JOHNSON (DENNIS R.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 12, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
DENNIS R. JOHNSON
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 07-CR-00003
COMMONWEALTH OF KENTUCKY
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BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
KELLER, JUDGE: Dennis R. Johnson has appealed from the judgment of the
Meade Circuit Court, in which he was convicted of theft by unlawful taking over
$300 and for being a persistent felony offender in the first degree. He was
sentenced to fifteen years’ imprisonment. We affirm.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
The events giving rise to Johnson’s indictment and subsequent
conviction occurred over a two-day period in late September 2006. Roy Lowe
(Lowe), had recently acquired a red Chevrolet S10 pickup truck (the pickup) that
he was attempting to sell. To that end, Lowe put photographs of the pickup on an
internet website and parked it on US 60 and Shot Hunt Road with a “For Sale” sign
displayed in the pickup’s interior. The sign included his telephone number. Just
before midnight on September 22nd, Lowe received a telephone call from an
unidentified man, who offered to purchase the pickup for a lower price. Lowe
refused the caller’s offer and the conversation ended. A short time later, Lowe
received a second call. This time, the caller indicated that he was standing by the
pickup, and he again asked Lowe to reduce the price. Lowe testified that he
declined to do so, and the call ended.
On the morning of September 23rd, Lowe went to US 60 and Shot
Hunt Road to check on the pickup and discovered it was missing. He testified that
he called several local towing companies to determine if the pickup had been
towed at the request of the police. The companies he contacted stated that they had
not towed the pickup. In the meantime, while he was listening to the local radio
trading show, Tradio, Lowe recognized the voice of the caller as being that of the
person who had called him about purchasing the pickup the previous night. The
caller was offering to sell some steel pipe and Lowe called the number provided.
Lowe also testified he received a telephone call from his son, who
reported that a friend had seen the pickup being towed by AA Collision Center
(AA) earlier that morning. Lowe contacted AA and spoke to the owner, Randy
Ryan (Ryan). Ryan confirmed that he towed the pickup, and he took Lowe to the
place where he had towed it, Johnson’s property. When they arrived at Johnson’s
property, Lowe called the police and the deputy sheriff arranged to have the pickup
towed to Lowe’s property.
Ryan testified he received a telephone call from Johnson at
approximately midnight of September 22nd asking him to tow a truck located at US
60 and Shot Hunt Road. Johnson reported that someone was trying to steal the
truck. When Ryan quoted a $75 fee for the tow, Johnson refused. However,
approximately one hour later, Johnson again called Ryan and agreed to pay the $75
fee. Ryan testified he met Johnson at US 60 and Shot Hunt Road, towed the
pickup to Johnson’s residence, and left it in Johnson’s driveway. Ryan verified
Lowe’s testimony regarding their telephone conversation and subsequent trip to
Johnson’s residence. Furthermore, Ryan testified that the pickup was further back
on Johnson’s property than it had been when he left it.
Meade County Sheriff’s Department Deputy Mike Robinson (Deputy
Robinson) testified he went to Johnson’s residence after receiving several calls
from Lowe regarding the pickup. When he arrived at Johnson’s residence, Deputy
Robinson asked Lowe for the title to the pickup. Lowe gave the title to Deputy
Robinson and explained that the title was not in his name because he had recently
purchased the pickup and had not had the opportunity to obtain a new title. Deputy
Robinson testified he checked the vehicle information number (VIN) on the title
against the VIN on the truck, and determined the two numbers matched. At that
point, Deputy Robinson called for a tow truck and knocked on the door of
Johnson’s house. Johnson did not come out of the house until the tow truck
arrived. He explained to Deputy Robinson that he had not heard him knocking
because he was sleeping. However, he heard the tow truck and thought he should
find out what was happening. Deputy Robinson testified that, in response to
questions about the pickup, Johnson stated that he had traded for it with two men
from Jennings Knob.
Johnson’s testimony differed significantly from the testimony of
Lowe, Ryan, and Deputy Robinson. According to Johnson, he heard about the
pickup on Tradio at the about the same time he listed a riding lawn mower for sale
or trade on Tradio. Johnson testified that Joe Popham (Popham) contacted him in
response to the Tradio listing and offered to trade him the pickup in exchange for
the lawn mower. Johnson stated that he gave Popham $200, the lawn mower, and
a rebuilt starter worth $100, in exchange for the pickup. According to Johnson,
Popham came to his house with a truck and trailer so that he could retrieve the
pickup from its location at US 60 and Shot Hunt Road. However, the trailer had a
flat tire and Johnson called several towing companies, eventually arranging for AA
to get the pickup and tow it to his residence.
Johnson also testified that once he learned the pickup belonged to
Lowe, he filed a police report in an attempt to retrieve his lawn mower from
Popham. However, he did nothing else to retrieve the mower from Popham.
When asked if he thought it was significant that Popham did not have
any registration and the pickup did not have a license plate, Johnson testified that
he was not concerned because he only intended to drive the pickup on his property.
Finally, Johnson testified he and Popham became acquaintances
through trading; he believed Popham made the phone calls to Lowe; and he had
not seen Popham since the early morning of September 23rd.
Johnson’s former girlfriend, Barbara Justice (Justice), testified that
she recalled the deal Johnson made with Popham and that Popham’s trailer had a
flat tire. Furthermore, Justice testified she knew the pickup had been towed to
Johnson’s residence, but she did not know where the pickup had been dropped off.
Finally, Justice testified that she had seen Popham several times following
September 23rd, but she had not discussed Johnson’s case with Popham.
Based on these circumstances, the Meade County grand jury indicted
Johnson on three counts: 1) Theft by Unlawful Taking over $300; 2) Theft of
Motor Vehicle Registration Plate/Decal; and 3) for being a Persistent Felony
Offender in the First Degree (PFO I). Following a trial, the jury returned a guilty
verdict on the theft by unlawful taking charge, but returned a not guilty verdict on
the second count. The jury then found Johnson guilty on the PFO I charge and
sentenced him to an enhanced penalty of fifteen years’ imprisonment. This appeal
On appeal, Johnson raises two arguments: 1) prosecutorial
misconduct, which Johnson concedes was unpreserved; and 2) that the trial court
should have granted his motion for a directed verdict of acquittal. The
Commonwealth, in its brief, argues any prosecutorial misconduct did not rise to the
level of palpable error, Johnson did not preserve his directed verdict argument by
providing grounds for the motion, and that in any event there was sufficient
evidence introduced to defeat a motion for a directed verdict.
1. Prosecutorial Misconduct
Because the issues Johnson raises under the category of prosecutorial
misconduct are unpreserved, we must review these matters under the palpable error
rule of Kentucky Rules of Criminal Procedure (RCr) 10.26:
A palpable error which affects the substantial
rights of a party may be considered by the court on
motion for a new trial or by an appellate court on appeal,
even though insufficiently raised or preserved for review,
and appropriate relief may be granted upon a
determination that manifest injustice has resulted from
The law is clear that this rule
is not a substitute for the requirement that a litigant must
contemporaneously object to preserve an error for
review. . . . In determining whether an error is palpable,
“an appellate court must consider whether on the whole
case there is a substantial possibility that the result would
have been any different.”
Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky. 2002). “To discover manifest
injustice, a reviewing court must plumb the depths of the proceeding . . . to
determine whether the defect in the proceeding was shocking or jurisprudentially
intolerable.” Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
Johnson first argues that the Commonwealth’s cross-examination of
him amounted to prosecutorial misconduct, because he was asked to comment on
the veracity of other witnesses. The former Court of Appeals set forth the standard
for cross-examination in Howard v. Commonwealth, 227 Ky. 142, 12 S.W.2d 324,
Although to aid in the discovery of the truth reasonable
latitude is allowed in the cross-examination of witnesses,
and the method and extent must from the necessity of the
case depend very largely upon the discretion of the trial
judge, yet, where the cross-examination proceeds beyond
proper bounds or is being conducted in a manner which
is unfair, insulting, intimidating, or abusive, or is
inconsistent with the decorum of the courtroom, the court
should interfere with or without objection from counsel.
In Howard, the Commonwealth’s attorney asked the defendant to comment on the
veracity of other witnesses, in one instance asking “‘if what Maud Denton swore is
a lie.’” Id. The Court held that the trial court not only should have sustained the
objections to this type of cross-examination, but should have admonished counsel
against such improper interrogation. Id.
In Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997), the
Supreme Court reaffirmed Howard, stating:
A witness should not be required to characterize the
testimony of another witness, particularly a wellrespected police officer, as lying. Such a characterization
places the witness in such an unflattering light as to
potentially undermine his entire testimony. Counsel
should be sufficiently articulate to show the jury where
the testimony of the witnesses differ without resort[ing]
to blunt force.
However, when claims of error such as this are unpreserved, as was
the case in Moss, Kentucky's appellate courts have not identified any palpable
error. Although holding the line of questioning to be improper, the Moss Court
nevertheless held that “[a]ppellant's failure to object and our failure to regard this
as palpable error precludes [sic] relief.” 949 S.W.2d at 583. Likewise, in Tamme
v. Commonwealth, 973 S.W.2d 13, 28 (Ky. 1998), the Supreme Court held:
While we do not approve of this type of crossexamination, i.e., asking one witness to characterize the
testimony of another, there was no contemporaneous
objection and we are unpersuaded that absent this
inquiry, the result would have been different. [Citations
In Caudill v. Commonwealth, 120 S.W.3d 635, 662 (Ky. 2003), the Supreme Court
concluded that “the totality of the circumstances are persuasive that exclusion of
the improper inquiries would not have resulted in different verdicts in this case.”
Citing to its decision in Caudill, the Supreme Court again found no reversible error
in St. Clair v. Commonwealth, 140 S.W.3d 510, 554 (Ky. 2004), despite the fact
that the attorney for the Commonwealth asked questions that, under Moss,
constituted impermissible cross-examination of the defendant.
In the present case, Johnson asserts that the Commonwealth’s
Attorney compelled him to comment on the credibility of several of its witnesses,
and that the pattern of intentional prosecutorial misconduct affected the integrity of
the trial and rose to the level of palpable error. Johnson relies on the following
portions of his trial testimony to support this argument:
Commonwealth: You’ve heard all the testimony from
everyone else here today, haven’t you?
Mr. Johnson: Yes I have.
Commonwealth: So are all the other witnesses we’ve
heard from so far this morning, have they been lying? Is
that your position? That Mr. Lowe has lied to the jury
and Mr. Ryan’s lied to the jury and Deputy Robinson’s
lied to the jury?
Mr. Johnson: Not my position.
Commonwealth: At that time, what you told Mr.
Robinson was that you’ve made a deal with two men
about the truck, is that different from what you are saying
Mr. Johnson: I never stated that. I said there was a guy
around the corner, that knows of the deal I made with Mr.
Popham. And he told me. . .
Commonwealth: So you’re saying that Deputy Robinson
fabricated his testimony earlier when he said that you
told him that you made a deal with two men on Jennings
Knob Road. Deputy Robinson took a statement from you
Mr. Johnson: He told me that day that he’d be back the
Commonwealth: So when Deputy Robinson testified
earlier that you told him about the two men on Jennings
Knob Road, it’s clearly in his report.
Mr. Johnson: No, I did tell him there was some people
that helped explain what happened with the truck, one
was around the corner, and I was willing to go get him
Commonwealth: You moved the truck between the night
before and the next morning.
Mr. Johnson: From US 60 to my house, yes.
Commonwealth: No from where it was left by Mr. Ryan.
Mr. Johnson: No.
Commonwealth: So now, Mr. Ryan, in addition to Mr.
Lowe and to Mr. Robinson, Mr. Ryan falsifies testimony
Mr. Johnson: If I’d have had the ability to move the
truck I wouldn’t have called him.
Commonwealth: Is it your position now that Mr. Ryan
was lying when he said that to the jury?
Mr. Johnson: First, there’s no trees to move anything
Commonwealth: Yes or no, is it your position that he
Mr. Johnson: If he states I moved the truck again, yes.
We agree with the Commonwealth that the cross-examination by the
Commonwealth’s Attorney, while probably not sanctioned by the controlling case
law, did not rise to the level of palpable error. Johnson points to the number of
times the Commonwealth’s Attorney violated the rules of cross-examination as
supportive of a finding of palpable error. However, as the Supreme Court held in
Ernst v. Commonwealth, 160 S.W.3d 744, 764 (Ky. 2005), while the questions
may have been improper, Johnson had the burden of proving that, but for the
questions, the outcome would have been different.
As in Ernst, the evidence of Johnson’s guilt was such that had the
questions been withheld, the result would not have been any different. Therefore,
we hold that the prosecutor’s questioning of Johnson during cross-examination did
not rise to the level of palpable error to justify a reversal.
Johnson next argues that, when the Commonwealth questioned him
about his failure to call Popham as a witness and then commented on Popham’s
failure to appear during closing argument, it impermissibly shifted the burden of
proof. We agree with Johnson that the Commonwealth bears the burden of
proving every element of its case beyond a reasonable doubt, see Kentucky
Revised Statutes (KRS) 500.070(1). However, we do not agree that the
Commonwealth impermissibly attempted to shift the burden of proof in this case.
Any corroboration of Johnson’s version of events rested squarely with Popham.
By pointing out Popham’s absence, the Commonwealth was simply attempting to
establish that Johnson’s version of events was neither believable nor reasonable,
which it was entitled to do.
For these reasons, we hold there was no palpable error, based upon
prosecutorial misconduct, that would justify a reversal of Johnson’s conviction, nor
any defect in the trial that was either “shocking or jurisprudentially intolerable.”
Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
2. Directed Verdict
Johnson next argues that the trial court should have granted his
motion for a directed verdict of acquittal, because the Commonwealth failed to
meet its burden of proof on the theft charge. Johnson contends that, in order to
meets its burden of proving that the pickup belonged to Lowe, the Commonwealth
was required to tender either a title or registration to the pickup in Lowe’s name.
The Commonwealth first argues that Johnson’s trial attorney did not state specific
grounds to support his motion for directed verdict but only stated that the
Commonwealth had failed to meet its burden. Additionally, the Commonwealth
argues Johnson was not entitled to a directed verdict based on the evidence as a
We first address the Commonwealth’s argument that this issue is
unpreserved. The Commonwealth cites to Hicks v. Commonwealth, 805 S.W.2d
144, 148 (Ky. App. 1990), as supportive of its position.
We are not required to address the specific merits
of this issue since our review of the record indicates that
it was not preserved for review. While the record reflects
the fact that appellant did move for a directed verdict at
both the close of the Commonwealth's case and at the
close of all the evidence, in both instances, he merely
asserted that there was insufficient evidence as to each
and every charge pending against him to submit the case
to the jury. No specific mention was made concerning a
lack of evidence as to any particular element of any of
the charges . . . . Therefore, since no specific objection
was made by appellant to the element in either of his
motions for a directed verdict . . . it may not be raised for
the first time on appellate review. Anastasi v.
Commonwealth, Ky., 754 S.W.2d 860 (1988); McDonald
v. Commonwealth, Ky., 554 S.W.2d 84 (1977).
We further note that
CR 50.01 requires that a directed verdict motion “state
the specific grounds therefor [,]” and Kentucky appellate
courts have steadfastly held that failure to do so will
foreclose appellate review of the trial court’s denial of
the directed verdict motion.
Pate v. Commonwealth, 134 S.W.3d 593, 597-98 (Ky. 2004) (footnotes omitted.)
Based on the foregoing authority and our own review of the directed
verdict stages of the trial, we must agree with the Commonwealth that Johnson’s
trial attorney did not sufficiently preserve this issue by providing specific grounds
for his motion for a directed verdict. However, we shall nevertheless review this
The Supreme Court set forth the standard for determining whether a
directed verdict of acquittal is warranted in Commonwealth v. Benham, 816
S.W.2d 186, 187-88 (Ky. 1991), as follows:
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
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.
[Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)].
As stated in Sawhill, there must be evidence of
substance, and the trial court is expressly authorized to
direct a verdict for the defendant if the prosecution
produces no more than a mere scintilla of evidence.
In support of his assertion that the Commonwealth failed in its burden
of proving all of the elements of the theft charge,2 Johnson cites to Coomer v.
Commonwealth, 694 S.W.2d 471 (Ky. App. 1985). In Coomer, this Court held that
the Commonwealth failed to introduce any direct proof concerning the type of land
that had been burned, and the testimony introduced was not such that would allow
the jury to infer the land in question was timberland. In the present case, Johnson
is correct in that the Commonwealth did not introduce a registration or title in
On the other hand, the Commonwealth points out that the statutory
definition of “property of another” is written broadly:
“Property of another” includes property in which any
person other than the actor has an interest which the actor
is not privileged to infringe, regardless of the fact that the
actor also has an interest in the property and regardless of
the fact that the other person might be precluded from
civil recovery because the property was used in an
unlawful transaction or was subject to forfeiture as
contraband. Property in possession of the actor shall not
be deemed property of another who has only a security
interest therein, even if legal title is in the creditor
An element of theft by unlawful taking is that a defendant “[t]akes or exercises control over
movable property of another with intent to deprive him thereof[.]” KRS 514.030(1)(a).
pursuant to a conditional sales contract or other security
KRS 514.010(7). In order to establish that the truck was in fact “property of
another,” the Commonwealth introduced testimony from Lowe that he had recently
purchased the vehicle from the prior owner and had not yet transferred the title or
registration into his name. Furthermore, Lowe had the title in his possession,
which he provided to Deputy Robinson in order to establish his ownership.
Deputy Robinson also testified that he verified Lowe’s statement by contacting the
prior owner of the truck. While the Commonwealth’s proof certainly would have
been stronger had Lowe produced a title and registration in his own name, the
proof that was submitted was certainly more than a mere scintilla and therefore
enough to defeat a motion for a directed verdict of acquittal. See Commonwealth
v. Sawhill, 660 S.W.2d 3 (Ky. 1983).
For the foregoing reasons, the Meade Circuit Court’s judgment of
conviction is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Erin Hoffman Yang
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General