Opinion
NO. 2017-CA-000206-MR
07-20-2018
ROBERT ANTHONY MARLOW APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven Nathan Goens Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE KENT HENDRICKSON, JUDGE
ACTION NO. 16-CR-00190 OPINION
AFFIRMING
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BEFORE: MAZE, TAYLOR, AND THOMPSON, JUDGES. MAZE, JUDGE: This appeal arises from a Harlan Circuit Court jury conviction of Appellant, Robert Anthony Marlow, for one count of receiving stolen property valued over $500, one count of tampering with physical evidence, and being a persistent felony offender, first degree. Marlow was sentenced to fifteen years. Marlow alleges that he was entitled to a directed verdict on the issues of receiving stolen property and tampering with physical evidence. He also alleges that prejudicial testimony was introduced. After a careful review of the record, we affirm.
Background
In September 2015, Jeffrey Gambrel and his girlfriend, Cathy Wynn, returned home to find their home burglarized. Many items were stolen. In November 2015, Gambrel and Wynn were in line at Christ's Hands in Harlan to receive food baskets. While in line, Gambrel saw that the person in front of him in line was wearing one of the Carhartt jackets that was stolen from his home. He then asked the individual where he got the jacket. It is alleged that the individual at first said something different but eventually said that he got the jacket from Marlow.
Gambrel and Wynn reported this information to the Police Chief. The Chief then prepared a search warrant. The Chief and two others executed the warrant at Marlow's home, where Marlow, his mother, and girlfriend were present. Nothing was found inside the home, but several items, including a pair of boots, a DVD player and a laptop were found outside on the back porch under a sheet of plywood. The items were some of the items stolen from Gambrel and Wynn, except for the laptop, which was stolen from another individual's home. Marlow at first stated that the items did not belong to him. He and his girlfriend then changed their story and stated that they had bought the items from someone else, though they did not name a specific individual.
Marlow was then arrested and subsequently indicted by the Harlan County Grand Jury for receiving stolen property over $500, tampering with physical evidence, and being a first-degree persistent felony offender. A jury trial was held, and Marlow was convicted on all charges. This appeal follows. Further facts will be developed as necessary to aid in the analysis.
Standard of Review
On appellate review, a trial court's denial of a motion for directed verdict should only be reversed "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]" Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d. 3, 4-5 (Ky. 1983)). In determining whether to grant a motion for directed verdict, the trial court must consider the evidence as a whole, presume the Commonwealth's proof is true, draw all reasonable inferences in favor of the Commonwealth, and leave questions of weight and credibility to the jury. Id. To grant a motion for a directed verdict, the Commonwealth must produce no more than a "mere scintilla of evidence[.]" Id.
When reviewing an unpreserved error, we may grant relief of a palpable error if we find that "manifest injustice has resulted from the error." RCr 10.26. Such injustice occurs only when the alleged error "seriously affected the fairness, integrity, or public reputation of the proceeding." Newcomb v. Commonwealth, 410 S.W.3d 63, 79 (Ky. 2013) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006) (internal quotations omitted)). In other words, we inquire as to whether the result of the proceeding would have been different absent the alleged error. See Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
Kentucky Rules of Criminal Procedure.
Analysis
On appeal, Marlow contends that the trial court erred by failing to grant his motion for directed verdict on the charges of both receiving stolen property and tampering with physical evidence. Marlow also alleges that the trial court erred by allowing inadmissible testimony which he argues was prejudicial. We will discuss each in turn.
Receiving Stolen Property
Marlow contends that the trial court erred by not granting his motion for directed verdict on the charge of receiving stolen property. Specifically, he alleges that KRS 514.110(2), which states that "[t]he possession by any person of any recently stolen movable property shall be prima facie evidence that such person knew such property was stolen[,]" requires that the item be "recently" stolen. Therefore, the September to November time period here exceeds the "recently" requirement. Additionally, he contends that he did not have actual possession of the items and, therefore, could not be convicted under KRS 514.110. We disagree.
Kentucky Revised Statute. --------
Marlow relies on Hayes v. Commonwealth, 175 S.W.3d 574, 594 (Ky. 2005), where the Kentucky Supreme Court found that a "motorcycle had not been 'recently stolen' so as to trigger the presumption of knowledge created by KRS 514.110(2) . . . [because] it was stolen approximately three to four months before it was found[.]" Here, however, the items were stolen in September and discovered in the middle of November. Therefore, we agree with the Commonwealth that at most the items had been missing for ten weeks. Regardless, the Legislative Research Commission (LRC) commentary on KRS 514.110 makes clear that "[t]he possession must be recent. Recent possession is a relevant term to be determined from the facts of each case and may vary from a few days to many months." KRS 514.110 Kentucky Crime Commission/LRC Commentary.
We find, that in this case, items taken from a burglary ten weeks or so prior, and later discovered in the possession of Marlow, meet the "recent" requirement of the statute. It therefore, would not be unreasonable for a jury to find guilt and the trial court's denial of the motion for directed verdict was proper.
Marlow also argues that he was not in actual possession of the stolen items, and therefore could not have been convicted under the statute. In Hayes, the Supreme Court reiterated the rule that "[m]ere presence near the stolen property, or access to the location where the stolen property is found is not sufficient evidence of possession, standing alone, to sustain a conviction for receiving stolen property." Id at 594 (internal quotation marks and citation omitted). Exclusive control over the location where the items are found is sufficient to raise an inference of possession. Id. "However, joint control of the premises requires further evidence to prove the defendant knew the substance was present and had it under his control." Id. (internal quotation marks and citation omitted).
Here, Marlow was at the location with his mother and girlfriend. Therefore, an argument could be made, as Marlow does, that he was not in exclusive control of the premises. However, we find that there was sufficient further evidence to prove that he knew the items were there and had the items under his control. That location was the subject of the search warrant because it was learned that Marlow had provided the jacket to the individual wearing it and it was known that Marlow was residing there and Marlow did not dispute the location as his residence. Additionally, the individual wearing the jacket testified that he did, in fact, pay Marlow five beers for the jacket. These additional facts were sufficient to further prove that Marlow knew the items were there and that the items were under his control. It was not unreasonable, therefore, for a jury to find guilt and therefore the trial court's denial of the directed verdict motion was proper.
Tampering With Physical Evidence
Next, Marlow contends that he was entitled to a directed verdict on the issue of tampering with physical evidence. This issue is unpreserved and is therefore reviewed for palpable error. Under KRS 524.100, an individual,
is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he: (a) Destroys, mutilates, conceals, removes, or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding[.]KRS 524.100(1)(a).
Here, the items were found "concealed" under a piece of plywood. There was testimony sufficient to suggest that Marlow concealed the items in an effort to prevent them from being found because of his knowledge that they were stolen. There was sufficient evidence of tampering which would support a jury's finding, and therefore, a directed verdict on the issue was not appropriate. Regardless, there is no manifest injustice resulting in palpable error regarding the issue, and therefore, we affirm.
Testimony
Lastly, Marlow contends that the Commonwealth introduced irrelevant testimony that prejudiced Marlow. This issue is also unpreserved and will be reviewed for palpable error. During the guilt phase of Marlow's trial, the Commonwealth introduced testimony from witnesses whose stolen items were discovered at Marlow's and others, including the individual who was wearing the jacket and testified that he paid Marlow five beers for the jacket. Marlow contends that the witness testimony was prejudicial because some of the witnesses mentioned that they were at Christ's Hands due to poverty and needing food and because they testified about the sentimental value of the property and the impact of being burglarized. Marlow contends that because he was not on trial for burglary, these testimonies were not relevant or necessary and were prejudicial, wrongfully rousing passion in the jury against Marlow.
As the Commonwealth explains, the Rules of Evidence allow discussion of uncharged crimes to be heard by the jury if they set a context for the charged crimes. St. Clair v. Commonwealth, 455 S.W.3d 869, 885 (Ky. 2015). Evidence of uncharged crimes are allowed,
when . . . [it] furnishes part of the context of the crime or is necessary to a full presentation of the case, or is so
intimately connected with and explanatory of the crime charged against the defendant and is so much a part of the setting of the case and its environment that its proof is appropriate in order to complete the story of the crime on trial by proving its immediate context[.]Id. (internal citation omitted).
The testimony, therefore, did not create a manifest injustice to Marlow but merely set the context for the crimes charged. Because there was no manifest injustice to Marlow, his argument does not meet the palpable error standard. We, therefore, affirm.
Conclusion
For the reasons stated herein, we affirm on all three issues.
ALL CONCUR. BRIEF FOR APPELLANT: Steven Nathan Goens
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky