Opinion
NO. 2011-CA-000806-MR
01-18-2013
MEGAN PRICE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Linda Roberts Horsman Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE ANTHONY W. FROHLICH, JUDGE
ACTION NO. 10-CR-00379
OPINION
AFFIRMING
BEFORE: KELLER, TAYLOR, AND VANMETER, JUDGES. VANMETER, JUDGE: Megan Price appeals from the Boone Circuit Court judgment sentencing her to eight years' imprisonment for her conviction of criminal abuse in the first degree. For the following reasons, we affirm.
On May 3, 2010, Kathryn Tallarigo, a teacher in Boone County, Kentucky, noticed bruises on one of her students, Price's minor child, the "victim," and contacted the Cabinet for Health and Family Services ("Cabinet"). Detective Everett Stahl of the Boone County Sheriff's Department and Summer Neckel of the Cabinet met with the victim at her school and viewed the bruises. Later that evening, Det. Stahl transported Price and the victim to the police station and interviewed both separately. In her videotaped interview, Price admitted to spanking her child. The victim alleged that Donta Sanders, Price's boyfriend, caused the injuries.
Sanders pled guilty to first-degree criminal abuse for his role in the incident.
Price was indicted on a charge of criminal abuse in the first degree. The Commonwealth presented testimony from Tallarigo who testified that prior to noticing the bruises in May 2010, she also saw the victim with a black eye in February 2010, and reported the injury to the Cabinet. The victim testified for the Commonwealth and described instances of both Price and Sanders beating her. The victim recanted earlier statements that only Sanders, and not Price, beat her, and insisted that both beat her on various occasions. Sanders admitted to beating the victim, and claimed Price was present and insisted on him doing so. He also claimed Price would beat the victim. Price testified in her defense and denied the accounts of Tallarigo, Sanders, and the victim. She admitted to spanking the victim, but denied any wrongdoing. At the close of the evidence, Price was found guilty and sentenced to the recommended eight years' imprisonment. This appeal followed.
First, Price argues the trial court erred by permitting the testimony of Tallarigo because the Commonwealth disclosed the substance of her testimony only five days prior to the trial. Price claims the close proximity between the disclosure and trial was unfairly prejudicial and violated the trial court's discovery order. We disagree.
We review a trial court's decision on whether to admit evidence for an abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citation omitted). An abuse of discretion occurs when a "decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. (citation omitted).
Prior to trial, the Commonwealth was ordered to provide discovery in accordance with RCr 7.24 and 7.26. RCr 7.24(1) requires that "[u]pon written request by the defense, the attorney for the Commonwealth shall disclose the substance . . . of any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness[.]" However, Tallarigo's testimony did not include any incriminating statements made by Price, and thus was not discoverable under RCr 7.24(1), as Price argues. In line with RCr 7.26(1), the trial court ordered the Commonwealth to produce "all statements of any witness . . . which relates to the subject matter of the witness's testimony" no later than 48 hours prior to trial. As Price concedes, the subject of Tallarigo's testimony was presented five days prior to trial. No other provision of RCr 7.24 or 7.26, or direction in the discovery order, is implicated in the admission of Tallarigo's testimony. Thus, we find no merit to Price's claim of error.
Kentucky Rules of Criminal Procedure.
Price also claims that Tallarigo's testimony should have been barred under KRE 404(c), which requires the Commonwealth to give "reasonable pretrial notice" of its intent to use KRE 404(b) evidence of other crimes, wrongs or acts in the criminal proceeding. Though "reasonable pretrial notice" is not defined in the rule, the purpose of KRE 404(c) is to afford the accused with an opportunity to challenge the evidence via a motion in limine, and address the substantive issues such as relevancy and prejudice at trial. Bowling v. Commonwealth, 942 S.W.2d 293, 300 (Ky. 1997) (citation omitted) (overruled on other grounds by McQueen v. Commonwealth, 339 S.W.3d 441 (Ky. 2011)). Here, Price was afforded an opportunity to challenge the substance of Tallarigo's testimony prior to the trial and declined to request a continuance or other relief. As we stated above, Price had five days' notice, which has been held to be an adequate amount of time to defend against KRE 404(b) evidence. See Dant v. Commonwealth, 258 S.W.3d 12, 22 (Ky. 2008) (holding that a few days' notice of Commonwealth's intent to introduce KRE 404(b) evidence was reasonable and adequate because the defense had actual notice and was able to argue both the adequacy of the notice and the substance of the evidence prior to trial). Under these circumstances, the trial court did not abuse its discretion by admitting Tallarigo's testimony.
Kentucky Rules of Evidence.
Next, Price argues the trial court erred by not permitting cross-examination of Donta Sanders in regards to his prior misdemeanor conviction for making a false statement in an official proceeding. We disagree.
