Opinion
NO. 2015-CA-000048-MR
03-04-2016
VIJAYKUMAR PATEL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Douglas S. Weigle Cincinnati, Ohio BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND, II, JUDGE
ACTION NO. 13-CR-00284 OPINION
AFFIRMING BEFORE: CLAYTON, KRAMER, AND STUMBO, JUDGES. CLAYTON, JUDGE: Vijaykumar Patel appeals the December 23, 2014 judgment of the Boone Circuit Court convicting him of Arson in the First Degree - Solicitation. The trial court sentenced him to fifteen years' imprisonment. On appeal, Patel contends that the trial court committed reversible error when it allowed the Commonwealth to introduce Kentucky Rules of Evidence (KRE) 404(b) evidence. Finding no reversible error, we affirm.
BACKGROUND
Patel is a naturalized United States citizen who owns numerous businesses in the Greater Cincinnati area. Patel has two businesses pertinent to this case: a Comfort Inn in Richmond, Kentucky, and a Marathon gas station in Mt. Orab, Ohio. Jack Stuard is an electrician, who over the years, worked on many projects for Patel. The facts of the case commenced when Patel and Stuard, who had not seen each other for several years, ran into each other in mid-October 2012 at a Home Depot.
After the encounter, Patel asked Stuard to repair a cigarette rack at his Marathon gas station. On approximately October 15, 2012, they met at the gas station. Stuard alleges that Patel asked him if he would be willing to burn down the Comfort Inn. Stuard did not acquiesce. However, Stuard admits that he did not immediately report this conversation. Further, this conversation was not recorded.
Next, on October 18, 2012, they met at the Comfort Inn. This meeting was also not recorded. Patel ostensibly asked Stuard to do some electrical work at the hotel. However, he took Stuard to the utility room and showed him the fire panel and where he could turn off the sprinklers. Then, according to Stuard, they went into a conference room where Patel asked Stuard to sabotage the sign at his Marathon gas station so that Patel could file an insurance claim. Further, Patel told Stuard that the hotel was losing money and that he needed to have it burned down to collect the insurance money. He also offered to pay Stuard to do it.
At this point, Stuard realized that Patel was serious about burning the hotel down. He also knew that there was a surveillance camera at the hotel, which recorded him while he walked around the hotel. Stuard became concerned that if the hotel burned down, he would be a prime suspect. After he left the hotel, he contacted his attorney. Eventually, Stuard was put in contact with the Kentucky State Police.
Thereafter, the Kentucky State Police asked Stuard to work with them. He called Patel. During the phone call, Patel discussed with Stuard sabotaging the Marathon sign and burning down the hotel. Patel and Stuard agreed to meet later that evening. The police outfitted Stuard with a body wire. At the meeting, Patel asked Stuard to sabotage the sign. To convince Patel that he damaged the sign, Stuard simply disconnected a wire but did not permanently disable it. At this meeting, Patel again asked Stuard to burn down the hotel.
The next time Patel contacted Stuard was December 20, 2012. He called and asked Stuard to meet with him the following day. Stuard was again outfitted with a wire. He met Patel in a parking lot and got into Patel's car. Patel immediately told him that he had not damaged the Marathon sign. Patel questioned whether Stuard could successfully burn down the hotel. Nonetheless, he then discussed numerous details about a possible plan to burn down the hotel. At the end of the conversation, Stuard directly queried Patel whether he wanted Stuard to burn down the hotel. Patel replied "yes."
Police realized that Patel was planning on leaving the country the next day and decided to arrest him. He was arrested on December 22, 2012, and indicted for Solicitation of Arson in the First Degree on April 16, 2013. Patel pled not guilty, and his trial was held on November 3, 4, and 5, 2014.
At trial, before the first witness testified, Patel objected to the Commonwealth introducing evidence about his request for Stuard to sabotage the Marathon gas station sign in order to collect the insurance money (the Marathon incident). He argued that the evidence was irrelevant and precluded by KRE 404(b). The Commonwealth countered that the evidence was not only inextricably intertwined but also admissible to prove motive and plan or preparation. The trial court agreed that the evidence was within the purview of KRE 404(b) but found that it was within the rule's exceptions. Notwithstanding Patel's objection, the trial court allowed the Commonwealth to introduce this evidence. The trial court, however, did not articulate its reason for permitting the admission or limit its use.
At the conclusion of the trial, the jury found Patel guilty of Solicitation to Commit Arson First Degree and recommended a sentence of fifteen years. On December 23, 2014, the trial court accepted the jury's recommended sentence and entered a final judgment, which Patel now appeals.
ISSUE
Patel argues that the trial court improperly permitted the Commonwealth to introduce evidence about the Marathon sign because KRE 404(b) precludes the introduction of this evidence. He also contends that even if it is determined that the evidence was properly admitted, the trial court abused its discretion by allowing the Commonwealth to refer frequently to it during the trial. Consequently, Patel claims that the trial court abused its discretion because the admission of the evidence severely prejudiced his case, and therefore, the judgment should be reversed. The Commonwealth disagrees that the trial court erred and argues that the trial court properly admitted the evidence because its use meets the exceptions articulated in KRE 404(b)(1) and (2).
STANDARD OF REVIEW
The standard of review of an evidentiary ruling is whether the trial court judge's decision constituted an abuse of discretion. See Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004). The test for an 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). This Court will not disturb the trial court's decision to admit evidence absent an abuse of discretion. Manning v. Commonwealth, 328 S.W.2d 421 (Ky. 1959). Further, resolving the propriety of the trial court's decision concerning admission of an Appellant's prior criminal acts requires the Court to analyze the text and judicial response to KRE 404(b). Anderson v. Commonwealth, 231 S.W.3d 117, 119-20 (Ky. 2007). With these standards in mind, we turn to the case at bar.
ANALYSIS
KRE 404(b) precludes the presentation of evidence of crimes, wrongs, or acts offered for the sole purpose of showing conformity therewith. Hence, it prevents the introduction of evidence of a defendant's disreputable past if the sole purpose of the evidence is to prove the defendant possesses a criminal disposition. However, there is an exception if the evidence is "offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. KRE 404(b)(1). There is also an exception if the evidence is "so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party." KRE 404(b)(2). Thus, in such a case, the evidence of a past act is permitted if it is inextricably intertwined with the evidence of the charged crime.
To determine whether evidence of prior bad acts is admissible, we must decide if the evidence is relevant "for some purpose other than to prove the criminal disposition of the accused[,]" probative as to the actual commission of the prior bad act, and not overly prejudicial under KRE 403. Meece v. Commonwealth, 348 S.W.3d 627, 662 (Ky. 2011); King v. Commonwealth, 276 S.W.3d 270, 275 (Ky. 2009). We begin by addressing whether the admission of evidence concerning the Marathon incident fits within one or both of the two exceptions to KRE 404(b).
Beginning with the first prong - that the evidence was offered for some other purpose than propensity - the Commonwealth maintains that the evidence was offered to establish proof of motive and plan or preparation. Additionally, the Commonwealth on appeal also maintains that the evidence was admissible to prove intent and absence of mistake or fraud. The dispute, however, may be decided based on the original reasoning that the evidence was offered for the purposes of motive and plan. As such, we do not need to consider the relationship of the evidence to establish intent or absence of mistake or fraud.
Further, Patel suggests that the Commonwealth also argued that the evidence was admissible for the purpose of establishing identity through modus operandi. But the Commonwealth responds that the record does not support that it argued this proposition, and more importantly, on appeal, it does not proffer "identity" as a justification for the admission of the evidence. Again, since it does not argue identity as justification for the use of the evidence, we do not need to address its impact.
Patel contends that the Commonwealth did not establish that the introduction of the Marathon incident was relevant to motive. Citing White v. Commonwealth, 178 S.W.3d 470 (Ky. 2005), he reasons that if evidence of motive in other crimes is admissible for the charged crime, it must relate directly to the charged crime. However, White only requires that there be a direct connection between the other crime and the charged crime, if that connection is the product of a reasonable inference. Id. at 476.
Here, we conclude that there was such a connection in this case. The connection was that both acts shared a motive - accessing insurance money. Therefore, we remain unpersuaded by Patel's argument that the two crimes were not connected directly. It is illogical to deduce that Patel's request for Stuard to destroy the Marathon sign was not related to his request for the destruction of the hotel. Even assuming, as Appellant suggests, that there was no direct testimony of any link between the Marathon incident and the solicitation for arson of the hotel, there was a sufficient inferential connection of shared motive in the two incidents: that is, obtain insurance money.
Finally, Patel's argument that the Commonwealth was foreclosed from arguing that motive with regard to the KRE 404(b) evidence because it argued during the trial that motive was irrelevant to the elements of the charged crime is simply incorrect. The issue of motive and the elements of the crime and motive and KRE 404(b) evidence are distinct. Therefore, the Commonwealth is able to argue both without implicating the other. The motive evidence concerning KRE 404(b) involves whether evidence of a person's prior acts are admissible under KRE 404(b) to establish motive, and the issue of motive as related to the elements of the crime involves establishing the charged crime. In sum, the Commonwealth was at liberty to discuss motive as it relates to the elements of the charged crime and motive as it relates to the admission of KRE 404(b)(1) evidence.
Evidence of a defendant's prior bad acts may also be used to prove the defendant's plan or preparation. (Patel describes this factor as "common plan or scheme," which, here, is analogous to plan or preparation.) The Commonwealth's theory of the case was that Patel used the Marathon incident as preparation and part of the plan for the burning of the Comfort Inn.
The evidence on record supports this interpretation. Initially, Patel asked Stuard to meet with him about some work at his Marathon station. It was during this encounter that Patel, according to Stuard, asked Stuard to burn down his hotel. Next, they met at the hotel where Patel showed Stuard the hotel and pointed out factors related to the potential arson. Next, they met at the Marathon Station where Patel had Stuard ostensibly sabotage the sign and discuss the plan for setting fire to the hotel. At the following meeting in Patel's car, he questioned Stuard's ability to effectuate the burning down of the hotel since Stuard failed to sabotage the Marathon sign. Both the interfacing of the meetings at the two locations and Patel's linking the two acts together demonstrate that the Marathon sign was part and parcel of a larger plan as well as preparation for Stuard to set fire to the Comfort Inn.
When several bad acts are connected together as part of one common scheme and have a common end, they may be given in evidence. Raymond v. Commonwealth, 123 Ky. 368, 96 S.W. 515, 518 (1906). The common scheme or plan exception refers to the concept that the charged offense was but one of more related criminal acts. Commonwealth v. English, 993 S.W.2d 941, 943 (Ky. 1999). Further, the prior bad act of the common scheme or plan must be connected in the sequence of events making up the crime. Id.
Here, in terms of preparation, Patel asked Stuard to sabotage his sign and then burn down his hotel. By his own statements, Patel tested Stuard's ability to perform the tasks by first having him sabotage the Marathon sign, and hence, instigated a plan to get insurance proceeds from his damaged properties. As such, the evidence was properly admitted under KRE 404(b)(1) because it was offered as proof of preparation and plan.
We now address the second prong of KRE 404(b)(2) - evidence is permitted to be admitted if it is inextricably intertwined with the evidence of the charged crime. Patel disputes the trial court's admission of the Marathon incident under this prong and maintains that this evidence was not inextricably intertwined with the Commonwealth's other evidence. Notwithstanding that the recorded conversations between Patel and Stuard included discussion of both the Marathon incident and the Comfort Inn plan, Patel says that the inclusion of evidence about the Marathon incident was merely a matter of convenience for the Commonwealth since it obviated the necessity for the Commonwealth to redact the recordings and transcripts of the recorded conversations.
Moreover, Patel alleges that the trial court abused its discretion by permitting the admission of evidence about the Marathon incident because the references were not necessary to prove the charged offense. In contrast, the Commonwealth maintains that the evidence about the Marathon incident was inextricably intertwined with the facts of the case and its exclusion would have had an adverse effect on their case, and thus, admissible under KRE 404(b)(2).
This exception, "inextricably intertwined," applies only to evidence that must come in because it "is so interwoven with evidence of the crime charged that its introduction is unavoidable." Funk v. Commonwealth, 842 S.W.2d 476, 480 (Ky. 1992)(citing Lawson, The Kentucky Evidence Law Handbook, 2d Ed., Sec. 2.20, p. 37 (1984)). Further, Kentucky law provides that evidence is inextricably intertwined when two or more crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other. Fleming v. Commonwealth, 284 Ky. 209, 144 S.W.2d 220, 221 (1940).
In a factually similar case, Norton v. Commonwealth, 890 S.W.2d 632 (Ky. App. 1994), our Court addressed the meaning of inextricably intertwined evidence. In Norton, the police organized an undercover drug buy during which an undercover officer and his informant purchased LSD from Norton and another defendant. The transaction and the conversations of the parties involved were recorded on tape and were played to the jury during trial. At trial, the Commonwealth, over Norton's objection, played the entire recording including the discussion of the potential marijuana sale. On appeal, he argued that the trial court should have excluded the evidence of the possible marijuana sale under KRE 404(b). Our Court disagreed and quoted the following language from United States v. Masters, 622 F.2d 83 (4th Cir. 1980):
One of the accepted bases for the admissibility of evidence of other crimes arises when such evidence "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 or the 'res gestae' " or the "uncharged offense is 'so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other . . . ' (and is thus) part of the res gestae of the crime charged." And where evidence is admissible to provide this "full presentation" of the offense, "(t)here is no reason to fragmentize the event under inquiry" by suppressing parts of the "res gestae."Id. at 86 (citations omitted).
In the case at hand, we conclude that admission of evidence regarding the Marathon incident was proper under the Masters analysis. The evidence was intimately connected with and explanatory of the crime charged against Patel and so much a part of the circumstances of the case that its proof is appropriate to set out the complete events of the crime. The negotiations between Patel and Stuard about the Marathon incident and the planned arson of the Comfort Inn were so closely related that both were necessary to understand Patel's crime. Therefore, the jury was entitled to know the setting of the case and was properly allowed to receive evidence regarding the time, place, and circumstances of the acts forming the basis of the charge against Patel.
Moreover, keeping in mind that KRE 404(b)(2) states that when evidence is "so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party" we believe that the separation of the evidence, as contemplated by Patel, would have adversely affected the Commonwealth's ability to present its case to the jury. Accordingly, the trial court did not err in allowing the introduction of evidence regarding the Marathon incident under KRE 404(b)(2).
In sum, under KRE 404(b)(1), evidence of prior bad acts is admissible if offered to prove something other than the defendant's propensity to commit crimes. Further, the rule sets forth a list of permissible purposes - motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Here, the trial court properly admitted the evidence because it established motive and preparation/plan. And evidence under KRE 404(b)(2) is admissible if the evidence was inextricably intertwined with the evidence of the charged crime. Again, in the case at bar, the Commonwealth has demonstrated that the evidence about the Marathon incident was inextricably related to the evidence concerning Patel's solicitation of arson to the Comfort Inn.
Patel also proffers that even if we determine that the evidence was admissible under the exceptions to KRE 404, the trial court abused its discretion by allowing the Commonwealth to frequently reference it throughout the trial. We, however, are not convinced by this reasoning. The jury listened to the following recorded interactions between Patel and Stuard: October 31, 2012 recorded phone call; October 31, 2012 conversation; and, December 21, 2012 conversation. Further, they heard the December 22, 2012 police interview of Patel.
In these recordings, Patel's own words and statements in the recordings and in court led to his conviction. The jury heard Patel offer to pay Stuard $5,000 to $10,000 but only if he succeeded in destroying at least half the hotel. The jury heard Patel talk about trying to destroy the hotel before with water damage but not succeeding. The jury heard Patel instruct Stuard about the hotel's structure including information about fire panels located at every third room, automatic sprinklers, use of chemicals, and to start it in three different places. Finally, significantly, the jury heard Patel affirmatively tell Stuard to burn the hotel down.
Given the overwhelming evidence of Patel's solicitation of Stuard to burn down the hotel, we hold that the trial court did not abuse its discretion in permitting the references to the Marathon incident nor did Patel's involvement in the Marathon incident erroneously permit the jury to infer guilt of the solicitation charge. The evidence was admitted because it was relevant for a purpose other than to prove the criminal disposition of the accused, probative as to the actual commission of the bad act, and not overly prejudicial under KRE 403. The trial court did not abuse its discretion.
CONCLUSION
Consequently, for the foregoing reasons, we affirm the judgment of the Boone Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Douglas S. Weigle
Cincinnati, Ohio BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky