GARRY ROTHFUSS v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 1, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001578-MR
GARRY ROTHFUSS
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
INDICTMENT NO. 02-CR-00780
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, JOHNSON, AND HENRY, JUDGES.
HENRY, JUDGE:
Garry Rothfuss appeals from a jury verdict and
judgment finding him guilty of complicity to second-degree
burglary and sentencing him to eight (8) years’ imprisonment.
Upon review, we affirm.
On March 19, 2002, Kenton County police officer Nathan
Honaker was dispatched to the home of Roselyn Coppage at 12010
Dawn Street in response to a reported burglary at the residence.
After speaking to Ms. Coppage, Honaker determined that a break-
in had occurred between 10:00 p.m. the night before and 6:00
a.m. that morning.
Ms. Coppage had apparently slept through the
burglary after taking a sleeping pill before going to bed.
Honaker also determined that a basement window was the probable
point of entry for the break-in after discovering that the
window was broken.
Among the items reported stolen by Ms.
Coppage were several credit cards and $300 cash.
A more
detailed examination of the home revealed that drawers had been
pulled open in a number of rooms, and that papers and other
debris had been strewn on the floor.
It was also discovered
that the frame and screen of the basement window had been
removed and placed to the side, with some fragments of glass
lying outside the window and some inside the basement.
However,
police were unable to obtain any other physical evidence,
including fingerprints, from the home or from the area around
it.
Detective Brian Capps was assigned to investigate the
case.
He first sought to determine if Ms. Coppage’s credit
cards had been cancelled or used and discovered that one of the
cards had been used at a Wal-Mart in Madison, Indiana at about
9:04 a.m. on March 19, 2002.
Approximately $1,046.72 in
merchandise was purchased with the credit card.
Capps also
learned that someone had attempted to use the credit cards at a
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Wal-Mart in Louisville, Kentucky at about 11:22 a.m. that same
day.
However, this time the transaction was denied.
Theresa Phillips, a Wal-Mart loss prevention officer,
witnessed the attempted purchase at the Louisville store.
She
testified that she was immediately suspicious of the man and
woman who attempted to use the credit cards because they had
been placing a number of electronic items in their shopping cart
without looking to see how much they cost.
When the woman was
asked to show identification after the first credit card was
rejected, Phillips testified that the pair left their shopping
cart and the credit cards, met up with another man who had been
walking around a nearby aisle, and immediately left the store.
Phillips followed the individuals to the parking lot, where the
second man who had been walking around the store stepped into
the front seat of an automobile, while the other man and woman
went into the back seat and ducked their heads.
Phillips
obtained a license plate number as the car drove away.
This information was given to Detective Capps when he
contacted the Louisville store.
Upon running a license plate
check on the vehicle, Detective Capps determined that the
vehicle was registered to Appellant Rothfuss.
Capps then showed
a photo lineup to Phillips that included a picture of Rothfuss.
Phillips testified that she “very quickly” identified Rothfuss
as the second man in the Wal-Mart store who had driven away from
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the scene.1
Capps subsequently conducted a non-custodial
interview with Rothfuss, who at first denied involvement in any
burglary and denied being at any Wal-Mart store on the morning
in question.
After further questioning, Rothfuss admitted being
with a man and a woman on the night of the burglary and admitted
going to a Wal-Mart with them.
He refused to disclose the
identities of the other two individuals, however, stating that
he was not a “snitch,” and that he would do prison time before
telling the police who the two individuals were.
According to Detective Capps, the investigation then
went stagnant for several months because he did not believe that
he had probable cause to arrest Rothfuss and because he did not
know who the other two individuals were.
Capps testified that
he decided to interrogate Donald Coppage, Ms. Coppage’s oldest
son, to pursue the possibility that the burglary was an “inside
job.”
Mr. Coppage vehemently denied involvement, and Capps
stopped considering him as a suspect.
He subsequently asked
Coppage to help him find who had broken into his mother’s home.
A number of weeks later, Mr. Coppage asked Detective
Capps to meet him in a convenience store parking lot.
Coppage
gave Capps the names of two individuals—Billy Ray Carroll and
Peggy Lovitt—to investigate, but he refused to disclose the
reason for giving Capps these two particular names.
1
Capps found
At trial, Phillips would again identify Rothfuss as one of the men at the
Wal-Mart that morning.
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Lovitt being held in the Carroll County Jail.
She admitted
being with Rothfuss and Carroll on the night of the burglary,
and, based upon other statements that she made, Capps obtained
second-degree burglary warrants against Rothfuss, Carroll, and
Lovitt.2
On November 22, 2002, the Kenton County Grand Jury
indicted Rothfuss, Carroll, and Lovitt on charges of seconddegree burglary stemming from the March 19, 2002 break-in at the
Coppage residence.3
Rothfuss entered a plea of “Not guilty” at
arraignment and the case was tried before a jury on June 3 and
4, 2003.
At trial, in addition to testimony given by Phillips,
Ms. Coppage, and the police officers involved in the case,
Lovitt testified in detail about her activities on the night of
March 19, 2002.4
She first stated that she, Rothfuss, and
Carroll left an Indiana casino somewhere between 3:30 and 4:30
in the morning.
Carroll told Rothfuss that they needed to go
somewhere, and the three traveled by car to Dawn Street in
Kenton County.
Rothfuss, who was driving, was apparently not
2
Carroll denied being involved in any burglary when questioned by Capps after
his arrest, but he acknowledged knowing Rothfuss and Lovitt and being with
them on the night of the burglary. When shown a photo lineup featuring a
picture of Carroll by Capps, Theresa Phillips identified him as being the
other man in the Louisville Wal-Mart on the morning of the 19th. She also
identified Carroll at trial.
3
On February 24, 2003, the indictment returned against Rothfuss was amended
to a charge of complicity to second degree burglary.
4
Lovitt was not being tried, as she had previously pled guilty in district
court to a misdemeanor charge.
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told where to go.
Rothfuss dropped Carroll off at the corner of
Dawn Street, where he proceeded to put on a black sweat jacket
and walk towards a “corner brick house.”
then drove to a convenience store.
Rothfuss and Lovitt
Some time later, Carroll
contacted Rothfuss via a two-way radio and told Rothfuss to come
and get him.
Rothfuss drove to a wooded area somewhere near the
brick house and picked up Carroll, who was waiting there.
When they picked Carroll up, Lovitt noticed that he
had a little black bag.
He would later comment about someone
residing in a home on Dawn Street that he had “rubbed her hand.”
Lovitt then testified that the three drove to a Wal-Mart in
Indiana and went into the store.
She indicated that she used
credit cards containing another woman’s name to purchase items
there.
She then testified that the three drove to a Wal-Mart in
Louisville, and that she tried to use the credit cards there.
Rothfuss and Carroll did not testify.
The jury returned a verdict finding Rothfuss guilty of
complicity to second-degree burglary and sentencing him to eight
(8) years’ imprisonment.5
On July 21, 2003, the trial court
entered a final judgment in accordance with the jury verdict.
This appeal followed.
5
Carroll was found guilty of second degree burglary and sentenced to ten (10)
years in prison. This sentence was enhanced to twenty (20) years by a PFO
count.
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Rothfuss makes the following arguments on appeal: (1)
he was convicted on insufficient evidence of complicity to
second-degree burglary; (2) he was denied a fair trial and due
process when the trial court failed to sustain his motion to bar
the introduction of evidence of other acts that took place in
Louisville, Kentucky and Madison, Indiana and his motion for
relief following mid-trial discovery of an additional suspect;
and (3) he was denied a fair trial when the trial court defined
“complicity” in its jury instructions so as to include
“facilitation” in a case where the jury was instructed on both
offenses.
We will address each contention in turn.
Rothfuss first contends that the evidence presented at
trial was insufficient for a complicity to second-degree
burglary conviction, and that he was entitled to a directed
verdict.
We are obligated to review this argument under the
standard set forth in Commonwealth v. Benham, 816 S.W.2d 186
(Ky. 1991):
“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.”
at 187 (citation omitted).
Id.
“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
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reasonable doubt that the defendant is guilty, a directed
verdict should not be given.”
Id.
A defendant is entitled to a
directed verdict if the Commonwealth produces no more than a
“mere scintilla” of evidence of guilt.
Id. at 187-88.
Upon our review of the record, we cannot conclude that
the jury was “clearly unreasonable” in finding Rothfuss guilty
of complicity to commit second-degree burglary.
A conviction
under KRS6 502.020(1), the complicity statute at issue here,
requires that an individual: (1) specifically intend to promote
or facilitate a crime committed by another person (in this case,
second-degree burglary); and (2) actually solicit, command, or
engage in a conspiracy with such other person to commit the
crime or aid, counsel, or attempt to aid such other person in
planning or committing the crime.
Thompkins v. Commonwealth, 54
S.W.3d 147, 150 (Ky. 2001); Skinner v. Commonwealth, 864 S.W.2d
290, 298 (Ky. 1993).
We believe that sufficient evidence was introduced
from which a jury could conclude that Rothfuss intended to aid
Carroll in the commission of second-degree burglary.
In
particular, we note that the jury was told that Rothfuss took
Carroll to a drop-off point on Dawn Street without being told
where to go by Carroll, that Rothfuss stayed in communication
with Carroll by two-way radio, and that Rothfuss picked up
6
Kentucky Revised Statutes.
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Carroll at a specific location without being told where to go.
From these circumstances, along with the other evidence produced
at trial, a jury could certainly infer that Rothfuss intended to
aid Carroll in committing a burglary.
See Talbott v.
Commonwealth, 968 S.W.2d 76, 86 (Ky. 1998) (citations omitted);
Lambert v. Commonwealth, 835 S.W.2d 299, 301 (Ky.App. 1992)
(citations omitted).
Accordingly, we reject Rothfuss’s argument
as to this issue.
Rothfuss next contends that the trial court erred in
failing to sustain his motion to bar the introduction of
evidence pertaining to the use of Ms. Coppage’s credit cards at
the Madison, Indiana and Louisville, Kentucky Wal-Mart stores.
The trial court allowed this evidence to be introduced under KRE7
404(b).
Rothfuss specifically complains that he was seen only
in proximity to Carroll and Lovitt in the stores, and that he
did not personally attempt to use any of the stolen credit
cards.
KRE 404(b) provides that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.”
This
evidence may be admissible, however, “[i]f offered for some
other purpose, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
7
Kentucky Rules of Evidence.
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accident,” KRE 404(b)(1), or “[i]f so inextricably intertwined
with other evidence essential to the case that separation of the
two (2) could not be accomplished without serious adverse effect
on the offering party.”
KRE 404(b)(2).
“It is a well-settled principle of Kentucky law that a
trial court ruling with respect to the admission of evidence
will not be reversed absent an abuse of discretion.”
Commonwealth v. King, 950 S.W.2d 807, 809 (Ky. 1997) (citation
omitted).
“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. 1995) (citations omitted).
From our review of the record, we are satisfied that the trial
judge did not abuse his discretion in admitting the evidence in
question.
Indeed, we believe that the evidence is admissible
under either KRE 404(b)(1) or 404(b)(2).
See Furnish v.
Commonwealth, 95 S.W.3d 34, 46 (Ky. 2002).
Rothfuss next argues that the trial court erred in
failing to find a discovery violation regarding Donald Coppage.
In particular, Rothfuss contends that the Commonwealth was
obligated to produce discovery relating to Detective Capps’
interrogation of Donald Coppage as a possible suspect in the
burglary in question, and that its failure to do so requires
reversal.
Rothfuss claims to have had no knowledge of this
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interrogation prior to trial and apparently learned about it
only when Capps testified about his questioning of Coppage while
referring to a page of notes that he had taken during the
questioning.
The Commonwealth provided no information to
Rothfuss about this interrogation prior to trial.
As an initial matter, we note that RCr8 7.24(2) clearly
provides that a defendant is not entitled to “memoranda, or
other documents made by police officers and agents of the
Commonwealth in connection with the investigation or prosecution
of the case, or of statements made to them by witnesses or by
prospective witnesses (other than the defendant),” with the
exception of official police reports.
The only record of Capps’
interrogation of Donald Coppage is the page of notes referenced
above.
We agree with the trial judge that these notes were not
required to be produced to Rothfuss pursuant to RCr 7.24(2).
See also Cavender v. Miller, 984 S.W.2d 848, 849 (Ky. 1998);
White v. Commonwealth, 611 S.W.2d 529, 531 (Ky.App. 1980).
We
can also find no rule obligating the Commonwealth to disclose
any oral statements made by a non-witness during a criminal
investigation.
Rothfuss’s primary contention as to this issue,
however, is that the interview with Coppage and its substance
are exculpatory in nature and therefore should have been
8
Kentucky Rules of Criminal Procedure.
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disclosed pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed.2d 215 (1963).
A reversal under Brady is
required only where "there is a 'reasonable probability' that,
had the evidence been disclosed to the defense, the result of
the proceeding would have been different.
A reasonable
probability is the probability sufficient to undermine the
confidence in the outcome."
Bowling v. Commonwealth, 80 S.W.3d
405, 410 (Ky. 2002) (quoting U.S. v. Bagley, 473 U.S. 667, 682,
105 S. Ct. 3375, 3383, 87 L. Ed.2d 481, 494 (1985)).
“[T]he
mere possibility that an item of undisclosed information might
have helped the defense, or might have affected the outcome does
not establish materiality in the constitutional sense.”
St.
Clair v. Commonwealth, 140 S.W.3d 510, 541 (Ky. 2004) (citation
omitted).
We agree with the trial court and the Commonwealth
that nothing Donald Coppage told Detective Capps can be viewed
as exculpatory, as his statements did not tend to exonerate
Rothfuss or establish his innocence.
958 S.W.2d 306, 308 (Ky. 1997).
See Yates v. Commonwealth,
If anything, the information
given to Capps actually served to inculpate Rothfuss as it
connected him to Carroll and Lovitt.
Accordingly, Rothfuss is
not entitled to relief under Brady, and we must reject his
arguments as to this issue.
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Rothfuss’s final argument on appeal is that the trial
court erred in defining “complicity” in its jury instructions so
as to include the offense of “facilitation.”
Rothfuss
acknowledges that this issue is unpreserved.
Consequently, we
are not obligated to consider it on review.
RCr 9.54(2);9
Caldwell v. Commonwealth, 133 S.W.3d 445, 451 (Ky. 2004);
Chumbler v. Commonwealth, 905 S.W.2d 488, 499 (Ky. 1995).
Rothfuss asks the court, however, to review the issue
for palpable error under RCr 10.26.
The rule requires a showing
of a “palpable error which affects the substantial rights of a
party” and “a determination that manifest injustice has resulted
from the error.”
Id.
“This means, upon consideration of the
whole case, the reviewing court must conclude that a substantial
possibility exists that the result would have been different in
order to grant relief.”
Partin v. Commonwealth, 918 S.W.2d 219,
224 (Ky. 1996) (citation omitted).
Upon a review of the record,
particularly the instructions given to the jury, we do not
believe palpable error or manifest injustice has been shown
here, nor do we believe that a substantial possibility exists
that the result below would have been different.
9
The definition
RCr 9.54(2) provides: “No party may assign as error the giving or the
failure to give an instruction unless the party's position has been fairly
and adequately presented to the trial judge by an offered instruction or by
motion, or unless the party makes objection before the court instructs the
jury, stating specifically the matter to which the party objects and the
ground or grounds of the objection.”
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of “complicity” set forth in the jury instructions is in
accordance with the statute on criminal complicity, KRS 502.020.
Moreover, the Supreme Court of Kentucky has approved of the use
of this definition in jury instructions.
Crawley v.
Commonwealth, 107 S.W.3d 197, 200 (Ky. 2003).
We further note
that the trial court fully and distinctly instructed the jury on
both complicity and facilitation.
Accordingly, we conclude that
Rothfuss is not entitled to relief on this issue.
The judgment of the Kenton Circuit Court is hereby
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David T. Eucker
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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