, his operator’s license was suspended, and he had no
registration receipt or proof of insurance. He told Deputy Brown that he had
cut the log on his friend Stacy’s farm in Adair County and asserted that he was
in lawful possession of it. He did not know Stacy’s last name.
Deputy Rainwater and Sheriff Moss went to the location of the traffic
stop; Wheet and Jasper arrived separately. Keith Wolford, of Wolford &
Wethington Lumber, was previously notified by Jasper to watch for the log.
When Wolford heard about the nearby stop he went there to see if it was
Simpson – who had recently asked him what a black walnut would be worth.
Jasper identified the log on the trailer by the orange marking he had made,
which Deputy Rainwater testified he observed, along with markings on the log
3 where it had been dragged up the road. Though the bark was gone from
having been dragged, orange paint remained in the crevices. Deputy Brown
arrested Simpson for the motor vehicle offenses, as well as for receiving stolen
property, and released the log to Wheet at the scene. Wheet then sold the log
to a buyer shortly thereafter.
Before trial, Simpson moved to dismiss the indictment or, in the
alternative, to exclude Wheet’s testimony in its entirety. Simpson argued that
the log was improperly released from state custody to Wheet, in violation of
Brady v. Maryland, 373 U.S. 83 (1963), and that the photographs Wheet took
of the log showing the orange markings were taken in a field after the log was
released from custody, thus calling into question whether the log he
photographed was the log at issue. Simpson emphasized that the photos taken
by the officers at the traffic stop did not show any orange markings on the log,
thereby making Wheet’s photographs of the log showing the orange markings
even more prejudicial. The trial court denied both of Simpson’s motions. A
one-day jury trial was held; at the close of the Commonwealth’s case-in-chief,
Simpson renewed his motion to dismiss the indictment, as well as moved for a
directed verdict on the charge of receiving stolen property over $500. Again,
the trial court denied his motions.
The jury convicted Simpson of receiving stolen property valued at $500
or more (a class D felony), and multiple motor vehicle offenses (having no
registration receipt, having no registration plate, failure to maintain insurance,
driving on a DUI suspended license). During the penalty phase, the
4 Commonwealth introduced evidence that Simpson had been previously
convicted of second-degree manslaughter, second-degree assault, first-degree
wanton endangerment, driving under the influence in Russell County, burglary
and three counts of theft by unlawful taking in Georgia, burglary of a
conveyance in Florida, and two counts of burglary of a dwelling in Florida. The
jury determined Simpson was a PFO-1 and fixed his punishment at five years,
enhanced to twenty years by virtue of his PFO-1 status. Simpson moved for a
new trial, which the trial court denied. This appeal followed.
II. ANALYSIS
A. The trial court did not abuse its discretion by allowing Wheet to testify, in admitting his photographs of the log, and in allowing the 911 dispatch call to be played for the jury.
Simpson argues that the trial court should have dismissed the
indictment against him or, alternatively, should have excluded Wheet’s
testimony, including the photographs Wheet took of the log, his mobile cell
phone records, and the recording of the 911 dispatch call. Simpson claims
that under the “best evidence rule” the Commonwealth was required to
introduce the most authentic evidence which was within its power to present,
which was the log itself. Savage v. Three Rivers Med. Ctr., 390 S.W.3d 104, 114
(Ky. 2012); KRE2 1002 (providing that “[t]o prove the content of a writing,
recording, or photograph [e.g. an x-ray], the original writing, recording, or
photograph is required, except as otherwise provided in these rules, in other
2 Kentucky Rules of Evidence.
5 rules adopted by the Kentucky Supreme Court, or by statute[]”). Simpson
further argues that the officers’ failure to preserve the log as evidence was a
Brady violation, warranting dismissal of the indictment or exclusion of Wheet’s
testimony and photographs.3
In his motion to exclude, Simpson specifically argued that Wheet had no
personal knowledge of the matters to which he would testify, as required by
KRE 602; the expert testimony exception in KRE 703 did not apply; his
testimony would violate the hearsay prohibitions in KRE 802 and 805; and he
would be unable to authenticate his mobile phone log, thus running afoul of
KRE 901(a). Simpson avers that the call log should have been authenticated
by the custodian of the business records under KRE 902(11) and that its
admission was highly prejudicial, as it bolstered Wheet’s testimony and
impeached Schweppe’s testimony, given that the two of them disagreed on who
made the first phone call the morning of May 22, 2018.4
3 Simpson further asserts that the trial court should have instructed the jury on missing evidence, however, the record shows he did not request such an instruction. Accordingly, RCr 9.54(2) forecloses our review of this claimed error. See Martin v. Commonwealth, 409 S.W.3d 340, 345 (Ky. 2013) (“RCr 9.54(2) bars palpable error review for unpreserved claims that the trial court erred in the giving or failure to give a specific instruction[]”). 4Simpson also argues now for the first time that the 911 dispatch recording should have been excluded since it contained inadmissible hearsay. However, the record shows that defense counsel not only failed to object to the introduction of the 911 dispatch call, but rather insisted on playing the recording in its entirety. Given counsel’s waiver, we will not address this claim of error on appeal. See Tackett v. Commonwealth, 445 S.W.3d 20, 29 (Ky. 2014) (“ A party cannot ask a trial court to do something and, when the court does it, complain on appeal that the court erred. . . . When, as here, a party not only forfeits an error by failing to object to the admission of evidence, but specifically waives any objection, the party cannot complain on appeal that the court erroneously admitted that evidence[]”). See also Jefferson v. Eggemeyer, 516 S.W.3d 325, 339–40 (Ky. 2017) (“An appellant may not ‘feed one can of worms to 6 This Court reviews evidentiary rulings on the admission or exclusion of
evidence for an abuse of discretion. Baker v. Commonwealth, 545 S.W.3d 267,
275 (Ky. 2018). “‘The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.’” Id. (quoting Commonwealth. v. English, 993 S.W.2d 941, 945 (Ky.
1999)).
Regarding Simpson’s alleged Brady violation, the law is clear that the
intentional destruction of exculpatory evidence by the Commonwealth is a Due
Process violation requiring “(1) dismissal, (2) exclusion of the Commonwealth’s
evidence, or (3) an instruction permitting the jury to infer that the missing
evidence, if available, would be adverse to the Commonwealth and favorable to
the defendant.” Estep v. Commonwealth, 64 S.W.3d 805, 809 (Ky. 2002). The
Due Process Clause is implicated when the Commonwealth destroys or loses
exculpatory evidence, the potentially exculpatory nature of that evidence was
apparent when it was lost or destroyed, and the Commonwealth acted in bad
faith. Id. (citing Collins v. Commonwealth, 951 S.W.2d 569, 572 (Ky. 1997)). If
a due process violation occurs,
dismissal is only one of several remedies available for such violations. See, e.g., Sanborn v. Commonwealth, 754 S.W.2d 534, 540 (Ky. 1988). Other remedies, such as exclusion of evidence or a missing-evidence instruction to the jury, may be appropriate depending on the facts. Id. In fact, our law appears to express a preference for missing-evidence instructions, which are used “to cure any Due Process violation attributable to the loss or destruction of exculpatory evidence by a less onerous remedy than dismissal or the suppression of relevant evidence.” Estep v.
the trial judge and another to the appellate court[]’”) (internal quotations and citation omitted). 7 Commonwealth, 64 S.W.3d 805, 810 (Ky. 2002).
Swan v. Commonwealth, 384 S.W.3d 77, 91–92 (Ky. 2012). This Court has
explained,
In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Arizona v. Youngblood, the Supreme Court clarified what a defendant must prove when the government fails to collect or preserve evidence, holding, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In other words, government culpability is irrelevant when the Commonwealth withholds plainly exculpatory evidence, but when the Commonwealth merely fails to collect or preserve evidence, as in the case here, the defendant must prove bad faith. When this Court adopted Youngblood, we added that “negligence simply does not rise to the level of bad faith....” Collins v. Commonwealth, 951 S.W.2d 569, 573 (Ky. 1997).
Commonwealth v. Parrish, 471 S.W.3d 694, 697 (Ky. 2015).
Prior to trial, the court denied Simpson’s motions to dismiss and exclude.
At trial, Simpson renewed his objection to Wheet’s testimony, including
introduction of the photographs he took. During the bench conference that
followed, the parties did not discuss any case law or rules of evidence; Simpson
simply argued that it could not be proven that Wheet photographed the log in
question, since the pictures were taken in a field, after the log was released
from state custody. In response, the Commonwealth maintained that Wheet
took the pictures, he would testify to such and therefore they were admissible,
8 and that Simpson could cross examine him concerning any authenticity issues
he had. The trial court overruled Simpson’s objection.
On appeal, the parties dispute whether the log was exculpatory or
inculpatory evidence. The Commonwealth argues that the orange marking on
the log, as shown in Wheet’s photographs and identified at the scene by
Jasper, proves that the log came from Wheet’s property. Conversely, Simpson
asserts that the identity and source of the log was crucial to the
Commonwealth’s case, and to his defense, and would have exonerated him. He
points out that even if he had photos of a stump or other evidence that a
walnut log had been cut from Stacy’s property, as he claims he did, due to the
Commonwealth’s release of the log from custody, no log exists for a forester or
timber expert to compare.
To show a Brady violation, a party must establish bad faith on the part
of the government. Here, the record contains no allegation or proof of official
animus toward Simpson or of a conscious effort to suppress exculpatory
evidence. While the officers’ failure to preserve the log as evidence may have
been negligent, Simpson has failed to establish that their conduct rose to the
level of bad faith. Rather, it appears the consensus at the traffic stop was that
the log belonged to Wheet, so officials released it to him.
Furthermore, a review of the record shows that Simpson extensively
cross-examined Wheet concerning his photographs of the log - presenting the
police photos of all sides of the log, and getting Wheet to admit no orange
markings appeared on the log in the police photos. On re-direct, the
9 Commonwealth elicited testimony from Wheet that he texted Schweppe a
picture from the traffic stop, which had Simpson in it, and that Schweppe
identified him as the person who stole the log. During Deputy Rainwater’s
testimony, he identified the log and its distinct orange marking from Wheet’s
photographs. At this point, determining the weight and credibility of the
testimony fell in the jury’s hands. Commonwealth v. James, 586 S.W.3d 717,
721 (Ky. 2019) (citing Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.
1991) (judging the credibility of a witness and the weight to be given the
witness’s testimony are purely jury functions)). We have long-recognized that
in the exercise of these functions, the jury, as finders of fact, were entitled to
believe all or part of any witness’s testimony and to discount other parts.
Gillispie v. Commonwealth, 212 Ky. 472, 474, 279 S.W. 671, 672 (1926).
Moreover, the law is clear that “the Commonwealth may prove its case by direct
or circumstantial evidence. James, 586 S.W.3d at 721. Here, despite the log
not being preserved as evidence, the jury could have made reasonable
inferences from the presented evidence sufficient to sustain Simpson’s
conviction.5
5 Simpson mentioned the best evidence rule in his motion to dismiss indictment, without citing any case law in support, and wholly failed to discuss the issue on appeal. That said, we note that the best evidence rule largely pertains to documentary evidence, not physical evidence. See Marcum v. Commonwealth, 390 S.W.2d 884, 886 (Ky. 1965) (holding that the best evidence rule “requires one to introduce the most authentic evidence which is within the power of one to produce, but in practical application it applies almost exclusively to documentary evidence. It is concerned with the content of a written instrument[]”) (citations omitted).
10 Simpson next challenges Wheet’s testimony with respect to his account
of his phone calls with Schewppe the morning of May 22, 2018 and the
introduction of Wheet’s mobile phone log from that day into evidence. Wheet
testified that he received a call about logs being taken from his property on the
morning of May 22, 2018. Initially, he did not know the identity of the caller,
but the caller later identified himself in a subsequent call as Schweppe, and
said Simpson was the one taking the log but told Wheet that he did not want to
become involved in the matter any further.6 Wheet’s testimony impeached
Schweppe’s, who testified that Wheet was the one who called him first that
morning and who denied having identified Simpson as the perpetrator. When
presented with the Ebill of Wheet’s mobile phone record, Schweppe confirmed
his mobile phone number was on that log. During Wheet’s testimony, he
authenticated the Ebill, confirmed his own number, stated that the phone bill
was in his ex-wife’s name, she printed the bill for him, and it looked like a fair
and accurate representation of his phone bill. The phone log showed that
Wheet received a call from Schweppe first that morning.
Before presenting Wheet’s testimony, the Commonwealth elicited
testimony from Schweppe that Wheet called him first that morning. Schweppe
also denied identifying Simpson as the perpetrator. With that KRE 613(a)7
6During his testimony, Schweppe revealed that he was good friends with Simpson’s father, that Simpson was dating his niece, and that he, Schweppe, put up a $5,000 cash bond to get Simpson out of jail following his arrest. 7 KRE 613 provides in part: (a) Examining witness concerning prior statement. Before other evidence can be offered of the witness having made at another time a different 11 foundation, Wheet’s testimony about Schweppe’s prior statements was
admissible under KRE 801A(a)(1)8 as a hearsay exception for prior inconsistent
statements. As a result, the jury’s province was to weigh the testimony and
evaluate the credibility of the witnesses.
Regarding the trial court’s admission of Wheet’s mobile phone log, the
law is clear that “[a]uthentication is a foundational requirement or condition
precedent to admissibility. Before evidence may be admitted, there must be
‘evidence sufficient to support a finding that the matter in question is what its
proponent claims.’” Hall v. Commonwealth, 468 S.W.3d 814, 831 (Ky. 2015)
(quoting KRE 901(a)). “The burden on the proponent of authentication is
slight; only a prima facie showing of authenticity is required. . . . This means of
course that the trial judge decides only if the evidence can be admitted and the
trier of fact determines the authenticity of the evidence and its probative force.”
Id. (citations omitted).
statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with opportunity to explain it. The court may allow such evidence to be introduced when it is impossible to comply with this rule because of the absence at the trial or hearing of the witness sought to be contradicted, and when the court finds that the impeaching party has acted in good faith. 8 KRE 801A(a)(1) provides in part: (a) Prior statements of witnesses. A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is: (1) Inconsistent with the declarant’s testimony[.] 12 Simpson does not allege that the mobile phone record was hearsay, he
simply claims the custodian of the record (Wheet’s ex-wife, Kasey) should have
authenticated the EBill pursuant to KRE 902(11) since the phone was in her
name and she printed the call log for Wheet. Simpson cites no case law in
support of his assertion. Looking to the rules of evidence as guidance, KRE
902(11) provides, in relevant part:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
***
(11) Business records.
(A) Unless the sources of information or other circumstances indicate lack of trustworthiness, the original or a duplicate of a record of regularly conducted activity within the scope of KRE 803(6) or KRE 803(7), which the custodian thereof certifies:
(i) Was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters; (ii) Is kept in the course of the regularly conducted activity; and (iii) Was made by the regularly conducted activity as a regular practice.
KRE 901 sets forth methods of authentication, providing in part that
“[t]he requirement of authentication or identification as a condition precedent
to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” KRE 901(a). Under KRE
901(b)(1), a witness with knowledge may testify to this. And under KRE
901(b)(4), “[a]ppearance, contents, substance, internal patterns, or other
13 distinctive characteristics, taken in conjunction with circumstances” may be
used to authenticate an item.
Here, Wheet had first-hand knowledge of his mobile phone
communications on May 22, 2018. Wheet identified his phone number and
recognized the mobile phone bill itself, which he said was a fair and accurate
depiction of the Ebill. Wheet explained that in May 2018, the phone was
registered in his then wife’s name, and she printed the bill for him. He also
identified Schweppe’s phone number and a number of other numbers on the
call log, including the call he made to the Adair County 911 center on May 22,
2018. Under KRE 901(a), Wheet’s testimony, in conjunction with the
appearance of the phone bill itself, sufficiently authenticated the record.
Simpson has not alleged hearsay or any lack of trustworthiness with respect to
the Ebill itself, other than it should have been introduced through Kasey,
rather than Wheet. Based on the lack of any issues with respect to the
trustworthiness of the document, the trial court did not abuse its discretion by
allowing the mobile call log to be admitted into evidence through Wheet.
B. Improper juror contact with the Commonwealth’s witnesses did not constitute palpable error.
Prior to the jury being discharged (and before the penalty phase),
Simpson brought two instances of alleged juror misconduct to the trial court’s
attention, claiming that those jurors had ignored the court’s admonition not to
speak with witnesses. Simpson suggests that the trial court should have sua
sponte granted a mistrial, but admits he did not request one, or any other relief
from the trial court. Accordingly, he asks us to review his claim for palpable 14 error. See Cash v. Commonwealth, 892 S.W.2d 292, 295 (Ky. 1995) (per RCr
9.22, a party is required to make “known to the court the action he desires the
court to take or his objection to the action of the court” and failure to do so
renders an error unpreserved). Notwithstanding the contemporaneous
objection rule embodied in RCr 9.22, this Court can consider a “palpable error”
which affects the “substantial rights” of a defendant even though the error was
insufficiently raised or preserved before the trial court.9 Id.
Simpson contends that palpable error occurred since no more
recognizable right of a defendant exists than the right to be tried before a fair
and impartial jury. Both Section 11 of the Kentucky Constitution and the
Sixth Amendment of the United States Constitution guarantee an accused the
right to a speedy and public trial “by an impartial jury.” Simpson cites to
KRS10 29A.310(2), affirming this right: “No officer, party, or witness to an
action pending, or his attorney or attorneys shall, without leave of the court,
converse with the jury or any member thereof upon any subject after they have
been sworn.”
9 RCr 10.26 provides: “A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” “Palpable error relief is available under RCr 10.26 only upon a determination that manifest injustice has resulted from the error. Manifest injustice is error [that] so seriously affect[s] the fairness, integrity, or public reputation of the proceeding as to be shocking or jurisprudentially intolerable.” Davidson v. Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018) (internal quotations and citations omitted). 10 Kentucky Revised Statutes.
15 This Court has distinguished between innocent conversations in which
matters of substance are not involved and conversations which prejudice the
defendant to the extent he is deprived of a fair trial. Oro-Jimenez v.
Commonwealth, 412 S.W.3d 174, 180–81 (Ky. 2013).
The true test is whether the misconduct has prejudiced the defendant to the extent that he has not received a fair trial. Kentucky courts have generally drawn a bright line between conversations between jurors and witnesses about the case and those which are about unrelated matters. The former prejudice the defendant, whereas the latter are harmless.
Id. at 181 (internal quotations and citations omitted).
Simpson’s first alleged instance of juror misconduct concerns a juror
who had a conversation with Detective Dennis Allen during one of the breaks.
When questioned by the trial court about this encounter, the juror stated that
he thought he recognized Det. Allen and as he was walking out the courtroom
door, he commented to him that he thought he knew him. That was the extent
of their interaction. Det. Allen did not testify during the trial but was
introduced to the jury at the beginning of the trial while being seated at the
prosecutor’s table. Nevertheless, the trial court’s questioning of this juror
revealed that the juror did not discuss this case or any case-related matter
with Det. Allen and did not intentionally fail to disclose during voir dire a
connection of which the juror was aware. Rather, the juror simply realized he
may know Det. Allen and sought to confirm it. At this point, the trial court
asked counsel if “we were good” to which they both responded affirmatively.
Defense counsel requested no further relief.
