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Kyle v. Commonwealth

Court of Appeals of Kentucky

June 14, 2019

MICHAEL GLENN KYLE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 17-CR-00480

          BRIEFS FOR APPELLANT: Adam Meyer Assistant Public Advocate Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Kristin L. Conder Assistant Attorney General Frankfort, Kentucky

          BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES.

          OPINION

          LAMBERT, JUDGE.

         Michael 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, we affirm.

         On 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 near them.

         Ms. 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.

         Detective 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.

         On 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.

         Detective 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 identity.

         Kyle 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.

         On appeal, Kyle argues the trial court (1) erred in permitting the Commonwealth to present evidence in violation of KRE[1] 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 $500).

         First, 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 ...


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