Opinion
NO. 2013-CA-000808-MR NO. 2013-CA-000871-MR
03-11-2016
EDDIE JOE JENKINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND ANDREW S. HODGE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT EDDIE JOE JENKINS: Gene Lewter Frankfort, Kentucky BRIEF FOR APPELLANT ANDREW S. HODGE: Brandon Neil Jewell Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 12-CR-00305-003 APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 12-CR-00305-001 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND KRAMER, JUDGES. CLAYTON, JUDGE: This appeal involves two defendants who were convicted for the robbery and assault of three individuals. Based upon the following, we affirm the decisions of the trial court.
BACKGROUND SUMMARY
On March 25, 2012, Thomas Talbert was attacked and assaulted around 8:00 p.m. Talbert testified that he was walking down a street when he was hit from behind with a baseball bat. Talbert stated that he saw two men and a woman assaulting him. The woman demanded he give them his wallet and, when he refused, one of the men pulled it from his pocket.
Talbert could not identify his attackers, but stated that there were two men and one woman, that the two men had dark hair and the female had blonde hair, that they spoke bad English and that they were slight of build. Talbert also stated that he thought the bat was aluminum.
Around 11:00 p.m. on the same night that Talbert was attacked, Sean Steininger and Andrea Enders were robbed near the Lee's Famous Recipe restaurant in Covington, Kentucky. They were in an alley near the restaurant when a car approached and three individuals exited the car. Steininger stated that he saw two men and a woman approaching him and that they were Caucasian, short and skinny. Enders, however, described the female in more detail. Enders stated that the woman was very short, slim to average build to the point of unhealthy and that she remembered her face.
Credit cards taken from the victims during the robbery were used at Walmart and Speedway. On March 25, 2012, Brandon Thornton and his father obtained the license plate number of a car from which two white males got out and began checking car doors to see if they were unlocked. Thornton called 911 and gave the license plate number of the vehicle.
Appellant Eddie Jenkins, his girlfriend, Lisa Hodge and her brother, Appellant Andrew Hodge were arrested and charged with three counts of Robbery I, one count of Assault I, and three misdemeanors. After a jury trial, the Appellants and Lisa Hodge were convicted and the Appellants brought separate appeals.
STANDARD OF REVIEW
We review allegations of jury instruction errors de novo as they are questions of law. Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006). In reviewing alleged errors involving evidentiary rulings by the trial court, we use the abuse of discretion standard of review. Tumey v. Richardson, 437 S.W.2d 201, 205 (Ky. 1969). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
DISCUSSION
JENKINS: NO. 2013-CA-000808-MR
Jenkins first contends that he was deprived of due process of law under the Fourteenth Amendment to the United States Constitution by the trial court's denial of his motion for a directed verdict on each of the felony counts of the indictment. At the conclusion of the Commonwealth's case-in-chief, counsel for Jenkins moved for a directed verdict on all counts set forth in the indictment. The trial judge overruled the motion stating that there was sufficient evidence given Jenkins's DNA on the bat used during the assault of Talbert as well as evidentiary links between the three alleged perpetrators, Jenkins and the Hodges.
In Spivey v. Sheeler, 514 S.W.2d 667,673 (Ky. 1974), the Kentucky Supreme Court held that:
In a ruling upon a motion for directed verdict, the trial court must draw all fair and rational inferences from the evidence in favor of the party opposing the motion, and a verdict should not be directed unless the evidence is insufficient to sustain the verdict. The evidence of such party's witness must be accepted as true.Id. (quotation and citation omitted.)
In the present case, there was DNA from Jenkins on the bat. He was the driver of the vehicle which was pulled over after Thornton had given 911 operators the license plate number. Jenkins had credit cards that belonged to Enders on his person. Jenkins was also Lisa Hodge's boyfriend and the father of one of her children. This evidence was sufficient for the trial court to deny Jenkins's motions for a directed verdict.
Jenkins next argues that he was denied a fair trial under the due process clause of the Fourteenth Amendment because the jury instructions on each of the robbery charges and the assault charge were flawed on both the principle and the complicity aspect, including the credit card instructions. Specifically, he asserts that the assault instructions simply refer to the commission of "the" robbery with no definition of robbery. He also contends that, in Instruction No. 6, the trial court continued to assume a generic meaning of the crime of robbery, stating that there was a "common understanding" of the meaning and that it was defined at another part in the Instructions.
Instruction No. 6 provided as follows:
If you do not find the defendant, Eddie Joe Jenkins, guilty of Assault in the First Degree under Instruction No. 5, you will find him guilty of Assault in the Second Degree under Count One of the Indictment and under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in Kenton County on or about March 26, 2012, and before the finding of the indictment herein, Eddie Joe Jenkins voluntarily participated in the robbery of Thomas Talbert;
AND,
B. That during the course of that robbery and as a consequence thereof, Thomas Talbert sustained a Serious Physical Injury by being struck with a bat;
AND
C. That either,
(1) Both
a. The bat was a dangerous instrument as defined in Instruction No. 4;For this reason, Jenkins contends the assault instruction was in error and that, therefore, his judgment must be reversed.
AND,
b. By so participating in the robbery, Eddie Joe Jenkins was acting wantonly with respect to the injury inflicted upon Thomas Talbert.
OR,
(2) Eddie Joe Jenkins was acting intentionally with respect to the injury inflicted upon Thomas Talbert.
Jenkins also contends that the Robbery Instructions were in error. Specifically, he contends that while the instructions provided the definition for complicity, a complicity instruction was not given and the instructions omitted crucial points required to establish complicity.
Kentucky Revised Statutes (KRS) 502.020(1) defines the offense of Complicity as follows:
A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
(b) Aides, counsels, or attempts to aid such person in planning or committing the offense....
Jenkins points to the Commentary of KRS 502.020 which provides as follows:
To be guilty under subsection (1) for a crime committed by another, a defendant must have specifically intended to promote or facilitate the commission of that offense. This means that the statute is not applicable to a person acting with a culpable mental state other than "intentionally." After establishing this mental element for complicity liability, subsection (1) describes the types of activity that suffice to make one person responsible for the criminal act of another.Jenkins contends that each robbery instruction was worded in such a way as to obtain a conviction for each person as either the principal or an accomplice. He argues that "standing by ready to aid" is not in the definition of Complicity. Instead, he states that the Complicity statute clearly requires that one actually aid or attempt to aid in order to be guilty of complicity. This requires an individual to commit an overt act rather than simply be "standing by ready to aid" in order to be found guilty of complicity. He contends that not only was there no evidence under subsection (a) that he solicited, commanded, or engaged in a conspiracy with Andrew or Lisa Hodge, or (b) that he aided, counseled, or attempted to aid Andrew or Lisa Hodge in planning or committing the offense, there was no such requirement in the instructions that the jury so find.
The Commonwealth contends that Jenkins did not properly preserve the error. Kentucky Rules of Criminal Procedure (RCr) 9.54(2) provides that "[n]o party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection." Jenkins asserts that the issues are palpable error under RCr 10.26. That rule provides that "[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."
In Martin v. Commonwealth, 409 S.W.3d 340 (Ky. 2013), the Kentucky Supreme Court held that "[a]lthough 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." In Brown v. Commonwealth, 780 S.W.2d 627, 629 (Ky. 1989), the Kentucky Supreme Court ruled that, "[t]he objection of an attorney for one codefendant will not be deemed to be an objection for the other codefendant unless counsel has made it clear that in making the objection it is made for both defendants." (Citing Price v. Commonwealth, 474 S.W.2d 348 (Ky. 1971), and Ross v. Commonwealth, 577 S.W.2d 6 (Ky. App. 1977). Thus, this Court will not consider arguments by Jenkins which were not preserved for appeal. Neither the Assault instruction nor the Robbery instructions were raised by counsel for Jenkins, thus we find there is no appealable issue.
Jenkins's final argument is that he was denied due process by the failure of the trial court to provide him with a fair trial. Specifically, Jenkins argues that the testimony of officers regarding what they believed should not have been admitted. The trial court admitted the testimony over the objection of counsel for the other defendants, holding that it was admissible to show the jury why the officers were doing what they were doing and that the jury should decide whether the officers' thought processes were correct in reaching the conclusions they did. Jenkins's counsel did not object.
The police officers testified as to why they went to the second scene stating that it was similar to the first scene. In Sanborn v. Commonwealth, 754 S.W.2d 534, 541 (Ky. 1988), the Kentucky Supreme Court held as follows:
The rule is that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information and the taking of that action is an issue in the case. Such information is then admissible, not to prove the facts told to the police officer, but only to prove why the police officer then acted as he did. It is admissible only if there is an issue about the police officer's action.In this case, the officers testified about events which caused them to take the action they did. There was no error on this issue and therefore palpable error review is not required.
Finally, both Jenkins and Hodge argue that the testimony of Don Witt, an asset protection manager at Walmart who was contacted by police and asked to provide surveillance videos for March 26, 2012, in interpreting the video from that day was improper. They assert that, under Kentucky Rules of Evidence (KRE) 602, a witness may not testify to a matter unless he has personal knowledge of it. They contend that, while a witness who was present when recorded events occurred may testify from personal recollection while the tape plays, he may not interpret what is on the tape. Hodge also argues that when a witness interprets what is on a tape, he impermissibly invades the province of the jury. Cuzick v. Commonwealth, 276 S.W.3d 260, 265-66 (Ky. 2009).
After an objection to the testimony of Witt by Hodge's counsel to which Jenkins's counsel joined, the trial court ruled that he could testify what color the automobile appeared to be from his experience with the use of the video equipment. The only other objection made to the testimony was made by the attorney for Lisa Hodge regarding the signing of the credit card. The limited testimony by Witt and his uncertainty as to whether the car was silver or gold does not demonstrate that the defendants were injured by the testimony of Witt regarding the narration of the video. Thus, we affirm the trial court's decision on this issue. HODGE: NO. 2013-CA-000871-MR
Hodge also contends that the two police officers improperly told the jury that they believed the same people had committed each of the robberies in this case. He asserts that, during trial, a police officer testified that he was dispatched to Kavanagh Street soon after the first robbery. The officer told the jury that, based upon what he had heard while at the scene, he came to the opinion that the same people had committed both robberies. Our analysis of this issue is the same as it was for Jenkins, the trial court did not commit any error.
Hodge also asserts that the trial judge improperly denied his motion for a directed verdict of acquittal. The trial judge denied Hodge's motion for acquittal on all charges in the indictment, indicating that the evidence of Talbert's DNA on Hodge's boot was sufficient proof that he was at the scene of the robbery, that the use of the bat at both scenes tied the robberies together, and that there was evidence that he was at the Walmart when the victim's credit cards were used. In Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), the U.S. Supreme Court held that:
[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
In Trowel v. Commonwealth, 550 S.W.2d 530, 533 (Ky. 1977), the Kentucky Supreme Court ruled that, "[i]f under the evidence as a whole, it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal." In Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991), the Kentucky Supreme Court affirmed its prior holding in Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983), that the Kentucky standard of review was in compliance with the federal standard set forth in Jackson, supra. Having reviewed the evidence against Hodge under this standard, we have determined that there was sufficient evidence of the elements of the crimes and that the trial court did not err in denying the motion for directed verdict.
Finally, Hodge argues that the trial judge improperly instructed the jury on the assault and robbery charges. Hodge argues that the assault instructions simply refer to the commission of a robbery with no definition.
Instruction No. 6 provided as follows:
If you do not find the defendant, Andrew Scott Hodge, guilty of Assault in the First Degree under Instruction No. 5, you will find him guilty of Assault in the Second Degree under Count One of the Indictment and under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in Kenton County on or about March 26, 2012, and before the finding of the indictment herein, Andrew Scott Hodge voluntarily participated in the robbery of Thomas Talbert;
AND,
B. That during the course of that robbery and as a consequence thereof, Thomas Talbert sustained a serious physical injury by being struck with a bat;
AND,
C. That either,
(1) Both,
a. The bat was a dangerous instrument as defined in Instruction No. 4;
AND,
b. By so participating in the robbery, Andrew Scott Hodge was acting wantonly with respect to the injury inflicted upon Thomas Talbert.
OR,
(2) Andrew Scott Hodge was acting intentionally with respect to the injury inflicted upon Thomas Talbert.
The Robbery charge in Instruction No. 8 provides a definition for Robbery, but Hodge asserts that it was error to not also include it in Instruction No. 6. Since the jury instructions included an instruction of Robbery, we hold the trial court did not err in its jury instruction regarding the assault charge.
Hodge also contends that the robbery instructions were erroneous. As set forth above, KRS 502.020 provides the requirements for the offense of complicity. He argues that each of the robbery instructions was worded in such a way as to obtain a conviction for each person based upon either his or her conduct or that of another person as permitted by KRS 502.020, the complicity statute. He asserts that simply "standing by ready to aid" with the same intent as the principal is not sufficient for a person to be guilty of complicity to a crime. Instead, he argues that the complicity statutes require that the perpetrator aid or attempt to aid in order for him to be found guilty. KRS 502.020(1)(b) and (2)(b) specifically sets forth that one can be found guilty of the offense if he "[a]ids, counsels, or attempts to aid such person in planning or committing the offense..."
Jenkins's counsel did not object to the jury instruction; however, the instruction given by the trial court set forth the complicity elements as provided in KRS 502.020. Thus, the trial court sufficiently provided an instruction under which the jury could lawfully determine that Jenkins was guilty as an accomplice to robbery.
Thus, we hold that the trial court did not err in its instructions to the jury.
ALL CONCUR. BRIEF FOR APPELLANT EDDIE
JOE JENKINS: Gene Lewter
Frankfort, Kentucky BRIEF FOR APPELLANT ANDREW
S. HODGE: Brandon Neil Jewell
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky