Opinion
NO. 2014-CA-002019-MR
01-06-2017
DEBRA D. CALLOWAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Julia K. Pearson Assistant Public Advocate Dept. of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 12-CR-00147 OPINION
AFFIRMING IN PART, AND REVERSING IN PART
** ** ** ** **
BEFORE: D. LAMBERT, MAZE AND VANMETER, JUDGES. D. LAMBERT, JUDGE: The Appellant, Debra Calloway, seeks to have this Court vacate her convictions for facilitation of murder, complicity in tampering with physical evidence, and facilitation of retaliating against a participant in the legal process. The Ohio Circuit Court entered the judgment of conviction following a jury trial. After reviewing the record, we affirm in part and reverse in part.
Judge Laurence B. VanMeter concurred in this opinion prior to being elected to the Supreme Court of Kentucky. Release of this opinion was delayed by administrative handling.
I. FACTUAL AND PROCEDURAL HISTORY
This matter has a complex factual history, dating back more than two decades. Debra Calloway was convicted in 2014 in connection with crimes related to the 1993 disappearance and murder of Patricia "Patsy" Calloway.
Because many of the people involved in this case share the family surname, "Calloway," the Court will refer to them by the names by which they were referred in the parties' briefs.
Larry Calloway and Patsy Calloway had been married for over twenty years when they divorced in 1992. Despite their divorce, Larry and Patsy continued to live together in the same residence. One of the apparent reasons for the divorce was Larry's infidelity: he had an extramarital affair which produced a child. Trial testimony revealed that Patsy had previously threatened to "disappear" if she ever found out Larry had "cheated" on her again. In early 1993, Larry obtained a license to marry the woman who became known as Shirley Calloway. A notice of this marriage license was published in a local newspaper.
Larry has several siblings. Those concerned in this case are his brothers, Vernon Eugene "Gene" Calloway and James "Jimmy" Calloway, and his sister, Mildred Calloway Dunning.
It is Gene who plays the most prominent role in the events at issue in this appeal, however. Gene and Debra were in a relationship from the early 1980's until Gene's death in 2013, the pair having married in August of 1993. Debra testified that their relationship could be described as turbulent and, at times, physically abusive. Gene, an ex-convict, had, in front of more than one family member, threatened to "cut and decapitate" anyone who would ever "send [him] back to the penitentiary."
In August of 1991, while Patsy visited her parents in Arkansas, Larry and Gene hatched a plan to burn down Larry and Patsy's residence. The record indicates Patsy's awareness of this plan, and according to Larry's testimony, Debra knew as well. After the fire destroyed the home, Larry collected the proceeds of a homeowner's insurance policy covering the residence.
Debra, Patsy, and Gene's ex-wife, Mary, all worked at Professional Care Home, a residential medical facility. On the morning of March 3, 1993, Gene took Debra to work, and while there, he wanted to share the good news with Mary and Patsy that Gene's daughter-in-law was in labor in the hospital having his grandchild.
According to Patsy's co-workers, Michael Hertzog and Cindy Likens, Gene also shared other news with Patsy. Hertzog testified that he saw Patsy in the break room and that she was upset after learning that Larry "had a young girl." Patsy wanted to take revenge for this perceived affront by telling the police about the arson conspiracy. Hertzog further testified that Patsy told him Gene had threatened her life that morning if she spoke to law enforcement about the arson. Likens testified that she saw Gene and Patsy in the parking lot having an animated discussion, during which she observed Gene showing Patsy something in a newspaper. Likens then saw Patsy get into Gene's car and ride away with him at approximately 10:00 A.M.
Patsy Calloway was never seen alive again. Nor was her body ever recovered, rendering it impossible to establish her exact time of death.
Ricky Calloway, Gene's son, testified that Gene and Debra visited him together in the hospital "sometime after lunch" to see the newborn, and they stayed for approximately an hour. Debra's testimony contradicted this, stating that she remained at work from time Gene dropped her off in the morning until he picked her up at the close of the work day.
Mildred testified that at approximately 2:30 on the afternoon of Patsy's disappearance, she was driving on Highway 231 and spotted a woman walking along the roadside. She initially thought it was Patsy, given the clothing she wore, which included a tan trench coat. However, when Mildred pulled ahead and stopped, she recognized the woman as Debra in disguise. Debra was wearing a wig that closely matched Patsy's hair color. Amy Hamilton, Gene's niece, testified that she saw a similarly dressed woman late at night walking along Highway 231, though she did not stop or recognize the woman as Debra. Nor did Amy recall what specific day she had seen the woman.
Larry testified that he grew concerned about Patsy when she had not returned home from work at her usual time. He proceeded to her workplace to look for her, but found neither Patsy nor her vehicle there. He contacted the police at that point, and continued searching on his own, enlisting his son, Shane Calloway, to help. Larry and Shane eventually located Patsy's vehicle parked near the Ohio County Courthouse. They investigated the area, looking for signs of Patsy. They could not find the keys after searching, but did notice the driver's seat had been pushed all the way back. They considered this peculiar; given Patsy's small stature, she could not reach the pedals with the seat in that position. Having found the vehicle, Larry and Shane proceeded to the police station to update law enforcement.
Larry and Shane were told by an officer to bring the car to the station, but upon learning the keys could not be located, an officer accompanied them back to the vehicle. At their arrival, the three men noticed Gene and Debra parked across the street, who claimed to have been searching for Patsy as well. Either Gene or Debra suggested Larry and Shane look for the keys in the front floorboards, a place that they both emphatically insisted they had already searched. After looking again, they located the keys exactly where they had been told to search.
Amy testified that Gene and Debra had approached a friend of hers late at night, while Amy was present, seeking assistance in extricating Gene's car from some mud in a field near the river. When Amy inquired as to what Gene and Debra were doing out in a field so late at night, one of them replied, "throwing away garbage." Amy also testified that she saw muddy shovels in the back of the car. Debra initially told officers that she did not recall getting stuck that night, but later testified that she and Gene had gotten stuck that night while looking for deer.
Kentucky State Police Detective Phillip Ballard was assigned to the case. He obtained and executed a warrant to search Gene's vehicle. Investigators found the vehicle in a condition that indicated that evidence had been destroyed or concealed. The entirety of the vehicle's carpet and roof liner had been removed. A forensic technician testified that the interior surfaces of the vehicle, particularly the floorboards, had been treated with a substance that prevented the detection or collection of blood evidence. The investigation into Patsy's disappearance thus hit a dead end.
The Commonwealth then pursued a criminal action against Larry and Gene for their roles in the arson conspiracy from 1991. Larry entered a guilty plea, and as a condition of his plea, testified against Gene at trial. Gene proceeded to trial, and was ultimately acquitted of any involvement in the arson.
In 2008, Jimmy was arrested on felony charges. During a police interview, investigators asked Jimmy if he knew anything pertinent regarding Patsy's disappearance. Jimmy offered a statement that he had seen Patsy's body on the property of Gene and Debra.
Jimmy had been collecting cans on the day of March 3, 1993, unaware of Patsy's disappearance. He went to Gene and Debra's property to see if they had any cans he could take. Near the couple's garbage can on the driveway, Jimmy observed a blood-soaked carpet and some garbage bags. He tore open one of the garbage bags and found the body of Patsy, her throat having been slit. Jimmy also observed Gene and Debra cleaning the interior of Gene's car, though they did not see him. Jimmy witnessed Debra scrubbing the interior surfaces of the car and using a spray of some sort. Jimmy testified that Gene later told him he had buried Patsy's remains, and responded with a veiled threat when Jimmy asked if he had killed her. Patsy's body was never found.
Jimmy's statement sparked the investigation anew, ultimately resulting in a grand jury returning indictments in 2012 against both Gene and Debra on charges of murder, kidnapping, tampering with physical evidence, and retaliating against a participant in the legal process. Gene died in 2013 before the matter could proceed to trial. As a consequence, the Commonwealth dismissed all charges against him, in addition to the kidnapping charge against Debra.
The matter proceeded to trial in 2014. The various witnesses testified as reflected hereinabove. Additionally, Mildred testified that, approximately two weeks before his death, Gene "made [her] promise not to tell" anyone about the woman she had seen walking along Highway 231 on March 3, 1993. Debra also took the stand in her own defense.
In Debra's trial testimony, she attempted to cast the entirety of the guilt on Gene. She testified that she played no role in Patsy's disappearance or death. She testified that she did not help Gene pull carpet out of his vehicle or clean it. She testified that neither she nor Gene ever burned or buried their garbage; rather they left it out for the city to remove once per week. She testified that she first learned of the arson when Larry and Gene were charged with it. She testified that she did not walk along Highway 231 on March 3, 1993, or any other time, wearing a disguise.
However, Debra did admit that she owned a wig, which she testified Gene had bought as part of a lot he purchased in an auction after they married in August of 1993. She further testified that Gene forced her to wear the wig to mask her identity when she had sex with other men to satisfy Gene's voyeuristic proclivities.
Debra testified that on the day of Patsy's disappearance, she found Gene at the edge of the woods on their property. He demanded she immediately return to the house. Eventually, it was discovered that Gene had buried a lockbox near that location, containing a letter in his own handwriting that took full responsibility for killing Patsy and exculpated Debra in Patsy's murder.
The letter was discovered by Ricky and Angela Calloway, acting at Debra's behest while she was in custody awaiting trial. It was read into the record in its entirety during Debra's testimony and introduced as Commonwealth's Exhibit #20. It stated as follows: "I killed Patsy. No one had nothing to do with it but me. Not Debbie and not nobody. But go out to Andy Anderson's second drive, go up to the cross, go to the right...." The remainder of the letter was illegible.
Debra moved for directed verdict both at the close of the Commonwealth's case-in-chief, and again at the close of evidence. She argued the evidence was insufficient to support conviction. The trial court denied both motions and submitted the case to the jury for deliberation.
The jury instructions included the following offenses: complicity to murder, criminal facilitation to murder, complicity to tampering with physical evidence, criminal facilitation to tampering with physical evidence, complicity to retaliating against a participant in the legal process, and criminal facilitation to retaliating against a participant in the legal process.
The jury returned guilty verdicts on the criminal facilitation to murder charge, and the complicity charge for tampering with physical evidence, and the charge of facilitation to retaliation against a participant in the legal process. The jury returned acquittals on all other instructed charges.
This appeal followed, wherein Debra challenges the sufficiency of the evidence to support the convictions on all three charges.
II. ANALYSIS
A. STANDARD OF REVIEW
Debra asks this Court to examine the evidence to determine whether proof introduced during the trial adequately supported the jury verdicts. In so arguing, she also challenges both the propriety of the trial court's denials of the directed verdict motions and the trial court's rulings on the admissibility of certain testimony.
"The standard for appellate review of a denial of a motion for a directed verdict based on insufficient evidence is if, under the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, he is entitled to a directed verdict of acquittal." Wilburn v. Commonwealth, 312 S.W.3d 321, 323 (Ky. 2010) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). Trial courts are to examine directed verdict motions "in light of the proof at trial and the statutory elements of the alleged offense," rather than the law as explained in the jury instructions. Acosta v. Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013) (citing Lawton v. Commonwealth, 354 S.W.3d 565 (Ky. 2011)).
A directed verdict is appropriate in situations where the Commonwealth has offered "no more than a mere scintilla of evidence[.]" Acosta at 816. A court must consider the evidence as a whole, assume the truth of the Commonwealth's evidence, draw all fair and reasonable inferences in the Commonwealth's favor, and leave questions of weight and credibility to the jury. Id. "The testimony of even a single witness is sufficient to support a finding of guilt, even when other witnesses testified to the contrary if, after consideration of all of the evidence, the finder of fact assigns greater weight to that evidence." Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky. 2002).
Admissibility of evidence is entirely within the discretion of the trial court. Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001). Therefore, evidentiary rulings of a trial court are reviewed for abuse of discretion. Dunlap v. Commonwealth, 435 S.W.3d 537, 553 (Ky. 2013). An appellate court must reverse a trial court's ruling as an abuse of discretion if it was "...arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
B. THE TRIAL COURT'S ADMISSION OF THE STATEMENT OF GENE
CALLOWAY TO JIMMY CALLOWAY WAS NOT AN ABUSE OF
DISCRETION, BUT THE TRIAL COURT DID ABUSE ITS DISCRETION
AS IT RELATES TO THE STATEMENT TO MILDRED DUNNING
Given that this Court must examine the evidence as a whole in order to determine whether the trial court appropriately denied the directed verdict motions, we must necessarily determine first whether the challenged evidence should have been admitted. There are two statements by Gene which the trial court admitted. The first statement is that made to Jimmy where Gene admits to burying Patsy's body. The second statement is that made to Mildred in convincing her to promise not to reveal she had seen a woman walking along Highway 231.
As a threshold matter, Debra argues under Parker v. Gladden, 385 U.S. 363 (1966) and Crawford v. Washington, 541 U.S. 36 (2004), that admission of these statements amounted to a violation of the Confrontation Clause. Gene's death in 2013, clearly rendered him unavailable to testify, and where an unavailable declarant makes a testimonial statement, if no opportunity for cross-examination was given, Crawford demands exclusion. Id. at 59. This rule applies even if the statements fall within an established hearsay exception. Id. As the late Justice Scalia noted, "[l]eaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices." Id. at 51.
Crawford analysis necessarily includes a determination of whether a given statement was testimonial in nature. Crawford described testimonial statements as those "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]" Id. at 52. (See also Manery v. Commonwealth, 492 S.W.3d 140 (Ky. 2016)). The Supreme Court offered clarification of Crawford in Davis v. Washington, 547 U.S. 813 (2006). Noting that "the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions" (Id. at 826), the Davis Court also described "testimonial" statements as those given to law enforcement in circumstances objectively indicating no ongoing emergency and with the primary purpose of "establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution." Id. at 823.
Here, the circumstances indicate the statements are non-testimonial. Gene made the statements, in a non-emergent situation, to his siblings, and not to law enforcement. Gene had no reasonable basis to believe any statements he made in conversations with his family would later become evidence in trial proceedings.
Thus, the exclusionary rule espoused in Crawford does not apply to demand exclusion of these statements, and our analysis moves on to the application of the Kentucky Rules of Evidence (KRE).
As the party seeking admission of the statements, the Commonwealth bears the burden of proving their admissibility. Fugett v. Commonwealth, 250 S.W.3d 604 (Ky. 2008). The Commonwealth contended, and the trial court agreed, these statements fell under the "statements against interest" exception to the hearsay rule found in KRE 804(b)(3). Rule 804(b)(3) states as follows:
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the
declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.Precedent establishes a test with four factors to weigh in determining whether a statement against interest was sufficiently trustworthy to apply the exception and admit such hearsay statements. First is the time of the declaration and to whom it was made. The second is the existence of corroborating evidence. The third factor is the extent to which the statement is actually against the declarant's interest. The final factor is the availability of the declarant as a witness. Fugett at 619 (quoting Crawley v. Commonwealth, 568 S.W.2d 927 (Ky. 1978)). In analyzing a statement under this test, courts should consider the circumstances surrounding the making of the statement. Fugett at 620.
Ballard testified that Jimmy's statement served as a "big starting point" for the dormant investigation, which led to the collection of other evidence, which in turn led to the indictments.
The time of the declaration and to whom it was made weigh in favor of admissibility as to the statement to Jimmy. The context of the statement to Jimmy places it close in time to Patsy's disappearance. While Debra attempts to argue that the statement is untrustworthy because it was disclosed by Jimmy at a time when he had "motivation to testify," that argument would go to the weight and not the admissibility of the evidence.
Gene's statement to Mildred stands in contrast to the statement to Jimmy. While the statement to Jimmy was seemingly made at or near the time of the offense, the statement to Mildred was made two decades later, shortly before Gene's death in 2013. This weighs against admission.
Corroborating evidence supports admissibility for Jimmy's testimony of Gene's statement to him. Jimmy testified that Gene had told him he had buried the body, which Jimmy had observed concealed in garbage bags on Gene's property. Amy's testimony that Gene and Debra had told her that they had been "throwing away garbage" corroborates Jimmy's statement and testimony, as does Amy's testimony concerning the muddy shovels she saw in the back of Gene's car that night. That Ballard was unable to find the body buried in mud fifteen years after its concealment does not outweigh the consistency between Jimmy and Amy's testimony as to their own observations.
Mildred's statement has no such corroboration. Amy's testimony indicated she did not recall what night she witnessed the woman walking along Highway 231, nor did she testify that she identified the woman as Debra.
With regard to the third factor, Debra urges a reading of KRE 804(b)(3) that both the statements to Jimmy and to Mildred could not be against Gene's penal interest, because it could no longer be used against him in a prosecution after his death. However, the inclusion of the phrase "tending to expose the declarant to criminal liability" in the text of the rule indicates that it is the nature of the statement, and not its actual use in a criminal proceeding, that defines whether it is against the declarant's interest. Thus, the dismissal of the charges against Gene because of his death, or his death itself, are of no consequence in this Court's analysis of whether the statement was actually against his interest. This factor also weighs in favor of admissibility, as the statement to Jimmy was clearly against Gene's interest.
Taken as a whole, the different circumstances surrounding these statements justify different treatment. Gene's statement to Jimmy was close in time to the events concerned in the statement, and corroborated by other evidence. Gene made his statement to Mildred twenty years after the events, and it lacks any corroboration. Thus, the trial court correctly admitted Gene's statement to Jimmy, as it bears sufficient indicia of reliability, but, the statement to Mildred lacks such signals under Fugett, and we must conclude that the trial court abused its discretion in admitting it.
C. THE TRIAL COURT'S ERROR IN ADMITTING THE HEARSAY
STATEMENT FROM GENE CALLOWAY TO MILDRED DUNNING WAS
HARMLESS
"Virtually all errors... are subject to harmless error analysis." Crossland v. Commonwealth, 291 S.W.3d 223, 231 (Ky. 2009). Rule 9.24 of the Kentucky Rules of Criminal Procedure (RCr) defines "harmless error" as one which "does not affect the substantial rights of the parties." RCr 9.24. The test of whether an error was harmless consists of an inquiry into "whether the error itself had substantial influence" on the outcome of the trial. Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) (quoting Kotteakos v. U.S., 328 U.S. 750, 765 (1946)).
The error in allowing Mildred to testify as to Gene's 2013 comments to her did not impact the ultimate outcome of the trial. That testimony indicated Gene's awareness of Debra being seen on the side of the road in disguise on the day of Patsy's disappearance, but was not critical to the Commonwealth's ability to prove facts essential to the inference that Debra aided Gene or provided the opportunity for him in the commission of the murder. Evidence that Gene knew Debra walked along the highway that afternoon, strengthens the factual support for the inference that Debra knowingly provided the opportunity for Gene to murder Patsy. Yet, the hearsay statement from Gene only serves to enhance the credibility of Mildred's other testimony, which was based on her own observations.
D. THE TRIAL COURT DID NOT ERR IN DENYING THE
APPELLANT'S MOTION FOR DIRECTED VERDICT AS IT RELATED
TO THE FACILITATION TO MURDER CONVICTION
In order to be convicted of the offense of criminal facilitation, a person must meet the elements listed in KRS 506.080(1). A person must, while acting with knowledge that another person is committing or intends to commit a crime, engage in conduct which knowingly provides such person with either means or opportunity to commit said crime, and in fact aid such person in his or her commission thereof. In this instance, it means the proof must have established beyond a reasonable doubt that: 1) Debra knew Gene was murdering or intended to murder Patsy, 2) knowingly provided him with means or opportunity to so, and 3) her assistance actually helped him to do so.
The record contains no direct or physical evidence of Patsy's murder. However, direct evidence is unnecessary. Intent and knowledge may be inferred from circumstantial evidence. McRay v. Commonwealth, 675 S.W.2d 397 (Ky.App. 1984). While the Commonwealth's evidence does not need to eliminate "every hypothesis except guilt beyond a reasonable doubt" (Ratliff v. Commonwealth, 194 S.W.3d 258, 267 (Ky. 2006)), the circumstantial evidence the Commonwealth presents needs to "do 'more than point the finger of suspicion'" at a defendant to justify conviction. Davis v. Commonwealth, 795 S.W.2d 942, 945 (Ky. 1995) (quoting Matthews v Commonwealth, 481 S.W.2d 647, 648-649 (Ky. 1972)). It needs to "point unerringly" to guilt. Hendrickson v. Commonwealth, 259 S.W.2d 1, 5 (Ky. 1953).
The Commonwealth points to Ricky's testimony placing Gene and Debra together at the hospital near the alleged time of the murder as proof of Debra's facilitating role. That evidence is contrasted with undisputed evidence that Debra was not seen by either Likens or Hertzog with Gene or Patsy during their confrontation at the residential medical facility or when Patsy left with Gene. Evidence actually established that Debra was working elsewhere within the building.
While the record does contain evidence that Debra may have been aware of Gene's vague and general threat to kill anyone who could send him back to prison, no direct proof exists in the record that Debra had any knowledge that Gene intended to kill Patsy that day. To support an inference of guilt, the Commonwealth must have offered facts tending to show Debra possessed an awareness of Gene's intentions relating to Patsy that day. The Commonwealth offered the testimony of Mildred, who saw a woman she identified as Debra disguised as Patsy, walking along the highway at or near the assumed time of Patsy's death. This testimony is sufficient to establish an inference that Debra was acting in such a way as to provide Gene with an opportunity to complete the murder. However, the lack of evidence establishing Patsy's actual time of death weakens this inference.
Nevertheless, our standard of review is whether the Commonwealth presented more than a scintilla of evidence, which it did, in the form of Mildred's testimony. Taking the totality of the circumstances into consideration, we must conclude that the trial court properly denied the motions for directed verdict on this charge.
E. THE TRIAL COURT DID NOT ERR IN DENYING THE
APPELLANT'S MOTION FOR DIRECTED VERDICT AS IT
RELATED TO THE COMPLICITY TO TAMPERING WITH
PHYSICAL EVIDENCE CHARGE
Tampering with physical evidence is defined in KRS 524.100. The offense has the following elements: 1) a person, believing that an official proceeding is pending or may be instituted, 2) destroys, mutilates, conceals, removes, or alters physical evidence, which he believes is about to be produced or used in the official proceeding, with the intent to impair its verity or availability in the official proceeding, or 3) fabricates any physical evidence with intent to introduce it in the official proceeding, knowing it is fabricated or altered.
In order to convict, the Commonwealth must have shown proof beyond a reasonable doubt of several facts. First, the Commonwealth must have shown that Gene believed evidence would be used against him in a proceeding related to Patsy's disappearance. Second, the Commonwealth must have shown that, with that knowledge in mind, Gene concealed or removed Patsy's body, and the purpose behind that concealment was to impair its availability as evidence against him. Third, the Commonwealth must show that Debra aided Gene by assisting him in such concealment of destruction. Finally, the Commonwealth must show that, in aiding Gene, Debra acted with intent to render such evidence unavailable at Gene's trial.
The evidence presented at trial satisfied each element of proof required for a conviction in this instance. Gene's belief that Patsy's body might be used against him may be inferred from his actions in the circumstances, and was implicitly stated in the letter hidden away in the lockbox. Jimmy's testimony, even without considering the hearsay portions, adequately establishes Gene's concealment of Patsy's body and the evidence of the body having been in his vehicle. The same testimony established Debra's role in its disposal. Amy's testimony and that of the forensic technician supplement and corroborate Jimmy's testimony. Debra's intent may be inferred from this proof.
The evidence presented here is more than a mere scintilla and inference. Thus, the trial court correctly determined that Debra had not shown entitlement to directed verdict on this charge. After having been properly instructed, the jury was entitled to weigh the credibility of the evidence, and that role is not for an appellate court to later disrupt. Suttles at 426 (citing Commonwealth v. Jones, 880 S.W.2d 544 (Ky. 1994)).
Debra did not argue at any point that the jury instructions were defective --------
F. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S
MOTION FOR DIRECTED VERDICT AS IT RELATED TO THE
FACILITATION TO RETALIATION AGAINST A
PARTICIPANT IN THE LEGAL PROCESS CHARGE
The indictment charged Debra with facilitating Gene in engaging in conduct causing or intending to cause bodily injury to Patsy based on the belief that Patsy would be called to participate in the legal process or an official proceeding.
KRS 524.055 defines the offense, and states in relevant part:
(1) A person is guilty of retaliating against a participant in the legal process when he or she
engages or threatens to engage in conduct causing or intended to cause bodily injury or damage to the tangible property of a participant in the legal process or a person he or she believes may be called as a participant in the legal process in any official proceeding or because the person has participated in a legal proceeding:The elements of criminal facilitation discussed above apply equally to this charge. "[S]imple knowledge that a crime will be committed is not enough to satisfy the knowledge element for facilitation...." Commonwealth v. Nourse, 177 S.W.3d 691, 700 (Ky. 2005) (emphasis in original). "Instead, the defendant must have knowledge that the principal actor intends to commit the crime the defendant is actually charged with facilitating." Finnell v. Commonwealth, 295 S.W.3d 829, 833-34 (Ky. 2009) (citing Nourse).
[...]
(b) Giving information to a law enforcement officer relating to the possible commission of an offense or a violation of conditions of probation, parole, or release pending judicial proceedings[.]
The proof required as to the principal actor's crime differs between murder and retaliation against a participant in the legal process. Unlike murder, retaliation requires proof of motive. Absent knowledge of the principal actor's motive, the defendant cannot know that the crime he or she is facilitating is retaliation against a participant in a legal proceeding. In other words, the Commonwealth must offer proof that Debra knew that Gene intended to murder Patsy to prevent her from taking part in a legal proceeding or process. Without such proof, the Commonwealth's evidence is insufficient for conviction under Nourse and Finnell.
The Commonwealth's proof on this charge suffers from a fatal flaw: no evidence in the record supports an inference of Debra's knowledge of Patsy's present intent to alert the authorities as to the arson conspiracy. Absent sufficient evidence for a jury to infer Debra shared Gene's knowledge, the Commonwealth's theory as to this count of the indictment fails. As the Commonwealth presented no proof as to an essential element, the trial court abused its discretion when denying Debra's motion for directed verdict on this offense.
III. CONCLUSION
This Court, having reviewed the record, concludes that reversible error occurred only as to one of the convictions. Therefore, we AFFIRM the portion of the judgment of conviction relating to the facilitation to murder and as it relates to the conviction for complicity to tampering with physical evidence. However, we conclude that the trial court abused its discretion in denying the directed verdict motion as to the facilitation of retaliation against a participant in a legal proceeding, and the judgment as to the retaliation conviction is accordingly REVERSED.
ALL CONCUR. BRIEF FOR APPELLANT: Julia K. Pearson
Assistant Public Advocate
Dept. of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky David B. Abner
Assistant Attorney General
Frankfort, Kentucky