16 While the contact between Det. Allen and this juror violated KRS
29A.310(2), the interaction was harmless and certainly did not rise to the level
of palpable error. See id. (Although violative of KRS 29A.310(2), the
conversation between a juror and a witness was innocent, was not calculated
by either the juror or the witness to corrupt the proceeding in any way, it
involved no improper exchange of information material to the case, nor did it
otherwise reveal the presence of an improper influence that might have affected
the verdict.); Talbott v. Commonwealth, 968 S.W.2d 76, 86 (Ky. 1998) (While
three jurors engaged in separate conversations with a witness for the
Commonwealth (the sheriff) during trial recesses in violation of KRS
29A.310(2), none of the conversations related to the trial and were found to be
harmless.)
Simpson’s second instance of alleged juror misconduct was also
harmless error. In that instance, a spectator observed one of the jurors
interacting with Deputy Rainwater on the elevator. This spectator informed the
court that the juror was already on the elevator and held the door for Deputy
Rainwater, insisting that he join him on the elevator. Deputy Rainwater did,
and the juror, who is a constable, asked Deputy Rainwater if he knew an
individual who lived in Danville, Kentucky. Deputy Rainwater responded that
he did. The spectator did not hear the two discuss anything related to this
case. When this juror was questioned by the court about this encounter, the
juror admitted discussing with Deputy Rainwater an individual the juror was
17 looking for who had warrants for his arrest. The juror denied discussing the
case at bar with Deputy Rainwater.
Simpson maintains that this juror’s contact with Deputy Rainwater
“amounts to a cooperative effort between a juror and an officer” and exhibits a
high level of prejudice which affected his right to an impartial jury. Again,
while this contact violated KRS 29A.310(2), the brief conversation was
harmless and did not amount to palpable error. No mistrial was requested,
and none was warranted.
C. Simpson was not entitled to a directed verdict.
At the close of the Commonwealth’s case-in-chief, Simpson moved for a
directed verdict on the charge of receiving stolen property over $500.
When reviewing a trial court’s ruling on a motion for a directed verdict,
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 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, we must determine whether, given the evidence as a whole, it would be clearly unreasonable for a jury to find guilt. Only then is a defendant entitled to a directed verdict of acquittal. Further, the Commonwealth need only produce more than a “mere scintilla” of evidence to defeat a defendant's motion for a directed verdict.
James, 586 S.W.3d at 721 (internal quotations and citations omitted).
Simpson maintains that a directed verdict in his favor was merited
because the Commonwealth relied on circumstantial evidence and hearsay to 18 establish its case. However, as we have discussed, a conviction may be
sustained on circumstantial evidence alone. We also have found no merit in
Simpson’s claims of error with respect to the evidentiary issues he raises.
Further, the evidence was sufficient to send the case to the jury. At
Simpson’s traffic stop, Jasper identified the log as being one he cut from
Wheet’s property and pointed out the orange marking. At trial, Deputy
Rainwater corroborated Jasper’s identification of the orange marking on the log
during the traffic stop. The evidence also showed that neither Wheet nor
Jasper gave Simpson permission to be in possession of the log. Wheet testified
that Schweppe called him the morning of May 22 to report the theft, from an
individual driving a Dodge pickup truck and green trailer and said that
Schweppe identified Simpson as the perpetrator. Schweppe’s phone number
appeared on Wheet’s mobile call log from that day. Lastly, Simpson was pulled
over in a Dodge pickup truck hauling a mostly green trailer with a black walnut
log on it, and heading in the direction of Wolford & Wethington Lumber, from
whom Simpson had recently inquired as to the value of a black walnut log.
The value of the black walnut log was estimated to exceed $500. Based on this
evidence, it would not have been clearly unreasonable for a jury to convict
Simpson of receiving stolen property over $500. Therefore, the trial court did
not abuse its discretion in denying Simpson’s motion for a directed verdict.
19 III. CONCLUSION
For the foregoing reasons, the judgment and sentence of the Casey
Circuit Court is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Cameron Cole Griffith Theodore H. Lavit Theodore H. Lavit & Associates, P.S.C.
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Kenneth Wayne Riggs Assistant Attorney General
James Daryl Havey Assistant Attorney General