KRE 609 permits impeachment evidence in the form of a witness's conviction of a crime if the crime was punishable by death or imprisonment for one year or more. Price concedes Sanders' conviction was a misdemeanor, and thus, not admissible under KRE 609(a), but argues the impeachment evidence was permitted under KRE 608(b), which provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness[.]Price further cites to Fields v. Commonwealth, 274 S.W.3d 375, 399 (Ky. 2008), for the proposition that a trial court has discretion under KRE 608 to admit evidence of misdemeanor crimes that bear upon a witness's character for truthfulness. Since Sanders' past misdemeanor conviction for making a false statement in an official proceeding is probative of his character for untruthfulness, Price contends it could be inquired into during his cross-examination. She maintains this is true despite the conviction not being admissible under KRE 609(a).
However, in Fields, the Court did not address whether criminal convictions come within the purview of KRE 608(b). Rather, this interplay between KRE 608 and 609 was thoroughly discussed in Childers v. Commonwealth, 332 S.W.3d 64 (Ky. 2010), which overruled Fields, 274 S.W.3d 375. The court in Childers addressed the argument Price makes before this court, namely that KRE 608 grants a trial court discretion to admit evidence of misdemeanor crimes if they are probative of a witness's character for truthfulness. Childers, 332 S.W.3d at 69. The court noted that such a position would create an "end-run around" KRE 609, rendering it largely ineffective, and altering the manner in which the rules of evidence were constructed to protect a witness who takes the stand. Id. at 71. Though the court acknowledged the discretion afforded to the trial court under KRE 608, it held that impeachment by criminal conviction evidence is governed solely by KRE 609, and that KRE 608 only permits impeachment evidence not resulting in a criminal conviction. Id. at 72. In the present case, the trial court's evidentiary ruling complied with the holding in Childers, and thus, was not in error.
Price next argues that the evidence did not support a finding that she permitted Sanders to abuse the victim and as a result, she was entitled to a directed verdict on this theory of the Commonwealth's case. She further argues that any jury instructions regarding this theory were erroneous. We disagree.
Upon consideration of a motion for a 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 notCommonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citation omitted).
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.
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.
KRS 508.100 provides that:
Kentucky Revised Statutes.
(1) A person is guilty of criminal abuse in the first degree when he intentionally abuses another person or permits another person of whom he has actual custody to be abused and thereby:
(a) Causes serious physical injury; or
(b) Places him in a situation that may cause him serious physical injury; or
(c) Causes torture, cruel confinement or cruel punishment;
to a person twelve (12) years of age or less, or who is physically helpless or mentally helpless.
Our review of the record indicates that both the victim and Sanders testified that Sanders beat the victim in the presence and at the urging of Price. The record is clear that the victim was under the age of twelve and in Price's custody when the incidents occurred. The extent of the injuries to the victim were detailed and further explained as caused by Price and Sanders. Based on this evidence, a jury could reasonably conclude that Price permitted Sanders to abuse the victim, causing serious physical injury. As a result, the trial court did not err by denying Price's motion for a directed verdict on this theory of the case.
With respect to the jury instruction presenting the theory that Price permitted Sanders to abuse the victim, the Commonwealth is entitled to an instruction on its theory of the case if supported by the evidence. McAlpin v. Davis Constr., Inc., 332 S.W.3d 741, 744 (Ky. App. 2011) (citing Farrington Motors, Inc. v. Fidelity & Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky. 1957)). As stated above, the evidence supported the theory that Price permitted Sanders to abuse the victim. Thus, the Commonwealth was entitled to an instruction on this theory and the trial court did not err by providing it.
We do point out that Price did not raise this issue before the trial court, thus we reviewed her claim under the palpable error standard of review per RCr 10.26.
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Finally, Price argues the trial court erred by permitting the Commonwealth to ask her whether Tallarigo and the victim lied during their testimony. We disagree.
Price concedes the alleged error was not preserved for appellate review, but requests we review for palpable error, nonetheless. RCr 10.26 provides for appellate review of palpable errors which affect the substantial rights of the party, but only allowing relief if manifest injustice resulted from the error.
Our precedent disapproves of the trial practice of asking a witness to characterize the testimony of another witness, particularly to characterize a prior witness as lying. See Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997); Howard v. Commonwealth, 227 Ky. 142, 152 12 S.W.2d 324, 329 (1928). However, any error committed here was not palpable and certainly did not result in manifest injustice. On direct examination, Price asserted that Tallarigo and the victim's accounts of the events were untrue. By denying any wrongdoing, Price implied that Tallarigo and the victim were lying, even if she had not directly said they were lying. Since the jury was aware that Price believed Tallarigo and the victim were lying, and was presented with conflicting accounts of what actually happened, we fail to appreciate any manifest injustice resulting from the Commonwealth's line of questioning. See Hall v. Commonwealth, 337 S.W.3d 595, 603 (Ky. 2011) (holding that when a jury was forced to determine which witnesses to believe in the course of deciding the matter, the prosecution asking a witness whether another witness was lying did not result in palpable error justifying relief). In other words, despite the error, we don't believe the outcome of the case would be any different.
The judgment of the Boone Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Linda Roberts Horsman
Frankfort, Kentucky
BRIEF FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky