AND GLENN MILLER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 14, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002165-MR
AND
NO. 2001-CA-002166-MR
GLENN MILLER
v.
APPELLANT
APPEALS FROM ROCKCASTLE CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NOS. 00-CR-00056-001 AND 01-CR-00038
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Glenn Miller has appealed from a final judgment
and sentence of the Rockcastle Circuit Court entered on
September 7, 2001, which, following the jury trial in which
Miller was found guilty of burglary in the third degree1 and as
being a persistent felony offender in the first degree2 (PFO I),
sentenced him to 15 years’ imprisonment.
1
Kentucky Revised Statutes (KRS) 511.040.
2
KRS 532.080(3).
Having concluded that
the trial court did not commit an error entitling Miller to
relief, we affirm.
Danny McKinney was the owner of a self-storage
facility in Rockcastle County, Kentucky.
The facility consisted
of individual buildings, each of which contained multiple
storage spaces that McKinney leased to his customers.
Each
storage space was accessible from the outside through a large,
bay door.
McKinney testified that he reserved some storage
spaces for his own personal use.
Among the spaces McKinney
reserved for his own use was unit #30.
At around 9:30 p.m. on September 24, 2000, McKinney
was on his way home from working at his other businesses when he
passed by the storage facility in Rockcastle County.
McKinney
testified that as he neared the facility, he noticed a U-Haul
truck parked in front of unit #30.
McKinney stated that as he
pulled into the parking lot area alongside the U-Haul truck, he
noticed one man standing near the door to unit #30 and another
man walking out from inside unit #30.3
At trial, McKinney
identified Miller as the man he saw walking out from inside unit
#30.
McKinney further testified that he told the two men to
remain at the storage facility while McKinney called the police
on his cellular phone.
According to McKinney, Miller and the
3
It is not clear from the record whether the other man with Miller was
charged as a result of the events on the night in question.
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other man ignored his request and fled the scene in the U-Haul
truck.
McKinney stated that he followed the men in his own
vehicle and was able to contact the police during this pursuit.
McKinney testified that he followed the U-Haul until Pulaski
County Sheriff Sam Catron pulled the truck over and arrested
Miller.
On September 29, 2000, a Rockcastle County grand jury
indicted Miller on one count of burglary in the third degree.4
On June 6, 2001, Miller was again indicted by a Rockcastle
County grand jury on a PFO I charge,5 which stemmed from two
previous convictions in Jessamine County.
Miller pled not
guilty to both charges.
At a jury trial held on August 7 and 8, 2001, Miller’s
motion for a directed verdict of acquittal was denied, and the
jury found Miller guilty of burglary in the third degree and the
PFO I charge.
On August 8, 2001, the trial court entered final
judgments on the guilty verdicts.
On September 7, 2001,
following a pre-sentence investigation, the trial court
sentenced Miller to five years’ imprisonment on the conviction
for burglary in the third degree, which was then enhanced to 15
years’ imprisonment pursuant to the PFO I conviction.
appeal followed.
4
Indictment No. 00-CR-00056.
5
Indictment No. 01-CR-00038.
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This
Miller first claims that the trial court erred by
denying his motion for a directed verdict of acquittal.
Specifically, Miller argues:
In the case at bar, the evidence
asserting [ ] Miller’s presence was wholly
inadequate to support a [burglary in the
third degree] conviction. . . . That [ ]
requires that two separate and distinct
elements be met in order to support a
conviction. One must (1) enter or remain
unlawfully in a building (2) with the intent
to commit a crime.
Only the owner of the storage facility,
[ ] McKinney placed [ ] Miller at the scene
of the crime. . . . [McKinney] claims that
[ ] Miller was 3-5 feet inside the shed when
[McKinney] arrived on the scene to confront
[ ] Miller.
In Commonwealth v. Benham,6 our Supreme Court explained
the test for a trial court to follow when ruling on a motion for
a directed verdict of acquittal:
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.
6
Ky., 816 S.W.2d 186, 187 (1991).
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The Court went on to state the appropriate standard for an
appellate court to follow when reviewing a trial court’s ruling
on a motion for a directed verdict:
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.
With these principles in mind, we turn to the evidence
presented at trial.
Our review of McKinney’s testimony reveals
the following:
1. McKinney testified that Miller did not have his
permission to enter unit #30, a unit which McKinney
had reserved for his own personal use.
2. McKinney testified that he observed a U-Haul truck
backed up directly in front of unit #30, with the
back door to the U-Haul open.
3. McKinney stated that as he pulled alongside the UHaul truck, he saw Miller walking out from inside
unit #30.
4. McKinney testified that when questioned, Miller
asserted that he had leased unit #30.
5. McKinney stated that when he told Miller he was
going to call the police, Miller and the other man
quickly got into the U-Haul truck and drove away.
6. Finally, McKinney stated that upon returning to
unit #30, he could not locate the lock that had
been on the door earlier in the day.
Based on the foregoing testimony, we conclude that it
was not “clearly unreasonable” for the jury to find Miller
guilty of burglary in the third degree, since there was ample
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evidence upon which the jury could have found that Miller
knowingly entered or remained unlawfully in unit #30 with the
intent to commit a crime therein.7
McKinney testified that
Miller did not have permission to be inside unit #30 and that
McKinney could not find the lock which had been on the door
earlier in the day.
Hence, the jury could have reasonably found
that Miller intentionally entered unit #30 unlawfully.
McKinney
also testified that the U-Haul truck was backed up directly in
front of unit #30 with its back door open.
Thus, the jury could
have reasonably concluded that Miller entered unit #30 with the
intent to commit a crime, i.e., take items from inside that did
not belong to him.
In his brief to this Court, Miller places a great deal
of emphasis on the fact that almost all of the evidence
presented on behalf of the Commonwealth came from the
uncorroborated testimony of McKinney.
However, the testimony of
a single witness is sufficient to support a finding of guilt,
even if another witness testifies to the contrary.8
We therefore
hold that, based upon the evidence presented, a jury could have
reasonably found Miller guilty of burglary in the third degree.
7
See KRS 511.040.
8
See Commonwealth v. Suttles, Ky., 80 S.W.3d 424, 426 (2002)(holding that
“[t]he testimony of even a single witness is sufficient to support a finding
of guilt, even when other witnesses testified to the contrary if, after
consideration of all of the evidence, the finder of fact assigns greater
weight to that evidence”).
-6-
Accordingly, the trial court did not err by denying Miller’s
motion for a directed verdict of acquittal.
Miller next argues that the trial court erred by
admitting prejudicial evidence at trial.
In particular, Miller
argues:
McKinney should not have been allowed to
testify about the report of a prior break-in
[that he received from Rodney Moberly, one
of McKinney’s renters,] because it does not
relate to any material aspect of the charges
against [ ] Miller. The evidence was offered
under the guise of non-hearsay, but the
[trial] court erred in not recognizing the
[possible prejudicial effect]. The trial
court should have excluded [ ] McKinney’s
testimony as irrelevant.
We disagree and hold that the trial court did not err by
admitting McKinney’s testimony on this issue.
In Young v. Commonwealth,9 our Supreme Court explained
that out-of-court statements offered not for the truth of the
matter asserted, but to explain an individual’s conduct after
hearing that statement is admissible non-hearsay:
A police officer may testify about
information furnished to him by an absent
witness only if that information tends to
explain the action that was taken by the
police officer as a result of the
information and the taking of that action is
an issue in the case. If so, the out-ofcourt statement is not hearsay, because it
is not offered to prove the truth of the
matter asserted but to explain why the
9
Ky., 50 S.W.3d 148, 167 (2001).
-7-
officer acted as he did [emphasis original]
[citation omitted].
In the case at bar, McKinney testified that at around
6:00 p.m. on the night in question, he was at the storage
facility when Moberly, one of McKinney’s renters, told him that
his storage bay had been broken into earlier.
McKinney
testified that as a result of this conversation, he replaced the
lock on Moberly’s bay and checked the other bays to see if they
were secure, including unit #30.
This testimony was relevant to
show why McKinney checked all of the bay doors to see if the
locks were in place before he left shortly thereafter.
This
testimony also explains why McKinney chose to investigate later
that evening when he noticed the U-Haul truck parked near his
own storage unit.
Hence, these statements were properly
admitted into evidence as non-hearsay testimony.
Miller further argues that even if the testimony was
relevant, its probative value was outweighed by the danger of
undue prejudice and should have been excluded under KRE10 403.
Once again, we disagree.
Immediately after McKinney testified
regarding the statements that Moberly had told him, the trial
court admonished the jury that the statements were not being
offered to prove the truth of the matter asserted in those
statements, but to explain the subsequent actions taken by
10
Kentucky Rules of Evidence.
-8-
McKinney.11
Further, nothing in McKinney’s testimony with
respect to what Moberly had told him implicated Miller in the
break-in at Moberly’s storage unit.
Miller’s name was not
mentioned in this portion of the testimony.
The trial court did
not abuse its discretion by finding that the probative value was
not outweighed by the danger of undue prejudice.12
Accordingly,
the trial court did not err by admitting this testimony.
Based on the foregoing, the judgment of the Rockcastle
Circuit Court is affirmed.
KNOPF, JUDGE, CONCURS.
McANULTY, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis Stutsman
Frankfort, Kentucky
Albert B. Chandler III
Attorney General
Kent T. Young
Assistant Attorney General
Frankfort, Kentucky
11
See Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 26 (1998)(holding that
“[j]urors are presumed to have followed an admonition”).
12
See Barnett v. Commonwealth, Ky., 979 S.W.2d 98, 103 (1998)(stating that
“[a]n appellate court should reverse a trial court's ruling under KRE 403
only if there has been an abuse of discretion”).
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