HESS (SCOTT DANIEL) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 11, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001562-MR
SCOTT DANIEL HESS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 07-CR-003535
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: VANMETER, ACTING CHIEF JUDGE; NICKELL, JUDGE;
LAMBERT,1 SENIOR JUDGE.
NICKELL, JUDGE: Scott Hess has appealed from the Jefferson Circuit Court’s
July 21, 2008, judgment of conviction and sentence following a jury trial on one
1
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 Kentucky Revised Statutes
(KRS) 21.580.
count of tampering with a witness,2 two counts of assault in the fourth degree,3
illegal use or possession of drug paraphernalia,4 and being a persistent felony
offender in the first degree (PFO I).5 We affirm.
Scott was married to Tonia Hess for six years prior to their divorce in
2006. In mid-2007, the couple attempted to reconcile, and Scott occasionally
visited Tonia’s home overnight even though he did not live there. On July 19,
2007, Scott became agitated during dinner at Tonia’s home and went into the
bathroom to shower. Shortly thereafter, Scott began yelling and “banging around”
in the bathroom and Tonia heard glass breaking. Tonia telephoned Scott’s father
hoping he would be able to calm the situation. While standing at the bathroom
door with her cell phone in hand, Tonia pleaded with Scott to speak with his father.
Instead, Scott broke through the door with an unknown object. Some of the flying
debris struck Tonia in the face. Scott grabbed the phone from Tonia’s hand and
threw it, causing it to break. Upon hearing the commotion, neighbors contacted
the police. When police arrived, they arrested Scott for assault in the fourth degree
and intimidating a witness in the legal process.6
2
KRS 524.050, a Class D felony.
3
KRS 508.030, a Class A misdemeanor.
4
KRS 218A.500, a Class A misdemeanor.
5
KRS 532.080(3).
6
KRS 524.040, a Class D felony.
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On August 11, 2007, Louisville police again responded to Tonia’s
home upon receiving a report that Scott had kicked in the front door and broken
into the home. When police arrived, Tonia’s throat was red and she explained that
Scott had assaulted her with a sword. Scott had fled the scene but officers located
him a short time later hiding in the basement of a friend’s home. When they found
him, officers located drug paraphernalia near his person, and Scott showed them
the location of a crack pipe and baggies. Scott admitted he had smoked crack
cocaine two days earlier. Scott was arrested for the offenses of burglary in the first
degree,7 assault in the fourth degree, possession of drug paraphernalia, and
contempt of court.
While incarcerated on these latest charges, Scott had numerous
telephone conversations with Tonia. These conversations were recorded as a
routine matter by the Jefferson County Detention Center and would later be played
for the jury. Based on the contents of some of the conversations, the
Commonwealth sought an additional criminal charge of tampering with a witness8
against Scott. A Jefferson County grand jury indicted Scott for the offenses of
tampering with a witness, illegal use or possession of drug paraphernalia, two
counts of assault in the fourth degree, and being a PFO I. Following a three-day
jury trial, Scott was convicted on the tampering and assault charges. The jury
fixed his sentence at an aggregate of five years’ imprisonment on those charges,
7
KRS 511.020, a Class B felony.
8
KRS 524.050, a Class A misdemeanor.
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enhanced to eighteen years by virtue of his status as a PFO I. This appeal
followed.
Scott raises four allegations of error before this Court. First, he
alleges the trial court erred in failing to grant his motion for a directed verdict on
the tampering charge. Next and alternatively, that he was denied the right to a
unanimous verdict on the tampering charge. Third, Scott contends the prosecutor
improperly vouched for the reliability of the investigating officer. Finally, he
argues his sentence was disproportionate to the crimes charged and thus amounts
to cruel and unusual punishment. Having reviewed the briefs, the record, and the
law, we affirm.
Scott first alleges the prosecution failed to meet its burden of proof
under either subsection of KRS 524.050.9 Thus, he argues the trial court erred in
denying his motion for a directed verdict of acquittal on the tampering with a
witness charge. We disagree.
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
9
KRS 524.050 states:
(1) A person is guilty of tampering with a witness when, knowing that a person is
or may be called as a witness in an official proceeding, he:
(a) Induces or attempts to induce the witness to absent himself or
otherwise avoid appearing or testifying at the official proceeding
with intent to influence the outcome thereby; or
(b) Knowingly makes any false statement or practices any fraud or
deceit with intent to affect the testimony of the witness.
(2) Tampering with a witness is a Class D felony.
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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.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). The standard of
appellate review from the denial of a directed verdict motion is “if under the
evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only
then is the defendant entitled to a directed verdict of acquittal.” Id. (citing
Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)).
The jury was permitted to hear numerous recorded conversations
between Scott and Tonia which occurred while Scott was incarcerated on the
instant charges. Taking those conversations in the light most favorable to the
Commonwealth, there was sufficient evidence before the jury to support a guilty
verdict. The Commonwealth proved a “no contact order” prohibiting Scott from
any and all contact with his ex-wife was in effect when many of the conversations
occurred. The Commonwealth then produced and played nearly ninety minutes of
recorded conversations between the pair, noting that the recordings constituted
only a portion of the total conversations which took place.
On the recordings, the jury heard Scott attempting to persuade Tonia
to tell prosecutors “the whole thing was a big [expletive] misunderstanding” and
she needed to help him “get out of this mess.” He further repeatedly accused
Tonia of lying, asked her why she was “put[ting him] in prison for five more
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years,” told her their relationship was over if he was convicted, and urged her to
explain the events to authorities the way he told her they had happened. Scott also
accused Tonia of giving signed statements to the police “accusing him of things
they both agree he did not do” but no such signed statements appear in the record.
The underlying theme of the conversations was Scott’s desire for Tonia to “make
things right.” To that end, Scott encouraged Tonia to take whatever steps
necessary, including the possibility of falsifying her testimony to comport with
Scott’s recollection of events, in an effort to persuade prosecutors to dismiss the
charges against him prior to trial so that she would not have to testify against him.
Failing dismissal, Scott encouraged Tonia to mold her testimony in a way that
would be most beneficial to his case.
Clearly, from the evidence presented, it would have been reasonable
for a jury to find Scott guilty of the offense of tampering with a witness. Scott
plainly suggested ways for Tonia to avoid having to testify and ways for her to
falsify her testimony for his benefit. Substantial evidence was presented to support
a conviction under the theory that Scott had attempted to induce Tonia to absent
herself from the proceedings and under the alternate theory that Scott made false
statements with the intent to influence Tonia’s testimony. Due to the presentation
of substantial evidence, Scott was not entitled to a directed verdict of acquittal and
no error occurred in denying his motion for same. Benham.
Second, Scott argues he was denied a unanimous verdict because the
Commonwealth failed to introduce sufficient evidence to support a finding of his
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guilt on the tampering charge under both theories of its case. Jurors were
instructed on the requirements of finding guilt under both sections of KRS
524.050. Scott claims the Commonwealth failed to prove he was guilty under both
subsections, thus making it impossible to ascertain whether all of the jurors voted
to convict him based on a theory supported by the evidence. We disagree.
It is fundamental in this Commonwealth that a defendant in a criminal
trial is entitled to a unanimous verdict. Hayes v. Commonwealth, 625 S.W.2d 583,
584 (Ky. 1981). However, contrary to Scott’s assertion, an instruction allowing a
jury to convict a defendant of the same offense under two different theories does
not deprive the defendant of a unanimous verdict if either theory is supported by
substantial evidence. Miller v. Commonwealth, 77 S.W.3d 566, 574 (Ky. 2002);
Johnson v. Commonwealth, 12 S.W.3d 258, 265-66 (Ky. 1999). Here, the
combination instruction described two alternative theories by which a conviction
could be sustained. Based on the evidence adduced at trial, the jury could easily
have believed Scott’s recorded conversations evinced an intent to induce Tonia to
avoid appearing at trial to testify. However, the conversations were also laced with
false statements that the jury could have reasonably believed were intended to alter
or affect Tonia’s testimony. Substantial evidence was presented on both of these
theories. It is immaterial which theory jurors chose to believe as the resulting
conviction would be the same. Hudson v. Commonwealth, 979 S.W.2d 106 (Ky.
1998). See also Burnett v. Commonwealth, 31 S.W.3d 878 (Ky. 2000); Ice v.
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Commonwealth, 667 S.W.2d 671 (Ky. 1984); Hayes; Wells v. Commonwealth, 561
S.W.2d 85 (Ky. 1978).
The legal effect of the alternative conclusions is identical.
There was ample evidence to support a verdict on either
theory of the case. We hold that a verdict can not (sic) be
successfully attacked upon the ground that the jurors
could have believed either of two theories of the case
where both interpretations are supported by the evidence
and the proof of either beyond a reasonable doubt
constitutes the same offense.
Wells, at 88. The instructions were not prejudicial and Scott was not denied a
unanimous verdict.
Next, Scott contends the Commonwealth’s Attorney improperly
vouched for the reliability of the investigating officer in its closing statement by
telling the jury “yes, you can believe Officer Ron Charles.” Although Scott admits
this allegation of error is unpreserved, he asks us to review his claim under the
palpable error standard set forth in RCr10 10.26. Under that rule,
[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 error.
Id. “Manifest injustice” requires that the substantial rights of the defendant be
prejudiced by the error, meaning there is a substantial possibility the result of the
trial would have been different. Schaefer v. Commonwealth, 622 S.W.2d 218 (Ky.
1981); Jackson v. Commonwealth, 717 S.W.2d 511 (Ky. App. 1986). This is often
10
Kentucky Rules of Criminal Procedure.
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described as a defect which is “shocking or jurisprudentially intolerable.” Martin
v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). In Brewer v. Commonwealth, 206
S.W.3d 343, 349 (Ky. 2006), our Supreme Court further refined the parameters of
RCr 10.26 when it explained what constitutes palpable error.
For an error to be palpable, it must be easily perceptible,
plain, obvious and readily noticeable. A palpable error
must involve prejudice more egregious than that
occurring in reversible error. A palpable error must be so
grave in nature that if it were uncorrected, it would
seriously affect the fairness of the proceedings. Thus,
what a palpable error analysis “boils down to” is whether
the reviewing court believes there is a “substantial
possibility” that the result in the case would have been
different without the error. If not, the error cannot be
palpable.
In commenting on the veracity of the Commonwealth’s witness, the
prosecutor improperly injected personal beliefs and feelings into the trial and
implicitly commented on the weight of the evidence. Although the prosecutor’s
statement was improper, we cannot say it rises to the level of palpable error. The
statement was brief, and was followed by a proper outline of the charges against
Scott. Again, while improper, the prosecutor’s statement does not rise to the level
of “manifest injustice,” as required by RCr 10.26. Martin, 207 S.W.3d at 3. Thus,
there is no substantial possibility the prosecutor’s statement affected the result of
the trial, and therefore there was no palpable error.
Finally, Scott argues the sentence he received was grossly
disproportionate to the charges of which he was convicted. He argues the five-year
sentence, enhanced to eighteen years, amounts to a violation of the prohibition
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against cruel and unusual punishment contained in the Eighth Amendment to the
United States Constitution.11 See Solem v. Helm, 463 U.S. 277, 288, 303, 103 S.Ct.
3001, 3008, 3016, 77 L.Ed.2d 637 (1983) (Eighth Amendment prohibits extreme
sentences that are grossly disproportionate to the crime committed). See also
Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).
Scott again concedes this argument is unpreserved, but requests palpable error
review. After a careful review for the presence of palpable error, we are not
persuaded that Scott’s sentence was constitutionally infirm.
Scott was convicted of the offense of tampering with a witness, a
Class D felony, by a jury of his peers and was sentenced to the statutory maximum
term of five years’ imprisonment. See KRS 524.050. He was also sentenced as a
PFO I, which means the jury could have sentenced him to anywhere between ten
and twenty years’ imprisonment. See KRS 532.080. The jury chose eighteen
years.
During the PFO stage, the jury heard of Scott’s previous felony
convictions for burglary. After hearing the facts surrounding his criminal
background, the jury fixed Scott’s sentence in the upper one-third of the
permissible penalty range. That decision was reasonable under the facts of this
case. The PFO statutes were designed by the legislature to lengthen the period of
11
The Constitution of Kentucky contains a similar prohibition. However, the proscription
contained therein is against “cruel punishment” rather than “cruel and unusual punishments.”
Our Supreme Court has held this to be “a distinction without a difference.” Riley v.
Commonwealth, 120 S.W.3d 622, 633 (Ky. 2003).
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incarceration for those with a criminal history. It is axiomatic that states are
justified in sentencing repeat offenders more harshly than first-time offenders.
Solem, 463 U.S. at 296, 103 S.Ct. at 3013. Thus, as the jury’s sentencing
recommendation was within the applicable penalty range, Scott’s sentence is not
grossly disproportionate to the crimes he committed. Riley v. Commonwealth, 120
S.W.3d 622, 633 (Ky. 2003) (“if the punishment is within the maximum prescribed
by the statute violated, courts generally will not disturb the sentence.”). No error
occurred.
Therefore, finding no error in the proceedings, the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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