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Sykes v. Commonwealth

Court of Appeals of Kentucky

June 8, 2018



          BRIEF FOR APPELLANT: Steven J. Buck Assistant Public Advocate Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Stephen F. Wilson Assistant Attorney General Frankfort, Kentucky



          LAMBERT, J., JUDGE.

         Jonathan Tyler Sykes has directly appealed from the portion of the Fayette Circuit Court's judgment convicting him of carrying a concealed deadly weapon. He contends that the Commonwealth failed in its burden to prove that the weapon was concealed. We affirm.

         Sykes was arrested by Lexington Police Officer Blake Leathers on May 7, 2016, and charged with carrying a concealed deadly weapon, trafficking in marijuana less than 8 ounces second offense, resisting arrest, and possession of drug paraphernalia. The officer described the circumstances preceding the arrest as follows:

Officers were dispatched to listed area [Robertson Street at Speigle Street] in reference to a shots fired call. On arrival I observed the listed vehicle [a 2009 white Impala] running on the side of the road. I approached the vehicle & the subj rolled down the window & I smelled a very strong odor of burnt marijuana coming from inside the vehicle. I ordered the subj out of the vehicle. Once out of the vehicle the subject raised his arms & ofcs observed a concealed firearm in his waistband. While attempting to arrest the subj he began resisting & pulling away. Ofcs searched the veh. and located approximately 3.273 ounces of susp marijuana. Ofcs also located a cigarillo & a blunt roller. An additional firearm was located in the trunk. Subj had over $3, 000 in cash on his person & the marijuana was in industrial sealed packaging.

         The Fayette County grand jury indicted him on the same charges in a four-count indictment in August 2016, and Sykes entered a plea of not guilty.

         The matter was tried before a jury in March 2017. Detective Leathers of the Lexington Police Department testified that in May 2016, he was serving as a patrol officer on the west side of Lexington in the Versailles Road area. On the evening of May 7, 2016, he was dispatched with his beat partner, Officer (now Detective) Matt Laney, to 400 Robertson Street. He described seeing and approaching Sykes' vehicle, his attempts to get Sykes' attention, the marijuana odor emanating from the vehicle once Sykes opened the window, and getting Sykes to exit the vehicle. Once he exited the vehicle, Sykes became angry and started yelling. Sykes raised both of his hands in the air, at which time Detective Laney observed a firearm in his waistband and reached out to retrieve it. Later, Detective Leathers confirmed that "once his shirt came up over the gun, " the firearm became apparent.

         Detective Leathers grabbed Sykes' hands to handcuff him, and Sykes began to resist. Sykes was not compliant as they were trying to handcuff him and retrieve the firearm. Once the firearm was secured, and the officers had handcuffed Sykes, they informed Sykes of his rights and performed a search. Detective Leathers found in excess of $3, 000.00 in cash in different denominations in Sykes' pocket. The semi-automatic handgun the officers retrieved from Sykes' waistband had nine live rounds in it, with one in the chamber. Other items Detective Leathers seized included multiple cell phones, suspected marijuana, a blunt, and a cigarillo.

         Detective Laney testified in conformity with Detective Leathers' version of the events. He saw the firearm in Sykes' waistband when he raised his second arm after he had exited the car (he was still talking on his cell phone with his other hand). Detective Laney immediately retrieved the weapon and removed the ammunition, and he seized several items of evidence from his search of the interior and trunk of Sykes' vehicle.

         At the conclusion of the testimony, the court denied Sykes' motion for a directed verdict, and the matter proceeded to the jury after closing arguments. The jury returned a verdict finding Sykes guilty of carrying a concealed deadly weapon under Count 2, not guilty of resisting arrest under Count 3, and guilty of possession of drug paraphernalia under Count 4. The jury was hung on the trafficking in marijuana charge under Count 1, and the parties reached an agreement related to that charge. Pursuant to that agreement, Sykes moved to enter an Alford plea[1] on an amended charge of criminal attempt to trafficking in marijuana, less than 8 ounces, second offense. Sykes waived sentencing by the jury, and the court fixed his sentences at twelve months on Counts 1 and 2, and seven days on Count 4. The court ordered the forfeiture of items seized. By agreement of the parties, the forfeited items included the firearms, ammunition, drugs, and drug paraphernalia. The cash was to be returned to Sykes.

         The court held a sentencing hearing the following month and entered a final judgment and sentence of probation on May 2, 2017. The court imposed a twelve-month concurrent sentence for the charges on which Sykes was convicted and placed him on ...

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