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Hall v. Commonwealth

Supreme Court of Kentucky

March 22, 2018

CARLIS HALL APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM PERRY CIRCUIT COURT HONORABLE ALISON C. WELLS, JUDGE NO. 16-CR-00015

          COUNSEL FOR APPELLANTS: Susan Jackson Balliet Assistant Public Advocate.

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Lucas Assistant Attorney General.

          OPINION

          MINTON, CHIEF JUSTICE

         A circuit court jury convicted Carlis Hall of three misdemeanors (theft by unlawful taking, under $500; resisting arrest; and third-degree terroristic threatening) and four felonies (theft by unlawful taking, over $500 but less than $10, 000; first-degree fleeing or evading; and two counts of first-degree wanton endangerment), and recommended a sentence totaling 20 years' imprisonment (365 days for each of the misdemeanors to be concurrently run with each other and five years for each felony to be consecutively run).

         The trial court's final judgment imposed the recommended sentence and further imposed $50 of the fines recommended by the jury together with court costs and court facility fees. Hall now appeals the resulting judgment as a matter of right.[1]

         We reverse the judgment on three issues: (1) the imposition of the $50 fine; (2) the conviction for theft by unlawful taking, over $500 but less than $10, 000; and (3) the resisting arrest conviction. We affirm the remainder of the judgment and remand the case to the trial court for entry of a new judgment consistent with this opinion.

         I. FACTUAL BACKGROUND.

         The events culminating in Carlis Hall's multiple charges and convictions began when Walmart employees notified police that he fled the store without paying for a flashlight and drove away in an automobile.

         Officer Everidge located Hall in his automobile from the description given by Walmart and signaled for the driver to pull over. As Officer Everidge pulled . in behind the automobile, Hall emerged from it and ran. Officer Everidge pursued Hall on foot. Officer Maggard arrived at the scene and left her cruiser to join the chase. Hall made his way back to Officer Maggard's cruiser, got in, and closed and locked the door. Officer Everidge broke the window of the cruiser and reached through the broken window in attempt to grab Hall, but Hall managed to free himself and sped away in Officer Maggard's cruiser.

         Officer Everidge, joined by Officer Jones, attempted to pursue Hall in their police cruisers, reaching speeds of over 110 mph. Officer Everidge saw Hall turn onto a dirt road that led toward a strip mine before losing sight of him.

         The officers found the cruiser abandoned on a dirt road down in a gully. It appears from the record as though Hall possessed the cruiser for less than 30 minutes. Three days later, police found Hall and arrested him.

          II. ANALYSIS.

         A. Trial Court Erred When It Denied Hall's Motion for Directed Verdict on the Charge of First-Degree Theft by Unlawful Taking, Over $500 but Less Than $10, 000.

         Hall argues that the trial court erred when it denied his motion for directed verdict on the charge of first-degree theft by unlawful taking, over $500 but less than $10, 000. At the close of all the evidence, Hall moved for directed verdict on the charge and specifically argued that the Commonwealth failed to prove he intended to deprive the police department of its cruiser. The motion properly preserves this issue for appellate review.

         "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal."[2] So we shall only overturn the trial court's denial of Hall's motion for directed verdict if it was clearly unreasonable for the jury to find guilt in Hall for this charge. Hall argues that no proof existed as to his intent to deprive, and thus the trial court should have granted his motion for directed verdict on this charge.

         Hall also argues that the trial court erred when it refused to instruct the jury on the charge of unauthorized use of a motor vehicle, a lesser-included offense of first-degree theft by unlawful taking. Because we conclude that the trial court should have granted Hall's motion for directed verdict, we need not reach this issue.

         Hall's argument implicates a larger issue surrounding KRS 514.030(1)(a) and 514.010(1)-specifically, the meaning of intent to deprive under the first definition of deprive given in KRS 514.010(1)(a), i.e. possessing the intent to withhold property of another permanently. KRS 514.030(1)(a) states, "[A] person is guilty of theft by unlawful taking or disposition when he unlawfully: Takes or exercises control over movable property of another with intent to deprive him thereof."[3] KRS 514.010(1) defines Deprive to mean: "(a) To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value or with intent to restore only upon payment of reward or other compensation; or (b) to dispose of the property so as to make it unlikely that the owner will recover it."

         Regarding the trial court's denial of Hall's directed verdict motion on his theft charge, Hall argues that no proof existed to show he had an intent to deprive the officers of their cruiser. Notably, this issue rests on what exactly intent to deprive means.

         To start, KRS 514.010(1) provides four definitions of deprive: 1) to withhold property of another permanently;[4] 2) to withhold property for so extended a period as to appropriate a major portion of its economic value;[5] 3) to withhold property with intent to restore it only upon payment of reward or other compensation;[6] or. 4) to dispose of the property so as to make it unlikely that the owner will recover it[7]. We must determine the applicability of each of these definitions to the facts of this case to determine the correct result in this case. As a matter of clarification, per the statutory language, we are determining whether Hall had the intent to deprive, not simply whether Hall actually deprived the police of the cruiser.

         We shall begin by addressing intent to deprive under the third definition of deprive, because it clearly does not apply in this case. No evidence exists that Hall intended to withhold the cruiser from the police until he received some sort of payment of reward or other compensation. The same is true of intent to deprive under the second definition of deprive: No evidence exists that Hall intended to withhold property for so extended a period as to appropriate a major portion of its economic value.

         Intent to deprive under the fourth definition of deprive warrants some discussion. Recall that Hall disposed of the police cruiser in the middle of a road, albeit on a dirt road off the beaten path, while being chased by officers. Absent any evidence of irrational thinking or incapacitation, Hall had to have known that the police were following close behind. And, recall that Hall took a police cruiser, not a random civilian vehicle. No rational or reasonable jury could say that, based on the facts of this case, Hall had the intent to dispose of the police cruiser so as to make it unlikely that the police would ever find it.

         Intent to deprive under the first definition of deprive provides the source of most debate in this case: Did Hall have the intent to withhold the police cruiser permanently? At first glance, one could say that, by abandoning the police cruiser, Hall relinquished possession of the police cruiser, and therefore did not withhold the property of Hall permanently. But this reading of this first definition of deprive mischaracterizes withhold. While previous cases have dealt with this issue, a review of those cases exposes this Court's lack of clarity on the meaning of intent to withhold the property of another permanently.[8] We shall attempt to provide that clarity today.

         To interpret correctly intent to withhold property of another permanently is to say that the defendant intends that the property never be restored to its rightful owner, where intent can be inferred from facts and circumstances[9]. A defendant does not need to maintain actual possession over the taken property at all times after taking the property-a defendant can possess the intent to withhold property of another permanently if evidence exists showing that the defendant intended that the rightful owner never exert actual possession over the property again. In other words, as long as evidence exists supporting the assertion that the defendant intended that the property never be restored to its rightful owner, the defendant need not maintain constant actual possession of the property to be said to have the intent to withhold property of another permanently.

         A defendant can have the intent to withhold property of another permanently even if the defendant abandons the property. The abandonment of property, rather than the restoration of the property to its rightful owner, means that the defendant is still preventing the owner from exerting actual possession over the property, i.e. the defendant is withholding the property from the rightful owner. But abandonment does not always mean that the defendant possesses the intent to withhold property of another permanently, because evidence could show that the defendant abandoned property with the intent that the property be restored to the rightful owner.[10]

         The question we must answer is whether, based on the evidence presented in this case, Hall intended that the police cruiser never be restored to its rightful owner. We think that no rational or reasonable jury can find this to be true.

         It is true that, based on the rules of law espoused in Waddell[11], Byrd[12], and Caldwell[13], this Court should uphold the trial court's denial of Hall's motion for directed verdict and refusal to give the jury a lesser-included jury instruction of unauthorized use of an automobile. But absent a claim by the Commonwealth, with evidence to support that claim, that the defendant truly intended to prevent police from ever recovering the police cruiser, we cannot say that Hall intended that the police cruiser never be restored to the police. No rational person would think that an individual who uses a police cruiser as a getaway car and who abandons that police cruiser in the middle of a road, knowing that police are following close behind, intends that the police cruiser never again be restored to the police. Instead, we think that Hall was simply trying to evade the police.

         As a matter of clarification, the totality of the circumstances of this case supports the conclusion that Hall did not have the requisite intent to withhold under either the first or fourth definitions of such phrase to be convicted of theft by unlawful taking. Some of the facts supporting our conclusion include: the taking of a marked police cruiser, not a civilian vehicle; the entirety of Hall's resisting of arrest and his protracted flight from the police, beginning with the failed attempt to apprehend Hall at Walmart and the chase that continued throughout the night; and Hall's sudden abandonment of the cruiser in the roadway with police in hot pursuit.

         The dissent disputes the conclusion that the evidence adduced at trial fails to show that Hall had the requisite intent to deprive the police of their cruiser, suggesting instead that sufficient evidence of intent to deprive under the first and fourth definitions of that phrase in KRS 514.010(1)(a) and (b) exists to create a submissible jury issue on the charge of theft by unlawful taking.

         The dissent's argument here relies on the incorrect assertion that the majority's conclusion of a failure of proof on intent to deprive rests exclusively on Hall's abandonment of the cruiser and the police's subsequent quick discovery of it. In truth, the conclusion is based on the totality of the evidence adduced at trial.

         The dissent cites Lawson to support its position. This attempted comparison does not help in resolving the present case, not only because of the significant factual differences, but also because the Lawson court did not have the benefit of the articulated standard for intent to deprive that we have provided today, calling into question the reasoning in Lawson.

         Simply put, we are confined by the facts before us in the present case. And the dissent has failed to identify any of those facts that it would use to convict Hall of theft by unlawful taking. Instead, the dissent theorizes about Hall's intent based on conjecture and speculation, lacking facts to bolster its theory as to Hall's intent. But no reasonable jury based on the totality of the facts and circumstances presented in the present case could find Hall guilty of theft by unlawful taking under any definition of intent to deprive. Without any specific fact indicating that Hall had an affirmative intention to permanently deprive the police of their cruiser, the totality of circumstances establishes, at most, that Hall was indifferent to the restoration of the car to its owner-indifference does not equate to intent.

         Under the meaning of intent to withhold property of another permanently as we have provided in this case, we overrule any past precedent only to the extent that its analysis conflicts with this meaning. In general, as cases like Waddell, Byrd, Lawson, and Caldwell have held, the taking and abandoning of property could allow the jury to infer that the defendant had the intent to withhold permanently the victim's property from the victim, i.e. intending that the property never be restored to the true owner. If the facts of the case support this inference because they are factually analogous to past cases, then a trial court would not err in denying a defendant's motion for a directed verdict or refusing to give a lesser-included offense jury instruction. But this is not to equate abandonment of property with intending to withhold it-a. defendant could abandon property with the intent that it be returned to the rightful owner.

         In this case, based on these specific facts, we conclude that no reasonable juror would think that a defendant who uses a police cruiser to flee from police, then abandons it in the middle of the road with the police in hot pursuit, intends that the property not be restored to the police. We conclude that the trial court erred by denying Hall's motion for directed verdict on the theft charge, so we reverse this conviction. And by so doing, we render moot Hall's argument that the trial court should have granted his request for a lesser-included offense instruction for unauthorized use of an automobile.[14]

         B. The Trial Court Properly Denied Hall's Motion for Directed Verdict on the Charges of First-Degree Wanton Endangerment.

         Hall argues that the trial court erred when it denied his motion for directed verdict on the charges of wanton endangerment of Officer Everidge, specifically because the Commonwealth raised insufficient evidence of danger of serious physical injury or death. This issue is preserved by virtue of Hall's motion. We shall only overturn the trial court's denial of Hall's motion for directed verdict if it was clearly unreasonable for the jury to find guilt in Hall for this charge.

         KRS 508.060(1) states, "A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person." KRS 500.080(15) defines serious physical injury to mean "physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ."

         Without question, a reasonable jury could conclude that Officer Everidge could have been seriously injured under the circumstances. Recall that Everidge attempted to subdue Hall from outside the Officer Maggard's cruiser while Hall remained inside, driving away during Everidge's attempt. Everidge could have easily been caught in some way with his arms inside the cruiser, or could have been run over by the cruiser, so as to cause serious physical injury to him. Thus, because it was not unreasonable for the jury to find Hall guilty on the charge of first-degree wanton endangerment to Officer Everidge, we affirm the trial court's denial of Hall's motion for directed verdict on this issue.

         C. Trial Court Did Not Err by Refusing to Admonish the Jury on Comments Made by Prosecutor During Prosecutor's Closing Argument.

         Hall argues that the Commonwealth committed prosecutorial misconduct during its closing argument by making inappropriate comments. During the Commonwealth's closing argument, Hall asked for an admonition, but the trial court denied the request. This request sufficiently preserves this issue for review.

         Specifically, Hall takes issue with the Commonwealth in the following ways:

(1) the Commonwealth stated the defense made a "surreal, philosophical invitation to guess" argument and that the defense told the jury an "untruth" regarding the theft of the police cruiser;
(2) the Commonwealth vouched for the police witnesses, and conveyed unity between the Commonwealth and police, stating, "We want you to realize how we view these cases, as the Commonwealth, how the officers look at these cases as well. This is a common-sense approach in prosecution by the officers and this office."; and
(3) the Commonwealth urged the jury to "return a meaningful verdict, " which, the Commonwealth conveyed, would be a verdict that showed the jury's respect for the police, in addition to the Commonwealth stating, "These officers are honorable men and women.... Let's return a verdict that respects that."

         "Prosecutorial misconduct is a 'prosecutor's improper or illegal act involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment, "'[15] which includes making improper comments during closing arguments.[16] Closing arguments are not evidence, and prosecutors are given "wide latitude" during closing arguments.[17] So reversal is warranted "only if the misconduct is flagrant', or if each of the following three conditions is satisfied: (1) proof of defendant's guilt is not overwhelming; (2) defense counsel objected; and (3) the trial court failed to cure the error with a sufficient admonishment to the jury."[18]

         Hall argues the satisfaction of the Matkeney factors regarding two of Hall's charges, theft by unlawful taking, over $500 and under $10, 000, and first-degree wanton endangerment of Officer Everidge. However, because we have already reversed and vacated Hall's theft by unlawful taking, over $500 and under $10, 000, charge, we need ...


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