Com. v. Jones, No. 2006-SC-000650-DG.

• Decision Date: 19 February 2009
• Docket Number: No. 2006-SC-000650-DG.
• Citation: 283 S.W.3d 665
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Bobby A. JONES, Appellee.
• Court: United States State Supreme Court — District of Kentucky

283 S.W.3d 665

COMMONWEALTH of Kentucky, Appellant, v. Bobby A. JONES, Appellee.

No. 2006-SC-000650-DG.

Supreme Court of Kentucky.

February 19, 2009.

Rehearing Denied June 25, 2009.

Jack Conway, Attorney General, Jeffrey Allan Cross, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Appellant.

Jamesa J. Drake, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice ABRAMSON.

By Judgment entered April 26, 2004, the Montgomery Circuit Court convicted Bobby Jones of Possession of a Firearm by a convicted Felon and sentenced him in accord with the jury's recommendation to three years and six months in prison. Holding that the Commonwealth had failed to prove an element of the offense—the operability of the firearm—the Court of Appeals reversed. We granted the Commonwealth's motion for discretionary review to consider whether the Court of Appeals correctly applied the palpable error standard of review.

RELEVANT FACTS

A person is guilty of possession of a firearm by a convicted felon

when he possesses ... a firearm when he has been convicted of a felony, as defined by the laws of the jurisdiction in which he was convicted, in any state or federal court and has not:

(a) Been granted a full pardon by the Governor or by the President of the United States;

(b) Been granted relief by the United States Secretary of the Treasury pursuant to the Federal Gun Control Act of 1968, as amended.

KRS 527.040(1). "Firearm," for the purposes of this statute, "means any weapon which will expel a projectile by the action of an explosive." KRS 527.010(4). At trial, the Commonwealth established that in 1995 Jones was convicted of first-degree criminal mischief, a class-D felony (KRS 512.020), and that in April 2003 he pawned a Ruger .22 caliber rifle at a Mt. Sterling pawn shop. Jones testified in his defense and admitted pawning the rifle for $80.00, but claimed that he was under the impression that his 1995 conviction had been for a misdemeanor and thus did not bar his possession of the gun. There was no testimony concerning whether the rifle could be fired, and the jury instructions, which closely followed the pattern instruction in Cooper and Cetrulo, Kentucky Instructions to Juries, § 8.605th ed. (2006), neither defined the term "firearm" nor required a finding that the rifle was operational. The Court of Appeals ruled that even if Jones had not properly preserved the sufficiency-of-the-evidence issue at trial, the lack of proof that the rifle was a working "firearm" for statutory purposes rendered his conviction manifestly unjust and subject to review under RCr 10.26 for palpable error. The Commonwealth challenges that result on several grounds.

ANALYSIS

We may begin our analysis by reiterating the well established rule that, where a sufficiency-of-the-evidence challenge has been preserved in the trial court, the question on appeal is whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991). Cf. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Fourteenth Amendment guarantees that "no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense."). One may forfeit even one's most basic rights, however, by failing to assert them in a timely manner, United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citing Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944)), and accordingly we have several times observed that where a sufficiency-of-the-evidence challenge was not properly preserved at trial, the issue is subject to review on appeal not under the Benham standard, but under the palpable error standard of RCr 10.26. Potts v. Commonwealth, 172 S.W.3d 345 (Ky.2005) (collecting cases). Under that rule, an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." An error is "palpable," we have explained, only if it is clear or plain under current law, Brewer v. Commonwealth, 206 S.W.3d 343 (Ky.2006), and in general a palpable error "affects the substantial rights of a party" only if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky.2005). But see United States v. Olano, 507 U.S. at 735, 113 S.Ct. 1770 (discussing the federal "plain error" standard and noting, without deciding, that there may be forfeited errors so fundamental that they "can be corrected regardless of their effect on the outcome."). An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.2006).

The Commonwealth contends that the Court of Appeals misapplied this palpable error standard to what was not an error to begin with, or, if an error, not one that resulted in manifest injustice. The Commonwealth also asserts that Jones's trial counsel waived (as opposed to forfeited) the sufficiency-of-the-evidence issue, thus precluding its consideration on appeal, and that Jones's appellate counsel waived palpable error review in the Court of Appeals by not requesting it until his reply brief. These contentions have little merit and need not long detain us. Jones, for his part, contends that trial counsel adequately preserved the sufficiency-of-the-evidence issue. He thus suggests that review under the Benham standard would have been appropriate. This contention, too, is meritless. We shall briefly address these preservation issues before considering the real thrust of the Commonwealth's appeal, which is the Court of Appeals' application of the palpable error standard.

I. The Court of Appeals Did Not Err By Addressing The Question Of Palpable Error.

A. Jones Did Not Waive Palpable Error Review.

It appears that Jones's case was the assistant Commonwealth attorney's first trial. At the conclusion of the Commonwealth's proof, Jones's counsel moved summarily for a directed verdict and as grounds jocularly asserted that the Commonwealth's new attorney had "totally and abysmally failed to prove his case." The trial court denied this motion, which counsel renewed, again summarily, after Jones had testified. The Commonwealth then offered rebuttal testimony, after which Jones failed even summarily to renew his motion for directed verdict. The Commonwealth asserts that the jocular manner in which Jones's counsel lodged his initial motion indicates that the motion was not sincere, but was rather an implicit waiver of any challenge to the sufficiency of the Commonwealth's proof. We disagree. Counsel does not waive his client's rights merely because he asserts them cordially. Even were it thought that counsel's manner created some doubt about his intentions with respect to the initial motion, moreover, his renewal of the motion at the conclusion of the defense case clearly indicates that he intended to preserve the sufficiency issue for appeal.

B. The Court Of Appeals Correctly Assumed That The Sufficiency-Of-The-Evidence Issue Was Not Properly Preserved.

Whether his efforts sufficed for that purpose is another matter. The Court of Appeals assumed without deciding that they did not suffice and passed directly to its consideration of palpable error. Jones suggests that the Court of Appeals' deferral of the preservation issue leaves the door open for us to affirm that Court's ruling under the Benham standard. We disagree, for the Court of Appeals' assumption was clearly correct.

As we have many times held, to preserve an error based upon the insufficiency of the evidence the defendant must move for a directed verdict¹ at the close of the Commonwealth's proof and must renew his motion at the close of all evidence: at the end of the defense case (if there is one), or, if there is rebuttal evidence, as there was in this case, at the conclusion of rebuttal. Schoenbachler v. Commonwealth, 95 S.W.3d 830 (Ky.2003). We have also held that the motion must state specific grounds for relief and should identify which elements of the alleged offense the Commonwealth has failed to prove. Merely moving summarily for a directed verdict or making a general assertion of insufficient evidence is not enough. Gibbs v. Commonwealth, 208 S.W.3d 848 (Ky.2006); Potts v. Commonwealth, supra. Here, counsel's summary motions did not satisfy this specificity requirement, and he failed to renew his motion after rebuttal, at the close of all evidence. The Court of Appeals, therefore, correctly assumed that Jones failed to preserve the sufficiency-of-the-evidence issue and properly directed its attention to the question of palpable error.

C. Jones's...