Opinion
NO. 2012-CA-000254-MR
05-17-2013
TOMMY CLEMENT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Emily Ward Roark Paducah, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE TIMOTHY KALTENBACH, JUDGE
ACTION NO. 11-CR-00061
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. TAYLOR, JUDGE: Tommy Clement brings this appeal from a January 17, 2012, final judgment of the McCracken Circuit Court sentencing him to a total of seven years' imprisonment upon a jury verdict of theft by unlawful taking, theft by deception, and first-degree official misconduct. We affirm.
Clement was the supervisor of the McCracken County school bus garage (county garage). Chris Stamper was a senior mechanic also employed at the county garage. Between 2009 and 2010, Clement and Stamper contrived and carried out an intricate scheme that ultimately led to their criminal indictments and convictions upon multiple criminal offenses, including theft by unlawful taking ($10,000 or more) and theft by deception ($10,000 or more).
Under the scheme executed by Clement and Stamper, the county garage ordered various parts from a NAPA Auto Parts store in Paducah, Kentucky. When ordering the parts, Clement and Stamper dealt directly with NAPA employee, Traci Kinson. Kinson testified that Clement and Stamper approached her concerning a "side business." According to Kinson, Clement and Stamper indicated that they had purchased used buses and wanted to sell various parts from those buses to the county garage. So, when an order was received for bus parts, Kinson would charge the county for the parts according to NAPA's pricing and pay Clement and Stamper wholesale price for the parts. Kinson indicated that NAPA never delivered the parts to the county garage and did not know if the parts were received by the county garage.
Additionally, it appears that Clement and Stamper ordered sundry items from various vendors and induced the vendors to invoice the county garage for different items than those actually purchased. For instance, Snap-On Tools billed the county garage for about $1,500 in solvent per month for thirteen months. However, the sales representative for Snap-On, Corey Skidmore, testified that no solvent was sold, but rather tools and supplies were sold to the county garage. Skidmore indicated that the tools were billed as solvent per Clement's instructions.
Clement and Stamper were indicted by a McCracken County Grand Jury upon the offenses of theft by unlawful taking ($10,000 or more) (Kentucky Revised Statutes [KRS] 514.030), theft by deception ($10,000 or more) (KRS 514.040), and first-degree official misconduct (KRS 522.020). Stamper entered into a plea agreement with the Commonwealth. Under the plea agreement, Stamper pleaded guilty to the amended offense of theft by unlawful taking over $500 and the other indicated offenses. Stamper was sentenced to a total of three years' imprisonment. Stamper also agreed to testify at Clement's trial and pay $13,000 in restitution to the McCracken County Public Schools.
Clement was tried by jury, and the jury ultimately convicted Clement of theft by unlawful taking ($10,000 or more), theft by deception ($10,000 or more), and first-degree official misconduct. By final judgment entered January 17, 2012, the circuit court sentenced Clement to a total of seven years' imprisonment. This appeal follows.
Clement contends that the circuit court erred by denying his motion for a directed verdict of acquittal upon the offense of theft by unlawful taking ($10,000 or more). Clement specifically asserts that the Commonwealth failed to produce "one shred of evidence that [Clement] deprived the school board of any property." Clement's Brief at 12.
A directed verdict is proper when, viewing the evidence most favorable to the Commonwealth, a reasonable juror could not find beyond a reasonable doubt that defendant was guilty of the offense. Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). And, to convict a defendant upon theft by unlawful taking, the Commonwealth must prove beyond a reasonable doubt that the defendant unlawfully took or exercised control over movable property of another with intent to deprive the owner of such property. KRS 514.030(1)(a). In this case, it was also incumbent upon the Commonwealth to demonstrate that Clement deprived the school of $10,000 or more of property.
At trial, Stamper testified for the Commonwealth. In particular, Stamper stated that Clement instructed him to order a welder for $7,867.91 from NAPA and to have NAPA fictitiously invoice the welder as a transmission and engine parts. Stamper also recounted that when the welder was delivered to the county garage, Clement placed the welder in a back corner and covered the welder to conceal same. Of particular import, Stamper testified that Clement told Stamper to tell anyone who asked about the welder that it was a gift from Clement's wife. Viewing the evidence as a whole in a light most favorable to the Commonwealth, the jury could reasonably find that Clement exercised control over the welder and that Clement expressed an intent to deprive the county thereof by hiding it and by stating that it was gift from his wife. See Commonwealth v. Day, 599 S.W.2d 166 (Ky. 1980).
Additionally, it was uncontroverted that Clement took possession of a Head Start bus belonging to the county garage. Apparently, Clement took the Head Start bus to his home where it was parked for more than a year and only returned it after an investigation was initiated into his activities. Detective John Sims testified that the Head Start bus contained numerous tools and equipment belonging to the county garage, including two winches. Although the Head Start bus and its contents was parked in plain view on Clement's property, its presence there for more than a year constitutes direct evidence that Clement unlawfully took the Head Start bus and circumstantial evidence that Clement intended to deprive the school board of the Head Start bus and its contents. See Day, 599 S.W.2d 166. Viewing the evidence as a whole in a light most favorable to the Commonwealth, we hold that the circuit court properly denied Clement's motion for directed verdict upon the offense of theft by unlawful taking ($10,000 or more).
Clement next asserts that the circuit court erred by denying his motion for directed verdict of acquittal upon the offense of theft by deception ($10,000 or more). The offense of theft by deception is codified in KRS 514.040 and provides, in relevant part:
(1) A person is guilty of theft by deception when the person obtains property or services of another by deception with intent to deprive the person thereof. A person deceives when the person intentionally:
(a) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind[.]
Upon this issue, Clement specifically maintains:
The elements of Theft by Deception over $10,000 require that Clement obtained property of another by deception with the intent to deprive the victim or defraud, deceive, or injure that person of the property or service, valued at over $10,000. Stamper and Clement created a legitimate business, sanctioned by NAPA, to sell parts to NAPA, who would, in turn, sell the parts to the bus garage. The NAPA Paducah store manager agreed to run a business with Clement and Stamper where NAPA would receive an invoice for parts that Clement or Stamper had delivered to the bus garage, then NAPA, would[,] in[ ] turn, invoice the parts, with a standard mark-up, to the School Board. NAPA would then issue a check to Clement or Stamper. The NAPA store manager even referred Clement and Stamper to other customers in need of bus parts.Clement's Brief at 14-15 (citations omitted). In short, Clement argues that the Commonwealth failed to prove beyond a reasonable doubt that he "obtained" the property of the county within the meaning of KRS 514.040. Clement specifically maintains that the Commonwealth failed to produce evidence that he did not deliver the parts ordered from NAPA to the county garage. Even though Clement admits that Stamper directly testified that neither he nor Clement ever delivered the parts, Clement believes that Stamper's testimony must be disregarded as "lacking in credibility." Clement's Brief at 15.
There was no evidence that those parts were not delivered to the bus garage. In fact, the evidence was clear that no employee ever complained that they did not receive a part. The only evidence that parts were not delivered was that of cooperating Co-Defendant[,] Chris Stamper[,] who testified he never delivered a part or saw Clement deliver a part. Strangely, Stamper received his seed money and 10 percent on the parts that were sold to NAPA. Stamper testified that he reported $13,000 in income for his profits on the operation. Stamper even reported this profit on his tax return. This was far less than the approximately $80,000 in checks Stamper received from NAPA. It was an unexplained mystery how Stamper can profit only $13,000 on this business when he received $80,000 in checks from NAPA but never paid out the costs for any parts. Clearly, this difference was the cost of the parts paid by Clement and Stamper. Stamper's testimony was driven by a plea deal. Obviously, his testimony was lacking in credibility.
Upon a motion for directed verdict, the credibility and weight of testimony are a question for the jury and are not within the province of the court. Benham, 816 S.W.2d 186. Thus, the circuit court may not assess the credibility of a witness's testimony when considering a motion for directed verdict. Paulley v. Commonwealth, 323 S.W.3d 715 (Ky. 2010).
Stamper plainly testified that neither he nor Clement delivered the NAPA parts to the county garage although these parts were paid for by the county. While Clement attacks the credibility of Stamper's testimony, which he certainly was entitled to do in his defense, a witness's credibility is clearly a question for the jury; thus, Clement's testimony created an issue of fact precluding entry of directed verdict. Hence, we find no error by the circuit court in denying Clement's motion for a directed verdict upon theft by deception ($10,000 or more).
Clement also argues that he was denied a fair trial because of violation of the separation or exclusion of witness rule set forth in Kentucky Rules of Evidence (KRE) 615. Clement points out that Denise Williams, an employee of the McCracken County Public Schools, was present during trial. According to Clement, Williams took notes, texted on her cell phone during trial, and was also observed entering the witness room with her notebook. Particularly, Clement maintains:
Numerous McCracken County School Board employees testified; including Superintendent Nan Waldrop. Denise Williams was a School Board employee, sitting in the trial, taking notes and meeting with other School Board witnesses during the break. Her intention could be none other than to relay information to her superiors, who had the power to hire and fire Denise Williams. It defies common sense that Denise Williams had any motivation to take notes other than to relay information to the School Board administrators, many of whom testified at trial. Denise Williams' name was never even mentioned during the trial testimony, and she had absolutely no connection to the case. Her only purpose could have been to coordinate the testimony of her superiors prior to their testimony, violating KRE 615. This in no way "promotes the ends of justice."Clement's Brief at 18.
KRE 615 reads:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion. This rule does not authorize exclusion of:
(1) A party who is a natural person;
(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or
(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause.
A review of the record reveals that Williams was not a witness at trial. Moreover, as concerns defense counsel's challenge as to Williams' activities during trial, the circuit court directly questioned Williams. During such questioning, Williams explained that her notes were for her personal use and that she had not communicated with anyone concerning the testimony given by witnesses during trial.
In support of his argument that KRE 615 was violated, Clement filed the affidavit of Karen Glisson. Therein, Glisson averred that she observed Williams taking her notes into the Commonwealth's witness room. However, there is no evidence that Williams shared her notes with witnesses or relayed any witness's testimony. In short, we cannot conclude that KRE 615 was violated.
Clement further asserts that the Commonwealth presented an "improper and inflammatory argument in the guilt phase" of trial. Clement's Brief at 18. Clements points to the Commonwealth's closing argument urging the jury to protect the "children of the public" and reminding the jury that they held the "public trust." Clement's Brief at 18 and 19. Also, Clement points to the Commonwealth's comment that "money for the kids that goes to the school that's been defrauded." Clement's Brief at 18.
It is well-settled that the Commonwealth's closing argument should be limited to the evidence introduced at trial and any reasonable inferences therefrom. Brown v. Commonwealth, 174 S.W.3d 421 (Ky. 2005). However, it is also recognized that the Commonwealth should be given "wide latitude" in making its closing argument. Butcher v. Commonwealth, 96 S.W.3d 3 (Ky. 2002).
In this case, we do not believe the Commonwealth's remarks concerning the jury holding a public trust were improper. Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987). Also, the Commonwealth's other remarks were not unduly prejudicial so as to require reversal. Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006); Major v. Commonwealth, 177 S.W.3d 700 (Ky. 2005).
Clement additionally maintains that the Commonwealth violated the Fourteenth Amendment of the United States Constitution and Equal Protection Clause of the United States Constitution by its selective prosecution of him. In his brief, Clement argues:
NAPA or its employees were similarly situated to Clement and Stamper, therefore the Commonwealth's failure to prosecute NAPA for Theft by Deception resulted in selective prosecution. NAPA committed the same crime in substantially the same manner as Clement and Stamper. In fact, Clement and Stamper could not have carried out their alleged scheme and plan without the integral involvement of NAPA, particularly Tracy Kinson, the NAPA Paducah store manager. Even the Operations Manager of the Paducah NAPA, was aware of the arrangement. Kinson agreed to run a business with Clement and Stamper, in which Kinson would receive an invoice for parts that Clement or Stamper had delivered to the McCracken County School Bus Garage. Kinson would, in turn, invoice the parts, with a standard markup, to the School Board. NAPA would then issue a check to Clement or Stamper for the wholesale value. Kinson testified that NAPA never delivered parts to the bus garage. NAPA's role was purely paperwork. KinsonClement's Brief at 22-23 (citations omitted). Essentially, Clement believes that the decision of the Commonwealth not to prosecute Kinson and other NAPA employees but to prosecute Clement amounts to selective prosecution.
admitted there was no mechanism in place to check to see if parts were being delivered.
Under the Commonwealth's theory, no parts were delivered to the bus garage. If the Commonwealth is correct, this scheme could not have been carried out without Kinson being a co-conspirator. Kinson was never charged in this conspiracy. No NAPA employee was charged in this conspiracy. Shockingly, Detective Simms admitted that he conducted no investigation into NAPA.
To prevail upon a claim of selective prosecution, the defendant must demonstrate that:
(1) others similarly situated have not been prosecuted; and (2) the prosecution's decision to prosecute was based on impermissible considerations, such as race, religion, political beliefs, or the desire to prevent the exercise of constitutional rights.8 Leslie W. Abramson, Kentucky Practice - Criminal Practice & Procedure § 12:103 (2012-2013 ed.). And, the defendant bears a heavy burden of proof as there is a presumption of good faith prosecution. Id.
In this case, Clement failed to demonstrate that the Commonwealth prosecuted him and not Kinson due to impermissible considerations, such as race or other arbitrary reasons. Additionally, we are not convinced that Clement and Kinson are similarly situated for selective prosecution purposes. We, thus, reject Clement's contention of selective prosecution.
Clement further contends that the circuit court committed reversible error by its admission of certain evidence during trial. In particular, Clement argues:
During the testimony of NAPA manager Jayson Roberts, the Commonwealth requested that Roberts review photographs of items found at Stamper's home. The court, over objection, allowed Jayson Roberts to testify to the after-market value of specific items found at Stamper's home. Trial Counsel objected to the testimony, preserving the issue for review. The objection was overruled. Roberts testified that these winches were very desirable and had a high after[-]market value. There was absolutely no testimony or evidence that Stamper or Clement actually sold or attempted to sell any items for profit.Clement's Brief at 15-16 (citations omitted.)
. . . .
There was no evidence offered that Clement or Stamper were selling parts purchased at the bus garage. The testimony did not prove or disprove any fact at issue. Further, the Commonwealth elicited this testimony to confuse the issue and mislead the jury. Such evidence was inadmissible pursuant to KRE 402 and KRE 403, resulting in reversible error.
When reviewing an evidentiary ruling, we initially determine whether the circuit court abused its discretion by admitting the evidence. If it did, we then determine whether the error is reversible, i.e., whether a reasonable possibility exists the outcome of the proceedings would be different absent the admission of such evidence. Crane v. Commonwealth, 726 S.W.2d 302 (Ky. 1987)
Upon consideration of Roberts' testimony and the evidence as a whole introduced at trial, we are unable to conclude that reversible error occurred by admission of the testimony of NAPA's manager. Simply put, we hold that a reasonable probability does not exist that Clement would have been acquitted of any of the crimes absent introduction of such testimony. Accordingly, we conclude the admission of the testimony did not constitute reversible error.
For the foregoing reasons, the final judgment of the McCracken Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Emily Ward Roark
Paducah, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky