WILLIAM KELLY CLARK V. COMMONWEALTH OF KENTUCKY
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RENDERED : AUGUST 24, 2006
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WILLIAM KELLY CLARK
V.
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APPELLANT
ON APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
NO. 04-CR-00450-001
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIR MING IN PART AND REVERSING AND REMANDING IN PART
Appellant, William Kelly Clark, was convicted of burglary in the first
degree, four counts of theft by unlawful taking over $300.00, and of being a persistent
felony offender in the second degree . This appeal is as a matter of right.' Appellant
assigns the following errors: (1) Appellant's convictions on four separate counts of theft
by unlawful taking arising from the theft of multiple items at the same time, from the
same residence, violates double jeopardy principles of both the state and federal
constitutions, and (2) the trial court committed reversible error by sustaining the
Commonwealth's motion to prevent the defense from impeaching Tammy Miller Adkins'
credibility with her prior conviction of forging prescriptions.
Appellant was Tammy Miller Adkins' live-in boyfriend . Ms. Adkins is the
mother of Roy Johnson, who was fourteen years of age at the time of the burglary . The
' Ky. Const . § 110(2)(b) .
burglarized home was owned by Robert Richmond, and his son is Nick Richmond. On
June 8, 2004, four individuals, Appellant Clark, Ms. Adkins, her son Roy Johnson, and
Adkins' younger son, drove from the Adkins' .residence to the Richmond residence .
Nick Richmond permitted Roy Johnson to enter the house and closed the screen door
without locking it. On the back porch, Roy Johnson and Nick Richmond talked.
During this time, Appellant and Adkins entered the front door and removed
several items, including guns and jewelry. Debbie Simmons, a neighbor who lived
across the street from the Richmond residence, observed a man and woman carrying
items in and out of the house and placing them in a car. After several minutes,
Appellant went to the back porch where Johnson and Nick were still talking . When
Appellant, Adkins, and Johnson left, Johnson noticed a jewelry box and some guns in
the car. They drove to a store and then to a "car place," where Adkins sold the guns .
After selling the guns, Adkins bought clothes for Johnson at a clothing store . Johnson
stated that Adkins pawned some of the jewelry at a pawn shop. Adkins testified that
she never saw the jewelry.
The next day, the homeowner, Robert Richmond noticed that some pistols
were missing. Later that day, Robert Richmond telephoned the Sheriff's Department .
Richmond later noticed that five knives, a .270 deer rifle, a jewelry box, and two
necklaces were missing . At trial, Adkins testified that Appellant entered the Richmond
residence and took the guns. Adkins denied ever seeing jewelry, but did admit that she
entered the Richmond residence "one time." The defense was not permitted to crossexamine Adkins concerning her prior felony conviction for forging prescriptions to obtain
drugs.
On June 30, 2004, Appellant was indicted and charged. Upon the
conclusion of a jury trial on February 2, 2005, the Warren Circuit Court entered
judgment against Appellant for four separate counts of theft by unlawful taking and
sentenced him to imprisonment for seventy years. Appellant contends that his
convictions violate the Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution and Section 13 of the Kentucky Constitution . The alleged error was
unpreserved. Appellant claims however that although the issue is not preserved for
appellate review, this Court may still review alleged double jeopardy violations.
With respect to preservation, the Commonwealth contends that the
present case illustrates the necessity for preservation of double jeopardy claims
because the record does not adequately explain why Clark was indicted for four counts
of theft by unlawful taking . However, "failure to object on grounds of double jeopardy
does not constitute a waiver of the right to raise the issue for the first time on appeal."2
In Baker v. Commonwealth, this Court said that "[a] principal reason for doubting the
soundness of the rule, in addition to the general reasons for requiring preservation, is
the difficulty of analyzing a double jeopardy claim when there is no context from the trial
court."4. Nevertheless, "failure to preserve this issue for appellate review should not
result in permitting a double jeopardy conviction to stand." 5 Although the argument is
2 Baker v . Commonwealth, 922 S.W.2d 371, 374 (Ky. 1996) (citing Sherley v.
Commonwealth , 558 S .W .2d 615, 618 (Ky. 1977)), cert. denied, 435 U.S . 999, 98 S .Ct.
1655, 56 L. Ed.2d 89 (1978) .
922 S.W.2d 371 (Ky. 1996) .
a _Id. at 374.
5 Sherley, 558 S.W.2d at 618, quoting Beaty v. Commonwealth , 125 S .W .3d 196, 210
(Ky. 2004).
not preserved, this Court continues to adhere to the rule that double jeopardy questions
may be reviewed on appeal despite the failure to preserve the issue in the trial court.
The issue presented is whether Appellant's convictions violate the Double
Jeopardy Clause of both the state and federal constitutions. We will limit our analysis to
the Kentucky Constitution . Appellant contends that our decision in Jackson v.
Commonwealth 6 controls the outcome here . He maintains that the three guns and the
other items were stolen from the Richmond residence at the same time, so only one
theft occurred . In Jackson, the defendant was convicted of the theft of guns from the
residence of Roger Stice and the theft of a scanner from the Stice residence .7 This
Court said that the defendant was entitled to have the conviction for the theft of the
scanner set aside because the guns and the scanner were stolen from the same
residence at the same time, and therefore constituted only one theft.$ In Nichols v.
Commonwealth ,9 appellants feloniously took and carried away fowls owned by different
people, but from the same place, and "although they were no doubt taken one by one
into the possession of the thieves, the taking of all constituted in law but one act."'°
Here, Appellant took three guns and other items from the Richmond
residence . He was charged with four separate counts of theft by unlawful taking . The
three guns and the other items were stolen from the same residence at the same time,
and under our decisions only one theft occurred ."
6 670 S.W.2d 828 (Ky. 1984), rev'd on other a rounds , 821 S.W.2d 90 (Ky. 1991).
Jackson , 670 S .W.2d at 832.
8 _Id.
9 78 Ky. 180 (Ky. 1879) .
'° Nichols . 78 Ky. 180 at 2.
11 See Jackson , 670 S.W .2d at 832.
Appellant also alleges trial court error because he was not permitted to
impeach the credibility of Adkins, a witness for the Commonwealth, by eliciting from her
that she had been convicted of a felony for fraudulently forging a prescription to obtain
drugs . The prior felony conviction occurred more than ten years before this trial . KRE
609(b) provides the time limit: "Evidence of a conviction under this rule is not
admissible if a period of more than ten (10) years has elapsed since the date of the
conviction unless the court determines that the probative value of the conviction
substantially outweighs its prejudicial effect." 12 The balancing of the probative value of
such evidence against the danger of undue prejudice is a task properly reserved to the
sound discretion of the trial court. 13 Prior to trial, the Commonwealth filed a motion in
limine, seeking to prevent the defense from introducing Adkins' prior felony conviction .
The trial judge granted the Commonwealth's motion, ruling that the conviction was over
ten years old and did not reflect upon her credibility for truthfulness .
Under KRE 609(b), a factor in determining whether the offense is
probative is the nature of the prior offense . . The trial judge found that Adkins had a
drug addiction at the time of her prior offense. In his view, the addiction did not
presently reflect upon her credibility . Under the circumstances of this case, we are
unable to conclude that the trial court abused its discretion in refusing to allow Appellant
to impeach Adkins' credibility with evidence that she had been previously convicted of a
felony .
12 KRE 609(b).
13 Rake v. Commonwealth , 450 S.W.2d 527, 528 (Ky. 1970).
14
Id .
Upon the foregoing, Appellant's conviction for one theft is affirmed and the
other three counts of theft by unlawful taking are reversed, and the sentences thereon
vacated. This cause is remanded to the Warren Circuit Court for entry of judgment in
conformity herewith . In all other respects, the judgment of the trial court is affirmed .
Lambert, C .J., and Graves, McAnulty, Minton, and Scott, JJ ., concur.
Roach, J ., concurs in result only . Wintersheimer, J ., dissents for the reasons set out in
his dissent in Jackson v. Commonwealth, 670 S.W.2d 828 (Ky. 1984) .
COUNSEL FOR APPELLANT :
Shelly R . Fears
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane'
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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