Opinion
NO. 2013-CA-001035-MR
05-29-2015
GILBERT WAYNE GRUBBS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Erin Hoffman Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 12-CR-00391
OPINION
AFFIRMING
BEFORE: COMBS, D. LAMBERT, AND VANMETER, JUDGES. VANMETER, JUDGE: Gilbert Grubbs was convicted of theft by unlawful taking over $500, a felony, and sentenced to 45 months' imprisonment. On appeal, Grubbs attacks the validity of his conviction on three bases. First, Grubbs claims the jury instructions concerning complicity were improper and denied his right to a unanimous verdict. Second, Grubbs argues the evidence provided by the Commonwealth was insufficient to prove the value of the retail items. Lastly, Grubbs asserts he was prejudiced during the sentencing phase of his trial when a probation and parole officer misstated one charge and used a court numbering system to describe other prior convictions. We hold that the Hardin Circuit Court properly instructed the jury, did not err in denying Grubbs's motion for a directed verdict on the valuation issue, and any error in Grubbs's sentencing phase was harmless and does not require reversal. We therefore affirm the trial court's judgment.
I. Facts and Procedure
On June 19, 2012, Grubbs, Dereco Love, Marcelle Majors, and Yolanda Trice were charged with theft by unlawful taking from Kohl's, a department store in Elizabethtown. Upon arriving at Kohl's that day, Grubbs and the three other defendants were immediately flagged as suspicious by the loss prevention officer, Alyson Stucker. Stucker monitored the movement of the four individuals as they moved throughout the store. Love had a shopping cart with him and placed many different items into the cart as he walked through Kohl's. Grubbs was with Love and Trice in the men's department for a short time, and Trice put some pants in the cart before separating from Grubbs and Love. Grubbs was observed putting items of clothing down his pants and in his shirt. Grubbs then pulled out a clear plastic bag and deposited more items of clothing into it. Grubbs and Love then abandoned the shopping cart near a store exit and proceeded into the parking lot.
As they attempted to leave, they were stopped by Stucker and two police officers. Love had no items on his person while Grubbs was holding the plastic bag full of clothes and had pieces of clothing down his waistline. They were arrested and charged with theft by unlawful taking. Trice and Majors left Kohl's approximately two minutes after Grubbs and Love and were apprehended at a nearby restaurant. Kohl's merchandise was found abandoned in the restaurant's bathroom.
Stucker recorded the value from the price tag of each piece of stolen merchandise. The merchandise recovered from Grubbs was valued at $687. The value of the merchandise taken by Trice was $282 and the value of the merchandise taken by Majors was $625.50. In all, the value of the merchandise taken from the store totaled $1,594.50. At trial, Stucker testified that she did not know what Kohl's had paid for the merchandise, or whether any of the items were on sale on the day in question.
Grubbs was tried together with Love and Trice. Majors was tried separately due to unavailability of conflict counsel. The Commonwealth presented two theories of guilt for Grubbs during trial. It argued he could be found guilty as either a principal acting alone or, alternatively, in complicity with the other defendants. The indictment so charged Grubbs and the instructions submitted to the jury combined these two theories. Grubbs was convicted of theft by unlawful taking over $500, a felony, whereas Trice and Love were each convicted of theft by unlawful taking under $500, a misdemeanor. After the verdict, Grubbs renewed his motion for a directed verdict, claiming Love and Grubbs handled the same items, the verdicts were inconsistent, and the Commonwealth failed to present sufficient evidence that the merchandise was valued above $500. The trial court denied his motion and thereafter sentenced Grubbs to 45 months, in accordance with the jury's recommendation. Grubbs now appeals.
II. Jury Instructions
Grubbs first alleges the court erred in giving jury instructions for alternative theories of guilt, allowing the jury to convict under either a theory of complicity or a theory that Grubbs acted alone. Specifically, the instruction included the following language: "the Defendant acted alone or with a person or persons with whom the Defendant acted in complicity[.]"
Whether a trial court issued the proper jury instruction is a question of law, which we review de novo. Carver v. Commonwealth, 328 S.W.3d 206, 209 (Ky. App. 2010). The Kentucky Supreme Court has long approved of jury instructions which combine principal/accomplice liability theories in a single instruction. See Campbell v. Commonwealth, 732 S.W.2d 878, 880 (Ky. 1987) (holding that "[t]he instruction on burglary properly advised the jury they could find [the defendant] guilty as either a principal or an accomplice[]"); Ray v. Commonwealth, 550 S.W.2d 482, 484 (Ky. 1977) (approving alternative instruction forms which include combination of principal/accomplice liability theories). As explained in Cooper's Kentucky Instructions to Juries,
A clear perception of the nature of accomplice liability under the penal code begins with an understanding that complicity constitutes guilt of the primary offense itself, making complicity an alternate means of committing an offense as opposed to a distinct
crime. Therefore, a single instruction may include the alternative grounds of actor or complicitor.Cooper & Cetrulo, Kentucky Instructions to Juries, Criminal, §10.01 (emphasis added). In a more recent case, jury instructions which combined principal/accomplice liability for a murder charge were approved. See Peacher v. Commonwealth, 391 S.W.3d 821, 841 (Ky. 2013) (approving "an instruction which allowed for a guilty verdict if the jury believed beyond a reasonable doubt that Peacher caused the criminal result - Christopher's death - either 'acting alone or in complicity with another[]'").
In this case, Grubbs tendered jury instructions encompassing complicity liability. At the close of the case, he moved for a directed verdict on the complicity theory of the theft, conceding his exercise of control over Kohl's property, but arguing that no evidence existed that anyone helped him leave the store with the items. Having reviewed the record, we believe the trial court properly instructed the jury.
III. Evidence of Retail Items' Value
Grubbs's second allegation is that the Commonwealth failed to provide sufficient evidence of the stolen items' value, thus entitling him to a directed verdict of acquittal on the felony theft charge. The standard to be observed by trial courts in ruling on such a motion is as follows:
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.Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.
Grubbs was charged with theft by unlawful taking in violation of KRS 514.030. If the value of the items stolen was over $500, then Grubbs could be convicted of felony theft. See KRS 514.030(2)(d) (theft by unlawful taking over $500 but less than $10,000 is a Class D felony). Thus, to convict Grubbs of theft by unlawful taking over $500, "the Commonwealth must prove the market value of the stolen items at the time and place of the theft." Commonwealth v. Reed, 57 S.W.3d 269, 270 (Ky. 2001).
Kentucky Revised Statutes.
In Irvin v. Commonwealth, 446 S.W.2d 570 (Ky. 1969), our highest court addressed the sufficiency of proof regarding the retail price of goods, stating "[t]he retail price at which an item is offered for sale by a merchant in the ordinary course of business represents an expert's opinion of what it will bring from a willing buyer at that time and place, and a jury is free to accept it as correct." Id. at 572. The Court in Irvin further noted that the trial court, as in this case, had instructed on both felony and misdemeanor theft, "so that if . . . the jurors entertained a reasonable doubt as to . . . the value of the property stolen . . . they could find the appellants guilty of [misdemeanor theft.]" Id. at 572-73.
Grubbs cites two cases from other jurisdictions in support of his argument that the Commonwealth's proof of value was insufficient. The New Mexico Supreme Court, in State v. Contreras, 915 P.2d 306 (N.M. 1996), interpreting its law, acknowledged the rebuttable presumption that "ordinarily an item's ticket price is sufficient evidence of market value." Id. at 307. However, based on evidence at trial that the ticket price exceeded market value and that the store never sold fine jewelry at its original ticket price (usually fine jewelry was discounted 50% to 60% off ticket price), the court held that a gold necklace's ticket price did not support the felony shoplifting charge. Id. at 308. In People v. Irrizari, 156 N.E.2d 69, 71 (N.Y. 1959), New York's highest court upheld a conviction for theft over $100, stating "[w]here, then, the property is stolen from a department store, the price at which it is there listed ordinarily reflects its market value[,]" but noted other evidence bearing on price at which merchandise may be sold may be considered.
In this case, the items' value was established by the retail price on each piece of clothing. The total value of all items taken by the four defendants was $1,594.50; the value of items taken by Grubbs himself and recovered from him in the parking lot was $687. No witness testified that the items were on sale, or that the digital display above the Kohl's clothing racks indicated a lesser or discounted price for the items on the day of the theft. Grubbs offered no affirmative evidence to rebut the Commonwealth's figure. The jury was free to reject the Commonwealth's offer of value but chose instead to accept that Grubbs was guilty of theft, either alone or in complicity with others, of items having a value in excess of $500.
Grubbs merely argued that the true value was something other than price reflected on the clothing tag. Contreras and Irrizari, cited by Grubbs, actually support the Commonwealth's position since no evidence was introduced to rebut the Commonwealth's proof of value. Thus, the trial court did not err in denying Grubbs's motion for a directed verdict.
IV. Sentencing Phase
Lastly, Grubbs asserts that the trial court abused its discretion in denying his motion for a mistrial with respect to the testimony of the probation and parole officer, Steven Whitely, concerning Grubbs's prior convictions, and in allowing Whitely to explain the court numbering system to the jury.
KRS 532.055(2)(a) allows for the Commonwealth to, among other things, present evidence of a defendant's prior convictions and the nature of those offenses during the sentencing phase of a trial. However, the Commonwealth may not present evidence of charges that have been amended, dismissed or set aside; it may only present offenses for which the defendant has been convicted. Blane v. Commonwealth, 364 S.W.3d 140, 152 (Ky. 2012).
A mistrial
"is an extreme remedy and should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity. The error must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way[.]"Tunstull v. Commonwealth, 337 S.W.3d 576, 591 (Ky. 2011) (quoting Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005) (citations and internal quotation marks omitted) (overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010)). "Whether to grant a mistrial is within the sound discretion of the trial court, and the trial court's ruling will not be disturbed absent an abuse of that discretion." Tunstull, 337 S.W.3d at 591. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair or unsupported by sound legal principles." Woodard v. Commonwealth, 147 S.W.3d 63, 67 (Ky. 2004) (internal quotations and citations omitted).
During the sentencing phase of trial, Whitely testified to Grubbs's convictions in 17 separate cases, totaling 39 different offenses, including twelve felonies in four cases: (i) 1981, felony theft by unlawful taking; (ii) 1994, robbery in the second degree; (iii) 1997, nine counts of forgery in the second degree, enhanced by a persistent felony offender conviction; and (iv) 1999, felony theft by unlawful taking. In addition, Grubbs had 22 misdemeanor convictions for theft by unlawful taking. In recounting Grubbs's criminal convictions, Whitely initially read the indictment of the 1999 felony, which had been charged as robbery in the second degree, but was subsequently amended to theft by unlawful taking over $500. Grubbs objected and moved for a mistrial. The trial court offered an admonition, but Grubbs declined. The trial court then instructed the Commonwealth to clarify with Whitely that he had misspoken. The Commonwealth did so, noting that the 1994 case was for robbery, but that the 1999 case was for theft by unlawful taking.
The presumption is that a jury will heed an admonition and that it will sufficiently cure an erroneous admission of evidence. Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005). A defendant is not entitled to a mistrial when he refuses an admonition that would have remedied the problem. Id. at 18. Here, the trial court not only offered to give an admonition, but also directed the Commonwealth to clarify with Whitely his misstatement. Under these circumstances, in which the probation and parole officer misspoke and then corrected himself, we do not believe the extreme remedy of a mistrial was warranted.
As to the court numbering system of prior convictions, Whitely explained that the first two numbers represented the year; the letter "M" stood for a misdemeanor case in district court; the letter "F" stood for a case in district court that began as a felony; and the letters "CR" represented a grand jury indictment in circuit court. The number following the letters represented the number of people charged that year. Grubbs objected because a couple of his charges started as felonies before being amended to misdemeanors and argued the jury would now be aware of this by hearing that "F" cases began as felonies. The court overruled his objection and explained that the documents would not go back with the jury and that explaining the numbering system would help avoid juror confusion.
An appellate court reviews a trial court's evidentiary rulings for an abuse of discretion, i.e., "whether the trial judge's decision was arbitrary, unreasonable, unfair or unsupported by sound legal principles." Woodard, 147 S.W.3d at 67. Grubbs has not cited any authority holding that a witness is not permitted to describe the court numbering system. Rather, as the trial court noted in this case, such an explanation could help to avoid juror confusion.
Though introduction of evidence of an original charge which has been amended is not permitted, in this instance if any error occurred as a result of Whitely's explanation of the court numbering system, the error was harmless. RCr 9.24 provides:
Kentucky Rules of Criminal Procedure.
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No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.The Kentucky Supreme Court has elaborated,
A non-constitutional evidentiary error may be deemed harmless, the United States Supreme Court has explained, if the reviewing court can say with fair assurance that the judgment was not substantially swayed
by the error. The inquiry is not simply "whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009) (quoting Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed 1557 (1946)).
Here, the jury heard evidence of Grubbs's 39 prior convictions, including 12 felonies, and still only sentenced him to 45 months of a possible 60-month maximum sentence. Based on the foregoing, we do not believe Whitely's general explanation of the court numbering system substantially affected Grubbs's rights so as to require reversal under RCr 9.24. See St. Clair v. Commonwealth, 451 S.W.3d 597, 631-32 (Ky. 2014) (holding that harmless error review is appropriate for alleged error occurring during sentencing phase); Melson v. Commonwealth, 772 S.W.2d 631, 633 (Ky. 1989) (holding that admission of non-final convictions during truth-in-sentencing phase of trial was harmless error since convictions have since been affirmed and the time to file a Petition for Rehearing has elapsed, and defendants had sufficient admissible prior convictions to justify a PFO instruction).
V. Conclusion
For the above stated reasons, the Hardin Circuit Court's judgment is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Erin Hoffman Yang
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky