ACREE, Chief Judge.
Appellant Euriea Perry appeals from the December 7, 2012 final judgment of the Allen Circuit Court entered upon a jury verdict convicting her of complicity to second-degree burglary, tampering with evidence, and being a first-degree persistent felony offender (PFO). For the foregoing reasons, we affirm in part, reverse in part, and remand for additional proceedings as stated in this opinion.
On December 11, 2011, Johnny Meador burglarized Barbara and Sam Stovall's home. At the time of the incident, Meador and Perry were in a relationship. Perry is the Stovalls' niece.
Meador had a drug problem. On the evening in question, he desperately needed money to illegally purchase prescription pills. After an unsuccessful attempt to extort cash from Perry, Perry and Meador spent the evening driving, with Perry's children in the vehicle, to various homes of Perry's relatives so she could ask to borrow money. When those efforts failed, Meador drove to the Stovall residence. Perry later testified at trial that Meador told her that he would "be right back." He then exited the vehicle and walked to the Stovalls' back porch.
Perry waited in the car for about 10 minutes. According to Perry, she knew something was wrong when the back porch light failed to illuminate. Perry got into the driver's seat, drove a short way down the road, and pulled over. Perry positioned the vehicle so that it faced the Stovalls' house; the vehicle's engine was running, but its headlights were off. A neighbor noticed Perry's car and thought it suspicious. She asked her brother, David Huntsman, and his friend, Scotty Anderson, to investigate. As David and Scotty approached the vehicle, flashlight in hand, Perry drove away. David observed a woman was driving and several children were in the back seat. They also heard the Stovalls' dogs barking incessantly. At this point, David and Scotty decided to get in their own vehicle and follow Perry.
Perry drove back to the Stovall residence just as Meador was coming down the driveway. Meador took control of the vehicle from Perry and sped away. As Perry's car came down the road, David and Scotty got behind it. Perry's vehicle was travelling at a high rate of speed with its lights off and was running stop signs. David noticed several people in the car. He believed there to be three people in the front seat and some children in the back seat.
During the pursuit, Scotty relayed information to law enforcement about the fleeing vehicle and its location. Eventually, the car turned into a driveway and parked next to a trailer. Deputies Nick Tabbert and Charles Drummond of the Allen County Sheriff's Department arrived moments later. When the deputies knocked on the trailer's door, Perry answered. Perry admitted being in the area. She claimed she was looking for a friend named Stovall, got lost, and decided to return home. Having no reason to suspect a crime, the deputies left.
When the Stovalls returned home around 8:00 p.m. they noticed the door to their house was open and unlocked. It had been closed and locked when they left earlier that evening. Upon entering their home, they did not initially see anything out of place. That quickly changed. Barbara saw a few items on the kitchen counter that she was certain had not been there when they left. Then, Sam discovered his pain medicine was missing. Their suspicions now raised, the Stovalls began carefully inspecting their home. They found jewelry, knives, old coins, and a pocket watch all missing. The Stovalls called the police. Deputy Tabbert responded.
After walking through the Stovalls' home, Deputy Tabbert remarked that there was no "stuff" strewn around the house. Rather, certain items had been taken from specific places without disturbing any of the surrounding items. And many of these items were located in less-than-conspicuous places, such as a cookie container in the back of the Stovalls' bedroom closet and a shadow box. Deputy Tabbert testified this was unusual and inconsistent with a typical burglary scene.
Barbara thought Perry might have had something to do with the burglary. Barbara would later testify that Perry was familiar with the Stovalls' home having lived there for some time.
Based on the nature of the burglary and the fact that Perry had admitted being in the area earlier that evening, Deputies Tabbert and Drummond decided to re-visit Perry. Upon arriving at Perry's residence, Meador fled, and Perry answered the door. The deputies informed Perry there had been a burglary and asked if they could look for the missing items in her home. Perry gave them permission to enter the house. Once inside, the deputies noticed a large pile of coins and pocket knives on the coffee table, and found jewelry hidden inside a child's backpack. Perry eventually admitted to stealing each item. The deputies also noticed a pocket watch on the coffee table. Perry claimed she just bought the watch as a gift, but was unable to relate the inscription on the inside of the watch. The deputies called Sam, who confirmed he was missing a pocket watch and recited the inscription precisely. During their conversation, Sam advised the deputies that a pistol had also been stolen. The deputies were initially unable to locate the pistol. Perry claimed Meador had it. The next day, the stolen pistol was found in Perry's back yard.
As the deputies slowly made their way through Perry's home, Perry surreptitiously hid stolen jewelry previously seized by the deputies in her coat pockets. Police found the jewelry while later processing Perry at the police department.
After her arrest, Perry was again interviewed about the burglary. She admitted her involvement. Despite telling numerous inconsistent and ever-changing stories, Perry steadfastly insisted that Meador drove her car (with Perry and her children in tow) to the Stovalls' residence, that she did not know what Meador was going to do before he did it, and that Meador went into the Stovalls' house alone.
An Allen County Grand Jury indicted Perry for first-degree burglary, theft by unlawful taking or disposition of a firearm, theft of a controlled substance, tampering with physical evidence, and first-degree PFO. The circuit court denied Perry's pre-trial motions to amend the first-degree PFO charge to second-degree PFO, and for a lesser-included jury instruction on facilitation to burglary. A jury trial was held on July 29, 2013.
Perry was the sole witness for the defense. She testified that she did not know Meador was going to break into the Stovall home. She claimed she lied to the police to protect Meador. The jury found Perry guilty of complicity to second-degree burglary and tampering with physical evidence.
During the penalty phase of Perry's trial, the Allen Circuit Clerk testified Perry committed a prior felony on April 28, 2006, and was sentenced to sixteen months' imprisonment, probated for three years, on September 27, 2007 (2006 Felony). The Clerk further testified that Perry committed a second prior felony on August 28, 2007 (2007 Felony) and, on August 23, 2008, was sentenced again to sixteen months' imprisonment, to be served consecutive to any other felony sentence imposed upon Perry, probated for a period to run concurrent to the term of probation for the 2006 Felony.
The jury also found Perry to be a first-degree PFO. The circuit court sentenced Perry to ten years' imprisonment on each count, to be served concurrently.
Perry first argues that the circuit court erred when it refused to amend the first-degree PFO charge to second-degree PFO. Perry argues she did not have two or more prior felony convictions, as defined by KRS
The Commonwealth agrees that Perry's first-degree PFO conviction must be reversed because the facts necessary to convict Perry of first-degree PFO under the specific jury instruction in this case could not be proven.
A person may be found to be a first-degree PFO if he or she, among other things, "stands convicted of a felony after having been convicted of two (2) or more felonies[.]" KRS 532.080(3). "KRS 532.080(4) outlines the methodology used to evaluate whether an individual has been convicted of two previous felonies." Blades v. Commonwealth, 339 S.W.3d 450, 454-55 (Ky. 2011). That statute reads:
KRS 532.080(4).
The tenet espoused in KRS 532.080(4) is often referred to as the "concurrent sentence break" rule. A defendant "who may have committed more than one crime but received [his or her] sentences for these crimes prior to serving any time in prison" is entitled to the benefit of KRS 532.080(4). Blades v. Commonwealth, 339 S.W.3d 450, 455 (Ky. 2011) (quoting Williams v. Commonwealth, 639 S.W.2d 788, 790 (Ky. App. 1982)). However, the concurrent sentence break rule "does not apply to individuals who commit a felonious act, receive a sentence, and then subsequently commit another felonious act and receive another sentence." Id. at 456.
The facts of this case do not fit neatly into either of the scenarios described above. That is to say, it is not clear whether Perry should receive the benefit of KRS 532.080(4) or not. The record is clear that Perry committed the second felony prior to being convicted of and receiving a sentence for the first felony. However, had Perry's sentence for the first felony not been probated, she would have served time in prison before receiving her sentence for the second felony.
The PFO statutory scheme is designed to punish career criminals who are resistant to rehabilitative efforts. Williams v. Commonwealth, 639 S.W.2d 788, 790 (Ky. App. 1982) ("Greater penalties are sanctioned for those persons who, after serving a prison term for a conviction, demonstrate the futility of their rehabilitation by committing other crimes after their release.").
Bray v. Commonwealth, 703 S.W.2d 478, 479-80 (Ky. 1985) (emphasis added).
The PFO statute's rehabilitative purpose convinces us that Perry is entitled to have her 2006 and 2007 felony convictions be treated as a single conviction for purposes of KRS 532.080. Perry was not subjected to any rehabilitative efforts until after she had committed both felony offenses. Further, Perry was sentenced to uninterrupted consecutive imprisonment terms, probated concurrently, for both felonies. Accordingly, we vacate Perry's first-degree PFO status and remand for a new sentencing trial limited to determining whether Perry is a second-degree PFO.
Perry next claims the circuit court erred when it declined to instruct the jury on the lesser-included offense of facilitation. "Alleged errors regarding jury instructions are considered questions of law that we examine under a de novo standard of review." Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006) (citation omitted).
"Kentucky courts are bound to instruct juries on the whole law of the case, . . . including alternative instructions when supported by the evidence[.]" Morrow v. Commonwealth, 286 S.W.3d 206, 213 (Ky. 2009) (internal citations omitted). A defendant is only entitled to a lesser-included offense instruction, however, if under "the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense." Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998).
Facilitation is a lesser-included offense of complicity. Chumbler v. Commonwealth, 905 S.W.2d 488, 499 (Ky. 1995). The crimes have similar elements,
Murray v. Commonwealth, 399 S.W.3d 398, 411 (Ky. 2013) (footnotes omitted). The crimes have different touchstones: for complicity, it is that the defendant intended that a crime be committed; for facilitation, knowledge that a crime is to be committed is sufficient. See Young v. Commonwealth, 50 S.W.3d 148, 165 (Ky. 2001). Because "facilitation and complicity require different mental states, an instruction on facilitation is necessary only if the evidence supports the existence of both mental states." Dixon v. Commonwealth, 263 S.W.3d 583, 586 (Ky. 2008).
Perry contends that, by believing parts of her different stories, the jury could have concluded that she knew Meador intended to commit burglary and provided him with the means and opportunity to carry out that crime, but remained indifferent to its success. Perry argues it was within the jury's province to disbelieve her trial testimony that she did not know Meador intended to commit a burglary, believe her trial testimony that Meador was desperately seeking money, and infer from other testimony that Perry provided Meador with knowledge of the Stovall home, allowed him to use her car to commit the crime, and knew Meador "might burglarize" the Stovall home. (Appellant's Brief at 15). In White v. Commonwealth, 178 S.W.3d 470 (Ky. 2005), the Kentucky Supreme Court rejected a "splitting the difference" approach, explaining:
Id. at 490-91.
Similar to White, two competing theories were presented to the jury in this case. The Commonwealth's theory portrayed Perry as a knowledgeable, deliberate participant in the crime, acting in concert with Meador, and with the full intent that the burglary be committed. The Commonwealth presented evidence that Perry was familiar with the Stovalls' home, imparted such knowledge to Meador, provided him with transportation to and from the Stovalls' home, shared in the proceeds of the crime, and afterwards actively took steps to conceal their actions. On the other hand, the defense portrayed Perry as an innocent bystander caught up in a situation not of her making. Perry's own testimony was that she did not know Meador was going to burglarize the Stovall home and lied to police afterward to protect Meador. Thus, the evidence supported only two theories: that Perry was an active participant in the crime who intended that the burglary be committed, or that she was innocent. It did not support a "middle-ground violation of the facilitation statute." Murray, 399 S.W.3d at 411 (footnote omitted).
In sum, the evidence did not affirmatively support a conclusion that Perry knew Meador would burglarize the Stovall home but did not intend that it happen. See White, 178 S.W.3d at 491 (requiring that there be affirmative evidence of the defendant's mental state before a facilitation instruction is warranted). If that was the truth Perry wanted the jury to believe, she should have presented affirmative evidence to support it; she did not. The circuit court did not err in refusing to instruct the jury on the lesser-included offense of facilitation.
Perry last complains that the circuit court erred when it allowed the Commonwealth to introduce irrelevant, prejudicial evidence suggesting she had participated in other burglaries. Perry admits that this issue is not preserved and requests palpable error review pursuant to RCr
At trial, the Commonwealth presented witness Barbara Stovall with several small bags of items and asked her to review the items in each bag, identify which items belonged to her, and describe those items to the jury. The Commonwealth then marked as exhibits the objects identified by Barbara as belonging to her or her husband.
At the Commonwealth's request, Barbara removed the broken watch from the bag. Then the following exchange occurred.
The exchange barely lasted one minute. There was no further reference at trial to the other items in the bag.
Perry argues the superfluous items contained in the fifth bag were not relevant to proving any part of the offenses charged, and therefore were inadmissible under KRE
Perry also contends that palpable error occurred because the only reasonable inference to be drawn from Barbara's testimony was that Meador had committed other burglaries and Perry had helped him hide the booty acquired. This improper and prejudicial testimony, Perry claims, deprived her of her due process right to a fundamentally fair trial and her right to have her guilt adjudged based on reliable evidence. We disagree.
The parties bicker in their briefs as to whether the failure to identify the origin or ownership of the unclaimed property added to or subtracted from any resulting prejudice. We do not think it matters. Barbara did not describe the unclaimed items beyond identifying them as "rings" and a "medicine bottle." The items were not removed from the bag. They were not shown or published to the jury. Except for the short exchange described above, no further mention of the items was made. There was no suggestion, explicit or otherwise, that the rings and medicine bottle were stolen from other residences or that they did not belong to Perry.
Furthermore, the Commonwealth presented ample evidence to support the convictions obtained. Presuming the items that were never admitted into evidence somehow amounted to prejudice, it can hardly be said that they constituted "the" evidence that tipped the scales of justice in favor of a guilty verdict. We conclude that Barbara's exceptionally short and unremarkable testimony regarding the unclaimed items in the fifth bag did not so seriously affect "the fairness, integrity, or public reputation of the proceeding as to be `shocking or jurisprudentially intolerable.'" Wiley, 348 S.W.3d at 574. We find no palpable error here.
For the foregoing reasons, we affirm the portion of the Allen Circuit Court's December 7, 2012 final judgment convicting Perry of complicity to second-degree burglary and tampering with physical evidence. We reverse the first-degree PFO finding and remand for a new sentencing hearing to determine if Perry is a second-degree PFO.
ALL CONCUR.
