APPELLANT v. JOEIE WATTS APPELLEE

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Court of Appeals of Kentucky.

Commonwealth of Kentucky APPELLANT v. JOEIE WATTS APPELLEE

NO. 2012–CA–000912–MR

Decided: May 24, 2013

BEFORE:  ACREE, CHIEF JUDGE;  DIXON AND THOMPSON, JUDGES. BRIEFS FOR APPELLANT:  Jack Conway Attorney General Jeanne Anderson Assistant Attorney General Frankfort, Kentucky David Smith Richmond, Kentucky BRIEF FOR APPELLEE:  Jimmy Dale Williams Richmond, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING IN PART, REVERSING IN PART,AND REMANDING

The Commonwealth of Kentucky appeals a Madison Circuit Court order suppressing evidence pursuant to Kentucky Rules of Evidence (KRE) 403 and KRE 404(b).  We agree with the circuit court's determination that the probative value of the evidence relating to Joeie Watts's alleged drug use, purchase, and financial ability to support her habit was outweighed by its prejudicial effect.   However, testimony regarding Watts's possession of wrapped bank bills is relevant and not unduly prejudicial.   We affirm in part and reverse in part and remand for proceedings consistent with this opinion.

Watts was indicted on December 30, 2008, for theft by unlawful taking.   Watts was alleged to have stolen $170,000 from the People's Bank of Madison County where she was employed as head teller.   The Commonwealth noticed its intent to present evidence that Watts used the money to support a drug habit.   To this end, the Commonwealth sought to present three witnesses who would testify regarding Watts's alleged drug use and, in particular, the fact that she paid in new bills often bound by a rubber band used by the bank.   It also intended to present evidence that Watts did not have the means to support her habit and, therefore, had to steal.   Pursuant to KRE 404(c), the Commonwealth gave notice of its intent to present the evidence and Watts responded with motions for protective orders to suppress the evidence.

On April 18, 2012, the court heard the testimony from three witnesses and determined that their testimony must be excluded from trial.   During the hearing, the circuit court judge explained that, although relevant to motive, their testimony should be excluded because its prejudicial effect outweighed its relevance.   The Commonwealth appeals asserting that the basis of the court's exclusion was not supported by the law.

We review the trial court's decision to suppress the evidence for abuse of discretion.  Commonwealth v. English, 995 S.W.2d 941, 945 (Ky.1999).  “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”   Id. However, issues of law are reviewed de novo.  Id.

Character evidence is admissible to prove motive.  KRE 404(b)(1).   Evidence of drug abuse, along with evidence of insufficient funds to support a drug habit, are relevant to Watts's motive.   Caudill v. Commonwealth, 120 S.W.3d 635 (Ky.2003);  Adkins v. Commonwealth, 96 S.W.3d 779 (Ky.2003).   Thus, the circuit court correctly determined that the evidence was relevant.   However, the court also determined that the evidence was unduly prejudicial and would result in prejudice and confusion of the issues in violation of KRE 403.   “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury․”  In this case, the quality and nature of the testimony is extremely prejudicial and the court did not abuse its discretion in determining that the evidence regarding Watts's alleged drug use would cause confusion and outweigh its relevance.

However, the testimony as it relates to possession of wrapped bank bills, without reference to drugs or Watts's ability to support her habit financially, is directly relevant to the charged crime and does not run the risk of confusing the jury.   The circuit court should admit the testimony only as it relates to possession of the wrapped bank bills, but exclude any testimony regarding the context in which the bills were seen, Watts's drug use, or her financial inability to support her habit.

For the reasons set forth above, the decision of the circuit court is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

dixon, judge, concurs in result only and joins in concurring in result only opinion with chief judge acree.

ACREE, CHIEF JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION.

ACREE, CHIEF JUDGE, CONCURRING IN RESULT ONLY:  I concur with the majority opinion in result, but I write separately because I do not agree with the majority's statement that “the testimony [regarding Watt's drug use and purchases] is extremely prejudicial.”   In fact, if this were a de novo review, I might very well find that the probative value of the evidence was not substantially outweighed by its prejudicial effect.   On this question, however, my vantage point is inferior to that of the trial court, which is why this Court does not undertake a de novo review, but only considers whether the trial court abused its discretion in excluding the evidence.   Therefore, with regard to the evidence of Watts's drug use and purchase of drugs, I cannot say that such discretion was abused.

I concur unreservedly with the majority's holding that evidence of Watts's possession of new currency in bank wrappers outside the bank was admissible.

THOMPSON, JUDGE: