REGINALD V. YOUNG v. COMMONWEALTH OF KENTUCKY
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RENDERED: October 13, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001948-MR
REGINALD V. YOUNG
APPELLANT
APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 98-CR-00015
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, JOHNSON AND McANULTY, JUDGES.
JOHNSON, JUDGE: Reginald V. Young has appealed from the final
judgment entered by the Harrison Circuit Court on July 24, 1998,
that convicted him of two counts of trafficking in a controlled
substance in the first degree (cocaine),1 convicted him as a
persistent felony offender in the second degree (PFO II),2 and
sentenced him to two 15-year prison terms to run concurrently.
1
Kentucky Revised Statutes (KRS) 218A.1412.
2
KRS 532.080(2).
Having concluded that the trial court did not abuse its
discretion in refusing to sever the two counts for trafficking
for separate trials, we affirm.
Young was indicted by the Harrison County Grand Jury on
May 1, 1998, on one count of trafficking in cocaine for a sale
that allegedly occurred on January 3, 1997, and on a second count
of trafficking in cocaine for a sale that allegedly occurred on
May 1, 1997, and for being a PFO II.
On June 18, 1998, Young
moved the trial court for separate trials on the trafficking
charges pursuant to RCr3 9.16.
In his motion, Young alleged the
following:
2.
3
In addition to the Persistent Felony
Offender offense, the Defendant is
charged with two (2) separate offenses
of violation of KRS Chapter 218A.1412,
Kentucky Rules of Criminal Procedure 9.16 provides:
If it appears that a defendant or the
Commonwealth is or will be prejudiced by a
joinder of offenses or of defendants in an
indictment, information, complaint or uniform
citation or by joinder for trial, the court
shall order separate trials of counts, grant
separate trials of defendants or provide
whatever other relief justice requires. A
motion for such relief must be made before
the jury is sworn or, if there is no jury,
before any evidence is received. No
reference to the motion shall be made during
the trial. In ruling on a motion by a
defendant for severance the court may order
the attorney for the Commonwealth to deliver
to the court for inspection in camera any
statements or confessions made by the
defendants that the Commonwealth intends to
introduce in evidence at the trial.
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trafficking in a controlled substance in
the first degree, one occurring on
January 3, 1997, and the other occurring
on May 1, 1997.
3.
The transactions were not closely
related in time, there being four (4)
months between the occurrences.
4.
Two (2) different confidential
informants were involved in the alleged
transactions, which occurred in two (2)
different locations.
5.
While technically correct under RCr
6.18, as the offenses are of the same or
similar character, they are not based on
the same acts or transactions connected
together, nor do they constitute parts
of a common scheme or plan.
6.
It is respectfully submitted that to try
the Defendant on two (2) separate
trafficking in drugs charges would
unduly prejudice his right to fair
trials, as the cumulative effect of the
evidence may tend to influence the jury
when, as a matter of evidentiary law,
were the offenses to be tried
separately, evidence of one transaction
would be inadmissible in the trial of
the other, at least in the first phase
of the trial.
On June 23, 1998, the trial court summarily denied Young’s motion
for separate trials.
At the jury trial held on July 10, 1998, the
Commonwealth’s witnesses included Kentucky State Police (KSP)
Troopers Steven K. Owen and Robert Wilson; paid informants
William C. Banks and Susan Wornall; and KSP evidence and crime
lab personnel.
The jury convicted Young on both trafficking
counts and the PFO II charge.
The jury recommended a 15-year
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prison sentence on each of the PFO enhanced trafficking
convictions, with the sentences to run concurrently.
The trial
court sentenced Young in accordance with the jury’s
recommendation and this appeal followed.
The only issue raised on appeal concerns the trial
court’s denial of the motion for separate trials.
In his brief,
Young states:
The Appellant concedes that for the
purposes of RCr 6.18 the indictment is
technically correct insofar as the offenses
charged involve allegations of violation of
the same statute. The facts, however, do not
meet the requirement that the [ ] two charged
offenses be based on the same acts or
transactions connected together, or
constituting parts of a common scheme or
plan. The acts [alleged] to have been
committed by the Appellant are separated by
almost five months in time; are [alleged] to
have occurred at different locations in
Harrison County, Kentucky, one at the
residence of Theodore Custard, in Cynthiana
and the other at the residence of Robert
Commodore, also in Cynthiana, but different;
involve different parties in attendance at
each location, and most importantly, are very
different in regard to the acts [alleged] to
have been performed by the Appellant. In the
January 1, 1997 instance, the seller was
admitted to be Theodore Custard at his
residence, with the acts of the Appellant
[alleged] to have been minimal, by handing
contraband to the informant, William Banks.
Taken at it’s [sic] fullest for the
prosecution, the Appellant did no more [than]
assist Mr. Custard in a chance sale of some
of Mr. Custard[’]s cocaine. In the May 1,
1997 instance, the Appellant was the
[alleged] owner and seller of the contraband
to Susan Wornall, at the residence of another
named party, who was not identified as being
present. The only inferances [sic] that can
be drawn from one instance and applied to the
other is that the Appellant was disposed to
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commit both. There is no special connection
between the two that would warrant their
joinder. Keith v. Commonwealth, Ky.[,] 251
S.W.2d 850 (1952).
The Commonwealth argues that the trial court did not
abuse its discretion4 in denying the motion for separate trials.
We agree.
In Spencer v. Commonwealth,5 our Supreme Court stated:
The granting or denial of a motion for
separate trials is a discretionary function
of the trial court. A conviction resulting
from a trial in which such a motion has been
denied will be reversed on appeal only if the
refusal of the trial court to grant such a
severance is found to amount to a clear abuse
of discretion and prejudice to the defendant
is positively shown. Russell v.
Commonwealth, Ky., 482 S.W.2d 584 (1972). In
determining whether a joinder of offenses for
trial is prejudicial, a significant factor to
be considered is whether the evidence of one
of the offenses would be admissible in a
separate trial for the other offense. If the
evidence is admissible, the joinder of
offenses, in most instances, will not be
prejudicial. Marcum v. Commonwealth, Ky.,
390 S.W.2d 884 (1965). It is well
established that evidence of the commission
of crimes independent of those for which the
accused is on trial is not admissible for the
purpose of showing the commission of the
particular crime charged unless the evidence
of the other offenses has some special
connection to the crime charged. Keith v.
Commonwealth, Ky., 251 S.W.2d 850 (1952). To
be admissible, in other words, the evidence
must be relevant to the issues in some manner
other than in proof of a general criminal
disposition in the accused to commit the
4
“‘Abuse of discretion in relation to the exercise of
judicial power implies arbitrary action or capricious disposition
under the circumstances, at least an unreasonable and unfair
decision.’” . . . “The exercise of discretion must be legally
sound.” Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994).
5
Ky., 554 S.W.2d 355, 357-58 (1977).
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particular crime. For example, as was
recognized in Ringstaff v. Commonwealth, Ky.,
275 S.W.2d 946, 949-950 (1955), evidence of
an independent crime “. . . is competent when
it tends to establish identity, or knowledge
of guilt, or intent or motive for the
commission of the crime under trial, or
malice, or when other offenses are so
connected or interwoven with the one being
tried that they cannot well be separated from
it in the introduction of relevant testimony,
or when the independent offense was
perpetrated to conceal the crime for which
the accused is on trial, or committed by
novel means, or in a particular manner, or is
a part of a plan or system of criminal
action.”
The Supreme Court in O’Bryan v. Commonwealth,6 provided
an excellent summary concerning the admissibility of evidence of
other crimes.7
Evidence of the commission of other
crimes, generally speaking, is not admissible
to prove that an accused is a person of
criminal disposition. Arnett v.
Commonwealth, Ky., 470 S.W.2d 834 (1971);
Pankey v. Commonwealth, Ky., 485 S.W.2d 513
(1972). See, also, Lawson, Kentucky Evidence
Law Handbook, § 2.20. The reasons for the
rule are salutary. Ordinarily, such evidence
does not tend to establish the commission of
the crime. It tends instead to influence the
jury, and the resulting prejudice often
outweighs its probative value. Ultimate
fairness mandates that an accused be tried
only for the particular crime for which he is
charged. An accused is entitled to be tried
for one offense at a time, and evidence must
be confined to that offense. Pankey, supra.
The rule is based on the fundamental demands
of justice and fair play.
6
Ky., 634 S.W.2d 153 (1982).
7
See Kentucky Rules of Evidence 404(b).
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However, as with all good rules there
are certain exceptions [footnote omitted].
Evidence of the commission of crimes other
than the one charged is admissible if, (1) it
is offered to prove motive, intent,
knowledge, identity, plan or scheme, or
absence of mistake or accident; (2) such
evidence is relevant to the issues other than
proof of a general criminal disposition, and
(3) the possibility of prejudice to the
accused is outweighed by the probative worth
and need for the evidence. Rake v.
Commonwealth, Ky., 450 S.W.2d 527 (1970);
Lindsay v. Commonwealth, Ky., 500 S.W.2d 786
(1973); Hendrickson v. Commonwealth, Ky., 486
S.W.2d 55 (1972). Arnett v. Commonwealth,
supra.
The application of the exceptions to the
general rule should be closely watched and
strictly enforced because of the dangerous
quality and prejudicial consequences of this
kind of evidence. Jones v. Commonwealth, 303
Ky. 666, 198 S.W.2d 969 (1947). Before
evidence of other crimes can be admitted to
show a scheme, plan or system, the evidence
must show acts, circumstances or crimes
similar to, clearly connected with, and not
too remote from the one charged, Holt v.
Commonwealth, Ky., 354 S.W.2d 30 (1962).8
In order to show that the two crimes were sufficiently
connected, the Commonwealth relies upon Howard v. Commonwealth,9
where this Court affirmed a conviction for trafficking in
marijuana. Howard was indicted in Warren County for allegedly
offering to sell a pound of marijuana on September 17, 1987.
The
trial court allowed the Commonwealth to introduce testimony that
Howard “sold a pound of marijuana to an undercover policeman in
Hart County approximately four months after the offense for which
8
O’Bryan, supra at 156-57.
9
Ky.App., 787 S.W.2d 264 (1989).
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he was indicted.”
At the time of the trial, Howard had not been
indicted in Hart County.
In affirming the conviction, this Court
stated:
One of the exceptions is evidence of a
plan, scheme or system. “[T]he evidence must
show acts, circumstances or crimes similar
to, clearly connected with, and not too
remote from the one charged. . . .” O’Bryan
v. Commonwealth, [supra]. Applying this rule
to the facts before us we believe this
evidence to be admissible. Appellant was on
trial for trafficking in marijuana. Proof of
another sale four months later is evidence of
a “crime similar to, clearly connected with,
and not too remote from the one charged.” It
is, therefore, evidence of a plan, scheme or
system and could be considered by the jury in
determining appellant’s guilt or innocence of
the crime with which he was charged.10
In the case sub judice, the Kentucky State Police were
involved in a drug investigation in Harrison County during 1997.
The police were using paid informants, such as Banks and Wornall,
to make controlled drug buys.
When Banks and Wornall went to buy
drugs, they were searched, given money for the drug purchase and
“wired” with an audio transmitter and microcassette recorder.
The Commonwealth’s evidence supported a finding that on
the night of January 3, 1997, Young sold crack cocaine to Banks
for $80.00.
Young and Banks were at the residence of Theodore
Custard which was located on West Mill Street in Cynthiana.
Banks testified that Custard told Young to “give him 80 of mine;”
and that Young gave Banks crack cocaine “out of his sweats.”
lab report showed the substance to be 0.322 gram of cocaine.
10
Id. at 266.
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The
However, since neither Custard nor Young would take the $80.00,
Banks laid it on a table.
The Commonwealth’s evidence also supported a finding
that on the night of May 1, 1997, Young sold crack cocaine to
Wornall for $100.00.
Young was at the residence of Robert
Commodore which was located on Water Street in Cynthiana.
Wornall testified that she met Lee Custard and Marcellus Custard
and they went to Commodore’s house.
Wornall claimed that while
she stood next to the residence’s yard she gave Young $100.00
over the fence and he gave her crack cocaine.
The lab report
showed the substance to be 0.432 gram of cocaine.
Based on all the evidence of record, we hold that the
two drug transactions involving Young were sufficiently similar
and not too remote whereby each transaction was relevant
evidence of a plan, scheme or system to traffick in crack
cocaine.
Both transactions occurred in Cynthiana, at night,
either in or near a private residence other than Young’s
residence.
On both occasions the paid informant paid cash for a
similar quantity of crack cocaine that Young allegedly had on his
person.
The transactions occurred approximately four months
apart.
Based on these similarities, we cannot hold that the
trial court abused its discretion in denying the motion for
separate trials.
Certainly, a different trial judge may have
granted the severance, but the decision to deny separate trials
was based on sound legal principles and was not unreasonable and
unfair.
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Accordingly, the judgment of the Harrison Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas F. Towles
Georgetown, KY
A.B. Chandler, III
Attorney General
Michael G. Wilson
Assistant Attorney General
Frankfort, KY
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