BILLY JOE WALDEN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JANUARY 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000107-MR
BILLY JOE WALDEN
APPELLANT
APPEAL FROM MONROE CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 02-CR-00025
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY AND MINTON, JUDGES.
GUIDUGLI, JUDGE.
Billy Joe Walden (“Walden”) appeals from a
judgment of the Monroe Circuit Court reflecting a jury verdict
of guilty on two counts of first-degree unlawful transaction
with a minor.
We affirm.
In November, 2001, B.J. Walden (“B.J.”), son of
appellant Walden, began dating a fourteen-year-old girl named
“M.S.”
B.J. was 20 years old at the time.
M.S. had a fifteen-
year-old female friend referred to in the record as “A.H.”
On several occasions in late November, 2001, Walden,
age 43, B.J., and the two minor girls allegedly engaged in the
illegal use of prescription drugs and alcohol.
It would later
be alleged that on November 24, 2001, the four individuals
consumed alcohol and rented a hotel room in Tompkinsville,
Kentucky, where B.J. and M.S. had sexual intercourse on one of
the hotel beds while Walden and A.H. were on the other bed.
The uncle of M.S. apparently became suspicious of
M.S.’s involvement with B.J. and reported the matter to the
Kentucky State Police.
An investigation ensued which resulted
in the indictment of B.J. and Walden on six counts each of
first-degree unlawful transaction with a minor.
B.J. pled
guilty, and the charges against Walden came to trial in Monroe
Circuit Court on December 10, 2002.
Evidence was adduced at trial that Walden had provided
prescription drugs and alcohol to the minor girls on several
occasions.
Particular attention was given to the November 24,
2001 encounter, during which Walden allegedly provided the girls
with alcohol and pills, drove them to Tennessee, then returned
to Tompkinsville where the hotel room was rented.
M.S., A.H.,
and B.J. each testified that Walden had provided the girls with
alcohol and pills.
Walden maintained that B.J. was fabricating
a story in order to secure a favorable plea agreement in his
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criminal proceeding, and that the girls were supporting his
story in order to help B.J.
At the close of the Commonwealth’s case, Walden
maintained that insufficient evidence was presented to instruct
the jury on any offense.
The trial judge agreed in part, ruling
that the only direct evidence of Walden’s alleged wrongdoing
related to the November 24, 2001 incident and a subsequent
incident occurring on Big Sulfur Road.
The trial continued only
as to the two counts of the indictment relating to those two
incidents.
Walden denied any wrongdoing, maintaining that he
had never given the girls alcohol or pills, and in fact had
lectured them on the evils of drug use after smelling marijuana
on them.
At the close of all the evidence the jury was
instructed on two counts of first-degree unlawful transaction
with a minor relating to the November 24, 2001 incident; the
lesser included offense of third-degree unlawful transaction
with a minor; and, one additional count of first-degree unlawful
transaction with a minor for the alleged sexual contact
occurring with A.H. at Big Sulfur Road.
Upon considering the
proof, the jury returned a verdict of guilty on two counts of
third-degree unlawful transaction with a minor (for the November
24, 2001 incident), and not guilty on the third count.
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Walden
was sentenced to 12 months in jail on each charge, to be served
concurrently.
This appeal followed.
Walden first argues that the trial court erred in
denying his motion for a directed verdict of acquittal.
He
maintains that the evidence was not sufficient to prove that he
was guilty of third-degree unlawful transaction with a minor,
arguing that the evidence in support of these charges was
conflicting and contradictory.
He claims that no reasonable
person could rely on this conflicting testimony to find that he
was guilty of the charged crimes, and that as such the trial
court erred in failing to grant his motion for a directed
verdict.
He seeks to have his conviction reversed and the
matter remanded for entry of a directed verdict of acquittal.
As the parties are aware, Commonwealth v. Benham, Ky.,
816 S.W.2d 186 (1991), sets forth the standard for reviewing
motions for a directed verdict.
It states that,
[O]n 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.
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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.
Benham, 816 S.W.2d at 187.
M.S. testified that Walden purchased alcohol in
Tennessee, and that the four individuals consumed the alcohol in
Walden’s vehicle while driving back to Tompkinsville, Kentucky.
Other evidence was introduced that the girls were 14 and 15
years old at the time of the incident.
When the trial court
drew all fair and reasonable inferences from this testimony as
Benham requires, and when it assumed that the evidence was true
for purposes of Walden’s motion, it properly concluded that the
evidence was sufficient for the jury to render a guilty verdict.
As to the test on appellate review, we cannot conclude that
under the evidence as a whole it was clearly unreasonable for
the jury to find guilt.
Id.
The important inquiry is not
whether the evidence was conflicting, nor whether evidence was
produced which support Walden’s claim of innocence, for each of
those questions would be answered in the affirmative.
Rather,
the question which disposes of Walden’s claim of error is
whether evidence existed upon which the jury could have
reasonably concluded that Walden was guilty of the charged
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offenses.
Such evidence is found in the record, and
accordingly, we find no error on this issue.
Walden next argues that the trial court erred in
allowing the jury to twice find him guilty of the same count of
the indictment.
He notes that Count 1 of the indictment alleges
that he engaged in illegal conduct as against two minors on
November 24, 2001.
He maintains that the trial court treated
this one count as two separate and distinct charges, and
improperly instructed the jury that it could find him guilty of
two offenses (one offense against each girl).
Stated
differently, since Walden was only indicted on one count of
wrongful conduct occurring on November 24, 2001, he claims that
he cannot be found guilty twice.
He notes that this issue is
not preserved for appellate review, but claims that it
represents palpable error.
We have closely studied this issue and find no error.
An indictment may be amended at any time to conform to the
proof.
RCr 6.16;
533 (1997).
Wolbrecht v. Commonwealth, Ky., 955 S.W.2d
It cannot be amended so as to make additional
charges which the defendant is not prepared to meet.
Maum v.
Commonwealth, Ky., 490 S.W.2d 748 (1973).
In the matter at bar, Count 1 of the indictment
clearly alleged wrongful conduct as against two minors.
Nothing
requires the indictment to set forth separate counts as against
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each alleged victim.
See generally, Maddox v. Commonwealth,
Ky., 349 S.W.2d 686 (1961), which stands for the proposition
that the indictment and jury instructions need not be perfectly
matched so long as they describe the same offense.
See also,
Johnson v. Commonwealth, Ky., 105 S.W.3d 430 (2003).
The
indictment put Walden on notice that the Commonwealth sought to
prove criminal behavior as against two minors, and evidence was
adduced at trial in support of the indictment.
As such, it
cannot reasonably be argued either that Walden was unaware of
the charges against him or that the jury instructions came as a
surprise.
Walden did not object to the instructions, and we
find no palpable error.
Accordingly, this issue does not
provide a basis for tampering with the judgment on appeal.
Walden’s third and final argument is that the trial
court abused its discretion by giving him the maximum sentence
of 12 months, and by denying his motion for probation.
no abuse of discretion.
We find
The sentence was within the statutory
guidelines for third-degree unlawful transaction with a minor
(KRS 530.070), and the record contains nothing showing that
Walden was entitled under the law to a shorter sentence.
Similarly, there is no right to receive a probated sentence,
White v. Commonwealth, Ky. App., 611 S.W.2d 529 (1980), and
Walden is not entitled to any relief under this argument.
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For the foregoing reasons, we affirm the judgment of
the Monroe Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis Stutsman
Assistant Public Advocate
A. B. Chandler
Attorney General
Timothy G. Arnold
Assistant Public Advocate
Frankfort, KY
George G. Seelig
Assistant Attorney General
Frankfort, KY
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