BRUCE EDWARD BEAVERS v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 15, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001036-MR
BRUCE EDWARD BEAVERS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 03-CR-00909
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Bruce Edward Beavers has appealed from the May
6, 2004, final judgment and sentence of imprisonment of the
Fayette Circuit Court which convicted him of one count of
receiving stolen property more than $300.001 and one count of
being a persistent felony offender in the first degree (PFO I)
1
Kentucky Revised Statutes (KRS) 514.110.
and sentenced him to ten years’ imprisonment.2
Having concluded
that the trial court did not commit reversible error, we affirm.
On June 15, 2003, Patricia Adams reported to Lexington
police that her home had been burglarized between 1:00 p.m. and
4:30 p.m. on that day.
Adams had been home between 12:30 p.m.
and 1:00 p.m., and the burglary had not occurred at that time.
Upon returning to her home at approximately 4:30 p.m., Adams
noticed that her back door was open and broken glass was on the
floor.
Adams discovered that her two compact disc (CD) towers,
containing approximately 300 or more CD’s, were missing.
At approximately 4:30 p.m. on the same day, Beavers
attempted to sell a large number of CD’s at CD Warehouse,
located on Rose Street in Lexington, Fayette County, Kentucky.
In his possession were two large CD towers, containing 250-350
CD’s.
Hunter Correll, who was working at CD Warehouse at that
time, told Beavers to leave the CD’s and to come back in about
an hour so that Correll would have time to determine which of
the CD’s he would purchase and the prices he would pay for them.
When Beavers returned, Correll purchased approximately one-third
of the CD’s for $208.00.
Before Correll paid Beavers for the
CD’s, he recorded Beavers’s name, telephone number, and driver’s
license number.
The store’s video surveillance system recorded
Beavers throughout the transaction.
2
KRS 532.080(3).
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After giving her statement to the Lexington police,
Adams called CD Warehouse to inquire whether someone had
attempted to sell a large number of CD’s that day.
Adams spoke
to Correll, who told her that someone had tried to sell items
matching the description she gave.
Adams then went to CD
Warehouse at approximately 5:45 p.m., and identified a number of
CD’s on the counter as belonging to her.
The CD’s were taken
into police custody until trial.
On June 24, 2003, Officer Brian Tolson of the
Lexington Police Department arrested Beavers on an outstanding
warrant for burglary in the second degree of Adams’s house.
On
July 29, 2003, a Fayette County grand jury indicted Beavers on
one count of receiving stolen property more than $300.00 and one
count of being a PFO I.
burglary.
counts.
Beavers was not indicted for the
On April 5, 2004, a jury found Beavers guilty on both
On May 6, 2004, the trial court followed the jury’s
sentencing recommendation and sentenced him to prison for 10
years.
This appeal followed.
Beavers claims the trial court erred: (1) by
permitting the Commonwealth to argue that he was the person who
stole the CD’s and therefore knew the property was stolen; (2)
by denying his motion for a mistrial; (3) by denying his motion
for a directed verdict of acquittal; (4) by allowing the
Commonwealth’s Attorney to commit flagrant misconduct in his
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closing argument; and (5) because the cumulative effect of the
above errors had the effect of denying him due process and a
fair trial.
We find no merit in any of these arguments.
Beavers claims that it was improper for the
Commonwealth to be permitted to argue that he was the person who
stole the CD’s, and that he therefore knew the CD’s were stolen,
even though knowledge is an element of the crime of receiving
stolen property.3
Beavers also contends that impermissible
evidence that he committed the burglary was introduced on two
occasions:
(1) Officer Tolson’s testimony that he had arrested
Beavers on an outstanding warrant for burglary in the second
degree; and (2) the Commonwealth’s Attorney’s closing argument
that Beavers was the person who broke into Adams’s home and
stole the CD’s.
Beavers argues that this issue is preserved for our
review by his motion in limine.
The record shows that Beavers’s
motion in limine addressed only whether the witnesses for the
Commonwealth would be permitted to definitely state that the
CD’s taken from CD Warehouse were the same CD’s taken from
Adams’s home as opposed to it being their belief of same.
3
KRS 514.110(1) states as follows:
A person is guilty of receiving stolen property
when he receives, retains, or disposes of movable
property of another knowing that it has been stolen,
or having reason to believe that it has been stolen,
unless the property is received, retained, or
disposed of with intent to restore it to the owner.
-4-
The
motion did not address whether the Commonwealth would be
permitted to introduce evidence that Beavers committed the
burglary.
Immediately following the trial court’s ruling on
Beavers’s motion in limine, the Commonwealth’s Attorney, of his
own accord, asked the trial court if it would be permissible for
the Commonwealth to argue that Beavers was the person who stole
the CD’s, and thus, knew they were stolen.
Beavers objected on
the grounds that to do so would allow the introduction of
evidence of another crime (the burglary), and that pursuant to
KRE4 404(c), the Commonwealth had failed to give notice it would
be presenting that evidence at trial.
The Commonwealth’s
Attorney responded that the Commonwealth would not be presenting
evidence, but merely “argument.”
The trial court then overruled
Beavers’s objection.
Despite language in KRE 103(d)5 to the contrary, our
Supreme Court had held that even when a trial court has
previously ruled on the admissibility of evidence in a motion in
limine, a contemporaneous objection is required to preserve an
4
Kentucky Rules of Evidence
5
KRE 103(d) provides:
Motions in limine. A party may move the court
for a ruling in advance of trial on the admission or
exclusion of evidence. The court may rule on such a
motion in advance of trial or may defer a decision on
admissibility until the evidence is offered at trial.
A motion in limine resolved by order of record is
sufficient to preserve error for appellate review.
Nothing in this rule precludes the court from
reconsidering at trial any ruling made on a motion in
limine.
-5-
objection to specific evidence which is later admitted.6
When
Officer Tolson testified, he stated that he had arrested Beavers
on an outstanding warrant for burglary in the second degree.
He
then withdrew this statement indicating that he did not
remember, that the warrant may have been issued for stolen
property.
Beavers made no contemporaneous objection to Officer
Tolson’s testimony.
After Officer Tolson was dismissed, the
Commonwealth rested its case, and the trial was recessed for
lunch.
After the jury had left the courtroom, the trial court,
sua sponte, expressed concern about Officer Tolson’s statement
that Beavers had been arrested for burglary.
It was at this
time that Beavers first expressed any objection to Officer
Tolson’s testimony, saying then that he had not raised an
objection at the time because he did not wish to draw attention
to it.
Similarly, Beavers raised no objection to the
Commonwealth’s Attorney’s closing argument that Beavers was the
person who stole the CD’s.
Even though there is serious question as to whether
this issue was properly preserved, we nonetheless will address
this argument and we conclude it is without merit.
When an
improper statement has been made, a court may admonish the jury
6
Garland v. Commonwealth, 127 S.W.3d 529, 541 (Ky. 2003) (citing Tucker v.
Commonwealth, 916 S.W.2d 181, 183 (Ky. 1996)).
-6-
to disregard that statement.7
Since juries are presumed to
follow admonitions from the trial court, admonitions generally
cure any error.8
There are only two circumstances in which
the presumptive efficacy of an admonition
falters: (1) when there is an overwhelming
probability that the jury will be unable to
follow the court's admonition and there is a
strong likelihood that the effect of the
inadmissible evidence would be devastating
to the defendant, . . . or (2) when the
question was asked without a factual basis
and was “inflammatory” or “highly
prejudicial” [citations omitted].9
After the lunch recess, the trial court determined
that Officer Tolson’s statement could be cured by an admonition
to the jury by engaging in a “fiction.”
The trial court then
admonished the jury, saying that Officer Tolson’s testimony that
Beavers was arrested on an outstanding warrant for burglary was
a “misstatement.”
The trial court instructed the jury that
Beavers was not on trial for burglary, but had been charged only
with receiving stolen property, and that there was no separate
burglary charge for which Beavers had been arrested.
We
conclude that any prejudice resulting from Officer Tolson’s
7
Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001) (citing Knuckles v.
Commonwealth, 261 S.W.2d 667, 671 (Ky. 1953)).
8
Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
9
Johnson, 105 S.W.3d at 441.
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testimony that Beavers was arrested for burglary was
sufficiently cured by the trial court’s admonition to the jury.
Beavers also argues that the trial court erred by
allowing the Commonwealth to introduce evidence that Beavers was
the person who broke into Adams’s home and stole the CD’s “by
arguing that ‘evidence’ in his closing statement to the jury[,]”
and that the Commonwealth’s Attorney’s closing argument that
Beavers stole the CD’s was prosecutorial misconduct, because it
had “flagrant influence over the jury.”
A prosecutor is
permitted is his closing argument to “draw all reasonable
inferences from the evidence and propound his explanation of the
evidence and why it supports a finding of guilt.”10
In his closing argument, the Commonwealth’s Attorney
did not make any reference to evidence not presented at trial,
and he did not represent to the jury that he had any personal
knowledge that Beavers had committed the burglary.
The
Commonwealth’s Attorney merely argued that due to the short
period of time between the burglary and Beavers’s attempt to
sell the CD’s, he “probably” was the person who stole them.
However, the Commonwealth’s Attorney was clear that the jury
could find Beavers guilty of knowingly receiving stolen property
without finding that he had stolen the CD’s.
10
Tamme v. Commonwealth, 973 S.W.2d 13, 39 (Ky. 1998).
Commonwealth, 82 S.W.3d 860, 866 (Ky. 2002).
-8-
We conclude that
See also Maxie v.
the Commonwealth’s Attorney simply argued reasonable inferences
from the evidence and that his argument was within the bounds of
a proper closing argument.
Thus, Beavers’s first claim is without merit because
the trial court properly admonished the jury regarding Officer
Tolson’s testimony, and because the Commonwealth’s Attorney’s
argument that Beavers was more than likely the person who stole
the CD’s was within the proper bounds of a closing argument.
Accordingly, there was no violation of KRE 404(c) and the
Commonwealth’s Attorney’s closing argument was proper.
Beavers also argues that the trial court should have
granted his motion for a mistrial based on Officer Tolson’s
testimony that Beavers was arrested for burglary.
While the
Commonwealth argues that the issue is not preserved, in light of
the trial court’s raising of the issue sua sponte, we will
address the issue on its merits.
Once Officer Tolson’s testimony was concluded, the
Commonwealth rested its case.
After the jury left the
courtroom, the trial court expressed concern over Officer
Tolson’s statement that Beavers had been arrested for burglary.
Beavers then asked for a mistrial based on that statement,
arguing that the statement would influence the jury to convict
him based on the burglary, and not on receiving stolen property,
and that an admonishment would not cure the error.
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The trial
court denied the motion, and admonished the jury that Officer
Tolson’s testimony that Beavers was arrested on a warrant for
burglary was a “misstatement,” and that there was no additional
charge against Beavers.
A trial court’s decision to deny a motion for a
mistrial will not be disturbed absent a manifest error or an
abuse of discretion.11
Furthermore, “a mistrial is an extreme
remedy and should be resorted to only when there is a
fundamental defect in the proceedings which will result in a
manifest injustice[,]”12 and “[t]he record must reveal a manifest
necessity for a mistrial before such an extraordinary remedy
will be granted.”13
Again, when determining whether the
presentment of inadmissible evidence warrants a mistrial, an
admonition to the jury is presumed to cure any error, unless
there is an overwhelming probability that the jury will be
unable to follow the admonition and there is a strong
possibility that the inadmissible evidence will be devastating
to the defendant’s case.14
In this case, Officer Tolson’s
statement that Beavers was arrested for burglary does not rise
to the level of a fundamental defect in the proceedings, and no
11
Gould v. Charlton Co. Inc., 929 S.W.2d 734, 741 (Ky. 1996).
12
Id. at 738.
13
Maxie, 82 S.W.3d at 863.
14
Johnson, 105 S.W.3d at 441.
See also Gould, 929 S.W.2d at 740.
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manifest injustice resulted.15
Nor is there a probability that
the statement was devastating to Beavers’s case, considering the
fact that Officer Tolson withdrew his testimony on the stand.
Furthermore, we conclude that the admonition given by the trial
court was sufficient to cure any error.
Therefore, the trial
court did not err in denying Beavers’s motion for a mistrial.
Third, Beavers argues that his motion for a directed
verdict of acquittal should have been granted.
Beavers
contended that the evidence was insufficient to prove beyond a
reasonable doubt that the CD’s which Beavers tried to sell were
in fact the same CD’s that were stolen from Adams’s home.
In
addition, Beavers now argues that the evidence was insufficient
to prove beyond a reasonable doubt that the CD’s were valued at
over $300.00.
Because sufficient evidence was presented to
prove both of these elements of the charge, neither argument has
merit.
Adams testified that the CD towers taken from her home
contained over 300 CD’s at the time they were stolen.
She
estimated the average cost of the CD’s to be between $12.99 and
$21.00-$22.00 each, and claimed the CD’s were in good condition.
Adams also testified that the CD towers were valued at between
$20.00 and $30.00 each.
15
Adams testified that when she went to
Gould, 929 S.W.2d at 738.
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CD Warehouse on the day the CD’s were stolen, she identified a
number of CD’s on the counter as belonging to her.
While Adams was on the witness stand, the Commonwealth
introduced Exhibit #1, a box which contained the 83 CD’s that
had been recovered from CD Warehouse.
the CD’s in the box belonged to her.
Adams testified that all
The Commonwealth then
introduced Exhibit #2, a list prepared by Adams which showed 285
CD’s that she testified had been stolen.
Adams also testified
that there could be between 80 and 100 additional CD’s which
were stolen that she had been unable to list.
Some of the CD’s
in Commonwealth’s Exhibit #1 were on the list, and others were
not.
Next, Correll testified and identified Beavers as the
person who had brought two CD towers containing 250 to 350 CD’s
into CD Warehouse on June 15, 2003.
Correll stated that he had
purchased approximately one-third of those CD’s from Beavers.
Correll said he had determined the price he would pay for a CD
based on the condition of the CD, how popular the CD in question
was, and how many of the particular CD the store already had in
stock.
Correll testified that the CD’s which Beavers brought
into the store were in good or very good condition.
The test for granting a directed verdict of acquittal
is well-established:
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“On motion for 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 not 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.16
From the evidence presented at trial, a juror could
have reasonably believed Adams’s testimony that the 83 CD’s
introduced in Commonwealth’s Exhibit #1, which Beavers sold to
CD Warehouse, had been stolen from her home.
Furthermore, the
jury had adequate testimony from both Adams and Correll to
enable them to reasonably determine that the CD’s and CD towers
were worth more than $300.00 at the time they were in Beaver’s
possession.
After drawing all fair and reasonable inferences
from the evidence in favor of the Commonwealth, we conclude the
evidence was sufficient for a juror to find Beavers guilty
beyond a reasonable doubt.
Accordingly, the trial court
16
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth
v. Sawhill, 660 S.W.2d 3 (Ky. 1983)).
-13-
properly denied Beavers’s motion for a directed verdict of
acquittal.
Fourth, Beavers argues that the Commonwealth’s
Attorney committed flagrant misconduct in his closing argument
when he submitted that defense counsel would have the jury
believe that Adams was lying.
The Commonwealth’s Attorney said
“what the defense attorney is asking you to believe is that
Patricia Adams came in this room and lied to you under oath[.]”
Beavers objected and told the trial court in a bench conference
that he had not said that Adams was lying, and that he had not
tried to impeach her credibility.
The Commonwealth’s Attorney
then pointed out that Beavers had questioned Adams’s testimony
that the CD’s taken from CD Warehouse were, in fact, hers.
He
argued that defense counsel had opined to the jury that the
reason some of the CD’s taken from CD Warehouse were not on
Adams’s list was because she had “jumped to conclusions,” and
that she did not own some of the CD’s taken from CD Warehouse.
The trial court overruled Beavers’s objection, and the
Commonwealth’s Attorney proceeded with his closing argument.
As we have already stated, a prosecutor may draw all
reasonable inferences from the evidence, and may present his
interpretation of the evidence and why it supports a finding of
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guilt.17
In addition, he may make reasonable argument in
response to matters raised by the defense.18
Beavers’s argument
that Adams had not owned all of the CD’s taken from CD Warehouse
was an attempt to discredit her testimony, whether implying she
was lying or simply mistaken.
The Commonwealth’s Attorney’s
response was reasonable in addressing the defense’s contention
that Adams was incorrect in her testimony, and we find no error
in the trial court’s denial of the objection.
The
Commonwealth’s Attorney’s argument was proper and did not
constitute prosecutorial misconduct.
Finally, Beavers argues that the cumulative effect of
the above errors require reversal.
Since we have not found any
basis for the errors claimed by Beavers, this claim also lacks
merit.
Based on the foregoing reasons, the judgment of
conviction and sentence of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
17
Tamme, 973 S.W.2d at 39; Maxie, 82 S.W.3d at 866.
18
Hunt v. Commonwealth, 466 S.W.2d 957, 959 (Ky. 1971).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John Rampulla
Lexington, Kentucky
Gregory D. Stumbo
Attorney General
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
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