Released for Publication September 11, 2014.
ON APPEAL FROM JESSAMINE CIRCUIT COURT. HONORABLE C. HUNTER DAUGHERTY, JUDGE. NO. 10-CR-00277-01.
FOR APPELLANT: Molly Mattingly, Assistant Public Advocate.
FOR APPELLEE: Jack Conway, Attorney General of Kentucky; Gregory C. Fuchs, Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE ABRAMSON. All sitting. All concur.
Joseph Wilson appeals as a matter of right from a judgment of the Jessamine Circuit Court sentencing him to twenty-five years in prison for first-degree burglary, three counts of theft by unlawful taking of a firearm (principal or accomplice), and one count of theft by unlawful taking of property valued at $500.00 or more (principal or accomplice). Wilson raises eight issues on appeal, the first being that his convictions on three separate counts of theft by unlawful taking of a firearm violated Double Jeopardy. He also alleges that the trial court erred (1) by allowing a witness to offer hearsay evidence concerning the value of the stolen items; (2) in denying a directed verdict on the first-degree burglary charge; (3) by allowing admission of a recorded phone conversation undisclosed to defense counsel; (4) by admitting evidence relating to domestic violence orders entered against him; and (5) by admitting evidence of Wilson's alleged " flights" from law enforcement officers. Wilson further alleges the Commonwealth committed numerous Moss violations during examination of a critical witness and engaged in prosecutorial misconduct during closing argument. Having reviewed the record, we reverse the judgment of the Jessamine Circuit Court and remand for further proceedings.
Upon returning to his Nicholasville, Kentucky home around noon on August 31, 2010, Brian Stephens encountered a green sports utility vehicle (" SUV" ) traveling down his driveway at a high rate of speed. Stephens observed two individuals in the SUV as he attempted to block its path with his truck. The SUV drove around Stephens's truck and through a drainage ditch before speeding down the adjacent highway. When Stephens entered his home he noticed that the back door to the garage was damaged and his alarm system was activated. Stephens immediately called the police. After walking through the home with police officers, Stephens reported a number of items as stolen including a locked steel box containing three handguns, a basket containing pieces of jewelry, and an antique door key. Stephens's wife later discovered that a jewelry box containing several pieces of her jewelry was also missing from the home.
Stephens reported the green SUV's license plate number to officers who discovered that the vehicle was registered to Nicholasville resident Sarah Workman. Upon arriving at Workman's house, a standoff ensued between members of the police department's Special Response Team and Workman's boyfriend, Joseph " Jody" Wilson. Six hours later, Wilson surrendered to officers as they entered the home. Wilson was later identified by Stephens from a photo array as the driver of the green SUV seen fleeing the crime scene. The stolen items were never found.
The subsequent investigation connected Wilson and his friend Teddy Kidwell to the burglary. Kidwell testified at trial that he and Wilson were performing work on Wilson's car on the morning of August 31 when Wilson asked Kidwell to get in his SUV. Kidwell complied, although he denied
knowing where Wilson intended to take him. According to Kidwell, Wilson drove to a house at the end of a long gravel driveway, exited the vehicle, and informed Kidwell that he would be back in a few minutes after he " collected some money." Approximately four minutes later, Wilson returned with a dark bag which he placed in the back of the SUV. Kidwell testified that the bag made a " chinging" sound as it was deposited in the vehicle.
Wilson was charged with one count of first-degree burglary, three counts of theft by unlawful taking of a firearm, and one count of theft by unlawful taking of property having a value of $500.00 or more. He was also charged with being a persistent felony offender (" PFO" ) in the first degree. A Jessamine County jury found Wilson guilty of the charged offenses and recommended a sentence of ten years enhanced to twenty-five years for the first-degree burglary charge, and two years enhanced to ten years for each of the four theft by unlawful taking charges. The jury further recommended that the sentences be served concurrently, and the trial court sentenced Wilson accordingly to twenty-five years in prison. Because ...