JOHNSON (GARY L.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
GARY L. JOHNSON
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 06-CR-00150
COMMONWEALTH OF KENTUCKY
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BEFORE: COMBS, CHIEF JUDGE; STUMBO, JUDGE; GUIDUGLI, SENIOR
STUMBO, JUDGE: Gary Johnson (Appellant) appeals from his convictions of
fourth-degree assault, tampering with physical evidence, two counts of first-degree
criminal mischief, leaving the scene of an accident, owning and operating a motor
vehicle without insurance, and first-degree persistent felony offender. Appellant
argues that he was entitled to a directed verdict on one of the criminal mischief
charges because there was no evidence he was the one who caused the damage to
the property in question. Additionally, Appellant argues that there was
prosecutorial misconduct during the trial. The Commonwealth argues that a
directed verdict was not warranted and that there was no prosecutorial misconduct.
We agree with the Commonwealth and, therefore, affirm.
On November 11, 2006, Linda Hayden was driving her car near
Caneyville when she spotted Appellant’s car coming toward her in the opposite
lane. Appellant’s car was zig-zagging and despite Ms. Hayden’s efforts to avoid a
collision, the cars had impact.
Appellant, the passenger of his car (Troy Stewart), and Ms. Hayden
all got out of the vehicles. Mr. Stewart asked Ms. Hayden if she was okay. Ms.
Hayden said she was hurt and needed help. Rather than helping her, both
Appellant and Stewart got back into their vehicle and tried to move it down the
road. When this proved unsuccessful, they got out, removed the license plate, and
fled the scene.
Deputy Matt Darst responded to the crash. After checking on Ms.
Hayden, a bystander informed him that Appellant and Stewart were behind the
Caneyville Elementary School. When the officer got to the school, he spotted the
two men, who then jumped a fence. Deputy Darst then began chasing the two.
Appellant and Stewart fled together at first, but eventually parted
company. Deputy Darst continued following Stewart. Stewart jumped into a
creek, but stopped and gave up. Darst went into the creek to apprehend Stewart.
When he did this, his radio and taser were damaged. The damage to the radio and
taser was the reason for one of the criminal mischief charges. Darst gave Stewart a
breathalyzer test, which revealed the presence of alcohol.
Appellant was later captured and Darst testified that he smelled of
alcohol. However, because two hours passed before Appellant’s capture, no breath
test was given. Back at the accident scene, numerous beer cans were found in the
floorboard of Appellant’s car.
Appellant now argues that because Deputy Darst was chasing Stewart
when his equipment was damaged, he could not be guilty of criminal mischief. In
other words, the Commonwealth failed to prove he was the one who damaged
On motion for a directed verdict, the trial judge must
draw all fair and reasonable inferences from the evidence
in favor of the Commonwealth. Commonwealth v.
Benham, 816 S.W.2d 186 (Ky.1991). 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. Id. The standard for
appellate review of a denial of a motion for a directed
verdict based on insufficient evidence is if, under the
evidence as a whole, it would not be clearly unreasonable
for a jury to find the defendant guilty, he is not entitled to
a directed verdict of acquittal. Commonwealth v. Sawhill,
660 S.W.2d 3 (Ky.1983).
Williams v. Commonwealth, 178 S.W.3d 491, 493 - 494 (Ky. 2005).
Appellant was charged with violating KRS 512.020. That statute
states “[a] person is guilty of criminal mischief in the first degree when, having no
right to do so or any reasonable ground to believe that he has such right, he
intentionally or wantonly defaces, destroys or damages any property causing
pecuniary loss of $1,000 or more.” The indictment on this charge states that
Appellant committed this offense when he, “acting alone or in complicity with
others,” damaged Deputy Darst’s radio and taser.
We hold that because both Appellant and Stewart were being pursued
by Deputy Darst, both Appellant and Stewart could have been found liable for
criminal mischief under the complicity section of the indictment. We do not
believe it would be unreasonable for a jury to find Appellant guilty of this crime.1
Appellant next argues that there was pervasive prosecutorial
misconduct throughout the trial. He points to three specific instances, none of
which were preserved on the issue of misconduct. Appellant requests RCr 10.26
review of this issue. “A palpable error which affects the substantial rights of a
party may be considered . . . 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 error.” RCr
Appellant claims that the Commonwealth elicited an inadmissible
prior consistent statement from Deputy Darst. The Commonwealth asked Darst
whether Ms. Hayden’s testimony was consistent with what he found at the scene.
We note that even though the complicity section of the indictment covers the damage to the
equipment, we are not fully persuaded that Appellant met the wanton mental standard utilized by
the Commonwealth to find him guilty. However, this argument was not raised by Appellant, so
we cannot address it in our opinion.
This testimony was elicited during Darst’s discussion of the accident investigation
training he received at the State Police Academy at Eastern Kentucky University.
This was not a prior consistent statement. Darst was merely explaining that from
his experience and training, the scene that Ms. Hayden described was consistent
with his physical findings.
Even if his testimony could be considered a prior consistent statement,
it would not rise to the RCr 10.26 palpable error standard. This was not a
“shocking or jurisprudentially intolerable” error. Martin v. Commonwealth, 207
S.W.3d 1, 4 (Ky. 2006).
Appellant’s next claim of prosecutorial misconduct arises from the
Commonwealth’s closing argument. Appellant contends that during closing,
disparaging remarks were made about his trial counsel. The Commonwealth
Attorney referred to defense counsel as “mouthpieces” who told juries that victims
were “liars” and that the defense used “sleight of hand tricks” throughout the trial.
In Matheney v. Commonwealth, 191 S.W.3d 599, 606 (Ky. 2006), the
Kentucky Supreme Court stated that a reversal for prosecutorial misconduct during
closing arguments is warranted when the misconduct is “flagrant” or if proof of the
defendant’s guilt is not overwhelming, defense counsel objected, and the trial court
failed to cure the error with an admonishment to the jury.
Here, there was no objection to these statements. Additionally, this
was not flagrant misconduct. When we look at the Matheney standard as well as
the RCr 10.26 standard, we do not view this as manifest injustice. These were
comments made in passing and no further disparaging comments were made.
Finally, Appellant claims the Commonwealth Attorney made appeals
to the jury’s sense of community during closing arguments. This is not permissible
under Kentucky case law. See Stasel v. Commonwealth, 278 S.W.2d 727 (Ky.
1955) (where the Court condemned a prosecutor’s statement during closing
regarding what the people of the county would think if the jury “turned that man
Here, the Commonwealth Attorney told the jury that these crimes
were crimes “against the peace and dignity of the Commonwealth of Kentucky”
and that Grayson County, “whose citizens you represent, are protected by the law,
the criminal law.” Unlike the above two instances of alleged misconduct, counsel
for Appellant did object to these statements. The relief sought by counsel,
however, was an admonishment to the jury, which the judge gave.
If a party claims entitlement to a mistrial, he must timely
ask the court to grant him such relief. Jenkins v.
Commonwealth, Ky., 477 S.W.2d 795 (1972). Further,
we have held that failure to move for a mistrial following
an objection and an admonition from the court indicates
that satisfactory relief was granted. “It is well within the
realm of valid assumption that counsel was satisfied with
the court's admonition to the jury.” Hunter v.
Commonwealth, Ky., 479 S.W.2d 4, 6 (1972). From the
foregoing it is clear that a party must timely inform the
court of the error and request the relief to which he
considers himself entitled. Otherwise, the issue may not
be raised on appeal.
West v. Commonwealth, 780 S.W.2d 600, 602 (Ky. 1989). Here, counsel objected,
asked for an admonishment, and received one. Counsel did not ask for a mistrial.
Even reviewing this under RCr 10.26, the Commonwealth’s statements did not
amount to manifest injustice. When these statements were made, the
Commonwealth Attorney was reading from the indictment and discussing how this
was not a civil case, but a criminal case. When taken in context, this does not
appear to be an appeal to the community. Even if it were, it certainly is not a
palpable error which is “shocking or jurisprudentially intolerable.” Martin at 4.
The case against Appellant was clear and there was an admonishment to the jury,
as requested. There was no defect so “manifest, fundamental and unambiguous
that it threatens the integrity of the judicial process.” Martin at 5.
Accordingly, the judgment of the trial court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Julia K. Pearson
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General