FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL,
JUDGE ACTION NO. 17-CR-00480
FOR APPELLANT: Adam Meyer Assistant Public Advocate
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Kristin L. Conder Assistant Attorney General Frankfort,
BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES.
Glenn Kyle appeals from the judgment of the Fayette Circuit
Court convicting him of theft by unlawful taking (over $500).
He received a sentence of five years' imprisonment, which
was enhanced to eighteen years by virtue of his status as a
persistent felony offender in the first degree. Upon review,
October 19, 2016, Kyle entered Visionworks, an eyewear store
in Lexington, approached the men's glasses racks opposite
the door, and began slowly walking down the racks toward the
door. The store manager, Lisa Conyers, became suspicious of
Kyle and noticed some of the men's frames were missing
from the racks. Ms. Conyers approached Kyle from behind to
ask if she could help him. Startled, Kyle turned around and
answered, "No, thank you, young lady. I'm
fine." Then, Ms. Conyers noticed the entire row of
sunglasses in front of Kyle and part of another row were
missing. Kyle was wearing a button-down shirt and Ms. Conyers
indicated he had his hand inside his shirt. Ms. Conyers
backed away to give him a chance to return the frames, and
Kyle exited the store. Multiple frames were missing from
their racks after Kyle left, and he had been the only one
Conyers followed Kyle out of the store and watched him get
into a white Toyota parked and running with someone in the
driver's seat. Ms. Conyers wrote down the license plate
number and called the police to report the theft. Then, she
filled out a theft report, which included a list of the
missing frames, the value of each frame, a description of
Kyle, and the license plate number. She noted the total value
of the stolen frames was approximately $3,500.
Stephanie McClain-Ward of the Lexington Police Department was
assigned to the case. The only information she had at the
beginning of her investigation was a description of the
subject and the license plate number of 432 LRN. The
detective discovered the owner of the vehicle was Kyle's
mother, Barbara Lee Prater. Based on this information,
Detective McClain-Ward developed Kyle as a suspect and
requested a photo lineup of Kyle and individuals who
resembled him. The detective presented the photos to Ms.
Conyers who did not select Kyle from the lineup.
March 9, 2017, Ms. Conyers was working near the front of
Visionworks with her back to the door. The door opened, and
Ms. Conyers said, "excuse me." The man behind her
replied, "Oh, excuse me, young lady," and Ms.
Conyers immediately recognized Kyle's voice. When she
turned around, she knew it was the same man who had stolen
frames from the store in October based on his voice, build,
and essentially everything about him. Ms. Conyers instructed
another employee to follow Kyle as he walked around the
store. Positive he was the same man who stole the frames, Ms.
Conyers took a photograph of Kyle on her phone as he walked
to the front of the store. Ms. Conyers emailed the photograph
to Detective McClain-Ward who compared the photo to
Kyle's driver's license photo. The detective then
submitted a criminal complaint and successfully sought a
warrant for Kyle's arrest.
McClain-Ward conducted additional investigation concerning
the vehicle, which revealed another theft case involving the
vehicle and Kyle at a Kroger supermarket. The Commonwealth
sought to introduce evidence of the Kroger theft to prove
Kyle's identity and motive. Kyle objected, and the trial
court permitted the Commonwealth to present evidence of the
Kroger theft for the sole purpose of proving Kyle's
was initially tried on June 19, 2018, but the trial ended in
a hung jury. Kyle's case was retried on July 9, 2018. The
jury found Kyle guilty of theft by unlawful taking (over
$500) and being a persistent felony offender in the first
degree. The trial court sentenced him to eighteen years'
imprisonment. This appeal followed.
appeal, Kyle argues the trial court (1) erred in permitting
the Commonwealth to present evidence in violation of
404(b); (2) erred in denying his motions for directed
verdict; and (3) erred in failing to instruct the jury on the
lesser-included offense of theft by unlawful taking (under
Kyle argues the trial court erroneously permitted the
Commonwealth to present unduly prejudicial propensity
evidence of his history of shoplifting and propensity for
violence in violation of KRE 404(b). Kyle does not contest
the trial court's ruling permitting evidence of the
Kroger theft to prove his identity. Instead, he argues the
trial court permitted the Commonwealth to use the Kroger
theft as a vehicle to present ...