Opinion
NO. 2017-CA-001221-MR
08-30-2019
MICHAEL KNOX ASBERRY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: David M. Cross Albany, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLINTON CIRCUIT COURT
HONORABLE DAVID L. WILLIAMS, JUDGE
ACTION NO. 16-CR-00068 OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, NICKELL, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Michael Knox Asberry brings this appeal from a July 25, 2017, judgment of the Clinton Circuit Court adjudging him guilty of theft by unlawful taking, less than $500, Kentucky Revised Statutes (KRS) 514.030. We affirm.
The incident leading to the underlying criminal charges occurred on real property commonly known as the Knox-Russell Farm located in Clinton County, Kentucky. The Knox-Russell Farm had been in the family of Michael's mother, Joyce Asberry, for generations. Joyce did not live on the farm but had allowed her daughter, Ginger Asberry, to reside there for many years. Michael lived less than a quarter mile down the road from his sister, Ginger.
In October of 2015, Joyce conveyed the Knox-Russell Farm to Michael and retained a life estate for her use and benefit. Ginger was unaware the property had been conveyed to her brother and continued to reside on the farm with Joyce's permission, consistent with Joyce's life estate.
In the spring of 2016, Joyce and Michael needed to utilize the dual-axle trailer she kept on the farm. Ginger had recently used the trailer to move some furniture out of the house. The trailer, loaded with Ginger's furniture, had been parked beside a building on the property for several weeks. Ginger intended to store the furniture in the building but needed to make space for it. Despite Joyce's request, Ginger did not move the furniture off the trailer.
The evidence presented at trial established that the trailer was loaded with two couches, a love seat, two recliners, and an electric heater.
On April 23, 2016, Joyce sent Michael to the farm to retrieve the trailer. Joyce instructed Michael to remove Ginger's furniture before taking the trailer. Michael, along with his daughter's boyfriend, went to the farm. Michael backed his truck up to the trailer and his daughter's boyfriend then hooked the loaded trailer up to Michael's truck.
Upon seeing Michael pulling off with the loaded trailer, Ginger came out of the house and shouted for Michael to stop. Michael stopped the truck, and Ginger stepped behind it. Ginger then unhooked the safety chain and began to unwind the trailer jack. Ginger claims that Michael then got out of his truck and began beating her with his cane; Michael denied this allegation. Michael then drove the truck and trailer to his house while Ginger stood on the tongue of the trailer. After Michael pulled into his driveway, Ginger claims he got out of his truck and threw a drink on her. Ginger walked home and called the police.
Michael was subsequently indicted by a Clinton County Grand Jury upon a charge of assault in the second degree and theft by unlawful taking, less than $500. Following a jury trial, Michael was adjudged guilty of theft by unlawful taking, less than $500, but the jury acquitted him upon the second-degree assault charge. Michael's punishment was fixed as a fine of $200. Michael subsequently filed a motion for judgment notwithstanding the verdict; the motion was denied by order entered on June 19, 2017. This appeal follows.
A "Misdemeanor Judgment" was entered by the circuit court on July 25, 2017, and set Michael Knox Asberry's fine at $200. The jury recommended a fine of $250. However, the judgment was rendered after the notice of appeal was filed on July 13, 2017. Neither party has raised this procedural defect on appeal. However, a show cause notice was issued by this Court on September 13, 2017. Upon review of the record below, it appears that after entry of the judgment on July 25, 2017, Michael filed a "Statement of Appeal" with the circuit clerk on August 1, 2017, setting forth all of the necessary contents and requirements of a notice of appeal as required by Kentucky Rules of Civil Procedure (CR) 73.03. A motion panel of this Court treated the filing of the Statement of Appeal as being in compliance with the requirements of CR 73.03 and ordered the appeal to proceed on the merits.
We begin our analysis by observing that Michael's brief fails to comply with the mandatory requirements of Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(iv) and (v). The statement of the case and facts presented by Michael fail to cite to the record on appeal to support the statement. CR 76.12(4)(c)(iv). And, his legal argument fails to cite to the record where and how the errors asserted below were properly preserved for appellate review. CR 76.12(4)(c)(v). Pursuant to CR 76.12(8), we could strike his appellate brief for these omissions, and proceed with our review accordingly. In Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010), this Court explained:
It is a dangerous precedent to permit appellate advocates to ignore procedural rules. Procedural rules do not exist for the mere sake of form and style. They are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated.Id. at 696 (quotation marks and citations omitted).
However, given the limited issues raised in this appeal and for judicial economy, we have elected to proceed without striking Michael's brief. We would warn counsel that such latitude will not be forthcoming in future appeals for similar violations of appellate rules.
Michael's first argument on appeal is that the evidence presented at trial was insufficient to maintain a conviction for theft by unlawful taking, less than $500. More specifically, Michael asserts the Commonwealth failed to present any evidence regarding the value of the property taken by him; therefore, his conviction was improper. Essentially, Michael argues he was entitled to a directed verdict of acquittal upon the offense of theft by unlawful taking, less than $500.
The record discloses that Michael moved for a directed verdict of acquittal upon the offense of theft by unlawful taking, under $500, at both the close of the Commonwealth's case-in-chief and at the close of all the evidence.
A motion for directed verdict of acquittal is governed by Kentucky Rules of Civil Procedure 50.01. A directed verdict of acquittal is properly denied if viewing all evidence "in favor of the Commonwealth . . . the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). And, a motion for directed verdict of acquittal "is reviewed in light of the proof at trial and the statutory elements of the alleged offense." Acosta v. Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013) (citing Lawton v. Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011)). Whether to grant or deny the motion for directed verdict "is not controlled by the law as described in the jury instructions, but by the statutes creating the offense." Id. at 816. Therefore, an appellate court "is required to examine the evidence introduced at trial . . . and to compare that proof to the statutory elements of the offense." Id. at 816.
The elements necessary to prove theft by unlawful taking are set forth in KRS 514.030, which provides, in relevant part:
(1) [A] person is guilty of theft by unlawful taking or disposition when he unlawfully:
(a) Takes or exercises control over movable property of another with intent to deprive him thereof; or
. . . .
(2) Theft by unlawful taking or disposition is a Class A misdemeanor unless:
KRS 514.030 (emphasis added).(a) The property is a firearm . . . ;
(b) The property is anhydrous ammonia . . . ;
(c) The property is one (1) or more controlled substances . . . ;
(d) The value of the property is five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony[.]
The plain and unambiguous language of KRS 514.030 demonstrates that unless the value of the property taken is $500 or more, that the value of the property taken is not a statutory element for the misdemeanor crime of theft by unlawful taking, less than $500. And, although the Commonwealth may not have provided an exact dollar amount value of the property, it did present Ginger's undisputed testimony that her property was on the trailer and had value to her. As the value of the property taken is not a statutory element of the misdemeanor crime of theft by unlawful taking, less than $500, we believe Michael's contention that the Commonwealth's evidence was insufficient to sustain his conviction is without merit and that he was not entitled to a directed verdict of acquittal upon the offense.
Michael's final argument is that the jury instructions given at trial were flawed. Michael claims that (1) the court erred by failing to give a separate instruction upon the claim of right defense and (2) the instruction given on theft by unlawful taking, under $500, was improper as it did not include a definition of the term "claim of right." Michael's Brief at 4. Based on our review of the record, counsel for Michael did not offer an instruction for a claim of right defense at trial or object to the instruction given by the trial judge for theft by unlawful taking. Accordingly, these alleged errors were not preserved for review. Notwithstanding, we will review the arguments as permitted, pursuant to the palpable error rule of Kentucky Rules of Criminal Procedure (RCr) 10.26.
Kentucky Rules of Criminal Procedure 10.26 provides: "[a] palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or 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."
The giving or failing to give a particular jury instruction is governed by RCr 9.54 which provides, in relevant part:
(2) 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 instructions 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 grounds or grounds of the objection.The application of RCr 9.54 to instructional errors was recently discussed by the Kentucky Supreme Court in Martin v. Commonwealth, 409 S.W.3d 340 (Ky. 2013). In Martin, the Supreme Court differentiated between an error in the giving or the failing to give of a particular instruction versus an error or defect in the instruction given. Id. at 345-46.
Relevant herein, the Martin Court held:
Although palpable error under RCr 10.26 may be available for certain kinds of instructional error, for the reasons set forth herein, we now conclude RCr 9.54(2) bars palpable error review for unpreserved claims that the trial court erred in the giving or the failure to give a specific instruction.
. . . .
Id. at 345-46.
We contrast the foregoing circumstances with the situation in which a defendant's assignment of error is not that a particular instruction should not have been given, but that the instruction given was incorrectly stated. . . . While a timely objection in the trial court is always necessary to preserve the right of appellate review of a defectively phrased instruction, review under RCr 10.26 is appropriate when an unpreserved error is palpable and when relief is unnecessary to avoid manifest injustice resulting from a defective instruction. In summary, assignments of error in "the giving or the failure to give" an instruction are subject to RCr 9.54(2)'s bar on appellate review, but unpreserved allegations of defects in the instructions that were given may be accorded palpable error review under RCr 10.26.
Based on Martin, Michael's contention that the jury should have been given an instruction upon a claim of right defense, is not subject to palpable error review by this Court. See Martin, 409 S.W.3d 340. However, Michael's argument that a defective instruction was given to the jury upon the offense of theft by unlawful taking is subject to palpable error review under RCr 10.26. See id. at 347.
The instruction given to the jury upon the offense of theft by unlawful taking, under $500, was as follows:
You will find [Michael] guilty of Theft by Unlawful taking less than $500.00 under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about the 23rd day of April, 2016 and before the finding of the Indictment herein, he took control over various items of household furniture which belonged to Ginger Asberry;
B. That in so doing, he knew the various items of household furniture was not his own and he was not acting under a claim of right to it;
AND
C. That in so doing, he intended to deprive Ginger Asberry of the various items of household furniture.
By comparing the jury instruction given in this case with the language of KRS 514.030 (theft by unlawful taking), it is abundantly clear the instruction adequately reflects the statutory elements of taking or exercising control over the movable property of another with the intent to deprive the owner thereof. Although the term "claim of right" was not defined in the instruction, no definition was necessary. An instruction is considered "sufficient so long as it accurately incorporates all the elements of the crime and requires the jury to find each element before it finds a defendant guilty." Id. at 347. Therefore, we conclude that the jury instruction for theft by unlawful taking was proper in this case.
For the foregoing reasons, the July 25, 2017, judgment of the Clinton Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: David M. Cross
Albany, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky