VILARDO (DOMENICO) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000808-MR
DOMENICO VILARDO
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE MARTIN J. SHEEHAN, JUDGE
ACTION NO. 07-CR-00356
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE AND WINE, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Domenico Vilardo appeals from a judgment of the
Kenton Circuit Court finding him guilty of possession of a handgun by a convicted
felon and of being a first-degree persistent felony offender. After our review, we
affirm.
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
On May 31, 2007, the Kenton County grand jury indicted Vilardo on
one count of possession of a handgun by a convicted felon, a violation of KRS
527.040, and one court of being a first-degree persistent felony offender (PFO), a
violation of KRS 532.080, as a result of events that allegedly took place on April 2,
2007. Vilardo pled guilty to the possession charge on February 13, 2008, but
requested a bench trial on the PFO 1st charge.
At that trial, the Commonwealth presented testimony from one
witness – David McHugh, a probation and parole officer with the Kentucky
Department of Corrections – along with exhibits establishing four of Vilardo’s
previous felony convictions. Those convictions and their ultimate dispositions are
summarized as follows:2
(1) Kenton Circuit Court Indictment No. 01-CR-00096 – Vilardo pled guilty to a
charge of first-degree possession of a controlled substance and received a probated
sentence of three years’ imprisonment on June 4, 2001. The events leading to this
conviction took place on November 22, 2000. (Exhibit 1)
(2) Kenton Circuit Court Indictment 01-CR-00103 – Vilardo pled guilty to
receiving stolen property over $300 and received a probated sentence of three
years’ imprisonment on June 4, 2001. This sentence was ordered to run
consecutive to Vilardo’s sentence in Indictment No. 01-CR-00096. The events
leading to this conviction took place on November 9, 2000. (Exhibit 4)
2
We note that the convictions are presented here in the order in which they occurred instead of
the order in which they were presented as evidence at trial.
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(3) Kenton Circuit Court Indictment No. 01-CR-00645 – Vilardo pled guilty to a
charge of first-degree wanton endangerment and received a sentence of one year’s
imprisonment on July 31, 2002. This sentence was ordered to run consecutive to
Vilardo’s sentence in Indictment No. 01-CR-00096 and his sentence in Indictment
No. 01-CR-00103. The events leading to this conviction took place on September
1, 2001. (Exhibit 2)
(4) Grant Circuit Court Indictment No. 04-CR-00116 – Vilardo pled guilty to firstdegree possession of a controlled substance and possession of drug paraphernalia
and received a sentence of three-and-a-half years’ imprisonment on September 24,
2004. The events leading to these convictions took place on August 3, 2004.
(Exhibit 3)
Following the bench trial, the trial court found Vilardo guilty of the PFO 1st charge
and sentenced him to sixteen years’ imprisonment – eight years for the possession
conviction enhanced to sixteen years due to the PFO 1st conviction. This appeal
followed.
Vilardo styles his argument on appeal as a contention that the trial
court erred by failing to grant his motion for a directed verdict as to the PFO 1st
charge. However, his argument is more accurately described as a complaint about
an evidentiary decision by the trial court and its effect on the overall proof
presented by the Commonwealth in support of the charge. Specifically, Vilardo
contends that the trial court erred by allowing the Commonwealth to introduce
evidence of his conviction in Grant Circuit Court Indictment No. 04-CR-00116
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(Exhibit 3) because the copy of the indictment presented as part of the proof of that
conviction contained a handwritten change, thus raising questions about the
document’s authenticity.3 Assuming that this document should not have been
introduced as evidence, Vilardo then contends that the Commonwealth failed to
provide adequate proof that he had been convicted of two prior felonies for
purposes of KRS 532.080. We address each argument in turn.
The change in question was a one-digit correction to the Social
Security Number originally given for Vilardo in the indictment. The copy
contained a seal and signature from the Grant Circuit Court Clerk – dated August
9, 2007 – certifying the document to be a “true copy” of the original indictment.
After examining Exhibit 3, the trial court concluded that the change in question
appeared to have been made before the clerk placed the certification seal on the
copy and that the document was therefore not rendered invalid. Vilardo argues
that the change called into question the authenticity of the copy of the indictment
and effectively invalidated the certification that had been stamped thereon by the
Grant Circuit Court Clerk. Therefore – the argument goes – the copy was not selfauthenticating and the Commonwealth should have been required to present
testimony from a clerk concerning the change before the trial court allowed Exhibit
3 to be introduced into evidence.
3
The Commonwealth contends that Vilardo did not adequately preserve this issue for appellate
review; however, we believe the record reflects otherwise. Therefore, the issue is properly
before this Court.
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“The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims.” Kentucky Rules of
Evidence (KRE) 901(a). We review a trial court’s finding of authentication under
an “abuse of discretion” standard. Johnson v. Commonwealth, 134 S.W.3d 563,
566 (Ky. 2004). “The test for 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).
Ultimately, the burden of authentication for a party attempting to introduce an item
into evidence is “slight” and “requires only a prima facie showing of authenticity
to the trial court.” Johnson, 134 S.W.3d at 566.
The document in question is a certified copy of Grant Circuit Court
Indictment No. 04-CR-00116 – a public record. A public record is generally
admissible in evidence as proof of its contents pursuant to KRE 803(8).
Skimmerhorn v. Commonwealth, 998 S.W.2d 771, 776 (Ky. App. 1998);
Commonwealth ex rel., Howard, Commissioner of Revenue v. Denham, 303 Ky.
413, 414, 197 S.W.2d 907, 908 (1946). Before such a document can be introduced
as evidence, however, it must be authenticated. Therefore, “[a] party seeking to
introduce a public record must present a certified copy of that record or have a
person who has compared the copy with the original testify that the document is
authentic.” Skimmerhorn, 998 S.W.2d at 776; see also KRE 902(4); KRE 1005;
RCr 9.44. When a certified copy of a public record is presented, it is considered
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“self-authenticated and does not require testimonial declarations of its verity” from
a witness. Skimmerhorn, 998 S.W.2d at 777.
Here, the copy of the indictment offered by the Commonwealth as
evidence was certified by the Grant Circuit Court Clerk and was therefore
presumptively self-authenticating given the “slight” burden of authentication. Cf.
Johnson, 134 S.W.3d at 566. Vilardo offered no extrinsic evidence during trial to
counter this presumption. He instead merely went on a hypothetical questioning
expedition as to the appearance of the copy and whether the Court should consider
a copy sufficient evidence to establish a prior felony conviction. We also note,
after examining the copy of the indictment in question, that the trial court’s
conclusion that the corrective change occurred prior to the copy being certified by
the Grant Circuit Court Clerk appears reasonable.4 Accordingly, we conclude that
the trial court did not abuse its discretion by finding the copy of the indictment
contained in Exhibit 3 to be authentic and by allowing it to be admitted as
evidence.
Vilardo’s second argument is that the Commonwealth failed to
establish that he had been previously convicted of two felonies for which he
received sentences that ran non-consecutively to one another, as required for a PFO
4
We further note that Exhibit 3 contained a certified copy of the actual judgment of conviction
and sentence in the Grant County action that Vilardo has failed to challenge.
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1st conviction pursuant to KRS 532.080(3)5 and (4).6 The success of this argument,
however, depends entirely upon our acceptance of Vilardo’s contention that
Exhibit 3 was improperly introduced as evidence of his felony conviction in Grant
County. Since we did not reach such a conclusion, Vilardo’s argument must be
rejected. Even if we were to assume, as Vilardo contends, that the convictions
evidenced by Exhibits 2 and 4 constituted only one conviction for purposes of KRS
532.080, the sentence of imprisonment evidenced by Exhibit 3 did not run
concurrently or consecutively in an uninterrupted fashion to those convictions.
Therefore, the requirements for a PFO 1st conviction were met, and Vilardo’s
argument must be rejected.
The judgment of the Kenton Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shelly R. Fears
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
5
KRS 532.080(3) provides, in relevant part, that “[a] persistent felony offender in the first
degree is a person who is more than twenty-one (21) years of age and who stands convicted of a
felony after having been convicted of two (2) or more felonies[.]”
6
KRS 532.080(4) provides that “[f]or the purpose of determining whether a person has two (2)
or more previous felony convictions, two (2) or more convictions of crime for which that person
served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be
only one (1) conviction, unless one (1) of the convictions was for an offense committed while
that person was imprisoned.”
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